text
stringlengths 1
1.21M
| meta
dict |
|---|---|
133 F.3d 1343
98 CJ C.A.R. 627
UNITED STATES of America, Plaintiff-Appellee,v.Michael W. TRAMMELL, Defendant-Appellant.
No. 97-3045.
United States Court of Appeals,Tenth Circuit.
Jan. 12, 1998.
Steven K. Gradert, Assistant Federal Public Defender (David J. Phillips, Federal Public Defender, with him on the brief), Wichita, KS, for the appellant.
Stephen K. Lester, Assistant United States Attorney (Jackie N. Williams, United States Attorney, and Richard L. Schodorf, Assistant United States Attorney, with him on the brief), Wichita, KS, for the appellee.
Before TACHA, McKAY, and BRISCOE, Circuit Judges.
BRISCOE, Circuit Judge.
1
Michael W. Trammell appeals his convictions for two counts of mail fraud, in violation of 18 U.S.C. § 1341, one count of wire fraud, in violation of 18 U.S.C. § 1343, and two counts of money laundering, in violation of 18 U.S.C. § 1957. He also challenges the district court's enhancement of his sentence for abusing a position of trust pursuant to U.S.S.G. § 3B1.3. We exercise jurisdiction under 28 U.S.C. § 1291, and affirm his convictions and his sentence.
I.
2
This case involves Trammell's misappropriation of investors' funds. Trammell, a licensed insurance agent who operated under the corporate name of Senior Insurance Strategies, Inc., solicited funds from investors under the guise of selling annuities issued by American Investors Life Insurance Company, Inc., and Financial Benefit Life Insurance Company. In reality, Trammell used all but $100,000 of the funds for unrelated personal and business expenses. His contract with American Investors required that he instruct investors to make checks payable directly to the insurance company instead of to the agent or the agent's company. American Investors terminated its contract with Trammell on February 7, 1991, because he failed to follow this policy. Trammell then entered into an agent agreement with Financial Benefit on March 6, 1991. This agreement also required that Trammell instruct investors to make checks payable directly to the company.
3
On December 14, 1990, Leslie Oberhelman gave Trammell three checks payable to Senior Insurance Strategies, totaling $200,000, for American Investors annuities. Trammell forwarded Oberhelman's completed annuity applications to American Investors, but did not include the associated $200,000 premium. American Investors wrote to Trammell on three occasions asking him to forward the funds so that the annuity applications could be processed. Finally, on January 30, 1991, American Investors wrote a letter to Oberhelman's daughter, the proposed annuitant, informing her premiums had not been received and the company was closing its file.
4
On March 19, 1991, after his termination from American Investors, Trammell sent two annuity applications for Oberhelman to Financial Benefit. On March 29, Larry Sawyer, an employee of Senior Insurance Strategies, sent two applications to Oberhelman's daughter for her signature. Sawyer told Oberhelman that $150,000 of Oberhelman's money was being used to purchase annuities from Financial Benefit, when in fact, as the government's financial analyst demonstrated at trial, Trammell had spent all of Oberhelman's money by February 5, 1991. Trammell eventually purchased a $100,000 annuity for Oberhelman from Financial Benefit by wiring money from another investor's account. American Investors later settled a civil lawsuit with Oberhelman for $100,000.
5
On February 15, 1991, Carl and Dixie McWhorter gave Trammell a check for $17,325, and on April 8, 1991, they gave him an additional check for $32,514.50. Trammell told the McWhorters to make the checks payable to Senior Insurance Strategies. These checks were to be used to purchase a $60,000 annuity. Sawyer wrote to the McWhorters' daughter on April 9, 1991, asking for additional information and that she sign the annuity application. Trammell forwarded the completed application to Financial Benefit, but sent no money. In fact, as the government's financial analyst demonstrated at trial, Trammell had spent nearly all of the funds from the first check by February 28, 1991, and nearly all of the funds from the second check by May 1, 1991. The McWhorters never received an annuity and settled a civil lawsuit with Financial Benefit for $30,000.
6
Marcella Storey gave Trammell a check for $139,661.42 on June 3, 1991, to purchase an annuity from Financial Benefit. Trammell deposited the check in a Lawrence, Kansas, bank and, on June 7, 1991, he wired $100,000 of the funds to Financial Benefit for Oberhelman's annuity. Trammell forwarded an application for a $118,918.84 annuity to Financial Benefit for Storey, but did not send the required premium. The government's financial analyst demonstrated at trial that Trammell had spent all of Storey's money by June 17, 1991. In July, Storey received a $22,500 annuity issued by Presidential Life Insurance Company. Storey filed a civil lawsuit against Trammell, Senior Insurance Strategies, and Financial Benefit and settled with Financial Benefit for $58,000.
7
Trammell was indicted in Kansas state court on December 6, 1991, for three counts of failing to pay insurance premiums by an insurance agent, in violation of Kan. Stat. Ann. § 40-247. Joseph Kisner, supervised by Richard Schodorf, prosecuted the case for the state. On March 25, 1992, after a jury was impaneled and an opening statement was presented by the prosecutor, the district court granted Trammell's motion for judgment of acquittal based on an ambiguity in the statute. Specifically, the court found § 40-247, which punishes an insurance agent for failing to pay a premium after negotiating or renewing a "contract of insurance," does not cover an agent who fails to pay a premium after negotiating or renewing a contract for an annuity. The state appealed under Kan. Stat. Ann. § 22-3602(b)(1) and (3), and the Kansas Supreme Court limited the appeal to a question reserved under § 22-3602(b)(3). While the appeal was pending, the Kansas legislature amended Kan. Stat. Ann. § 40-247 to include contracts for annuities. After the legislature amended the statute, the court dismissed the appeal pursuant to State v. Hodges, 241 Kan. 183, 734 P.2d 1161 (1987), as the court's answer to the reserved question was no longer of statewide interest or vital to uniform administration of the criminal law.
8
On January 18, 1996, Trammell was indicted in federal court and Richard Schodorf, then an Assistant United States Attorney, represented the government. Trammell was convicted of two counts of mail fraud, one count of wire fraud, and two counts of money laundering. He was sentenced to forty-one months' imprisonment and three years' supervised release. In addition, he was ordered to pay $282,661.42 in restitution.
II.
9
Trammell argues his convictions should be reversed because (1) his federal prosecution violated the Double Jeopardy Clause; (2) his due process rights were violated by preindictment delay; (3) there was insufficient evidence to sustain his convictions for mail fraud and wire fraud; (4) there was insufficient evidence to establish federal jurisdiction over the money laundering charges; and (5) the district court failed to use a special verdict form. In addition, Trammell argues his sentence should not have been enhanced pursuant to U.S.S.G. § 3B1.3 for abuse of a position of trust.
Double Jeopardy
10
Trammell contends his federal prosecution was barred by the Double Jeopardy Clause because he was previously prosecuted and acquitted in state court. A defendant bears the burden of proving double jeopardy. United States v. Rodriguez-Aguirre, 73 F.3d 1023, 1025 (10th Cir.1996). This court reviews a district court's factual findings underlying a double jeopardy claim for clear error. Id. at 1024-25. However, we review de novo the court's legal determination regarding double jeopardy. Id. at 1025.
11
The Double Jeopardy Clause of the Fifth Amendment states "no person ... shall ... be subject to the same offense to be twice put in jeopardy of life or limb." U.S. Const. amend. V. It is well established that "prosecutions undertaken by separate sovereign governments, no matter how similar they may be in character, do not raise the specter of double jeopardy as that constitutional doctrine is commonly understood." United States v. Guzman, 85 F.3d 823, 826 (1st Cir.), cert. denied, --- U.S. ----, 117 S.Ct. 537, 136 L.Ed.2d 422 (1996). The dual sovereignty doctrine rests upon the notion that "laws of separate sovereigns are indeed separate and that one act may violate the laws of each; accordingly, prosecution by each cannot be for the same offense." United States v. Raymer, 941 F.2d 1031, 1037 (10th Cir.1991).
12
Despite the general dual sovereignty rule, there is a limited exception commonly referred to as the "sham prosecution" exception. See Bartkus v. Illinois, 359 U.S. 121, 123-24, 79 S.Ct. 676, 678-79, 3 L.Ed.2d 684 (1959). In Bartkus, the court rejected a double jeopardy claim, noting:
13
[The record did] not support the claim that the State of Illinois in bringing its prosecution was merely a tool of the federal authorities, who thereby avoided the prohibition of the Fifth Amendment against a retrial of a federal prosecution after an acquittal. [The record also] does not sustain a conclusion that the state prosecution was a sham and a cover for a federal prosecution, and thereby in essential fact another federal prosecution.
14
Id. The implication from this statement is that when one sovereign is acting as "merely a tool" of the other, and the second prosecution is merely a "sham and cover" for a previously unsuccessful prosecution, the second prosecution violates the Double Jeopardy Clause. Although frequently noted, this exception is "an extremely narrow one" and is rarely applied. United States v. Paiz, 905 F.2d 1014, 1024 (7th Cir.1990); see also United States v. Rector, 111 F.3d 503, 507 (7th Cir.1997) (noting the exception "has been discussed by courts in the process of rejecting its application ever since [it was created]"); Guzman, 85 F.3d at 827 ("[Bartkus exception] limited to situations in which one sovereign so thoroughly dominates or manipulates the prosecutorial machinery of another that the latter retains little or no volition in its own proceedings").
15
The "sham prosecution" exception has been discussed by this court but has never been applied to grant a defendant relief. See Raymer, 941 F.2d at 1036-38. In fact, since its articulation in 1959, the exception has been applied in only one reported federal case, see United States v. Belcher, 762 F.Supp. 666, 670-71 (W.D.Va.1991), which has led some courts to question its continued validity. See Raymer, 941 F.2d at 1037 ("possible exception to the dual sovereignty rule might exist"); Paiz, 905 F.2d at 1024 (doubting existence of "very narrow" exception and explaining court has "uniformly rejected" its use).
16
A defendant attempting to persuade a court to apply the "sham prosecution" exception faces the "substantial burden of proving one sovereign is so dominated by the actions of the other that the former is not acting of its own volition." Raymer, 941 F.2d at 1037. This burden is not satisfied by merely showing the state has conducted the majority of the investigation relied upon by the government in federal prosecution of the defendant. See United States v. Bernhardt, 831 F.2d 181, 183 (9th Cir.1987) ("[S]ufficient independent federal involvement ... save[s] the prosecutions from th[e] exception."); see also United States v. Johnson, 973 F.Supp. 1102, 1108 (D.Neb.1997) ("It is perfectly permissible for federal authorities to prosecute cases investigated almost exclusively by state officers."). It is also irrelevant that a state prosecutor, after unsuccessfully prosecuting a defendant, encourages or requests federal authorities to prosecute the defendant. See United States v. Tirrell, 120 F.3d 670, 677 (7th Cir.1997) ("state merely requested the United States to prosecute Mr. Tirrell a second time"). Moreover, a defendant is not entitled to application of the exception simply because the same attorney represented both the state and the United States in the two prosecutions against the defendant. See Raymer, 941 F.2d at 1038; United States v. Padilla, 589 F.2d 481, 484-85 (10th Cir.1978); see also United States v. Pena, 910 F.Supp. 535, 540 (D.Kan.1995) ("Every circuit to date that has considered this issue has held that the cross-designation of a state district attorney as a federal attorney to assist or even to conduct a federal prosecution does not by itself bring the case within the Bartkus exception."). At least one court has held this to be true even when the state prosecutor later served as a specially appointed Assistant United States Attorney for the express purpose of prosecuting defendant a second time and was compensated by the state to prosecute defendant in federal court. See Bernhardt, 831 F.2d at 183.
17
Trammell has not satisfied his substantial burden to fall within the very limited "sham prosecution" exception. At most, Trammell has demonstrated Schodorf, the Assistant United States Attorney who prosecuted his federal case, also supervised the attorney who prosecuted his state case. However, Schodorf testified he was not directly involved in the state prosecution and was not even familiar with the state prosecution until after Trammell was acquitted. Specifically, he stated the state prosecution of Trammel "was [Kisner's] case and I paid no attention to it." R. Suppl. I at 56. Moreover, he submitted an affidavit explaining the only reason he prosecuted the federal case was that it was reassigned to him after another Assistant United States Attorney resigned. Based on this testimony, the court found "Schodorf acted as the nominal supervisor of the attorney who brought the previous state criminal charges, but that he was not significantly involved in either the decision to bring those charges or the handling of the case." R. I, doc. 39 at 4. This finding is not clearly erroneous. Schodorf's tangential involvement does not demonstrate the federal government was so dominated by the actions of the state that the federal government was "not acting of its own volition." See Raymer, 941 F.2d at 1038. Contrary to Trammell's characterization, the government has established it conducted substantial independent investigation into Trammell's activities. An agent for Internal Revenue Service performed an extensive analysis and examination of Trammell's financial and banking records, and this analysis was presented to the jury as an exhibit.
18
Finally, Trammell makes much of the fact that the witnesses and evidence used in the state prosecution were the same witnesses and evidence used in the federal prosecution. Even if this is true, it simply does not demonstrate the federal prosecution was a sham. The witnesses and exhibits that are key to the prosecution will not change merely because the prosecution moves from state to federal court. Further, numerous individuals who were not included on the state witness list testified during the federal trial.
19
Trammell has clearly not sustained his heavy burden of proving the government was so dominated by the actions of the state that it was "not acting of its own volition." Trammell's federal prosecution did not violate the Double Jeopardy Clause.
Due Process
20
Trammell contends his due process rights were violated by the government's three year and nine month delay in indicting him after he was acquitted in state court. Whether Trammell's due process rights were denied by a delay in bringing an indictment is a question of fact, which this court reviews for clear error. See United States v. Engstrom, 965 F.2d 836, 838 (10th Cir.1992).
21
"[T]he Due Process Clause has a limited role to play in protecting against oppressive [pre-indictment] delay." United States v. Lovasco, 431 U.S. 783, 789, 97 S.Ct. 2044, 2048, 52 L.Ed.2d 752 (1977). "Preindictment delay is not a violation of the Due Process Clause unless the defendant shows both that the delay caused actual prejudice and that the government delayed purposefully in order to gain a tactical advantage." United States v. Johnson, 120 F.3d 1107, 1110 (10th Cir.1997). Vague and conclusory allegations of prejudice resulting from the passage of time and the absence of witnesses are insufficient to constitute a showing of actual prejudice. Defendant must show definite and not speculative prejudice, and in what specific manner missing witnesses would have aided the defense. United States v. Jenkins, 701 F.2d 850, 855 (10th Cir.1983).
22
Trammell argues the government's delay prejudiced his case because two of his victims died before testifying at his federal trial and because he testified during an intervening civil suit without exercising his rights under the Fifth Amendment. He does not specifically allege how the witnesses' testimony would have been of benefit to his case. Further, there is no indication in the record that the government actually used his deposition testimony from the civil suit in his federal prosecution.
23
Trammell has completely failed to establish the government's failure to indict him sooner was an intentional ploy to gain a tactical advantage. Schodorf testified the delay was because of a backlog of cases and a shortage of attorneys in his office. He testified that cases are often filed near the end of the applicable statute of limitations period. Schodorf testified the government's own presentation in the case suffered from the death of the witnesses. In denying Trammell's motion to dismiss, the district court explained the inability to call the two victims as witnesses would not be a significant disadvantage to Trammell, and there was "no indication that the delay was undertaken with the purpose of working injury to the ability of Trammell to defend the action." R. I, doc. 39 at 3. This finding is not clearly erroneous.
24
Sufficiency of Evidence to Support Mail and Wire Fraud Convictions
25
Trammell contends the evidence was not sufficient to support his convictions for mail and wire fraud. Specifically, he argues (1) the government presented no evidence that he devised or intended to devise a scheme to defraud; (2) there was no proof he used the mails or caused the mails to be used; and (3) the government failed to prove the mailings were in execution of the fraudulent scheme.
26
In reviewing a challenge to sufficiency of the evidence, we must determine whether "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. In answering this question, we may neither weigh conflicting evidence nor consider the credibility of witnesses." United States v. Pappert, 112 F.3d 1073, 1077 (10th Cir.1997) (citations omitted). This court must consider the evidence and all reasonable inferences in a light most favorable to the government. See United States v. Reddeck, 22 F.3d 1504, 1507 (10th Cir.1994).
Scheme to defraud
27
To prove mail fraud under 18 U.S.C. § 1341, the government must establish (1) a scheme or artifice to defraud or obtain money by false pretenses, representations, or promises; and (2) use of the mails to execute the scheme. To prove wire fraud under 18 U.S.C. § 1343, the government must establish (1) a scheme or artifice to defraud or obtain money by false pretenses, representations, or promise; and (2) use of interstate wire communications to facilitate the scheme. A scheme to defraud is conduct intended to or reasonably calculated to deceive ordinary people. Reddeck, 22 F.3d at 1507. Evidence of the "schemer's indifference to the truth of statements can amount to [evidence of] fraudulent intent." Id.
28
The jury was instructed that a "scheme to defraud" means "any deliberate plan of action or course of conduct by which someone intends to deceive or cheat another or by which someone intends to deprive another of something of value." R. I, doc. 62, instr. 15. Under this definition, it is clear the government presented sufficient evidence for the jury to conclude Trammell created a "scheme to defraud." See, e.g., Reddeck, 22 F.3d at 1506-08 (sufficient evidence of defendant's scheme to defraud despite claim actions were result of delusional disorder).
29
Trammell signed brokerage agreements with American Investors and Financial Benefit that required him to collect premiums from investors made payable only to the companies. Unfortunately, apparently to obtain personal access to investors' funds, Trammell instructed investors to make their checks payable to Senior Insurance Strategies instead of to the companies. Sawyer testified that Trammell instructed him to have investors make their checks payable to Senior Insurance Strategies. All of the investors involved here made their checks payable to Senior Insurance Strategies, and the government presented an extensive analysis of how Trammell systematically spent the investors' money for unrelated business and personal expenses. With the exception of one annuity purchased for Oberhelman, none of the money given to Trammell by the investors was used to purchase annuities. A jury could easily conclude Trammell created a deliberate plan of action or course of conduct to deceive or cheat another or deprive another of something of value.
Use of mails
30
The record also reflects the government presented ample evidence that Trammell caused the mails to be used in the execution of his scheme to defraud. Oberhelman's daughter testified she received a letter from Trammell and she sent a letter back to Trammell through the postal system. The McWhorters' daughter testified that she received a letter from Trammell through the mail. Sawyer testified that he "sent" both letters at the direction of Trammell. A jury could easily conclude Trammell caused the mails to be used.
31
Trammell argues the letters sent to Oberhelman's daughter and the McWhorters' daughter did not further his alleged scheme because he had already obtained money from Oberhelman and the McWhorters when the letters were sent. The letters in question requested the recipient to complete the enclosed form, sign the form, and return it to Senior Insurance Strategies. "In a mail fraud case it is not necessary that the mailing predate the defendant's receipt of the money." United States v. Kelley, 929 F.2d 582, 585 (10th Cir.1991). Mailings sent after the defendant has obtained the victim's money are considered "in furtherance of the scheme" for purposes of 18 U.S.C. § 1341 if they facilitate concealment of the scheme. Id. These mailings are commonly referred to as "lulling letters." See United States v. Massey, 48 F.3d 1560, 1566 (10th Cir.1995) ("Lulling letters can further a fraudulent scheme for the purposes of the mail fraud statute."). The Supreme Court has defined a "lulling letter" as a mailing that is "designed to lull the victims into a false sense of security, postpone their ultimate complaint to the authorities, and therefore make the apprehension of the defendant[ ] less likely than if no mailings had taken place." United States v. Maze, 414 U.S. 395, 403, 94 S.Ct. 645, 650, 38 L.Ed.2d 603 (1974). "To be part of the execution of the fraud ... the use of the mails need not be an essential element of the scheme. It is sufficient for the mailing to be 'incident to an essential part of the scheme' or a 'step in the plot.' " Schmuck v. United States, 489 U.S. 705, 710-11, 109 S.Ct. 1443, 1447-48, 103 L.Ed.2d 734 (1989) (citations omitted) (quoting Badders v. United States, 240 U.S. 391, 394, 36 S.Ct. 367, 368, 60 L.Ed. 706 (1916)).
32
The letters here were obviously designed to lull Oberhelman and the McWhorters into believing Trammell was working with the insurance companies to procure annuities for them, when in fact at the time the letters were written he had already spent all of the money they had entrusted to him. Sawyer testified that Trammell told him to tell the McWhorters "the delay was caused by the paperwork not all being completed for the annuity application." R. III at 110. Moreover, both letters were sent before Trammell obtained any money from Storey. Trammell surrendered his insurance license on June 13, 1991. If he had not placated Oberhelman and the McWhorters throughout the spring of 1991 by continuing the impression he was working to obtain their annuities, they would have likely reported their frustrations to the insurance commission sooner. This might have prevented Storey's loss. A jury could easily conclude that by sending the letters, Trammell furthered his fraudulent scheme.
33
Sufficiency of Evidence to Establish Federal Jurisdiction
34
over Money Laundering Charges
35
Trammell contends his money laundering conviction should be reversed because the government failed to establish his activities affected interstate commerce. The requirement that a transaction be "in or affecting interstate commerce" is both jurisdictional and an essential element of the charge of money laundering under 18 U.S.C. § 1957. United States v. Allen, 129 F.3d 1159, 1163 (10th Cir.1997) (petition for reh'g pending). To confer jurisdiction in federal court, the government must present a minimal amount of evidence that demonstrates the defendant engaged in a transaction involving interstate commerce. Kelley, 929 F.2d at 586. We have held this requirement is satisfied when the government presents evidence that defendant engaged in transactions involving financial institutions insured by the FDIC. See United States v. Kunzman, 54 F.3d 1522, 1527 (10th Cir.1995). We have also held that when a defendant has money wired from one state to another, that transaction affects interstate commerce. See United States v. Lovett, 964 F.2d 1029, 1038-39 (10th Cir.1992). Moreover, since the requirement that a transaction be "in or affecting interstate commerce" is an essential element of the crime, the government is required to prove to the jury that defendant's transactions actually had at least a minimal effect on interstate commerce. Allen, 129 F.3d at 1163; see also United States v. Leslie, 103 F.3d 1093, 1101 (2d Cir.), cert. denied --- U.S. ----, 117 S.Ct. 1713, 137 L.Ed.2d 837 (1997).
36
The record reveals Trammell accepted checks from financial institutions insured by the FDIC in the course of his fraudulent scheme. The record also shows he wired money from his account in a Lawrence, Kansas, bank to a bank in Ft. Lauderdale, Florida, on June 5, 1991. Therefore, Trammell's transactions sufficiently affected interstate commerce to confer the federal court with jurisdiction over the money laundering charges. Moreover, the record establishes the government proved Trammell's actions had at least a minimal effect on interstate commerce. The jury was presented with the evidence discussed above and was instructed on the government's burden to establish Trammell's transactions affected interstate commerce. The jury's verdict indicates it found Trammell's conduct affected interstate commerce, and there is sufficient evidence in the record to support the jury's conclusion.
Special Verdict Form
37
Trammell contends his conviction should be reversed because the district court failed to use a special verdict form so the jury could identify which of the two forms of fraud identified in 18 U.S.C. §§ 1341 and 1343 served as a basis for its verdict. Trammell states he requested that the jury be asked to indicate on its verdict form for each count of mail or wire fraud whether Trammell's actions constituted a scheme to defraud or a scheme to obtain money by false pretenses, but the district court rejected the request and instructed the jury on both types of fraud. Although his argument is somewhat unclear, Trammell is apparently arguing each of the mail and wire fraud counts is duplicitous and the court was required to use a special verdict form for each count to cure the problem.
38
We review de novo the question of whether an indictment is duplicitous. United States v. Wiles, 102 F.3d 1043, 1061 (10th Cir.1996). A duplicitous indictment charges the defendant with two or more separate offenses in the same count. United States v. Haddock, 956 F.2d 1534, 1546 (10th Cir.1992). Here, Trammell is asserting each of the mail and wire fraud counts charged him with two crimes, one based upon a scheme to defraud and another based upon a scheme to obtain money by false pretenses. "The dangers of duplicity are three-fold: (1) A jury may convict a defendant without unanimously agreeing on the same offense; (2) A defendant may be prejudiced in a subsequent double jeopardy defense; and (3) A court may have difficulty determining the admissibility of evidence." Wiles, 102 F.3d at 1061.1
39
Trammell's duplicity argument rests on the holding in United States v. Cronic, 900 F.2d 1511 (10th Cir.1990), that "[a]lthough largely overlapping, a scheme to defraud, and a scheme to obtain money by means of false or fraudulent pretenses, representations, or promises, are separate offenses." Id. at 1513 (emphasis added). Relying on this statement, Trammell argues that under principles of duplicity, the government is required to charge a defendant with the two types of mail fraud in § 1341 in separate counts of an indictment.2 Even if Trammell's indictment was duplicitous under Cronic, "[a] challenge to an indictment based on duplicity must be raised prior to trial.... Raising the objection at the close of the government's case is too late." United States v. Hager, 969 F.2d 883, 890 (10th Cir.1992). However, a defendant can raise a late challenge to a duplicitous indictment "if cause is shown that might justify the granting of relief from the waiver." Id.
40
The record does not reflect exactly when Trammell first advanced his argument that the jury should be instructed that the two types of mail fraud were two separate offenses. During the jury instruction hearing, Trammell's counsel stated: "I want to make sure on the record that the Court [is] aware from our previous discussions of our suggestion that perhaps the Cronic case and the Migliaccio case that I cited, because these are two separate and distinct offenses, that there is this duplicity problem." R. IX at 366 (emphasis added). It is not clear when Trammell's counsel and the court had "previous discussions" about the problem of duplicity. Trammell's proposed jury instructions seem to reflect an awareness of the holding in Cronic; however, the proposed instructions were filed on October 25, 1996, and trial started October 22, 1996. In addition, the docket sheet does not reflect a challenge to the indictment based on duplicity. Thus, Trammell waived his duplicity challenge by failing to object to the indictment until after trial started. Moreover, he has not presented this court with any cause to justify his failure to challenge his indictment before trial. Because he did not timely challenge his indictment on duplicity grounds, he waived any later challenge based on a failure to use a special verdict form to avoid the alleged duplicity problem.
41
Even if the issue were properly before us, any possible error was cured by the district court's instructions. "One cure for an otherwise duplicitous indictment is to give an augmented instruction requiring unanimity on one or the other of the acts charged within a count that otherwise appear to constitute separate offenses." United States v. Duncan, 850 F.2d 1104, 1112 n. 8 (6th Cir.1988); see also Wiles, 102 F.3d at 1062.
42
The district court clearly provided a unanimity instruction:
43
The government has alleged the defendant's actions constituted: (1) a scheme to defraud, and/or (2) a scheme whereby defendant attempted to obtain money by false pretenses. In order to find defendant guilty of this offense, you must find the government has proven beyond a reasonable doubt the defendant pursued either (1) a scheme to defraud, or (2) a scheme whereby defendant attempted to obtain money by false pretenses. Furthermore, should you so decide, you must unanimously agree as to whether there was a scheme to defraud, or whether there was a scheme whereby defendant attempted to obtain money by false pretenses.
44
R. I, doc. 62, instr. 15 (emphasis added). Further, when discussing the charge of wire fraud, the district court instructed the jury that "[t]he law relating to a 'scheme to defraud' and taking by 'false pretenses' was discussed in the preceding instruction." Id., instr. 16. This court has held jury instructions which are far more general than those provided here counteract problems created by a duplicitous indictment. See Haddock, 956 F.2d at 1546; see also Wiles, 102 F.3d at 1062; United States v. Sasser, 971 F.2d 470, 477-78 (10th Cir.1992) (court refused to give specific unanimity instruction).
Sentence Enhancement
45
Trammell argues the district court erred in enhancing his sentence for abusing a position of trust because he did not occupy a "formal position of trust" and did not create an impression that he occupied such a position. This court reviews the question of whether an individual occupied a position of trust in a particular transaction for clear error. See United States v. Queen, 4 F.3d 925, 928 (10th Cir.1993).
46
A defendant's sentence should be enhanced when "the defendant abused a position of public or private trust, or used a special skill, in a manner that significantly facilitated the commission or concealment of the offense." U.S.S.G. § 3B1.3. "The primary concern of § 3B1.3 is to penalize defendants who take advantage of a position that provides them freedom to commit or conceal a difficult-to-detect wrong." United States v. Koehn, 74 F.3d 199, 201 (10th Cir.1996). The existence of a fiduciary or personal trust relationship sometimes justifies imposition of a § 3B1.3 enhancement. See United States v. Brunson, 54 F.3d 673, 677 (10th Cir.1995). However, "[n]ot every misuse of a fiduciary relationship will justify the enhancement under § 3B1.3.... To invoke § 3B1.3, the defendant must either occupy a formal position of trust or must create sufficient indicia that he occupies such a position of trust that he should be held accountable as if he did occupy such a position." Queen, 4 F.3d at 929 n. 3 (citation omitted). The guideline enhancement requires more than a mere showing that the victim had confidence in defendant. Brunson, 54 F.3d at 678 ( § 3B1.3 does not apply in arm's length transaction). The question of whether an individual occupied a position of trust is evaluated from the victim's perspective. Queen, 4 F.3d at 929.
47
As a licensed insurance agent, Trammell clearly held a "formal position of trust." See Brunson, 54 F.3d at 678 ("Unlike a personal investment advisor/investor relationship, ... no trust relationship exists between the two principals."); Queen, 4 F.3d at 929 ("There is no question that, had the defendant actually been an investment advisor/broker as he represented to his victims, he would have occupied a position of trust."); see also United States v. Stewart, 33 F.3d 764, 770 (7th Cir.1994) (defendant occupied position of trust within meaning of § 3B1.3 in selling annuities to senior citizens as licensed insurance broker and diverting funds for personal use); United States v. Nelson, 29 F.3d 261, 262 (7th Cir.1994) (defendant did not even challenge court's conclusion that as an insurance broker he occupied position of trust within meaning of § 3B1.3).
48
Trammell used his formal position as an insurance agent to solicit funds from investors by representing he would purchase annuities for them. He then spent the funds for his own personal benefit. After he had spent the money entrusted to him, he attempted to conceal his fraud by continuing to correspond with proposed annuitants and continuing to tell the investors they would receive their annuities as soon as the paperwork was completed. Trammell's conduct committed while acting as an insurance agent was plainly an abuse of trust by a fiduciary. See United States v. Lowder, 5 F.3d 467, 473 (10th Cir.1993); Queen, 4 F.3d at 928-29. The district court properly enhanced Trammell's sentence for abusing a position of trust.
III.
49
Trammell's convictions and sentence are AFFIRMED.
1
The Sixth Circuit has also noted, in addition to these problems, a duplicitous indictment may give a defendant improper notice of the charges against him, prejudice the defendant in sentencing, and limit the scope of the defendant's appeal. See United States v. Blandford, 33 F.3d 685, 699 n. 17 (6th Cir.1994)
2
Since the language of 18 U.S.C. § 1341 and 18 U.S.C. § 1343 are identical in this regard, the analysis applies to both the mail fraud and the wire fraud statutes
| {
"pile_set_name": "FreeLaw"
} |
425 P.2d 721 (1967)
Edna I. BRIDGES, Plaintiff and Respondent, Ernest E. Johnson, Plaintiff and Respondent,
v.
Earl MORITZ, d/b/a Central Construction Company, Kenneth L. Brewer, Defendants and Appellants, and
The Montana Power Company et al., Defendant and Appellant.
No. 11073.
Supreme Court of Montana.
Submitted February 6, 1967.
Decided March 21, 1967.
Rehearing Denied April 6, 1967.
*722 Weir, Gough & Booth and Ward A. Shanahan, Keller, Magnuson & Reynolds, Helena, Ward A. Shanahan and Edwin S. Booth (argued), Helena, Paul T. Keller (argued), Helena, for appellants.
Loble, Picotte & Fredricks, Helena, Gene A. Picotte (argued), Helena, for respondents.
CASTLES, Justice.
This is an action for damages by Bridges, the owner of a building destroyed by a gas explosion, and Johnson, the owner of a business occupying the building, against the Montana Power Company, Earl Moritz, d/b/a Central Construction Company, and Kenneth L. Brewer. A gas service line was struck during construction work on a Special Improvement District in the City of Helena, and an explosion ensued burning the building and destroying the business therein. The district court entered a directed verdict against all three defendants on the question of liability and judgment was entered accordingly pursuant to damages set by the jury. The three defendants appealed, with Moritz and Brewer joining in one brief and Montana Power Company filing a separate brief.
The only question presented is whether the district court erred in granting a directed verdict against all defendants.
In 1963 the City of Helena created a Special Improvement District and engineers for the City, Morrison and Maierle, did the surveys, made maps and plans, and set grade stakes to guide construction workers. Earl Moritz, d/b/a Central Construction Company (and hereafter referred to as Moritz) was successful bidders and commenced work in July of 1963. Moritz employed the defendant Brewer, a heavy equipment operator who owned his own bulldozer, to do certain excavation work.
Throughout the course of the construction work, the Montana Power Company had employees on the scene to point out the location of gas mains located under the street surface and otherwise to assure the safety of Power Company facilities. Prior to the date of the accident, one Green, who was an employee of Moritz, discovered that the gas main on 15th Avenue was too close to the surface to meet the specifications set forth by the city engineers. The Power Company was so notified and lowered these gas lines to the required depth.
On August 9, 1963, Brewer started grading on 15th Avenue with his bulldozer at the direction of Moritz's superintendent. At about 10:00 o'clock a.m., a rock got *723 between the blade of the bulldozer and the gas service line into Ernie's Body Shop and exposed the pipe. Montana Power Company men were on the scene and at that time pointed out to Brewer the location of the service line. They also tested the line and determined that the impact had not caused any leakage. After the pipe had been struck and tested the Power Company employees dug a hole closer to Ernie's Body Shop along the service line to determine the depth at that point.
Brewer continued to grade on 15th Avenue but mounded dirt over the exposed service line to permit the bulldozer to pass over the line without damaging it. General conversation took place between the Montana Power Company employees and Brewer and there is some conflict in the testimony as to what was said. It does appear to be fairly certain that Brewer was instructed not to grade in the area where the service line passed under the curb. He was also informed that the Power Company men would take a lunch break between 12:00 o'clock noon and 1:00 o'clock p.m. and that Brewer should not grade near the pipe until the Power Company personnel returned at 1:00 o'clock with a city engineer. The Montana Power Company also knew that Brewer was in the habit of taking one half hour for lunch from 12:00 to 12:30 o'clock p.m.
Brewer did commence grading at 12:30 o'clock p.m. at a time when there was no supervision by the Power Company. Shortly before 1:00 o'clock, Brewer struck the gas service line and bent it about 18 inches out of line. He made an attempt to enter Ernie's Body Shop to check for leakage but was unsuccessful. Finding a radio-equipped truck of the Power Company, Brewer summoned Maras, one of the Power Company employees who had been supervising. Maras and others immediately cut the gas main but at this time an explosion occurred inside the Body Shop which destroyed the building and its contents. Fortunately there were no personal injuries.
In this appeal, all defendants disclaim responsibility for any negligence, or at least deny primary liability.
Section 93-5205, R.C.M. 1947, provides: "Where, upon the trial of an issue by a jury, the case presents only questions of law, the judge may direct the jury to render a verdict in favor of the party entitled thereto." The circumstances in which a directed verdict is proper have been clearly delineated in the case law of this state. Since any genuine question of fact should be submitted to the jury, a directed verdict may be entered only when it flows from the evidence as a matter of law. Holland v. Konda, 142 Mont. 536, 385 P.2d 272, 6 A.L.R.3d 824. The test employed to determine the legal sufficiency of the evidence used to support a motion for a directed verdict is whether reasonable men can draw different conclusions from the evidence. If but one conclusion is reasonably possible, then the directed verdict is proper. Teesdale v. Anschutz Drilling Co., 138 Mont. 427, 357 P.2d 4.
There is little dispute as to the actual cause of the explosion. Nor can we entertain any serious discussion on the question of whether the defendant Brewer had sufficient notice of the location of the gas service line and the dangers involved in grading without supervision in the vicinity of the gas line. Uncontradicted testimony reveals that Brewer struck the line the morning of the accident. At that time the line was exposed and its proximity to the surface of the ground clearly revealed to Brewer. Of course Brewer was the only witness to the events which precipitated the explosion, and there is some disagreement as to how far from the curb the impact occurred. Yet none of these factual variables detract from the negligent character of the act which caused the damage. We have no trouble in sustaining the decision of the district court with respect to the liability of the defendant Brewer.
A more difficult and critical question concerns the scope of the duties of *724 Moritz and the Montana Power Company as they relate to the negligent act. Brewer was clearly an agent of Moritz. Although Brewer owned his own equipment and was not permanently employed by any one principal, he was hired on an hourly basis by Moritz for this particular job. Moritz, acting through his supervisors, directed the activities of Brewer and under well-established rules of agency, which we must here recognize, must answer for the torts of the agent committed within the scope of the agency. With respect to Moritz and Brewer the trial judge had little choice but to direct a verdict against them on the question of liability, and we must affirm that holding.
The position of the Montana Power Company differs from that of the other defendants in many important particulars. These factors, which we shall discuss, all relate to the scope of the duty owed by the Power Company to the plaintiffs in this action.
As a general rule, a gas company is not an insurer of every injury caused by exploding gas. In Staff v. Montana Petroleum Co., 88 Mont. 145, 156, 291 P. 1042, 1046, this court said that employees of a gas company must "use a degree of care commensurate with the danger involved." While the "danger involved" in the transmission and handling of natural gas is clearly of substantial magnitude, it is not so absolute as to render an absolute standard of care. We feel that the duty owed by the Power Company should be coextensive with the risks involved in this case and that their liability should be limited by reasonable discharge of that duty.
The Montana Power Company had the obligation to take reasonable means to protect existing gas transmission facilities during the repaving of the streets. Some degree of supervision of the activities of the construction company would clearly be necessary in discharging this responsibility. Since the Power Company could not be liable under the rules of agency for the dereliction of Brewer, the only grounds upon which liability of the Power Company could be predicated would be upon failure to take precautions reasonably necessary to protect the gas lines. It is clear that adequate measures were not taken, else the explosion would not have occurred. Yet any legal inquiry must assess the reasonableness of the activity involved and not the effectiveness.
Having carefully reviewed the record, we cannot escape the conclusion that the Montana Power Company reasonably discharged its duty. We also feel that a directed verdict was entered against the Power Company upon a misapprehension of the scope of duty owed by that defendant. In De Vries v. City of Austin (1961), 261 Minn. 52, 110 N.W.2d 529, the Court affirmed the following proposition: "* * * it would be unreasonable to charge plaintiff [the gas company] with the duty of constantly watching the operations over which it had no control to ascertain, at its peril, when defendants [contractors] intended to proceed with such work as might damage its service lines." The same case goes on to point out that a contrary result would in reality render the gas company an insurer of any misfortune precipitated by the construction company. Brewer was instructed by employees of the Montana Power Company not to grade near the gas service line until 1:00 o'clock p.m. when the Power Company men returned from lunch. It is true that the Power Company knew that Brewer was in the habit of resuming work at 12:30 o'clock p.m. Should the Power Company reasonably anticipate that Brewer would not follow explicit instructions given him a short time before the accident? We think clearly not. Brewer of course professed ignorance of the true location of the gas service line, which we find slightly incredible since the location of the line was clearly pointed out to him the morning of the explosion.
The primary beneficiaries of this construction project were the City of Helena and Moritz. The Montana Power Company became involved in a passive and *725 supervisory capacity to protect their easements under the streets. We feel that the duty of the utility company under these circumstances must, as a matter of law, fall somewhat short of absolute liability for the negligent acts of others.
Under Rule 50(b), M.R.Civ.P., a party who moves for a directed verdict at the close of the evidence may preserve this motion and renew it after the verdict and judgment thereon has been entered, in effect seeking judgment notwithstanding the verdict. As Rule 50(b) points out, the motion deals with the legal sufficiency of the evidence. We believe that there was error in failure to grant the defendant Montana Power Company's motion for a directed verdict, since the record demonstrates unequivocally that the Power Company took every reasonable precaution to protect its facilities and customers.
The judgment is therefore affirmed as to defendants Earl Moritz, d/b/a Central Construction Company and Kenneth M. Brewer. The cause is remanded with instructions to dismiss the action with respect to the defendant Montana Power Company.
JAMES T. HARRISON C. J. and ADAIR, DOYLE and JOHN CONWAY HARRISON, JJ., concur.
| {
"pile_set_name": "FreeLaw"
} |
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
________________________
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 11-13773 JAN 19, 2012
Non-Argument Calendar JOHN LEY
________________________ CLERK
D.C. Docket No. 4:10-cv-00112-WTM-GRS
GARY C. ARMS,
lllllllllllllllllllllllllllllllllllllllPlaintiff,
CHARLES DUBEE,
ANTHONY GIROUX,
GERRY GIROUX,
NATHAN GRAY,
JANENE RENEE GRAY,
DAVID SODERLINE,
WALTER SODERLINE,
FRAIN SIMPLIS,
STEPHANIE MILLER,
CHARLES MILLER,
llllllllllllllllllllllllllllllllllllllllPlaintiffs - Appellants,
versus
J.P. MORGAN CHASE & CO.,
llllllllllllllllllllllllllllllllllllllllDefendant - Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Georgia
________________________
(January 19, 2012)
Before CARNES, WILSON and MARTIN, Circuit Judges.
PER CURIAM:
This is an appeal of the district court’s grant of J.P. Morgan Chase & Co.’s
Federal Rule of Civil Procedure 12(b)(6) motion to dismiss. After thorough
review, we affirm the district court.
In 2007, Appellants got construction loans from Transland Financial
Services to finance housing developments in Savannah, Georgia. Appellants
allege that Transland concealed liquidity problems from them at the time they
entered into the contract, and dissolved very soon afterward without fully funding
the projects. Washington Mutual Bank (“WaMu”) acquired the loan contracts
from Transland, but itself declared bankruptcy in 2008 and was taken into
receivership by the FDIC. Later that year, the FDIC sold WaMu’s assets,
including the loan contracts at issue, to J.P. Morgan Chase & Co. (“Chase”) in a
Purchase and Assumption Agreement.
2
Appellants filed suit in state court against Chase, seeking declaratory relief
and to quiet title. They claim that Chase is not entitled to collect the amounts due
on the loan contracts, because of fraudulent inducement on the part of Transland
as well as the failure of Transland and WaMu to disburse the loan proceeds.
Chase removed the case to federal court and filed a motion to dismiss for failure to
state a claim. The district court granted the motion, and this appeal followed.
We review de novo a district court’s dismissal of a complaint for failure to
state a claim. Rosenberg v. Gould, 554 F.3d 962, 965 (11th Cir. 2009). In so
doing, “we accept all well-pleaded facts as true, and we make all reasonable
inferences in favor of the plaintiff.” Thompson v. RelationServe Media, Inc., 610
F.3d 628, 631 n.5 (11th Cir. 2010). In ruling upon a motion to dismiss, a district
court may consider materials attached to pleadings if the materials are “(1) central
to the plaintiff’s claim, and (2) [their] authenticity is not challenged.” SFM
Holdings, Ltd. v. Banc of America Sec., LLC, 600 F.3d 1334, 1337 (11th Cir.
2010). Chase attached the Purchase and Assumption Agreement to its motion to
dismiss. Appellants do not challenge the district court's reliance on this document
in granting the motion, and in fact, they rely upon the Agreement in their own
brief.
3
On appeal, Appellants raise a number of issues, including a challenge to the
district court’s conclusions regarding Chase’s status as a holder in due course
under 12 U.S.C. § 1823(e) and D’Oench, Duhme & Co. v. FDIC, 315 U.S. 447, 62
S. Ct. 676 (1942). However, we need not address this issue in order to affirm the
district court’s decision to dismiss the complaint. Section 2.5 of the Purchase and
Assumption Agreement between Chase and the FDIC makes clear:
[A]ny liability associated with borrower claims for payment of or
liability to any borrower for monetary relief, or that provide for any
other form of relief to any borrower, whether or not such liability is
. . . legal or equitable . . . whether asserted affirmatively or
defensively, related in any way to any loan or commitment to lend
made by the Failed Bank prior to failure . . . are specifically not
assumed by the Assuming Bank.
The district court ruled consistent with the Agreement that when Chase purchased
the loan contracts, it did not acquire any liabilities associated with those
contracts.1
Appellants argue that Section 2.5 of the Agreement does not bar their claim,
because by bringing a declaratory action to determine the “validity of the assets
that Chase acquired from the FDIC,” they have not sought to impose a liability on
Chase. This argument fails. The Agreement expressly includes within its
1
In making this statement, we express no opinion as to whether those liabilities remained
with the FDIC at the time of purchase, or whether the FDIC acquired a quasi-holder in due
course status under 12 U.S.C. § 1823(e).
4
definition of liability, “any . . . form of relief to any borrower,” whether that relief
is “legal or equitable,” or “asserted affirmatively or defensively.” Thus,
Appellants’ action to secure relief from their contractual obligation to repay the
loans falls squarely within the terms of Section 2.5 of the Agreement.
Appellants also turn our attention to Section 3.3 of the Agreement, which
states, “THE CONVEYANCE OF ALL ASSETS . . . SHALL BE MADE . . . ‘AS IS’ [AND]
WITHOUT RECOURSE AND, EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED IN THIS
AGREEMENT, WITHOUT ANY WARRANTIES . . . WITH RESPECT TO . . .
ENFORCEABILITY, [OR] COLLECTIBILITY.” Appellants argue that this provision
denies Chase all warranties as to the enforceability of the loan contracts. Be that
as it may, this language does not negate Section 2.5 of the Agreement, by which
Chase expressly did not assume any liabilities associated with the loan contracts.
Instead, it disclaims certain rights that Chase might otherwise have against the
FDIC. Thus, the disclaimer in Section 3.3 of the Agreement does nothing to alter
Appellants’ rights under the loan contracts acquired by Chase.
For the aforementioned reasons, we AFFIRM the district court’s order.
5
| {
"pile_set_name": "FreeLaw"
} |
551 F.2d 301
95 L.R.R.M. (BNA) 2275, 81 Lab.Cas. P 13,305
N. L. R. B.v.Containair Systems Corp.
No. 76-4038
United States Court of Appeals, Second Circuit
10/1/76
1
N.L.R.B.
2
AFFIRMED*
*
Oral opinion delivered in open court in the belief that no jurisprudential purpose would be served by a written opinion. An oral opinion or a summary order is not citable as precedent. Local Rule Sec. 0.23
| {
"pile_set_name": "FreeLaw"
} |
264 F.2d 950
MAGNOLIA MOTOR & LOGGING COMPANY, a corporation, Appellant,v.UNITED STATES of America, Appellee.
No. 15805.
United States Court of Appeals Ninth Circuit.
March 24, 1959.
Rehearing Denied May 4, 1959.
Philip C. Wilkins, Sacramento, Cal., Sidney E. Ainsworth, Ashland, Or., Richard N. Little, Sacramento, Cal., for appellant.
Robert H. Schnacke, U. S. Atty., San Francisco, Cal., G. Joseph Bertain, Jr., Asst. U. S. Atty., Rita Singer, Atty., Office of the Regional Solicitor, Sacramento Region, Dept. of the Interior, Sacramento, Cal., for appellee.
Before MATHEWS and HAMLEY, Circuit Judges, and ROSS, District Judge.
MATHEWS, Circuit Judge.
1
On February 8, 1957, in the United States District Court for the Northern District of California, Northern Division, R. Drew Lamb and appellant, Magnolia Motor & Logging Company, a Mississippi corporation, were indicted in two counts.
2
Each count alleged: "That the defendant, Magnolia Motor and Logging Co. [appellant], is a corporation organized and existing under the laws of the State of Mississippi; that the defendant, R. Drew Lamb, is the president of said corporation and at all times herein mentioned was acting within the course and scope of his employment as such president."
3
Count I alleged: "That between the 1st day of June, 1953, and the 30th day of December, 1954, in the County of Humboldt, in the Northern Division of the Northern District of California, and within the jurisdiction of this [the District] Court, the defendants hereto [Lamb and appellant] did knowingly, willfully and unlawfully steal and convert to their own use personal property of the United States, said personal property being more particularly described as follows: Approximately 10,300 fir, cedar and hemlock logs of a value of more than $100." Thus count I charged a violation of 18 U.S.C.A. § 641.1
4
Count II alleged: "That between the 1st day of June, 1953, and the 30th day of September, 1954, the defendants hereto [Lamb and appellant] did knowingly, willfully and unlawfully depredate certain property of the United States, to-wit: Real property in the County of Humboldt, in the Northern Division of the Northern District of California, and within the jurisdiction of this [the District] Court, described as follows: Portions of Sections 33 and 34, Township 11½ North, Range 3 East, Humboldt Meridian; that said depredation exceeded the sum of $100." Thus count II charged a violation of 18 U.S.C.A. § 1361.2
5
Defendants (Lamb and appellant) moved to dismiss the indictment. That motion was denied.3 Thereafter defendants pleaded not guilty and moved for a bill of particulars. That motion was granted to the extent of requiring the Government to describe "the area or areas where the charged depredation [was] alleged to have occurred, so that such areas [could] be located with reasonable certainty upon the terrain involved in this case." Accordingly, the Government filed a bill of particulars wherein the areas alleged to have been depredated were described as follows:
6
"1. A portion of the drainage of the west fork of Pecwan Creek in and near the common boundary of Sections 33 and 34, and contiguous to the north and south boundaries of said Sections in Township 11½ North, Range 3 East, Humboldt Base and Meridian, comprising approximately 40 acres, more or less.
7
"2. A portion of the principal drainage of Buzzard Creek in Section 34, Township 11½ North, Range 3 East, Humboldt Base and Meridian, contiguous to the south boundary of said Section and Township, comprising 10 acres, more or less.
8
"3. A portion of a minor drainage of Buzzard Creek in said Section 34, lying east of the said principal drainage, contiguous to the south boundary of said Section and Township, comprising approximately 2 acres."
9
Thereafter defendants had a jury trial. The jury rendered a verdict finding Lamb not guilty on each count of the indictment and a verdict finding appellant guilty on each count. A judgment of conviction was entered, sentencing appellant to pay a fine of $10,000 on each count. This appeal is from that judgment.
10
* Appellant contends that the District Court erred in denying the motion to dismiss the indictment. The stated ground of that motion was, in substance, that neither count of the indictment charged an offense against the United States. Actually, as stated above, count I charged a violation of 18 U.S.C.A. § 641, and count II charged a violation of 18 U.S.C.A. § 1361. Obviously, these violations constituted offenses against the United States. Hence the motion to dismiss the indictment was properly denied.
II
11
Appellant contends that the District Court gave, and erred in giving, the following instruction to the jury: "You are instructed that the land now known as Township 11½ North, Range 3 East, Humboldt Base and Meridian, is and was the property of the United States during the periods of time charged in the indictment."
12
Actually, that instruction was not given. Instead, the jury was instructed as follows: "As a matter of law, this particular unsurveyed land,4 which did exist, belonged to the United States of America. That is a legal fact. You are not required to find legal facts, and perhaps I should have told you this before: A legal fact is a legal conclusion, and the legal conclusion dictated by the facts here as to the ownership of this land is that it belonged, as part of the public domain, to the United States of America, and not only belonged to the United States of America, but belonged to it from the day when the treaty with Mexico5 was effected around 1850 when California became a State. That is a legal fact."6
13
Thus, in effect, the jury was instructed that Township 11½7 was at all pertinent times the property of the United States.
14
Appellant contends that whether Township 11½ was the property of the United States was a question of fact to be determined by the jury. There is no merit in this contention. The evidence conclusively showed that Township 11½ was at all pertinent times the property of the United States. The jury was properly so instructed.
15
Township 11½ is a tract of land.8 Its length (east to west) is slightly more than six miles. Its average width (north to south) is slightly more than a quarter of a mile. It consists of six sections (31, 32, 33, 34, 35 and 36) and has a total area of 1,007.23 acres. It was not surveyed until 19549 and, until surveyed, was not called Township 11½. However, regardless of what it was called, it was at all pertinent times, before as well as after the survey, the property of the United States.
16
Prior to 1954, there were Government maps which indicated that the north boundary of Township 11 was the south boundary of Township 12. The fact, however, was and is that, in 1954 and at all times prior thereto, the tract of land now called Township 11½ lay between Townships 11 and 12.10 Government maps could not and did not alter that fact.
III
17
Appellant contends that the evidence was insufficient to sustain its conviction. There is no merit in this contention. There was substantial evidence that appellant, acting by and through Lamb, its president and duly authorized agent, committed each of the offenses charged in the indictment.
18
The verdict finding appellant guilty on each count of the indictment was inconsistent with the verdict finding Lamb not guilty on each count. Appellant therefore contends that Lamb's acquittal showed that the evidence was insufficient to sustain appellant's conviction. There is no merit in this contention.11 Consistency in verdicts is not required.12
19
Appellant contends that the evidence was insufficient in that it failed to show that appellant had any criminal intent. There is no merit in this contention. There was substantial evidence that Lamb, appellant's president and duly authorized agent, acting for and on behalf of appellant, stole and converted to appellant's use the property mentioned in count I of the indictment, depredated the property mentioned in count II13 and did these things willfully, knowingly and with criminal intent. That criminal intent, if such existed, was imputable to appellant.14
20
There was substantial evidence that appellant, acting by and through Lamb, stole and knowingly converted to its use the logs described in count I of the indictment; that the logs were the property of the United States; and that their value exceeded the sum of $100. Appellant, however, contends that the logs were real property and, since real property cannot be the subject of larceny, contends that the evidence was insufficient to show a violation of 18 U.S.C.A. § 641. There is no merit in these contentions. The evidence showed that the logs were made from trees after the trees were cut and felled; that the cutting and felling of the trees, the making of the logs and the theft and conversion thereof were distinct, separate and independent acts; and that therefore the logs were personal property.15
21
Appellant contends that the evidence, if it showed any violation by appellant, showed only a violation of 18 U.S.C.A. § 185216 or 18 U.S.C.A. § 1853.17 There is no merit in this contention. As indicated above, there was substantial evidence that appellant, acting, by and through Lamb, violated 18 U.S.C.A. § 641 by stealing and knowingly converting to appellant's use the property mentioned in count I of the indictment and violated 18 U.S.C.A. § 1361 by depredating the property mentioned in count II. Neither § 1852 nor § 1853 says anything about stealing, converting or depredating property. Some of the acts constituting the depredation shown by the evidence18 are mentioned in § 1852, but others are not. There was no evidence that appellant did any of the acts mentioned in § 1853.19 In short, neither § 1852 nor § 1853 has anything to do with this case.
22
Other contentions of appellant are so obviously lacking in merit as not to require discussion.
23
Judgment affirmed.
Notes:
1
Section 641 provides:
"Whoever embezzles, steals, purloins, or knowingly converts to his use or the use of another, * * * any record, voucher, money, or thing of value of the United States * * *
"Shall be fined not more than $10,000 or imprisoned not more than ten years, or both; but if the value of such property does not exceed the sum of $100, he shall be fined not more than $1,000 or imprisoned not more than one year, or both. * * *
2
Section 1361 provides:
"Whoever willfully injures or commits any depredation against any property of the United States * * * shall be punished as follows:
"If the damage to such property exceeds the sum of $100, by a fine of not more than $10,000 or imprisonment for not more than ten years, or both; if the damage to such property does not exceed the sum of $100, by a fine of not more than $1,000 or by imprisonment for not more than one year, or both."
3
United States v. Lamb, D.C.N.D.Cal., 150 F.Supp. 310
4
Meaning Township 11½ North, Range 3 East, Humboldt Base and Meridian
5
Meaning the Treaty of Guadalupe Hidalgo, February 2, 1848, 9 Stat. 922
6
This instruction is found in the supplemental transcript of record filed here on January 2, 1959
7
Wherever used in this opinion, the phrase "Township 11" means Township 11 North, Range 3 East, Humboldt Base and Meridian; the phrase "Township 11½" means township 11½ North, Range 3 East, Humboldt Base and Meridian; and the phrase "Township 12" means Township 12 North, Range 3 East, Humboldt Base and Meridian
8
Township 11½ lies between Townships 11 and 12. Thus the north boundary of Township 11 is the south boundary of Township 11½, and the south boundary of Township 12 is the north boundary of Township 11½
9
The 1954 survey was not approved until March 30, 1956
10
See footnote 8
11
See United States v. Dotterweich, 320 U.S. 277, 64 S.Ct. 134, 88 L.Ed. 48; United States v. General Motors Corp., 7 Cir., 121 F.2d 376; American Medical Ass'n v. United States, 76 U.S.App.D.C. 70, 130 F.2d 233; Southern Advance Bag & Paper Co. v. United States, 5 Cir., 133 F.2d 449
12
See cases cited in footnote 11. See also Dunn v. United States, 284 U.S. 390, 52 S.Ct. 189, 76 L.Ed. 356; Borum v. United States, 284 U.S. 596, 52 S.Ct. 205, 76 L.Ed. 513; Morrissey v. United States, 9 Cir., 67 F.2d 267; Macklin v. United States, 9 Cir., 79 F.2d 756; Maugeri v. United States, 9 Cir., 80 F. 2d 199; Long v. United States, 9 Cir., 90 F.2d 482; Suetter v. United States, 9 Cir., 140 F.2d 103; Audett v. Johnston, 9 Cir., 142 F.2d 739; McElheny v. United States, 9 Cir., 146 F.2d 932; Stein v. United States, 9 Cir., 153 F.2d 737; Robinson v. United States, 9 Cir., 175 F.2d 4; Catrino v. United States, 9 Cir., 176 F.2d 884; Bridgman v. United States, 9 Cir., 183 F.2d 750; Allen v. United States, 9 Cir., 186 F.2d 439; Thomas v. United States, 9 Cir., 227 F.2d 667; Bryson v. United States, 9 Cir., 238 F. 2d 657
13
The depredation shown by the evidence consisted of many acts, including the following: Entering upon and occupying the property without the consent of the United States; constructing and using roads on the property; operating motor trucks, tractors, bulldozers, donkey engines and other machinery thereon; conducting logging operations thereon; cutting and felling many thousands of trees growing and standing thereon; making saw logs from such trees; removing some of the logs from the property; leaving others to rot on the ground; covering much of the property with tree tops, branches and other waste material; failing to remove such material from the property; thereby creating a fire hazard and making it difficult to reseed the property; and, by these and other acts, greatly damaging the property and greatly diminishing its value
14
C.I.T. Corp. v. United States, 9 Cir., 150 F.2d 85; Mininsohn v. United States, 3 Cir., 101 F.2d 477; Egan v. United States, 8 Cir., 137 F.2d 369; Old Monastery Co. v. United States, 4 Cir., 147 F.2d 905; United States v. George F. Fish, Inc., 2 Cir., 154 F.2d 798. See also United States v. New York Central & Hudson River Railroad Co., 212 U.S. 481, 29 S.Ct. 304, 53 L.Ed. 613; United States v. Union Supply Co., 215 U.S. 50, 30 S.Ct. 15, 54 L.Ed. 87; United States v. Illinois Central Railroad Co., 303 U.S. 239, 58 S.Ct. 533, 82 L.Ed. 773
15
See 52 C.J.S. Larceny § 3, pp. 792-794
16
Section 1852 provides:
"Whoever cuts, or wantonly destroys any timber growing on the public lands of the United States; or
"Whoever removes any timber from said public lands, with intent to export or to dispose of the same; or
"Whoever, being the owner, master, pilot, operator, or consignee of any vessel, motor vehicle, or aircraft or the owner, director, or agent of any railroad, knowingly transports any timber so cut or removed from said lands, or lumber manufactured therefrom —
"Shall be fined not more than $1,000 or imprisoned not more than one year, or both. * * *"
17
Section 1853 provides: "Whoever unlawfully cuts, or wantonly injures or destroys any tree growing, standing, or being upon any land of the United States which, in pursuance of law, has been reserved or purchased by the United States for any public use, or upon any Indian reservation, or lands belonging to or occupied by any tribe of Indians under the authority of the United States, or any Indian allotment while the title to the same shall be held in trust by the Government, or while the same shall remain inalienable by the allottee without the consent of the United States, shall be fined not more than $1,000 or imprisoned not more than one year, or both."
18
See footnote 13
19
It will be noted that § 1853 is applicable only to those who unlawfully cut or wantonly injure or destroy trees growing, standing or being upon the lands, reservations and allotments therein specified. There was no evidence that appellant cut, injured or destroyed any such tree
| {
"pile_set_name": "FreeLaw"
} |
335 F.Supp. 490 (1971)
EL PASO NATIONAL BANK, a National Banking Corporation
v.
UNITED STATES of America.
No. EP-70-CA-13.
United States District Court, W. D. Texas, El Paso Division.
June 22, 1971.
Hardie, Grambling, Sims & Galatzan, El Paso, Tex., for plaintiff.
William W. Guild, Tax Division, Dept. of Justice, Dallas, Tex., for defendant.
MEMORANDUM OPINION
BREWSTER, District Judge.
Plaintiff, El Paso National Bank, seeks a refund of federal income taxes *491 and interest totaling $9,577.84, assessed as a deficiency for the year 1966 following disallowance of a deduction for payment of state and local ad valorem taxes. All prerequisites for jurisdiction have been met pursuant to 28 U.S.C., Section 1346(a) (1).
The question for decision is whether plaintiff bank may deduct amounts paid for state and local taxes assessed against certain real estate owned by another corporation, El Paso International Company. The case is submitted upon facts stipulated in the pre-trial order and supported by documentary evidence.
The facts may best be given by quoting the stipulations of the parties in full:
"(a) El Paso National Bank, plaintiff, is a national banking corporation engaged in the operations of a bank and has its principal place of business at El Paso, Texas.
"(b) El Paso International Company (International) a Texas corporation, is and has been since its incorporation in 1951, engaged in making loans and investing in corporate securities, and has its principal place of business at El Paso, Texas. However, during the period March 4, 1963, until September 16, 1968, International was also engaged in the business of renting space to others in a commercial office building purchased from Plaintiff as hereinafter set forth. The stock of International is held in trust for the benefit of the present and future shareholders of El Paso National Bank, Plaintiff.
"(c) On March 4, 1963, the Plaintiff sold a building and located on Stanton Street, El Paso, Texas, to International. Prior thereto, the building housed the bank and offices of the Plaintiff. The warranty deed to the property was delivered to International, but it was not recorded. After the sale, and until its disposal in 1968, International assumed possession of the Stanton Street building, and reported the rentals and expenses incurred in connection with the building in its corporate income tax returns.
"(d) In 1966, the Plaintiff rendered the Stanton Street building for state, county and city ad valorem tax purposes. The total rendition and assessment of and ad valorem taxes paid by the Plaintiff for the year 1966, were as follows:
Property: Value Value Ad Valorem
Rendered: Assessed: Taxes:
Stanton Street $ 494,800 $ 503,700 $ 19,953.84
Building
New Bank Building
(Mesa and Stanton
Streets, Franklin
and Main Streets) 4,977,000 5,083,600 197,878.20
Capital Stock 601,700 486,200 46,552.90
___________ ___________ __________
Totals $ 6,073,500 $ 6,073,500 $264,384.94
"(e) The Commissioner of Internal Revenue disallowed a deduction taken by the Plaintiff for the payment of ad valorem taxes with respect to the Stanton Street building on its corporate income tax return for the year 1966, and collected deficiency income taxes in the amount of $9,204.62, plus assessed interest in the amount of $373.22, a total of $9,577.84. The plaintiff timely filed a claim for refund and upon the disallowance of the claim by the Commissioner, timely instituted this cause of action for the refund of the deficiency taxes."
Under Article 7166, Vernon's Ann. Texas Civil Statutes, state and local taxes are assessed against banks as to their real estate and against shareholders as *492 to the value of their capital stock.[1] Under Section 164(a) (1) of Title 26, U.S. C., plaintiff is allowed a deduction for state, local and foreign real property taxes. Under Section 164(e) of Title 26, plaintiff may deduct taxes paid on behalf of its shareholders with respect to the value of their capital stock.[2]
Plaintiff points out that all of International's stock is held in trust for the present and future stockholders of plaintiff. It argues that if the Stanton Street property had not been rendered, the total ad valorem tax would have remained the same because of a corresponding increase in the assessed value of its capital stock. Thus, plaintiff concludes that the rendering of the Stanton Street property and payment of tax on that property was, in substance, "simply a means of paying in advance a portion of the shareholder's capital stock tax."
Defendant points out that taxes on real estate are assessed against and are payable by the owner of the property. In its viewpoint, the substance of the transaction was simply payment by the plaintiff of real estate taxes imposed upon another. Reliance is upon the general principle that such taxes are deductible only by the person upon whom they are imposed. Magruder v. Supplee, 316 U.S. 394, 62 S.Ct. 1162, 86 L.Ed. 1555 (1942); Pounds v. United States, 5 Cir., 372 F.2d 342 (1967); Eastern gas & Fuel Associates v. Commissioner of Internal Revenue, 1 Cir., 128 F.2d 369 (1942).
Defendant's position is sound. Plaintiff's reasoning disregards the simple fact that International owned the Stanton Street property at the time of the assessment of the ad valorem taxes. Disregarding the fact of International's ownership would require ignoring the identity of that corporation as a separate corporate entity, simply on the basis that it was wholly owned by plaintiff at the time of the assessment. This, the Court cannot do, under the basic principles enunciated in National Carbide Corp. v. Commissioner, 336 U.S. 422, 69 S.Ct. 726, 93 L.Ed. 779 (1949). See Sid W. Richardson Foundation v. United States, D.Ct.N.D.Tex., 306 F.Supp. 755, 761 (1969), affirmed, 430 F.2d 710, 5 Cir., 1970, where this Court rejected such a contention under analogous circumstances.
Judgment will be entered for defendant in accordance with this opinion, which will serve as the Court's findings of fact and conclusions of law under Rule 52(a), F.R.Civ.P.
NOTES
[1] "Every banking corporation, State or national, doing business in this State shall, in the city or town in which it is located, render its real estate to the tax assessor at the time and in the manner required of individuals. At the time of making such rendition the president or some other officer of said bank shall file with said assessor a sworn statement showing the number and amount of the shares of said bank, the name and residence of each shareholder, and the number and amount of shares owned by him. Every shareholder of said bank shall, in the city or town where said bank is located, render at their actual value to the tax assessor all shares owned by him in such bank; and in case of his failure so to do, the assessor shall assess such unrendered shares as other unrendered property. Each share in such bank shall be taxed only for the difference between its actual cash value and the proportionate amount per share at which its real estate is assessed. . . ."
[2] "(a) General Rule.Except as otherwise provided in this section, the following taxes shall be allowed as a deduction for the taxable year within which paid or accrued:
"(1) State and local, and foreign, real property taxes."
* * * * *
"(e) Taxes of shareholder paid by corporation. Where a corporation pays a tax imposed on a shareholder on his interest as a shareholder, and where the shareholder does not reimburse the corporation, then
"(1) the deduction allowed by subsection (a) shall be allowed to the corporation, and
"(2) no deduction shall be allowed the shareholder for such tax."
| {
"pile_set_name": "FreeLaw"
} |
NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 19 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 18-10057
Plaintiff-Appellee, D.C. No.
4:13-cr-01427-RM-LCK-1
v.
ISAAC TITO CORONADO, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the District of Arizona
Rosemary Márquez, District Judge, Presiding
Submitted December 17, 2018**
San Francisco, California
Before: GOULD and BERZON, Circuit Judges, and BLOCK,*** District Judge.
The district court sentenced Isaac Coronado to a 19-month term of
imprisonment for violating the terms of his supervised release for a second time.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Frederic Block, United States District Judge for the
Eastern District of New York, sitting by designation.
The sentence is affirmed.
The district court asked Coronado during the sentencing hearing whether he
would prefer 11-months imprisonment with a new term of supervised release, or
would prefer a longer term of imprisonment—up to the statutory 24-month
maximum—with no subsequent term of supervised release. The district court then
continued the sentencing for two weeks so Coronado could consider the options
before expressing a preference.
When Coronado returned for sentencing, he stated he preferred the latter
option. The district court then sentenced Coronado to a 19-month term of
imprisonment with no additional term of supervised release. The court also gave
Coronado credit for the time he had already served on the second supervised
release violation. It appears from the record that Coronado incorrectly believed
that he was entitled to credit for 178 days served on his prior violation of
supervised release. Coronado made the district court aware of his misimpression.
And Coronado’s lawyer asked the court, in light of Coronado’s misimpression, to
give Coronado credit for time served on the first supervised release violation. The
district court declined to alter its sentence.
The district court properly imposed a 19-month sentence. Under 18 U.S.C.
§ 3583(e)(3), “a district court is no longer required to reduce the maximum term of
imprisonment to be imposed upon revocation by the aggregate length of prior
2
revocation imprisonment terms.” United States v. Knight, 580 F.3d 933, 937 (9th
Cir. 2009). Thus, the court could have lawfully imposed a sentence up to 24
months. It did not need to credit the prior 178-day term of imprisonment imposed
on Coronado for his first violations of the terms of supervised release. Id.
Nor did the district court abuse its discretion by imposing a sentence above
the guideline range of 5-11 months of imprisonment. The sentence was not
substantively unreasonable in light of the facts that (1) the court had imposed a
sentence well below the guideline range when Coronado was originally sentenced
for possessing a firearm as a convicted felon, and (2) his multiple violations of the
terms of his supervised release.
Finally, the court did not commit any plain error during the process of
considering Coronado’s preference for a longer sentence in lieu of additional
supervised release. Coronado appears to have believed he was entitled to an
additional 178 days of credit. But even if Coronado would have expressed a
different preference had he better understood the amount of credit he was entitled,
the district court was under no obligation to consider Coronado’s preference when
imposing a sentence.
AFFIRMED.
3
| {
"pile_set_name": "FreeLaw"
} |
United States Court of Appeals
for the Federal Circuit
______________________
NORMA D. CARROLL,
Claimant-Appellant,
v.
ROBERT A. MCDONALD,
Secretary of Veterans Affairs,
Respondent-Appellee.
______________________
2014-7008
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 12-2585, Judge Alan G. Lance, Sr.
______________________
Decided: September 24, 2014
______________________
BARBARA J. COOK, of Cincinnati, Ohio, argued for
claimant-appellant. On the brief was ZACHARY M. STOLZ,
Chisholm Chisholm & Kilpatrick, Ltd., of Providence,
Rhode Island. Of counsel were ROBERT V. CHISHOLM,
MATTHEW J. ILACQUA, and NICHOLAS L. PHINNEY.
JOSHUA E. KURLAND, Trial Attorney, Commercial Liti-
gation Branch, Civil Division, United States Department
of Justice, of Washington, DC, argued for respondent-
appellee. With him on the brief were STUART F. DELERY,
Assistant Attorney General, BRYANT G. SNEE, Acting
Director, and MARTIN F. HOCKEY, Assistant Director. Of
2 CARROLL v. MCDONALD
counsel on the brief were DAVID J. BARRANS, Deputy
Assistant General Counsel, and AMANDA R. BLACKMON,
Staff Attorney, United States Department of Veterans
Affairs, of Washington, DC.
______________________
Before PROST, Chief Judge, CLEVENGER, and CHEN, Circuit
Judges.
CHEN, Circuit Judge.
Norma D. Carroll appeals from the decision of the
United States Court of Appeals for Veterans Claims
(“Veterans Court”) affirming a denial by the Board of
Veterans’ Appeals (“Board”) of Mrs. Carroll’s claim to
Dependency and Indemnity Compensation benefits.
Carroll v. Shinseki, No. 12-2585, 2013 WL 3751775 (Vet.
App. July 18, 2013) (unpublished). For the reasons set
forth below, we affirm.
BACKGROUND
Mrs. Carroll married veteran Glenn Dodson in 1949.
The couple remained married until Mr. Dodson’s death in
1992 from cardiac arrhythmia due to amyotrophic lateral
sclerosis (“ALS”). Mrs. Carroll remarried two years later
at the age of 64.
In the two years following Mr. Dodson’s death, Mrs.
Carroll did not seek Dependency and Indemnity Compen-
sation (“DIC”) benefits, which are available to the “surviv-
ing spouse” of a veteran whose death resulted from a
service-related injury or disease. See 38 U.S.C. §§ 1310–
1318. Mrs. Carroll’s eligibility for DIC benefits terminat-
ed upon her remarriage in 1994. At the time, an individ-
ual who remarried could not be considered a “surviving
spouse” under the statute. See 38 U.S.C. § 103 (1986).
Nearly ten years after Mrs. Carroll’s remarriage,
Congress enacted the Veterans Benefits Act of 2003, Pub.
L. No. 108-183, which amended Title 38 to authorize DIC
CARROLL v. MCDONALD 3
benefits for surviving spouses who remarry after attain-
ing age 57. Section 101(a) of the Act, which was codified
at 38 U.S.C. § 103(d)(2)(B), provided that “[t]he remar-
riage after age 57 of the surviving spouse of a veteran
shall not bar the furnishing of [certain benefits, including
DIC] to such person as the surviving spouse of the veter-
an.” The House Committee Report accompanying the Act
expressed concern that the existing statute discouraged
older spouses from remarrying; the amendment sought to
remove that disincentive. See H.R. Rep. No. 108-211, at
12 (2003).
The Veterans Benefits Act of 2003 also provided new
DIC eligibility for surviving spouses who remarried after
the age of 57 but before the date of enactment of the Act.
Section 101(e) of the Act, which is uncodified, reads as
follows:
APPLICATION FOR BENEFITS.—In the case of
an individual who but for having remarried would
be eligible for benefits under title 38, United
States Code, by reason of the amendment made by
subsection (a), and whose remarriage was before
the date of enactment of this Act and after the in-
dividual had attained age 57, the individual shall
be eligible for such benefits by reason of such
amendment only if the individual submits an ap-
plication for such benefits to the Secretary of Vet-
erans Affairs not later than the end of the one-
year period beginning on the date of enactment of
this Act.
Pub. L. No. 108-183 § 101(e).
Mrs. Carroll, who was over the age of 57 when she
remarried in 1994, did not submit an application for DIC
benefits during the one-year window created by § 101(e),
which closed on December 16, 2004. During that time,
the cause of Mrs. Carroll’s former husband’s death—
ALS—was recognized as a condition that could be service-
4 CARROLL v. MCDONALD
related, though not presumptively so. See 38 C.F.R.
§ 4.124a (2004). That changed in 2008, when the De-
partment of Veterans Affairs (“VA”) promulgated a regu-
lation that established a presumption of service
connection for ALS for any veteran who developed the
disease at any time after separation from service. See
Presumption of Service Connection for Amyotrophic Lat-
eral Sclerosis, 73 Fed. Reg. 54,691 (Dep’t of Vet. Aff. Sept.
23, 2008).
In 2009, Mrs. Carroll filed an application for DIC ben-
efits as Mr. Dodson’s widow. The regional office of the VA
denied Mrs. Carroll’s claim because she submitted her
application nearly five years after the close of the one-
year filing window for previously remarried spouses
created by § 101(e) of the 2003 Act. Mrs. Carroll appealed
to the Board, which denied her claim for the same reason.
Mrs. Carroll then appealed to the Veterans Court,
contending that § 101(e) applied only to individuals “who
would have been eligible for DIC in 2003 but for the fact
that they remarried,” and that the subsection was thus
inapplicable to her because she was not “eligible for
benefits at that time because her husband’s death was not
then deemed service-connected.” J.A. 3. The Veterans
Court found that Mrs. Carroll’s argument conflated the
concepts of entitlement and eligibility. Although Mrs.
Carroll was not necessarily entitled to DIC benefits in
2003, the court explained, she was eligible to be consid-
ered for those benefits on the basis of her prior marriage
to Mr. Dodson. The fact that a service connection for Mr.
Dodson’s ALS was not presumptively established did not
mean that Mrs. Carroll was ineligible for DIC benefits or
otherwise outside the ambit of § 101(e). Accordingly, the
Veterans Court affirmed the Board’s decision.
Mrs. Carroll timely appeals. We have jurisdiction un-
der 38 U.S.C. § 7292.
CARROLL v. MCDONALD 5
DISCUSSION
This appeal requires us to interpret a statute. We
may “review and decide any challenge to the validity of
any statute or regulation or any interpretation there-
of . . . and to interpret constitutional and statutory provi-
sions, to the extent presented and necessary to a
decision.” § 7292(c). We review statutory interpretations
of the Veterans Court without deference. Chandler v.
Shinseki, 676 F.3d 1045, 1047 (Fed. Cir. 2012).
We interpreted the 2003 Act once before, in Frederick
v. Shinseki, 684 F.3d 1263 (Fed. Cir. 2012). There, we
considered the effect of Pub. L. No. 108-183 § 101(e) on a
surviving spouse who filed for DIC benefits after the
death of her veteran husband in 1970, lost those benefits
sixteen years later upon remarriage after the age of 57,
and then sought renewal of the benefits in 2007—
approximately three years after the closing of the one-
year filing window. In deciding that Mrs. Frederick was
covered by § 101(e) and thus had filed too late to receive
DIC benefits, we explained that the 2003 Act created “a
class of surviving spouses who remarry after the age of 57
and who thus become eligible for DIC benefits as a result
of the Act.” Frederick, 684 F.3d at 1266. That class, we
elaborated, includes two groups:
(a) those who previously applied for and received
DIC benefits, and whose remarriage before the ef-
fective date of the Act destroyed their eligibility
for DIC benefits (such as Mrs. Frederick), and (b)
those who for whatever reason never applied for
DIC benefits upon the death of their veteran
spouse, but who remarried before the effective
date of the Act, and thereby lost eligibility for DIC
benefits.
Id. In Frederick, we found that the surviving spouse fell
into the first group; here, the Veterans Court essentially
determined that Mrs. Carroll falls into the second group
6 CARROLL v. MCDONALD
and, similar to Mrs. Frederick, is therefore ineligible for
DIC benefits because she did not submit her application
for benefits within the one-year filing window of § 101(e).
On appeal, Mrs. Carroll argues that she was not “eli-
gible for benefits” until 2008, when the VA relaxed the
evidentiary burden for establishing a service connection
for ALS, the disease that caused the death of her hus-
band. Prior to that point, she contends, “the basis of her
DIC eligibility did not exist in law.” Appellant’s Br. 7.
Without the presumption of service connection for ALS in
place, it would have been difficult for her to establish the
service connection necessary to obtain DIC benefits. As
Mrs. Carroll sees it, our discussion in Frederick does not
apply to her because she never had any eligibility to lose:
she was not “eligible for benefits” under § 101(e) either
before or during its one-year filing window.
The Secretary, by contrast, maintains that the phrase
“eligible for benefits” in § 101(e) refers to “the class of
persons who would be recognized as surviving spouses by
virtue of subsection (a) but for having previously remar-
ried.” Appellee’s Br. 17. Section 101(e), the Secretary
argues, conferred “surviving spouse” status on these
previously ineligible individuals and thereby rendered
them eligible for benefits. As the Secretary reads
§ 101(e), the class of individuals who are “eligible for
benefits” is not limited to those who have already shown,
or who would necessarily be able to show, that they meet
all the criteria for entitlement to a benefit based on vari-
ous factual considerations. Rather, the class consists of
individuals to whom Congress granted a one-year window
to seek benefits for which they were previously ineligible
due to remarriage. We find the Secretary’s reading more
persuasive.
As the Veterans Court observed, Mrs. Carroll’s inter-
pretation equates eligibility for benefits with entitlement
to benefits. In support of her reading, Mrs. Carroll points
CARROLL v. MCDONALD 7
to other sections of Title 38 that appear to use the words
“eligibility” and “entitlement” interchangeably. See Reply
Br. 3 (citing, e.g., §§ 1317(b), 1513(b)). Mrs. Carroll notes
that these sections use the word “eligible” when referring
“to the concept of a claimant’s entitlement to a benefit.”
Id. While Mrs. Carroll’s characterization of those other
sections may be accurate, it does not support the notion
that “entitlement” and “eligibility” are used interchange-
ably throughout all of Title 38. On the contrary, other
sections of Title 38 explicitly differentiate between the
two concepts. See, e.g., § 6303(c) (requiring the VA to
distribute information to “eligible dependents regarding
all benefits and services to which they may be entitled”).
The question we must address here is whether “entitle-
ment” and “eligibility” mean the same thing in the specific
context of the 2003 Act.
Tellingly, 38 U.S.C. § 103, which the 2003 Act amend-
ed (and which specifically deals with the effect of marital
status on benefits), uses the phrase “eligibility for bene-
fits” to refer to the possibility of receiving benefits, not
entitlement to benefits. See § 103(d)(4) (defining when
“eligibility for benefits” starts in relation to termination of
a remarriage). As the Secretary points out, separate
statutory provisions define eligibility criteria for DIC
benefits, as well as the effective date of the award of such
benefits. See 38 U.S.C. §§ 1310, 5110. An “eligible”
spouse under § 103 must satisfy various conditions before
becoming entitled to a particular benefit.
In sum, although Mrs. Carroll points to examples in
other sections of Title 38 in which “eligible for” and “enti-
tled to” may be used interchangeably, the section of Title
38 that covers the effect of marital status on DIC bene-
fits—which was amended by the Act at issue in this
case—uses the phrase “eligibility for benefits” to mean
something other than “entitlement to benefits.”
8 CARROLL v. MCDONALD
Finally, we decline to apply § 101(e) in light of subse-
quent regulatory changes to evidentiary presumptions.
Mrs. Carroll’s interpretation of § 101(e) would require
eligibility to be determined through a case-by-case evalu-
ation of an individual’s likelihood of receiving benefits
based on various factual circumstances and evidentiary
presumptions which existed while the § 101(e) window
was open but which may have changed after the window
had closed. We do not read § 101(e) as contemplating the
consideration of such shifting circumstances. Section
101(e) is more reasonably understood as creating tempo-
rary eligibility for the class of surviving spouses who had
previously been barred from seeking benefits due to
remarriage. Because Mrs. Carroll is a member of that
class, her eligibility for DIC benefits terminated when the
one-year filing window of § 101(e) closed on December 16,
2004.
For the reasons stated above, the judgment of the
Veterans Court is affirmed.
AFFIRMED
COSTS
No costs.
| {
"pile_set_name": "FreeLaw"
} |
989 F.2d 508
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.
UNITED STATES of America, Plaintiff-Appellee,v.Concepcion DOMINGUEZ-ALPARO, Defendant-Appellant.
No. 90-2240.
United States Court of Appeals, Tenth Circuit.
March 16, 1993.
Before SEYMOUR, STEPHEN H. ANDERSON and BALDOCK, Circuit Judges.
ORDER AND JUDGMENT*
STEPHEN H. ANDERSON, Circuit Judge.
1
After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed.R.App.P. 34(a); 10th Cir.R. 34.1.9. The case is therefore ordered submitted without oral argument.
2
Concepcion Dominguez-Alparo appeals her conviction for importation of more than 100 kilograms of marijuana and possession with intent to distribute more than 100 kilograms of marijuana in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B) and 960(b)(2). She raises one issue on appeal: "Whether [she] was prejudiced at trial by joinder with codefendant Victor Santos Huerta to the extent that a severance should have been granted as a matter of law." Appellant's Brief at 2. We affirm.
3
The parties presented the following evidence at trial. Dominguez-Alparo, along with passenger codefendant San Juana Maese De Amaro, entered a checkpoint in New Mexico driving a white Ford pickup truck. At the checkpoint, Border Patrol Agent Manuel Padilla, Jr. asked to see identification showing citizenship. Dominguez-Alparo produced an I-94 immigration document with a poor quality picture. Due to the poor picture, Agent Padilla directed the two to the secondary inspection area of the checkpoint, where he asked Dominguez-Alparo additional questions about the I-94. She was extremely nervous, and she stuttered and avoided eye contact. She and Maese had only one light bag with them. Agent Padilla asked Dominguez-Alparo where they were going. He testified that she said they were going to Albuquerque to fix her sick aunt's papers. He believed she was referring to immigration papers.
4
Agent Padilla visually inspected the truck and noticed marijuana in the truck bed. He asked for and received permission to inspect the truck with a drug sniffing dog. The dog alerted to the bed of the truck. The truck had a secret compartment holding 236 pounds of marijuana.
5
Border Patrol Agent Arturo Rocha, Jr. and Agent Padilla arrested Dominguez-Alparo and Maese. Agent Rocha drove the truck and Dominguez-Alparo to the Border Patrol station in Las Cruces. On the trip to Las Cruces, she told Agent Rocha that she had bought the truck a few days earlier, she had driven the truck from Juarez to El Paso the day before, and in El Paso at an inspection area, a drug sniffing dog had not alerted. She also told Agent Rocha that she was going to Albuquerque to meet the seller of the truck, whose name she could not remember, to obtain the truck title. Upon reaching Las Cruces, Agent Rocha found no indication that Dominguez-Alparo had passed through a checkpoint in El Paso from Mexico.
6
Huerta, later coming forward on his own initiative, gave both oral and written statements to Border Patrol Agent Alvin Evenson indicating that he had tricked Dominguez-Alparo into transporting the marijuana. According to his written statement, which was admitted as evidence, he sold her the truck in order to get her to take the truck to Albuquerque, where he intended to reclaim possession of the truck and return her down payment money. Orally, he also told Agent Evenson that he had obtained the drugs in Mexico. He stated that he had followed Dominguez-Alparo to the checkpoint, but he had quickly departed when he saw her and Maese being arrested.
7
Huerta indicated that he would enter a guilty plea in order that the charges against Dominguez-Alparo and Maese could be dropped. Sometime after giving the statement, Huerta advised his attorney that he would not plead guilty because he had not been paid the $60,000 Dominguez-Alparo had promised him for taking the responsibility.
8
At the joint trial, Huerta testified that although he had previously served time in jail for transporting marijuana, he had no role with regard to this marijuana. Dominguez-Alparo, according to his testimony, agreed to pay him $60,000 plus attorney's fees and bonds for pleading guilty. She paid him part of the money, gave him and his wife drugs to support their habits, gave them a car and apartment to use, and bought Huerta new clothing. Dominguez-Alparo coached him before he gave his statement to Agent Evenson. Huerta also testified that Dominguez-Alparo had nice possessions despite being on welfare.
9
In summary, Huerta defended himself by asserting that Dominguez-Alparo was solely responsible for transporting the marijuana and that she had offered him money to take responsibility for her. Dominguez-Alparo, however, defended herself by asserting that Huerta tricked her into transporting the marijuana and then offered her money to conceal his involvement.
10
She testified that she bought the truck from Huerta the day before she was arrested and that she was traveling to Albuquerque to pick up the truck papers from him. She stated that she had thrown away the map to the house in Albuquerque of the owner of the truck, where she was to pick up the papers. She also testified that she had no knowledge of the secret compartment or marijuana. She had her suspicions about whether the truck was stolen when she noticed a black truck enter the checkpoint area. At that time, she became nervous because she did not have the title to the truck. She denied telling Agent Padilla she was going to Albuquerque to fix her sick aunt's papers and admitted she had lied about crossing from Mexico to El Paso with the truck. She testified Huerta asked her to plead guilty for $10,000, so that neither he nor his mother would be implicated. She denied promising Huerta money for pleading guilty. She claimed he and his wife took her car and broke into her apartment.
11
The jury found Dominguez-Alparo guilty on both counts and Huerta not guilty on either count.1 She was sentenced to sixty-three months' imprisonment for each count,--with the sentences to run concurrently.
12
On appeal, Dominguez-Alparo argues that her defense and Huerta's defense were mutually antagonistic, and, thus, as a matter of law, the trials should have been severed. Alternatively, she maintains that without severance she was prejudiced at trial.2
13
The parties agree that no motion for severance was ever presented to the district court. Since Dominguez-Alparo did not seek severance in the trial court, she waived the issues presented unless she can show actual prejudice resulting from the joint trial.3 See United States v. Killip, 819 F.2d 1542, 1547 (10th Cir.), cert. denied, 484 U.S. 987 (1987).
14
Federal Rule of Criminal Procedure 8(b) provides that two or more defendants may be charged in the same indictment if they allegedly participated in the same acts constituting the offense. Generally, defendants who are indicted together should be tried together. Zafiro v. United States, 113 S.Ct. 933, 937 (1993). If, however, it appears that a defendant is prejudiced by the joinder, Fed.R.Crim.P. 14 provides that the district court may order severance.
15
The Supreme Court has recently held, in a case in which the defendants moved for severance, that "[m]utually antagonistic defenses are not prejudicial per se." Zafiro, 113 S.Ct. at 938. When codefendants present mutually antagonistic defenses Rule 14 does not require severance, even if prejudice is shown. Id. Rather, the district court has sound discretion to tailor appropriate relief. Id. "[W]hen defendants properly have been joined under Rule 8(b), a district court should grant a severance under Rule 14 only if there is a serious risk that a joint trial would compromise a specific trial right of one of the defendants, or prevent the jury from making a reliable judgment about guilt or innocence." Id. Limiting instructions are often sufficient to cure any risk of prejudice. Id.
16
Although we recognize that a motion for severance on the ground of mutually antagonistic defenses was made in Zafiro, whereas no motion was made in this case, we believe Zafiro controls the outcome of this case. Under the circumstances of this case, we need not decide whether or to what extent the tests of "actual prejudice" and "serious risk" differ. We are satisfied that there was no fundamental trial error and that the jury could make a proper determination without severance. Accordingly, we conclude there was neither "actual prejudice" nor "serious risk" in this case.
17
Dominguez-Alparo alleges that acceptance of one defendant's defense precluded acquittal of the other defendant. Also, she maintains, without setting forth any specific instances of prejudice, that the antagonistic nature of their defenses prejudiced them. These allegations alone do not present a sufficient factual basis for prejudice. Cf. United States v. Smith, 788 F.2d 663, 668 (10th Cir.1986) (whether actual prejudice is shown is a fact question).
18
Dominguez-Alparo was not entitled to severance merely because she may have had a better chance for acquittal with a separate trial. Zafiro, 113 S.Ct. at 938. In fact her chances for acquittal may have been better with a joint trial. Although Dominguez-Alparo was aware prior to trial, as she admits in her brief on appeal, that she and Huerta would assert contrary defenses, she did not move for severance. Thus, it appears that she made an informed strategic decision to proceed with a joint trial. The government points out that if Dominguez-Alparo had moved for and been granted severance, Huerta's exculpatory statement would have been inadmissible under Fed.R.Evid. 804(b)(3), which excludes statements against interest when the declarant is available as a witness, and the government would not have sought to use the statement. At a joint trial, however, the government was required to introduce the statement. Thus, we conclude Dominguez-Alparo's decision not to move for severance was based on trial strategy. She cannot now argue that the trial strategy, which did not compromise her trial rights, was prejudicial to her. Additionally, we note she did not file a reply brief contesting the government's arguments concerning trial strategy.
19
Even if there was some risk of prejudice, it was cured with proper instructions similar to those approved in Zafiro, 113 S.Ct. at 939. In Zafiro, the Court stated that the district court properly instructed the jury that the government had the burden of proving beyond a reasonable doubt that each defendant committed the charged crimes, that it must separately consider each defendant and the charges against that defendant, and that the opening and closing arguments were not evidence. Id. The district court in this case instructed similarly. It told the jury that any statements, objections, or arguments made by the lawyers were not evidence in the case. Vol. I, tab 68 at 13. More importantly, the court instructed that
20
A separate crime or offense is charged against each of the defendants in each count of the indictment. Each offense, and the evidence pertaining to it, should be considered separately. Also, the case of each defendant should be considered separately and individually. You should analyze what the evidence in the case shows with respect to each defendant leaving out of consideration entirely any evidence admitted solely against the other defendants. The fact that you may find one or more of the defendants guilty or not guilty of any of the offenses charged should not control your verdict as to any other offense or any other defendants.
21
Id. at 18. Additionally, the court instructed the jury that it must find a defendant guilty beyond a reasonable doubt. Id. at 3, 4. The jury was able to follow these instructions, evaluate the credibility of the witnesses, and return a reliable verdict. See Zafiro, 113 S.Ct. at 939; United States v. Swingler, 758 F.2d 477, 494 (10th Cir.1985).
22
Because the jury reached a decision based on proper instructions and a separate trial could have been potentially more harmful to Dominguez-Alparo, we conclude she did not suffer any prejudice by the joint trial under any standard. Accordingly, the judgment of the United States District Court for the District of New Mexico is AFFIRMED.
*
This order and judgment has no precedential value and shall not be cited, or used by any court within the Tenth Circuit, except for purposes of establishing the doctrines of the law of the case, res judicata, or collateral estoppel. 10th Cir.R. 36.3
1
The district court granted Maese's motion for directed verdict at the close of the government's case
2
Dominguez-Alparo suggests that there was insufficient evidence to convict beyond a reasonable doubt, especially in light of the granting of Maese's motion for directed verdict. After examining the transcript of the trial, we are convinced the evidence was sufficient to support her conviction. See United States v. Sasser, 974 F.2d 1544, 1560 (10th Cir.1992) (evidence sufficient when, viewed in light most favorable to government, reasonable jury could find defendant guilty beyond reasonable doubt), cert. denied, 113 S.Ct. 1063 (1993)
3
The inquiry on Dominguez-Alparo's claims merges because she must show actual prejudice from the joint trial
| {
"pile_set_name": "FreeLaw"
} |
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 18-6024
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
STEPHEN ARTHUR ROBINETTE,
Defendant - Appellant.
Appeal from the United States District Court for the Middle District of North Carolina, at
Greensboro. William L. Osteen, Jr., District Judge. (1:11-cr-00400-WO-1; 1:17-cv-
01132)
Submitted: March 13, 2018 Decided: March 16, 2018
Before NIEMEYER, KING, and WYNN, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Stephen Arthur Robinette, Appellant Pro Se. Angela Hewlett Miller, Anand P.
Ramaswamy, Assistant United States Attorneys, OFFICE OF THE UNITED STATES
ATTORNEY, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Stephen Arthur Robinette seeks to appeal the magistrate judge’s report and
recommendation recommending that his 28 U.S.C. § 2255 (2012) motion be dismissed
without prejudice. This court may exercise jurisdiction only over final orders, 28 U.S.C.
§ 1291 (2012), and certain interlocutory and collateral orders, 28 U.S.C. § 1292 (2012);
Fed. R. Civ. P. 54(b); Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 545-46
(1949). The order Robinette seeks to appeal is neither a final order nor an appealable
interlocutory or collateral order. See In re Bryson, 406 F.3d 284, 288 (4th Cir. 2005);
Haney v. Addison, 175 F.3d 1217, 1219 (10th Cir. 1999); Aluminum Co. of Am. v. U.S.
Envtl. Prot. Agency, 663 F.2d 499, 501-02 (4th Cir. 1981). Accordingly, we dismiss the
appeal for lack of jurisdiction. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials before this court and argument
would not aid the decisional process.
DISMISSED
2
| {
"pile_set_name": "FreeLaw"
} |
100 F.3d 228
153 L.R.R.M. (BNA) 2869, 133 Lab.Cas. P 11,732
Douglas T. WIGHTMAN, et al., Plaintiffs, Appellants,v.SPRINGFIELD TERMINAL RAILWAY COMPANY and UnitedTransportation Union, Defendants, Appellees.
No. 96-1378.
United States Court of Appeals,First Circuit.
Heard Oct. 7, 1996.Decided Nov. 19, 1996.
Harold A. Ross, Cleveland, OH, with whom Ross & Kraushaar Co., L.P.A., Shelley B. Kroll, and Segal, Roitman & Coleman were on brief, for plaintiffs, appellants.
John R. Nadolny, for defendant, appellee Springfield Terminal Railway Co.
Norton N. Newborn, Cleveland, OH, with whom Norton N. Newborn Co., L.P.A., James F. Freeley, Jr., and Freeley & Freeley were on brief, for defendant, appellee United Transportation Union.
Before TORRUELLA, Chief Judge, BOWNES, Senior Circuit Judge, and STAHL, Circuit Judge.
STAHL, Circuit Judge.
1
Appellants, Brotherhood of Locomotive Engineers and several of its individual members ("BLE") sought to enjoin enactment of a clause in a newly negotiated collective bargaining agreement between Appellees United Transportation Union ("UTU") and Springfield Terminal Railway Co. ("ST"), as a violation of the Railway Labor Act ("RLA"), 45 U.S.C. §§ 151-188. The district court denied the injunction and granted summary judgment for UTU and ST on BLE's complaint. Wightman v. Springfield Terminal Ry. Co., 915 F.Supp. 503, 507 (D.Mass.1996). BLE now appeals.
Background
2
The RLA governs labor and collective bargaining arrangements between carriers, or employers, and unions. ST is a railroad operator located in Springfield, Massachusetts, and a carrier for purposes of the RLA. BLE and UTU are two of several trade unions who have collective bargaining agreements with ST. The individual plaintiffs in this case belong to BLE.
3
The RLA authorizes carriers and unions to establish union shops. A union shop in the railroad industry simply means that in order to remain employed with a railroad company, employees must belong to one of the national, RLA recognized railroad unions. See 45 U.S.C. §§ 152, Eleventh(a) and (c).1 ST and the unions with which it maintains collective bargaining agreements have established a union shop.
4
Employment in the railroad industry revolves around crafts or classes of work, each of which is represented by a different union. Train service and engineer service constitute two such crafts. The former encompasses conductors, brakemen, trainmen and yardmen, and the latter includes primarily locomotive engineers. UTU represents the train service craft and BLE represents the engineer service craft.
5
By practice, junior engineers advance from the ranks of the train service employees. Over the course of any given year, however, the amount of engineer work may fluctuate. During periods of reduced engineer work, junior engineers may have to return temporarily to train service in order to remain employed.2 Junior engineers, therefore, have an economic interest in maintaining their train service seniority.
6
Prior to 1995, the UTU-ST collective bargaining agreement allowed non-UTU member engineers to continue to accrue train service seniority. In 1995, however, UTU negotiated a provision known as Article 21, which requires that employees moving from train service to engineer service pay dues to UTU in order to maintain and continue to accrue their train service seniority. When BLE objected to Article 21, ST offered it a similar provision which BLE rejected, apparently believing it to be of little value to its membership.
7
BLE then challenged Article 21 on RLA grounds. It sought preliminary injunctive relief which the district court denied. Subsequently, on cross motions, the district court granted summary judgment in favor of UTU and ST. This appeal followed.
Standard of Review
8
We review the award of summary judgment de novo. Ortiz-Pinero v. Rivera-Arroyo, 84 F.3d 7, 11 (1st Cir.1996). Summary judgment is appropriate in the absence of a genuine issue of material fact, when the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c). Neither party may rely on conclusory allegations or unsubstantiated denials, but must identify specific facts deriving from the pleadings, depositions, answers to interrogatories, admissions and affidavits to demonstrate either the existence or absence of an issue of fact. See Fed.R.Civ.P. 56(c) and (e).
9
Cross motions for summary judgment neither alter the basic Rule 56 standard, nor warrant the grant of summary judgment per se. See Wiley v. American Greetings Corp., 762 F.2d 139, 141 (1st Cir.1985). Cross motions simply require us to determine whether either of the parties deserves judgment as a matter of law on facts that are not disputed. Id. As always, we resolve all factual disputes and any competing, rational inferences in the light most favorable to the party against whom summary judgment has entered. Den Norske Bank v. First Nat'l Bank of Boston, 75 F.3d 49, 53 (1st Cir.1996).
Discussion
10
BLE raises three basic arguments, each of which involves a different statutory provision of the RLA. First, BLE contends, Article 21 violates the prohibition of mandated dual unionism under 45 U.S.C. § 152, Eleventh(c). Second, BLE urges, Article 21 impermissibly interferes with employees' rights to organize and choose their own collective bargaining representative under 45 U.S.C. §§ 152, Third and Fourth. Finally, BLE asserts, the RLA, 45 U.S.C. § 156, required UTU and ST to provide BLE, an interested party, notice of their contract negotiations and an opportunity to participate in them. We conclude that the district court ably analyzed each of BLE's arguments and properly found them lacking in substance. We affirm.
A. 45 U.S.C. § 152, Eleventh(c)
11
According to BLE, Article 21 violates 45 U.S.C. § 152, Eleventh(c), part of the union shop provisions of the RLA. Analysis of BLE's argument requires a brief detour into the background of the union shop provisions generally, and how § 152, Eleventh(c) fits into the union shop scheme.
12
Under 45 U.S.C. § 152, Eleventh(a), carriers and unions may establish union shops. Section 152, Eleventh(a) specifically provides that carriers and unions may "make agreements, requiring as a condition of continued employment, that ... all employees shall become members of the labor organization representing their craft or class." Read in isolation, the plain language of this provision would allow carriers and unions to require employees to belong not to the union of their choice, but to the union certified as the representative of their craft or class.
13
Organized labor petitioned Congress for the union shop option in order to eradicate the problem of "free riders," railroad employees who do not pay dues to any union but receive whatever benefits collective bargaining confers. See generally Pennsylvania R.R. Co. v. Rychlik, 352 U.S. 480, 489-94, 77 S.Ct. 421, 426-29, 1 L.Ed.2d 480 (1957). In acceding to labor's request, however, Congress recognized that the intercraft mobility not uncommon in the railroad industry could pose a problem for employees in a union shop. Under § 152, Eleventh(a), an employee shuttling between train service and engineer service could either be forced to change unions or to belong and pay dues to two unions until reaching a level of seniority sufficient to stabilize him as an engineer. As the Supreme Court pointed out, "[t]he former alternative would, of course, be expensive and sometimes impossible, while the latter would be complicated and might mean the loss of seniority and union benefits." Id. at 490, 77 S.Ct. at 426.
14
Congress attempted to tailor union shops to accommodate intercraft mobility through § 152, Eleventh(c). That subsection provides, "[t]he requirement of membership in a labor organization in [a union shop] shall be satisfied ... if said employee shall hold or acquire membership in any one of the labor organizations, national in scope, organized in accordance with this chapter." 45 U.S.C. § 152, Eleventh(c). On its face, § 152 Eleventh(c) appears to contradict § 152, Eleventh(a) by allowing any employee in any union shop to belong to any of the RLA recognized railroad unions.
15
The purpose of § 152, Eleventh(c), however, significantly circumscribes its language. See Rychlik, 352 U.S. at 488, 492, 77 S.Ct. at 425-26, 427; see also Landers v. Nat'l R.R. Passenger Corp., 814 F.2d 41, 44-45 (1st Cir.1987) (recognizing limited applicability of § 152, Eleventh(c)), aff'd, 485 U.S. 652, 108 S.Ct. 1440, 99 L.Ed.2d 745 (1988). Despite its broad language, "the only purpose of Section 2, Eleventh(c) was a very narrow one: to prevent compulsory dual unionism or the necessity of changing from one union to another when an employee temporarily changes crafts." Landers v. Nat'l R.R. Passengers Corp., 485 U.S. 652, 657-58, 108 S.Ct. 1440, 1443, 99 L.Ed.2d 745 (1988); Rychlik, 352 U.S. at 492, 77 S.Ct. at 427. Section 152, Eleventh(c) does not exist to benefit unions by permitting them to recruit members from the ranks of other established unions, or to provide railroad employees with a general right to join unions other than the designated bargaining representative of their craft, except to meet the narrow problem of intercraft mobility in a union shop. Rychlik, 352 U.S. at 493, 77 S.Ct. at 427-28.
16
Bearing in mind the context and purpose of § 152 Eleventh(c), we turn to BLE's challenge to Article 21. BLE essentially attacks Article 21 from two angles. First, BLE contends, Article 21 constitutes either a § 152, Eleventh(a) union shop agreement that violates § 152, Eleventh(c) or an amendment to the existing ST-UTU agreement that violates § 152, Eleventh(c). Second, BLE argues, Article 21 will upset "the cost sharing scheme which was continued and fostered by the 1951 union shop amendments." We disagree.
17
On its face, Article 21 can neither constitute a union shop agreement by itself, nor an amendment to the ST-UTU agreement that violates Eleventh(c). Nothing in the language of Article 21 requires membership in UTU or any other union as a condition of employment. See Brotherhood of Locomotive Eng'rs v. Kansas City Southern Ry. Co., 26 F.3d 787, 793 (8th Cir.) (§ 152, Eleventh(c) applies only to a § 152, Eleventh(a) union shop agreement), cert. denied, 513 U.S. 930, 115 S.Ct. 320, 130 L.Ed.2d 281 (1994); Dempsey v. Atchison, Topeka and Santa Fe Ry. Co., 16 F.3d 832, 838 (7th Cir.) (same), cert. denied, 513 U.S. 821, 115 S.Ct. 82, 130 L.Ed.2d 35 (1994). Article 21 does not require an engineer to choose between dual union membership or unemployment; Article 21 simply requires an engineer to choose whether to retain and continue to accrue seniority in the train service craft. Wightman, 915 F.Supp. at 506.
18
In Dempsey v. Atchison, Topeka and Santa Fe Ry. Co., 16 F.3d 832, 838 (7th Cir.1994), the Seventh Circuit faced a BLE challenge to a provision requiring engineers desirous of accumulating additional train service seniority to pay dues to UTU. Failure to pay, however, would not affect accrued seniority. In examining whether the provision constituted a union shop agreement, the Seventh Circuit relied in part on the fact that it did not require payment of dues to UTU in order to retain accrued seniority, implying that such a provision might constitute a union shop provision. Id. at 838 (citing NLRB v. Manitowoc Engineering Co., 909 F.2d 963, 969-71 (7th Cir.1990), cert. denied, Clipper City Lodge No. 516 v. NLRB, 498 U.S. 1083, 111 S.Ct. 954, 112 L.Ed.2d 1042 (1991)). Ultimately, the court concluded that the provision at issue did not create any conditions of continued employment, and therefore, did not constitute a § 152, Eleventh(a) union shop agreement. Id.
19
In our view, the extra step Article 21 takes with respect to accrued seniority does not create any conditions on employment different from the provision in Dempsey. As indicated, nothing on the face of Article 21 requires employees to belong to UTU in order to remain employed. Despite the fact that Article 21 takes the extra step of conditioning seniority retention and accrual on continued dues payment, an engineer who chooses BLE over UTU satisfies either of the UTU-ST or BLE-ST union shop requirements. To the extent, therefore, that Dempsey implies that a provision such as Article 21 might constitute a union shop agreement or amendment, we respectfully disagree.
20
BLE, however, asserts that engineers who choose BLE over UTU run the risk of unemployment when shuttled back to train service, since they will have no train service seniority. According to BLE, this effectively forces those engineers at the lower end of the engineer seniority list either to belong to UTU and BLE, or to UTU instead of BLE, as a condition of continued employment at ST. BLE asserts that § 152, Eleventh(c) allows a railroad employee in a union shop to change membership to any other RLA recognized union, "without putting himself out of compliance with the membership requirement of a valid union shop agreement and thereby cause a loss of seniority and employment rights." BLE's argument requires us to determine whether § 152, Eleventh(c), in protecting against compulsory dual unionism, elevates seniority into a statutorily protected right employees may take with them as they move from craft to craft and union to union.
21
By its own language, the RLA governs relations between carriers, unions and employees, and § 152, Eleventh(c) dictates the limits of what carriers and/or unions can demand of employees in a union shop. Within those parameters, which include a prohibition on compulsory dual unionism, the RLA makes no mention of seniority, and notably fails to designate seniority as a protected employment right.
22
In the absence of a legislative pronouncement to the contrary, union contracts typically define the scope and significance of seniority rights. Aeronautical Indus. Dist. Lodge v. Campbell, 337 U.S. 521, 526, 69 S.Ct. 1287, 1289-90, 93 L.Ed. 1513 (1949); Trailmobile Co. v. Whirls, 331 U.S. 40, 53 n. 21, 67 S.Ct. 982, 988 n. 21, 91 L.Ed. 1328 (1947). Seniority, therefore, does not stem from the employer-employee relationship and by extension become an employment right, but rather from either a statute or the four corners of a collective bargaining agreement, in this case between a union and a carrier. National Labor Relations Bd. v. Whiting Milk Corp., 342 F.2d 8, 10-11 (1st Cir.1965). It is by now well established that in the absence of a contract creating seniority rights, they do not exist. See Dempsey, 16 F.3d at 839; United Food & Commercial Workers Int'l Union, AFL-CIO, Local 7 v. Gold Star Sausage Co., 897 F.2d 1022, 1026 (10th Cir.1990); Cooper v. General Motors Corp., 651 F.2d 249, 250 (5th Cir.1981) (citing cases); Local 1251 Int'l Union of United Auto., Aircraft and Agric. Implement Workers of Am., UAW v. Robertshaw Controls Co., 405 F.2d 29, 32-33 (2d Cir.1968) (citing cases) (overruling prior circuit precedent to the contrary).
23
Seniority, like any other benefit deriving exclusively from collective bargaining agreements, does not vest in employees. Robertshaw, 405 F.2d at 33; McMullans v. Kansas, Okla. & Gulf Ry., 229 F.2d 50, 53 (10th Cir.1956). Instead, seniority rights are subject to revision or even abrogation with the termination or renegotiation of the collective bargaining agreement.3 Dempsey, 16 F.3d at 839; Robertshaw, 405 F.2d at 33; McMullans, 229 F.2d at 54. Any rights employees have in seniority, therefore, are tied directly to the terms of the labor agreement between the carrier and the union representing their craft. Nothing in the RLA changes this fundamental tenet of labor law.4 Dempsey, 16 F.3d at 840; McMullans, 229 F.2d at 53.
24
We recognize that Article 21 may make it attractive for at least some engineers to choose UTU over BLE. We stop short, however, of equating a union's successful negotiation of a potential competitive advantage over another union with the kind of compulsory dual unionism § 152, Eleventh(c) exists to prevent. See Whiting Milk, 342 F.2d at 11 ("Obtaining a benefit for employees may well encourage others to join a union but that side effect does not violate the [NLRB], for 'The truth is that the union is a service agency that probably encourages membership whenever it does its job well.' ") (quoting Local 357, Int'l Bhd. of Teamsters v. NLRB, 365 U.S. 667, 675-76, 81 S.Ct. 835, 840, 6 L.Ed.2d 11 (1961)). We conclude that § 152, Eleventh(c) does not provide the statutory basis to vest railroad employees with their accrued seniority.
25
Finally, BLE asserts that Article 21 "upsets the sharing of costs of representation promoted by the 1951 amendments" in violation of § 152, Eleventh(c).
26
Section 152, Eleventh(c) limits employees in a union shop to membership in those unions which qualify as electors of the union representatives on the National Railroad Adjustment Board ("NRAB"). The NRAB exists to settle disputes arising under collective bargaining agreements. See Rychlik, 352 U.S. at 487, 77 S.Ct. at 425. As the Seventh Circuit pointed out, this requirement limits union shop participation to those unions which share the costs of administering the NRAB, and which "join together in other respects in the negotiating and policing of collective bargaining agreements under the dispute mechanisms of the RLA." Dempsey, 16 F.3d at 840. BLE appears to argue that Article 21 has the effect of depriving it of dues that would offset its obligations to NRAB. See id. Nothing in the RLA, however, guarantees BLE a particular level of dues to offset its obligations to NRAB. Stated more broadly, the RLA does not protect any one union from competition with another over membership and dues.
B. 45 U.S.C. §§ 152, Third and Fourth
27
Section 152, Third, entitled "Designation of representatives," provides that neither unions nor carriers "shall in any way interfere with, influence, or coerce the other in its choice of representatives." Section 152, Fourth, dealing with organization and the collective bargaining process, grants employees the right to organize and bargain collectively through representatives of their own choosing, and provides that no carrier may influence or coerce employees regarding their choice of labor organization, nor deduct dues or other fees of such organizations from employee wages. BLE contends that Article 21 violates the employee freedom of choice embodied in Third and Fourth, and also the prohibition on wage deductions in Fourth. Again, we disagree.
28
In TWA, Inc. v. Independent Fed. of Flight Attendants, 489 U.S. 426, 441, 109 S.Ct. 1225, 1234-35, 103 L.Ed.2d 456 (1989), the Supreme Court noted that §§ 152, Third and Fourth operate primarily in pre-certification contexts, where unorganized employees seek to designate representatives and commence collective bargaining with employers. The Court reasoned that the RLA contemplates dispute resolution through private mechanisms, the success of which depends on the independence of the employees' "putative representative" and on neither party's access to the courts to further their own partisan ends. Id. (quoting Switchmen's Union of North America v. National Mediation Bd., 320 U.S. 297, 300, 64 S.Ct. 95, 96-97, 88 L.Ed. 61 (1943)). In a post-certification context, by contrast, the parties already have certified representatives and a collective bargaining record in place. In post-certification disputes, therefore, we must limit our intervention to cases in which the aggrieved union has no other remedy "to enforce the statutory commands which Congress had written into the [RLA]." Id.
29
We have concluded that intervention in a post-certification dispute under §§ 152, Third and Fourth will occur in extremely limited circumstances. See National R.R. Passenger Corp. v. International Ass'n of Machinists and Aerospace Workers, 915 F.2d 43, 51 (1st Cir.1990). Specifically, we will intervene upon demonstration of carrier conduct reflecting anti-union animus, an attempt to interfere with employee choice of collective bargaining representative, discrimination, or coercion. Id. In addition, we will intervene when a carrier commits acts of intimidation that cannot be remedied by administrative means, or commits a fundamental attack on the collective bargaining process or makes a direct attempt to destroy a union. Id.
30
BLE purports to establish a genuine issue of material fact by listing 15 "facts" which it claims demonstrate anti-BLE animus sufficient to justify post-certification judicial intervention. We need not recite all of them here. We agree with the district court that BLE's facts, even if all true, at best demonstrate sharp bargaining practices between unions in an effort to gain competitive advantage. Wightman, 915 F.Supp. at 507. While BLE's facts evince competitive jockeying between it and UTU, they notably fail to demonstrate anti-BLE animus or a fundamental attack on the bargaining process by ST.5 Accordingly, the District Court correctly declined to intervene in this post-certification matter.
31
BLE also contends that Article 21 violates §§ 152, Third and Fourth as a matter of law.6 BLE offers precedent under the National Labor Relations Act ("NLRA"), which it seeks to apply analogically to this railroad dispute. While the NLRA may provide analogies that bear on interpretation of the RLA, the Supreme Court has emphasized that "the NLRA 'cannot be imported wholesale into the railway labor arena.' " TWA, 489 U.S. at 439, 109 S.Ct. at 1233 (quoting Brotherhood of R.R. Trainmen v. Jacksonville Terminal, 394 U.S. 369, 383, 89 S.Ct. 1109, 1118, 22 L.Ed.2d 344 (1969)). We especially hesitate to employ NLRA precedent in light of the clear and unequivocal RLA precedent from the Supreme Court, this circuit and others, which underscores the limited post-certification application of §§ 152, Third and Fourth. See TWA, 489 U.S. at 441, 109 S.Ct. at 1234-35 (limiting application of §§ 152, Third and Fourth to pre-certification contexts); Nat'l R.R. Passenger, 915 F.2d at 51 (same); see also Kansas City Southern, 26 F.3d at 795; Dempsey, 16 F.3d at 841.
32
Finally, BLE argues somewhat opaquely that a wage deduction provision only passes RLA muster if it comprises part of a union shop agreement under § 152, Eleventh. At the outset we note that Article 21 by itself does not refer to wage deductions, much less mandate them. Assuming such a wage deduction exists, however, we disagree with BLE's interpretation of §§ 152, Fourth and Eleventh(b).
33
As indicated, § 152, Fourth provides that carriers may not deduct union dues or fees from employee wages. Section 152, Eleventh(b), however, provides that carriers and labor organizations may make agreements providing for the deduction of "any periodic dues, initiation fees, and assessments" from employee wages as long as the employee has given the carrier written permission. 45 U.S.C. § 152, Eleventh(b). Section 152, Eleventh(b), unlike Eleventh(c), does not limit its applicability to Eleventh(a), or union shop agreement situations. See Kansas City Southern, 26 F.3d. at 794. Read together, §§ 152, Fourth and Eleventh(b) provide that carriers may not unilaterally deduct dues from employee wages, but may do so upon the agreement of all parties involved. See id. Thus, even in the absence of a union shop agreement, employees and carriers may agree to a dues deduction schedule under § 152, Eleventh(b).
C. 45 U.S.C. § 156, Bargainable Interest
34
BLE contends that the District Court erred in not setting Article 21 aside on the basis that UTU and ST failed to notify BLE of their negotiations, and afford BLE the opportunity to participate in them.
35
The RLA mandates that "[c]arriers and representatives of the employees shall give at least thirty days' written notice of an intended change in agreements affecting rates of pay, rules, or working conditions" to interested parties. 45 U.S.C. § 156. BLE identifies itself as an interested party, and contends that ST or UTU owed it notice. BLE also contends that it has joint jurisdiction over collective bargaining between ST and UTU, at least with respect to train service seniority, by dint of the routine shuttling of employees between the train service and engineer service crafts. According to BLE, that joint jurisdiction should have given it an opportunity to participate in the negotiations.
36
The Eighth Circuit recently faced BLE's argument and concluded that neither the carrier nor UTU had any statutory obligation to provide BLE with notice or the opportunity to participate in negotiations, a conclusion with which we substantially agree. See Kansas City Southern, 26 F.3d at 792. 45 U.S.C. § 156 exists to prevent either a carrier or union from unilaterally changing the terms of the operative collective bargaining agreement. Order of Railway Conductors and Brakemen v. Switchmen's Union of N. Am., 269 F.2d 726, 733 (5th Cir.), cert. denied, 361 U.S. 899, 80 S.Ct. 206, 4 L.Ed.2d 155 (1959). Section 156, therefore, furthers the overall purpose of the RLA to permit employees to choose their own bargaining representative freely, and to ensure a procedure for "the commencement of conferences between representatives of the two parties if changes are to be made in the contract." McMullans, 229 F.2d at 56. Section 156 does not exist to open collective bargaining negotiations between a carrier and a union to any other union claiming an interest.
37
BLE relies chiefly on two cases, neither of which compel the conclusion BLE seeks. The first, Brotherhood of Locomotive Firemen and Enginemen v. National Mediation Board, 410 F.2d 1025, 1030 (D.C.Cir.), cert. denied, 396 U.S. 878, 90 S.Ct. 149, 24 L.Ed.2d 136 (1969), involved a dispute between BLE and the firemen's union over apprentice engineers, a new class of railroad employees. The court determined that in the absence of a certified representative for the new class, any union that could fairly claim representation over the apprentices could legitimately bargain with the carrier about the terms and conditions of the apprentices' employment. Id. By demonstrating a fair claim of representation, therefore, a union established a right to notice and the opportunity to participate under the RLA. Id.
38
This case, by contrast, involves collective bargaining between a represented class of employees and their carrier. BLE does not assert any claim of representation over UTU members, nor could it. Train service employees have already certified UTU as their bargaining representative. National Mediation Board, therefore, does not support BLE's asserted interest in the negotiations that produced Article 21.
39
BLE also relies on Illinois Cent. R.R. Co. v. Brotherhood of Locomotive Eng'rs, 443 F.2d 136, 138, (7th Cir.1971). The dispute in Illinois Central involved a tripartite agreement between the carrier, BLE and UTU governing the list of train service employees eligible for engineer work. UTU filed suit when BLE sought to negotiate revisions to the rules governing the list without providing UTU notice and an opportunity to participate. The court, noting the tripartite agreement, determined that UTU and BLE shared joint negotiating interests over the list, and therefore, that BLE could not unilaterally negotiate rule revisions with the carrier. Id. at 141.
40
Obviously no formal tripartite agreement exists in this case. BLE, however, points to language in Illinois Central indicating that even in the absence of such an agreement, the ebb and flow of employees between the two crafts would give the firemen an "important economic stake in the rules regulating the extra list" which in turn would establish a bargainable interest in UTU over rules governing the list. Id. at 141-42. BLE argues that the same ebb and flow vests it with a bargainable interest in the negotiation of train service seniority.
41
We disagree with BLE's interpretation of Illinois Central. First, that case revolved around a list outside of either UTU's or BLE's collective bargaining agreements with the carrier. The rules governing the extra list, moreover, placed direct conditions on a fireman's employment--they dictated which of the firemen could also engage in engineer work. BLE's assumption of sole negotiating responsibility over rules governing the list placed BLE in the position of representing firemen even though the firemen had certified UTU as their collective bargaining agent.
42
In this case, by contrast, UTU does not seek to unilaterally govern the ebb and flow itself. UTU, through Article 21, has simply negotiated with ST the mechanism through which train service employees accrue seniority, as part of negotiations over a general collective bargaining agreement. BLE and UTU have no tripartite agreement, nor is UTU attempting to unilaterally negotiate a set of rules governing movement between the two crafts.
43
As the Eighth Circuit concluded,
44
"[t]he distinctive division of railroad employees under the RLA into crafts or classes, and the regular movement of employees among the crafts that is characteristic of the industry, portends overlapping 'interests' among bargaining units in the composition of the crafts and in their labor agreements. That sort of interest, however, does not confer upon all unions the right to notice and participation in the arbitrations of all other unions."
45
Kansas City Southern, 26 F.3d at 791-92. We conclude that the RLA does not provide BLE with a bargainable interest in Article 21 such that ST and UTU owed BLE notice and an opportunity to participate in the negotiations.
46
Affirmed.
1
45 U.S.C. § 152 has been drafted in subsections First through Eleventh. Section 152, Eleventh contains subsections a through d. We note the unusual numbering scheme to explain our citation
2
In its reply brief, BLE appears to hint that the ebb and flow of train service employees to and from engineer service occurs with less regularity today than in prior eras
3
The Dempsey opinion ultimately views seniority as we do, despite that court's implication that a provision such as Article 21 might constitute a union shop agreement. See 16 F.3d at 838-39. Dempsey concludes that seniority, born of the collective bargaining agreement, is subject to revision or abrogation. 16 F.3d at 839. We do not interpret Dempsey, therefore, as supporting BLE's argument
4
BLE relies on three cases in support of its contention that Article 21 constitutes an illegal union shop agreement: Felter v. Southern Pac. Co., 359 U.S. 326, 79 S.Ct. 847, 3 L.Ed.2d 854 (1959), Birkholz v. Dirks, 391 F.2d 289 (7th Cir.1968), vacated as moot, 395 U.S. 210, 89 S.Ct. 1767, 23 L.Ed.2d 213 (1969) and O'Connell v. Erie Lackawanna R.R., 391 F.2d 156 (2d Cir.1968), vacated as moot, 395 U.S. 210, 89 S.Ct. 1767, 23 L.Ed.2d 213 (1969). BLE asserted these cases unsuccessfully to the Seventh Circuit in support of a nearly identical argument. See Dempsey, 16 F.3d at 838 n. 6. We concur in that court's conclusion that these cases are inapposite
5
To be sure, it does not appear that ST was entirely candid with BLE regarding its negotiations with UTU and the substance of the ST-UTU agreement. The RLA, however, does not compel ST to inform BLE of the substance of negotiations with a third union, and we do not identify anti-BLE animus in ST's actions
6
BLE essentially argues that by making it so attractive for engineers to join UTU, Article 21 has the effect of impermissibly interfering with their free choice of union, and coercing them to join UTU, in violation of §§ 152, Third and Fourth
| {
"pile_set_name": "FreeLaw"
} |
647 F.2d 1120
*Dukev.AL Gas Corp.
80-7716
UNITED STATES COURT OF APPEALS Fifth Circuit
5/22/81
1
M.D.Ala.
2
AFFIRMED***
*
Fed.R.App. P. 34(a); 5th Cir. R. 18
***
Opinion contains citation(s) or special notations
| {
"pile_set_name": "FreeLaw"
} |
463 F.2d 1197
UNITED STATES of America, Plaintiff-Appellee,v.Francisco RUELAS-ALTAMIRANO, Defendant-Appellant.
No. 72-1235.
United States Court of Appeals,
Ninth Circuit.
July 17, 1972.
Robert Ripley (argued), San Diego, Cal., for defendant-appellant.
Donald F. Shanahan, Asst. U. S. Atty. (argued), Harry D. Stewart, U. S. Atty., San Diego, Cal., for plaintiff-appellee.
Before HAMLEY and CHOY, Circuit Judges, and CRARY, District Judge.*
PER CURIAM:
1
Francisco Ruelas-Altamirano appeals from a judgment following a verdict of guilty of one count of illegal importation and one count of possession with intent to distribute marijuana, 21 U.S.C. Secs. 952, 960, 963 and 841(a) (1).
Three errors are urged by the appellant:
2
(1) The trial court abused its discretion in refusing to allow a cultural geographer, Professor Gettner, to testify that Mexican people often do not know the name of their employer and that favors are regularly given to and accepted by the Mexican Police from strangers.
3
(2) Denial of defendant's motion for mistrial grounded on alleged prejudicial comment by Government counsel in his opening statement as to inconsistent statements of the appellant concerning his reason for crossing the border from Mexico to Calexico on the day involved.
4
(3) Alleged misconduct of the interpreter.
5
The appellant, a Mexican Policeman dressed at the time in uniform, was arrested when crossing the border at about 2:45 P.M., July 29, 1971, driving a 1963 Ford sedan containing 87 kilos of marijuana which were concealed in a compartment constructed by raising the floor of the car. He appeared to be in a very uncomfortable position sitting behind the steering wheel with both knees up high due to the raised floor.
6
Appellant testified that while walking to work in Mexicali on July 29 he was stopped by a stranger who offered him a ride and, after being told by the appellant that he was going to work at the Police Department said: "Why don't you use my car?" The appellant had not indicated he wanted a ride nor did he offer to do any favor for the stranger which might have prompted the tender of the use of the car.
7
In the circumstances, this Court concludes that the District Court did not abuse its discretion in sustaining the Government's objection to the proffered testimony of Professor Gettner. Lustiger v. United States, 386 F.2d 132, 140-141 (9 C.A.1967).
8
The District Court possesses a wide latitude in determining the relevancy or materiality of evidence. United States v. Puchi, 441 F.2d 697, 702 (9 C.A.1971); and Nutter v. United States, 412 F.2d 178, 183 (9 C.A.1969).
9
The record discloses, with respect to the second alleged error, that appellant told the United States Customs Inspector at the secondary inspection area that he was going to Calexico to get cigarettes whereas the reason he gave the Inspector in the primary area for crossing the border was "to get a few cold ones." The latter statement, which the Inspector disclosed to the United States Attorney a day or two before trial, had not been made known to defendant's counsel although, by omnibus order made several weeks prior to trial, the Government had been instructed to disclose all statements of the appellant.
10
The District Court, immediately following appellant's counsel's objection to the statement, instructed the jury to disregard it completely and that no such evidence would be allowed to be introduced at the trial.
11
Having in mind all the circumstances, as disclosed by the record, the Court concludes the District Court did not abuse its discretion in denying the defendant's motion for mistrial made during the opening statement of Government counsel. United States v. Courtney, 257 F.2d 944, 947 (2 C.A.1958), certiorari denied 358 U.S. 929, 79 S.Ct. 316, 3 L.Ed.2d 303.
12
We find the alleged error as to misconduct on the part of the interpreter is not supported by the record and to be without merit.
13
The judgment is affirmed.
*
Honorable E. Avery Crary, United States District Judge, Central District of California, sitting by designation
| {
"pile_set_name": "FreeLaw"
} |
.J
I
CbUJPJ or CJLl;i\ILL/0"'-l A-lft:tkls or IE:t(.}£
CAPi1ol sur;o;~ .
~0. '60-x \:.2308
AULSTi~ ,11:::-~X-a:~ ~~~.n
we-Ai2- Cl__.e,:~ 1
--L AM CDN"TACJ tNc; Vt:JJJL d-FLct IDbA \( ---TO IZ.e~UES-t
•
ASS<STAtJC£ DtJ l.EAt'ZAlii\.L\ llrlc ':;;>'ltl~ DF THE A(!;DvE
IU1EISfl6tuEi\ CA~E uWtA.l3.6E.S. ·
c
\.i(xUL. A 'f::JS ~({.),. NCC. IN. n-1../. -n-f 'S M kl TI1:::"L 1/~ l/1 tit:·tC\Tl Y
APP£2LUtJ!1Ei) •
.
~n C£Jl_c ~ ~ /)
'r f? · (_!a~ ~A.u/
__, 6 E. CA~A. as --::tt= 16~ 3; o 4
gqq J="f-1, (1)32 CDNI'SDtH't utJ'«
7~E. tY{ t "'Ext}'\
'/8119
RECEIVED IN
OOUAT OF CRIMINAL A,..EAW
OCT 22 2015
~lt»eiAco*, cr~~
| {
"pile_set_name": "FreeLaw"
} |
705 F.2d 460
Water Wonderland Campsite, Inc., In re
81-1502
UNITED STATES COURT OF APPEALS Sixth Circuit
8/18/82
1
E.D.Mich.
AFFIRMED
| {
"pile_set_name": "FreeLaw"
} |
750 F.2d 25
118 L.R.R.M. (BNA) 2669
NATIONAL LABOR RELATIONS BOARD, Petitioner,v.L & J EQUIPMENT COMPANY, INC., Respondent,v.UNITED MINE WORKERS OF AMERICA, Intervenor.
No. 83-3275.
United States Court of Appeals,Third Circuit.
Dec. 27, 1984.
1
Before ALDISERT, Chief Judge, SEITZ, ADAMS, GIBBONS, HUNTER, WEIS, GARTH, HIGGINBOTHAM, SLOVITER, BECKER, Circuit Judges, and HOFFMAN, Senior District Judge.*
SUR PETITION FOR REHEARING
2
The petition for rehearing filed by United Mine Workers of America, Intervenor, in the above-entitled case having been submitted to the judges who participated in the decision of this court, 745 F.2d 224 (3d Cir.1984), and to all the other available circuit judges of the circuit in regular active service, and no judge who concurred in the decision having asked for rehearing, and a majority of the circuit judges of the circuit in regular active service not having voted for rehearing by the court in banc, the petition for rehearing is denied. Judge Gibbons would grant rehearing in accordance with his separate statement.
3
GIBBONS, Circuit Judge, dissenting from the denial of a petition for rehearing.
4
United Mine Workers of America (UMW), intervenor in this petition by the National Labor Relations Board for enforcement of the Board's order directing the respondent L & J Equipment Co., Inc. (L & J) to bargain with the UMW, now petitions for rehearing of a panel decision denying enforcement and refusing to remand to the Board. The order directing L & J to bargain with the UMW was entered when, following a Board-supervised election in which the UMW prevailed, the Board certified the result and refused to order a new election. To test that ruling L & J refused to bargain. The panel holds that the Board misinterpreted 29 U.S.C. Sec. 152(13) in determining the agency status of certain members of an in-house organizing committee whose activities allegedly interfered with the laboratory conditions which should surround an election. It remands for a redetermination of agency status under a new and unprecedented interpretation of that section. The practical effect of the remand is to relieve L & J of the obligation to bargain collectively with a Board-certified collective bargaining representative. We know from experience, as does the UMW, that the proceedings on remand and subsequent review proceedings will take several years, during which time the employees of L & J probably will remain unrepresented.
5
The UMW's petition should be granted. The panel interpretation of section 152(13), in an election context, is inconsistent with prior precedents in this court, inconsistent with the interpretation of the Act which has always been made by the agency charged with its enforcement, and inconsistent with the fundamental policy of the federal labor law, which encourages collective bargaining.
6
In its Internal Operating Procedures this court announces that:
7
It is the tradition of this court that reported panel opinions are binding on subsequent panels. Thus, no subsequent panel overrules a published opinion of a previous panel. Court in banc consideration is required to overrule a published opinion of this court.
8
I.O.P. VIII. C. This case apparently falls within the labor law exception to the quoted rule, for it is not possible to reconcile the panel opinion with several prior published opinions of the court dealing with the agency status of members of in-house organizing committees.
9
L & J complained of the actions, during the election, of several members of the in-house organizing committee, none of whom were union officers or employees. The Board, applying its long-settled doctrine, concluded that while the actions complained of, had they been engaged in by union agents, would have tainted the election, those actions by non-agents should be disregarded. The panel states that it disapproves of "the Board's jurisprudence on this subject," (745 F.2d 224, 234 (3d Cir.1984)), and announces an entirely new four-pronged standard for determining agency status of in-house organizing committee members. The express rejection of the "Board's jurisprudence" establishes beyond question that new law is being announced.
10
In N.L.R.B. v. ARA Services, Inc., 717 F.2d 57 (3d Cir.1983) (in banc), this court, over the dissent of four judges, two of whom are members of the panel in the instant case, expressly approved the "Board's jurisprudence" on the status of members of in-house organizing committees. The principal feature of that jurisprudence is that where professional union organizers play a prominent role in the campaign, employees are unlikely to view in-house organizing committee members as representatives of the union. Under the panel's new test, by contrast, most in-house organizing committee members will be deemed to be union agents. The ARA decision detailed this court's reasons for deferring to the Board's view:
11
All of the law with respect to the atmosphere to be maintained in an election campaign is Board-made under the lawmaking authority delegated to it by Congress. Thus the courts must ordinarily defer to the Board's policy judgments respecting the conduct which will be deemed so coercive as to interfere with employee free choice. Traditionally the Board has been reluctant to set aside elections because of misconduct by third parties, as compared with agents of an employer or a union .... One reason for the Board's approach is that coercion by an employer or a labor organization in the choice of a bargaining representative is itself an unfair labor practice, prohibited by section 158(a)(1), (b)(1). Another is that setting aside an election is an effective deterrent to misconduct by an employer or a union, while it is no deterrent to third parties. There is, therefore, no assurance that a second election will be held in an improved atmosphere.... Another reason is that the Board, with judicial concurrence, has always accorded less weight to conduct which is attributable to neither the Union nor the employer. Threats of fellow employees are deemed to be less coercive than those of agents of a union or an employer who may have the wherewithal to effectuate them. Employees, moreover, are credited with the ability, from experience in the workplace, to give appropriate weight to possibly impulsive statements of fellow employees in the heat of a campaign.... Perhaps the most important reason for scrutinizing mere employee misconduct by a lower standard than is applied to misconduct by agents of an employer or a union is that expressions of temper and passion may reflect the reality that in a contested election friction is inevitable. Given the nature of inter-employee relations, the Board cannot realistically be expected to create a totally frictionless election environment.... Indeed, insisting that there be no give and take among employees on the subject of the desirability of collective bargaining would in itself be an undue interference with informed employee democracy. Thus the Board's policy of giving lesser weight to instances of third-party misconduct in an electioneering context bears a rational relationship to the underlying policies of the Act, and this court must accept the Board's judgment.
12
717 F.2d at 66 (citations and footnote omitted). The panel opinion flatly rejects these reasons for deferring to the "Board's jurisprudence," and dramatically expands the range of circumstances in which this court will substitute its judgment for that of the agency. The policy arguments advanced for doing so are essentially the same as those advanced in the ARA dissent, which the ARA majority rejected. In rejecting them the court in banc reiterated its long-standing position of deference to the "Board's jurisprudence" on the issue, announced as recently as N.L.R.B. v. Campbell Products Dept., 623 F.2d 876 (3d Cir.1980).
13
More recently, in N.L.R.B. v. J-Wood/A Tappan Div., 720 F.2d 309 (3d Cir.1983), a case which the panel opinion neglects to mention, this court reiterated its approval of the Board's approach toward activities of in-plant organizing committee members. In J-Wood the court remanded for findings, but made it clear that "actions of employees who serve on an in-plant organizing committee are only attributable to the Union where there is additional evidence that the plant committee itself acts on the Union's behalf." 720 F.2d at 314. The panel could point to no evidence from which it might be found that the in-house committee members were union agents. Instead of focusing on the relationship between the actor and the union, in three of the four factors it announces the panel directs the Board to focus on the relationship between the actor and the in-house committee. This is a fundamental change in the law, irreconcilable with the prior precedent in this court. Moreover, it is inconsistent with this court's obligation to defer to the expertise of the agency to which Congress has delegated authority for the supervision of elections of bargaining representatives.
14
The panel decision is an unfortunate manifestation of an emerging spirit of judicial activism on behalf of employers. Although the panel speaks in terms of employee free choice, the plain fact is that the real beneficiary of the decision is the employer, L & J, which prefers not to bargain collectively with the UMW. Taking sides on economic disputes in the field of labor relations is an inappropriate role for the courts of appeals. As Judge Adams points out in his concurring opinion in ARA, the Supreme Court has consistently admonished that we are mandated to enforce Board orders so long as the Board's construction of the statute, even if not required by the Act, is at least permissible under it. 717 F.2d at 70.
15
I would grant the petition for rehearing and enforce the Board's order.
16
A. LEON HIGGINBOTHAM, Jr., Circuit Judge, joins in the dissent.
*
As to panel rehearing only
| {
"pile_set_name": "FreeLaw"
} |
United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT July 1, 2005
Charles R. Fulbruge III
Clerk
No. 04-51049
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BUCKY CHARLES FITZGERALD,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Western District of Texas
USDC No. 5:01-CR-549-2
--------------------
Before REAVLEY, JOLLY, and HIGGINBOTHAM, Circuit Judges.
PER CURIAM:*
Bucky Charles Fitzgerald, federal prisoner # 28083-180,
appeals from the district court’s judgment dismissing his
collateral challenge to his 2002 drug conviction. Fitzgerald had
moved in the district court for issuance of a nunc pro tunc order
to correct the sentence that he received under the federal
sentencing guidelines.
As federal courts are courts of limited jurisdiction,
Fitzgerald must have statutory authority for the filing of his
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
No. 04-51049
-2-
motion. Veldhoen v. United States Coast Guard, 35 F.3d 222, 225
(5th Cir. 1998). Section 2255 of Title 28 is the means by which
a federal prisoner may challenge the validity of his sentence.
United States v. Cates, 952 F.2d 149, 151 (5th Cir. 1992). Thus,
Fitzgerald’s motion should have been construed as a motion
arising under 28 U.S.C. § 2255. Such a recharacterization of
Fitzgerald’s motion has important consequences of which
Fitzgerald should be apprised. See United States v. Castro, 540
U.S. 375, 383 (2003).
Because Fitzgerald’s motion was in the nature of a 28 U.S.C.
§ 2255 motion, this court lacks jurisdiction over Fitzgerald’s
appeal absent a certificate of appealability ruling in the
district court. Muniz v. Johnson, 114 F.3d 43, 45 (5th Cir.
1997); United States v. Youngblood, 116 F.3d 1113, 1114-15 (5th
Cir. 1997). The judgment of the district court is VACATED and
this case is REMANDED for further proceedings.
| {
"pile_set_name": "FreeLaw"
} |
820 F.2d 818
RICO Bus.Disp.Guide 6613
Anne POWERS, Plaintiff,v.John T. LIGHTNER, d/b/a Lightner Auto Sales, Defendant,Third-Party Plaintiff- Appellee,v.Barry JONES and Bruce White, Third-Party Defendants-Appellants.
No. 84-2312.
United States Court of Appeals,Seventh Circuit.
Argued Nov. 7, 1984.Decided May 8, 1987.Rehearing and Rehearing En Banc Denied Aug. 3, 1987.
Douglas Letter, Dept. of Justice, Civ. Div., Washington, D.C., for third-party defendants-appellants.
John A. Dienner, III, Pierce Lydon Griffin & Montana, Chicago, Ill., for defendant, third-party plaintiff-appellee.
Before FLAUM, Circuit Judge, and WISDOM* and PELL, Senior Circuit Judges.
PER CURIAM.
1
In accordance with the result reached in the respective opinions of Judge Flaum and Judge Pell, the judgment of the district court is reversed and the cause is remanded for further proceedings in accordance with the following opinions.
2
PELL, Senior Circuit Judge.
3
Two federal officials appeal from an order of the district court denying their motion for summary judgment on qualified immunity grounds. We first held that the district court's order was not an appealable interlocutory order, Powers v. Lightner, 752 F.2d 1251 (7th Cir.1985), but in light of Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985), which held that such an order is an appealable final decision notwithstanding the absence of a final judgment, we vacated our earlier judgment. Because the federal officials should have been entitled to summary judgment on qualified immunity grounds, we reverse the district court's order and remand for further proceedings consistent with this opinion.
4
In this opinion, I do not reach Lightner's argument that the Government's action was a taking for which just compensation would have been required.1 Furthermore, while this circuit has consistently held that the Racketeer Influenced and Corrupt Organizations Act (RICO) must be given the broad effect mandated by its plain language, see, e.g., Morgan v. Bank of Waukegan, 804 F.2d 970, 974 (7th Cir.1986), because Lightner failed to allege facts sufficient to make out the element of criminal intent in his RICO claim, this claim should have been dismissed by the district court. See Baucom v. Martin, 677 F.2d 1346, 1350 (11th Cir.1982). I consider here only the issue of qualified immunity.
I.
5
Because this court previously discussed the facts of this case in our original opinion, Powers, 752 F.2d at 1252-53, I need to only repeat those facts necessary for our disposition on appeal. The principal issue before us, now that we know from Mitchell that we have an appealable order, is whether Jones and White in this case had qualified immunity. In my opinion, they did.
6
From October 1980 through March 1982, the St. Louis FBI office conducted an undercover criminal investigation, known as "Operation Recoupe," into stolen vehicle enterprises. Operation Recoupe was described in Georgia Casualty and Surety Co. v. United States, 582 F.Supp. 49 (E.D.Mo.1984). The FBI operated a vehicle salvage yard in which agents purchased auto wrecks with valid titles and vehicle identification number (VIN) tags from cooperating insurance companies. These agents then sold the wrecks with the VINs and titles to targeted suspects who allegedly ran a "retagging" business. These suspects distributed the cars to auctioneers. The cars were then bought by used cars dealers and ultimately sold to the public.
7
In June 1981, FBI Special Agent Barry Jones provided a VIN tag and title for a Chevrolet Monte Carlo to David Lauck, a used car dealer also working as a FBI informant. Lauck put the tags and title on a stolen Monte Carlo which would subsequently be auctioned through the Tremont Auto Auction. An Illinois State trooper noticed this car, independently suspecting that it and a second car might have been stolen, and he took the cars to his station. Lauck alerted Jones, who telephoned the trooper and informed him of the undercover operation. The trooper returned the cars to Tremont and told the auctioneer that the cars were not stolen.
8
Lightner Auto Sales purchased the Monte Carlo at the auction and then resold it to Anne Powers. This car was seized at the end of Operation Recoupe and returned to its proper owner. Powers sued Lightner for a refund in state court, and Lightner then filed a third party action against the auto auction, the U.S. Attorney General, Jones, Lauck, Assistant U.S. Attorney Bruce White, and several Illinois police officers, seeking damages under 42 U.S.C. Sec. 1983 for deprivation of property without due process. Lightner also alleged a RICO claim against the federal defendants, who removed the case to district court.
9
The district court granted the motion to dismiss the Attorney General but denied it as to Jones and White. Lightner v. Tremont Auto Auction, Inc., 564 F.Supp. 1112 (N.D.Ill.1983). Jones and White now appeal from those portions of the order denying their request for summary judgment on the ground of qualified immunity.
10
The two federal officials claim that they are entitled to qualified immunity, an affirmative defense on which they carry the burden of proof. Harlow v. Fitzgerald, 457 U.S. 800, 815, 102 S.Ct. 2727, 2737, 73 L.Ed.2d 396 (1982). Qualified immunity shields government officials "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." Harlow, 457 U.S. at 818, 102 S.Ct. at 2738; Davis v. Scherer, 468 U.S. 183, 194 n. 12, 104 S.Ct. 3012, 3019 n. 12, 82 L.Ed.2d 139 (1984).
11
The standard that the federal officials must meet is an objective one. It is irrelevant whether either defendant knew at the time he acted or failed to act that his actions violated someone's constitutional rights. Kompare v. Stein, 801 F.2d 883, 887 (7th Cir.1986); Bates v. Jean, 745 F.2d 1146, 1151 (7th Cir.1984). Until a particular constitutional right has been stated so that reasonably competent officers would agree on its application to a given set of facts, it has not been "clearly established" for purposes of Harlow. See Benson v. Allphin, 786 F.2d 268, 275-76 (7th Cir.), cert. denied, --- U.S. ----, 107 S.Ct. 172, 93 L.Ed.2d 109 (1986). Moreover, as this court recently held, "The words 'clearly established ... constitutional rights' may not be used to read the defense of immunity out of federal tort law by the facile expedient of stating constitutional rights in the most general possible terms. ... The right must be sufficiently particularized to put potential defendants on notice that their conduct probably is unlawful." Azeez v. Fairman, 795 F.2d 1296, 1301 (7th Cir.1986); see also Chapman v. Pickett, 801 F.2d 912, 920 (7th Cir.1986) (Easterbrook, J., dissenting).
12
The task is to re-examine the law in light of plaintiff's allegations and supporting evidence to decide if the alleged constitutional violation was "clearly established" at the time the incidents occurred. Wade v. Hegner, 804 F.2d 67, 70-71 (7th Cir.1986). Closely analogous cases, those decided before the defendants acted or failed to act, are required to find that a constitutional right is clearly established. Lojuk v. Johnson, 770 F.2d 619, 628 (7th Cir.1985), cert. denied, --- U.S. ----, 106 S.Ct. 822, 88 L.Ed.2d 795 (1986). My research has failed to disclose any cases indicating that Lightner had a constitutional right to have the two federal officials notify him that the Monte Carlo he was buying was part of the operation. Nor did Lightner have a right to compensation from them for the loss of his automobile.
13
The law controlling this issue has been quite unsettled. Johnson v. Breljc, 701 F.2d 1201 (7th Cir.1983). Therefore, "[i]n the absence of binding precedent, a court should look to whatever decisional law is available to ascertain whether the law is clearly established under Harlow." Capoeman v. Reed, 754 F.2d 1512, 1514 (9th Cir.1985). A review of these cases should focus only on rights clearly established in their respective contexts, Crowder v. Lash, 687 F.2d 996, 1007 (7th Cir.1982), and this court must not expect reasonable government officials "to recognize the significance of a few scattered cases from disparate areas of the law for a right that is just evolving." Lojuk, 770 F.2d at 628. No analagous cases point to any of Lightner's claimed rights or the federal officials' corresponding duties.
14
In Redmond v. United States, 518 F.2d 811 (7th Cir.1975), the Securities and Exchange Commission permitted the plaintiff to be defrauded by a con man. This court rejected the plaintiff's contention that the "national government may be held liable for damages resulting from criminal conduct," and we held that there is no "legally-enforceable duty on the part of the Government to warn or to compensate victims of criminal activity." Id. at 816. Lightner's situation is remotely analogous to Redmond, for the Government here need not have warned him of the sting nor compensate him for the loss of the Monte Carlo. This lack of duty comes from the Government's role as an enforcer in the undercover operation which had to be kept absolutely secret to preserve the sting's success. Lightner has failed to demonstrate that the Government could have notified potential innocent buyers such as Lightner that the automobile in question was stolen without jeopardizing the entire operation. See Georgia Casualty and Surety Company, 582 F.Supp. at 51. Here the law enforcement officials appeared to choose the alternative presented by public versus private interests that would result in the least amount of harm, United States v. Intercontinental Industries Inc., 635 F.2d 1215 (6th Cir.1980), and they wisely recommended that the Illinois State trooper stop intervening in the matter.
15
A second analogous case is Beard v. Mitchell, 604 F.2d 485 (7th Cir.1979), where the question was whether an FBI agent had a duty to prevent a murder. In that Bivens action, the court held that the plaintiff had to demonstrate the defendant's recklessness, i.e., the defendant had to act with the knowledge that its conduct was unreasonable or culpable. Id. at 495. The court distinguished the situation in Bonner v. Coughlin, 545 F.2d 565 (7th Cir.1976), cert. denied, 435 U.S. 932, 98 S.Ct. 1507, 55 L.Ed.2d 529 (1978), where intentional conduct was an element of the civil rights claim. Recently, this court has acknowledged that "it would be illogical to extend good faith immunity to a government official who has intentionally violated an individual's constitutional rights." Perry v. Larson, 794 F.2d 279, 284 n. 1 (7th Cir.1986). I cannot hold that White and Jones intentionally tried to deprive Lightner of his property even though it turned out that was the fallout of the sting operation. The agents did intervene to prevent the Illinois State trooper from impounding the automobiles he suspected were stolen. This action, however, was not sufficient to put this case in the ambit of those involving an intentional violation of due process. See Jackson v. City of Joliet, 715 F.2d 1200 (7th Cir.1983) (discussing distinction between negligent and intentional conduct).
16
The inquiry is not over, however, for this court must apply the Harlow standard to see if the defendants' actions were objectively reasonable. In balancing the interests of Lightner to receive compensation and damages for the loss of his car with the interests of the Government in maintaining a successful undercover sting operation, the "facts of the existing case law must closely correspond to the contested action before the defendant official is subject to liability under Harlow." Benson, 786 F.2d at 276. My review of the case law reveals no closely analogous decisions which should have indicated to the officials that their conduct in the undercover operation was unreasonable.
17
This balancing test, on the other hand, reaches a "foregone conclusion" favoring injured parties in the event of an "egregious situation." Benson, 786 F.2d at 276 n. 18. The question remains, however, whether the alleged governmental misconduct here was so "truly outrageous" as to indicate a due process violation. United States v. Kaminski, 703 F.2d 1004, 1009 (7th Cir.1983). I do not believe it was. In order to detect the retagging operation, the agents needed to participate in the unlawful practices. See United States v. Russell, 411 U.S. 423, 432, 93 S.Ct. 1637, 1643, 36 L.Ed.2d 366 (1973). In the situation presented here, the law enforcement conduct--intervening to prevent a trooper from perhaps frustrating a major investigation--certainly stops short of violating that "fundamental fairness, shocking to the universal sense of justice," mandated by the Due Process Clause of the Fifth Amendment. Kinsella v. United States, 361 U.S. 234, 246, 80 S.Ct. 297, 304, 4 L.Ed.2d 268 (1960).
18
While I recognize that a few innocent citizens such as Lightner may have suffered individual losses due to Operation Recoupe, I believe this court should refuse to hold the FBI agents and U.S. Attorneys liable for their good-faith conduct in giving priority to the maintenance of secrecy for the sting operation. In such an undercover investigation, losses by a few may be necessary to obtain important evidence to prevent future crimes suffered by the general public. The manner in which our prisons are filling to the point of overcrowding graphically demonstrates the necessity of governmental resort to procedures that at an earlier time would have been deemed, if not intolerable, at least beneath the dignity of the Government. One might venture to say that the general welfare is involved. A frequent example is the use of informants who themselves have a criminal background and, indeed, commit crimes while acting on behalf of the Government. Yet the success of these methods in fighting crime, including the one of the type here involved, has been repeatedly demonstrated. It is an unfortunate consequence of achieving what is for the overall good of the public that some property loss may occur to presumably innocent individuals.
19
For the reasons cited above, both Special Agent Jones and Assistant U.S. Attorney White were entitled to qualified immunity for their participation in Operation Recoupe. The standard that the plaintiff attempted to impose on both officials was not "clearly established" under existing caselaw. The nature of undercover criminal investigations like Operation Recoupe is such that federal officials must be given the freedom in which to exercise their discretion in ensuring the success of their sting operations. There is no genuine issue of material fact, and both Jones and White were entitled to judgment as a matter of law.
20
FLAUM, Circuit Judge, concurring in the judgment.
21
The precise issue presented in this appeal is whether the federal officers involved are qualifiedly immune from suit. To decide this issue, we are obliged to examine whether injuries to innocent victims of federal undercover investigations may violate the Fifth Amendment's Due Process Clause. I conclude that it is unnecessary to definitively resolve this particular inquiry in the context of this case.1 Although Judge Wisdom's dissent is constitutionally appealing, because this precise due process question has not been previously addressed by any federal court, I conclude that the officers involved are immune from suit. I therefore join Judge Pell in reversing the judgment of the district court.
I.
22
The Supreme Court has recently spoken in the area of qualified immunity. Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). In Harlow the Court held that "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." Id. at 2738. This court recently stated that "whenever a balancing of interests is required the facts of the existing case law must closely correspond to the contested action before the defendant official is subject to liability under ... Harlow." Benson v. Allphin, 786 F.2d 268, 276 (7th Cir.), cert. denied, --- U.S. ----, 107 S.Ct. 172, 93 L.Ed.2d 109 (1986). Furthermore, for officials to lose their qualified immunity, Harlow requires that the constitutional rights in question must be clearly established; this means that the "right must be sufficiently particularized to put potential defendants on notice that their conduct probably is unlawful." Azeez v. Fairman, 795 F.2d 1296, 1301 (7th Cir.1986). Under Harlow's objective standard, any due process rights that Lightner may have possessed were not clearly established at the time of the alleged injury in this case.
23
This court in Benson noted that there may be "a situation in which the defendant's actions are so egregious that the result of the balancing test will be a foregone conclusion, even though prior caselaw may not address the specific facts at issue." Benson, 786 F.2d at 276 n. 10. I do not believe that this is a case where the defendants' conduct is so egregious as to strip them of their qualified immunity. However, if a future case with more compelling facts than this situation should arise, the defendants might not be so shielded.
II.
24
I therefore conclude that we need not resolve whether or not any of Lightner's possible due process rights, as guaranteed by the Fifth Amendment, have been violated. I find that any possible due process rights Lightner may have under the facts of this case were not "clearly established," as required by Harlow; thus, the defendants are immune from suit in this case.
25
WISDOM, Senior Circuit Judge.
26
I respectfully dissent.
27
The government's discretion to conduct undercover investigations, although necessarily broad, is not unlimited. The due process clause protects even criminal defendants against "truly outrageous" government misconduct.1 As the Supreme Court observed in Stanley v. Illinois,2 "one might fairly say of the Bill of Rights in general, and the Due Process Clause in particular, that they were designed to protect the fragile values of a vulnerable citizenry from the overbearing concern for efficiency and efficacy that may characterize praiseworthy government officials no less, and perhaps more, than mediocre ones."3
28
I would hold that the FBI exceeded the limits of its discretion. Had the FBI not intervened directly, the car in question would not have been sold to an innocent purchaser. This case therefore differs from the more usual case in which the FBI simply participates in an ongoing criminal enterprise without causing additional crime.
29
The substantive due process right implicated in this case requires a balancing of interests. On the one hand is the government's interest in discovering and prosecuting criminals. On the other hand is the citizen's right not to be the victim of a crime created wholly by the government. Officials of the FBI have long known that their conduct during an undercover operation may invade the due process rights of citizens involved in the investigation. For example, targets of the investigation may not be entrapped.4 The FBI knew that civil liability may attach for particularly egregious conduct in entrapment cases.
30
I am confirmed in my conclusion that the FBI's handling of Operation Recoupe or Recoup was "truly outrageous" by the criticism it has generated in the public and in Congress. Recoupe and other operations similar to it have been the subject of critical newspaper articles and congressional hearings.5 The Subcommittee on Civil and Constitutional Rights of the Judicial Committee of the House of Representatives investigated Operation Recoup among other undercover operations. The subcommittee had this to say about the sting operation:
31
In Operation Recoup a 1981 investigation of stolen car racketeering in the South and Midwest, the Bureau apparently used its own agents to set up a bogus used car business, Le Blanc Motors, in which wrecked cars were sold to "retaggers" who then replaced the motor vehicle identification tags on stolen automobiles with those of the wrecked vehicle. FBI agents also operated as intermediaries in several sales of stolen and retagged automobiles to used car dealers. Those sales were made with the knowledge that the cars would be subsequently resold to innocent purchasers who would ultimately lose title to them.6
32
As of October 1982 more than 250 cars had been confiscated from innocent purchasers.7 In addition, of course, the business reputations of the dealers who sold the automobiles have been irreparably injured. Operation Recoup has spawned a number of lawsuits claiming millions of dollars in damages by innoct sellers and purchasers of stolen automobiles.8
33
H.R. Doc. 98-267, 98th Cong., 2nd Sess. (1984), p. 22.
34
The sad fact is that in Operation Recoupe the FBI victimized innocent citizens by knowingly selling stolen cars and now refuses to reimburse the purchasers. The costs of such an operation should be borne by the United States government, not by the innocent victims.
*
Judge John Minor Wisdom, Senior Circuit Judge of the United States Court of Appeals for the Fifth Circuit, is sitting by designation
1
The district court did not address this issue. Yet the Government's failure to stop injury to property does not constitute a taking under the Fifth Amendment. See National Board of YMCA v. United States, 395 U.S. 85, 89 S.Ct. 1511, 23 L.Ed.2d 117 (1969). We refuse to create such a novel cause of action in Lightner's case. See generally Andrus v. Allard, 444 U.S. 51, 64-68, 100 S.Ct. 318, 326-28, 62 L.Ed.2d 210 (1979)
1
The facts underlying this suit are fully discussed in Judge Pell's opinion and will not be repeated here
1
United States v. Kaminski, 703 F.2d 1004 (7th Cir.1983)
2
405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972)
3
Id. at 656, 92 S.Ct. at 1215
4
See United States v. Kaminski, 703 F.2d 1004 (7th Cir.1983)
5
The Washington Post, August 3, 1985, at A3; The Times-Picayune/The States-Item, June 12, 1986, at A-14; FBI Undercover Operations, H.R. Doc. No. 98-267, 98th Cong., 2nd Sess. (1984)
6
"Asked after the investigation whether the operation could not but harm innocent people, the Assistant Special Agent in Charge of the St. Louis FBI office responded affirmatively. Rockford (Ill.) Register Star, p. 1a". H.R. Doc. 98-267, 98th Cong. 2nd Sess. (1984), p. 22 n. 51
7
Wall Street Journal, October 7, 1982, p. 1
8
Claims in excess of $47 million have been filed against the United States as a result of Operation Recoup, none of which have been settled (see "FBI Undercover Activities," supra, at 457). Here, too, the Department of Justice has resisted all efforts to disclose through discovery the FBI's role. (December 22, 1983 telephone conversation with attorney for the defendant, third party defendant in Powers v. Lightner, U.S. District Court, Northern District of Illinois, Western Div. 82 C 20080, and Powers v. Lightner, Court of the Fifteenth Judicial Circuit, Lee County, Illinois, No. 22-LM 16.) H.R. Doc. 98-267, 98th Cong., 2nd Sess. (1984), p. 22 n. 52
| {
"pile_set_name": "FreeLaw"
} |
864 F.2d 60
7 UCC Rep.Serv.2d 832
TRANSPARENT PRODUCTS CORPORATION, Plaintiff-Appellant/Cross-Appellee,v.PAYSAVER CREDIT UNION, Defendant-Appellee/Cross-Appellant.
Nos. 88-1286, 88-1324.
United States Court of Appeals,Seventh Circuit.
Argued Dec. 5, 1988.Decided Dec. 16, 1988.
Michael D. Weis, Law Office of Michael D. Weis, Northbrook, Ill., for plaintiff-appellant/cross-appellee.
C. Jackson Darnall, Darnall, Polachek & Assoc., Franklin Park, Ill., for defendant-appellee/cross-appellant.
Before BAUER, Chief Judge, EASTERBROOK, Circuit Judge, and GRANT, Senior District Judge.*
EASTERBROOK, Circuit Judge.
1
Uncertain of the difference between a line of credit and a letter of credit, the president of Paysaver Credit Union signed this document on the Credit Union's letterhead:
Transparent Products Corporation
Bensenville, IL. 60101
RE: Thomas Wells
Gentlemen:
2
We hereby establish our letter of credit at the request of Thomas Wells of 1003 South 23rd Avenue, Maywood and of Titan Tool of 1315 South 3rd Avenue, Maywood up to the aggregate amount of fifty-thousand dollars ($50,000).
3
At the time Paysaver signed this document, Titan Tool owed Transparent some $33,000 on open account credit for plastics. Titan wanted to buy another $61,000 worth, but Transparent had balked unless Titan's creditworthiness could be assured. Wells, an employee of Titan who had a $50,000 certificate of deposit with Paysaver, procured this document. Transparent apparently deemed it insufficient assurance of payment and did not sell additional goods to Titan. Some 13 months later Titan, then a debtor in bankruptcy, still had not paid the original $33,000. Transparent demanded that Paysaver make good the debt. Transparent believes that the document guarantees Titan's general debts; Paysaver believes that the document is a mishmash with no legal effect.
4
The district court concluded after a trial (at which the president of Paysaver allowed that he did not understand how letters of credit differed from lines of credit) that the document is a letter of credit. The court then held, in part on the basis of the intent underlying Paysaver's decision to send the document, that Transparent's delay in making a demand equitably estopped it from collecting. The injection of such considerations into the enforcement of letters of credit is unprecedented and would be most unfortunate. The district court did not find that Transparent deceived Paysaver or otherwise induced detrimental reliance on an unkept promise; it found only that Transparent tarried unduly. Letters of credit are designed to provide assurance of payment and could not serve that purpose if the beneficiary risked being denied payment for withholding a demand "for too long" while attempting to collect from the primary debtor. We need not consider, however, whether principles of estoppel are forever beyond the pale when dealing with letters of credit, for Paysaver defends its judgment on the ground that the document is not one.1
5
Letters of credit facilitate commercial transactions by providing the assurance of a reliable party that a debt will be paid quickly and with no fuss. Letters often provide that the issuer will pay on presentation of shipping documents, relieving the seller of the risk of nonpayment (or delayed payment) while shifting to the buyer the risk that the goods will be defective and it will need to pursue the seller. Standby letters of credit do not contemplate immediate payment by the issuer but serve as assurance if the debtor does not pay. Guarantee letters of credit serve a role similar to more conventional guarantees of debt, but with the promise that the issuer will pay on demand rather than balk and precipitate litigation to determine whether the underlying debt was due (a common event when guarantees are issued by officers or shareholders of the debtor), and with the additional benefit of enabling banks to stand behind their customers' transactions when they are forbidden to issue straight guarantees. See generally Cassondra E. Joseph, Letters of Credit: The Developing Concepts and Financing Functions, 94 Banking L.J. 816 (1977). In any of these cases, the issuer specifies conditions under which payment will be made. The Uniform Commercial Code defines "credit" by reference to these conditions. The definition has two stages. Section 5-102, Ill.Rev.Stat. ch. 26 p 5-102, establishes the scope of Article 5 (governing letters of credit), and Sec. 5-103(1) defines "credit":
5-102. Scope. (1) This Article applies
6
(a) to a credit issued by a bank if the credit requires a documentary draft or a documentary demand for payment; and
7
(b) to a credit issued by a person other than a bank if the credit requires that the draft or demand for payment be accompanied by a document of title; and
8
(c) to a credit issued by a bank or other person if the credit is not within subparagraphs (a) or (b) but conspicuously states that it is a letter of credit or is conspicuously so entitled.
9
5-103. Definitions. (1) In this Article unless the context otherwise requires
10
(a) "Credit" or "letter of credit" means an engagement by a bank or other person made at the request of a customer and of a kind within the scope of this Article (Section 5-102) that the issuer will honor drafts or other demands for payment upon compliance with the conditions specified in the credit. A credit may be either revocable or irrevocable. The engagement may be either an agreement to honor or a statement that the bank or other person is authorized to honor.
11
Transparent relies on Sec. 5-102(1)(c), observing that the document conspicuously calls itself a "letter of credit". (A statement is "conspicuous" if it is "so written that a reasonable person against whom it is to operate ought to have noticed it." UCC Sec. 1-201(10). Paysaver, which wrote this short letter, had to notice its own words.) But Sec. 5-102(1)(c) applies only to "a credit", and under Sec. 5-103(1)(a) a "credit" is an "engagement" to "honor drafts or other demands for payment upon compliance with the conditions" stated. The document Paysaver signed does not engage to do anything, under any conditions.
12
Sections 5-102 and 5-103, taken together with Secs. 5-104 and 5-105 (saying that there are no formal requirements), show that a letter of credit need not be supported by consideration or contain any magic words or expiration date. They show with equal force that a letter of credit is an "engagement" to pay on the occurrence of specified events or the presentation of specified documents. A document engaging to do nothing and mentioning no events is simply a stray piece of paper. Johnston v. State Bank, 195 N.W.2d 126 (Iowa 1972); James J. White & Robert S. Summers, Uniform Commercial Code 715-23 (2d ed. 1980); 5A Uniform Commercial Code Case Digest paragraphs 5102.3, 5103.3, 5104 (1983 & Supp.1988). Cf. Wichita Eagle & Beacon Publishing Co. v. Pacific National Bank, 493 F.2d 1285 (9th Cir.1974) (a document labeled a "letter of credit" is a "guarantee" if its terms are the elements of guarantees and not letters of credit).
13
The title controls only when the document contain the terms appropriate to the substance of such an instrument. The letter Paysaver signed is no different in principle from a pumpkin on which "$50,000" and "letter of credit" had been stencilled. Just as calling a sports car a "principal residence" will not permit the owner to take the deduction for interest under the tax laws, so calling a pumpkin a "letter of credit" will not make it one. This harmonizes our views with Board of Inland Revenue v. Haddock, in which String, J., concluded that a cow bearing the words "To the London and Literary Bank, Ltd.: Pay to the Collector of Taxes, who is no gentleman, or Order, the sum of fifty-seven pounds (and may he rot!). pounds sterling 57/0/0", was a negotiable instrument.2 The judge observed that the writing included all the terms necessary for negotiability, and that the cow could be endorsed over to any willing holder.
14
Insistence on having terms--a concrete "engagement"--is not mere pedantry. Letters of credit give assurance of payment; to promote the reliability of the device, courts do not look beneath the surface of the documents to discover side agreements, plumb the intent of the parties, and the like. Yet only such a detour could flesh out the document written by Paysaver. If this letter were viewed as an ordinary contract, it would be unenforceable on the ground that the undertaking is hopelessly indefinite. A document too vague to be enforced as a contract is an implausible candidate for an Article 5 letter of credit.
15
Consider what is missing. One item is the term most important to any letter of credit: specification of the circumstances requiring the issuer to pay. Transparent believes that the document commits Paysaver to make good Titan's existing debt. Yet letters of credit to guarantee payment of prior debts are rare. One could see the document alternatively as an undertaking to make good on any new transaction, such as the $61,000 sale under discussion. A letter with this meaning would not stand behind the $33,000 accrued debt. Only speculation or a detailed inquiry into oral negotiations--both anathema in letter of credit transactions--could supply the missing term. Contrast Bank of North Carolina, N.A. v. Rock Island Bank, 570 F.2d 202 (7th Cir.1978) (holding an undertaking to be a letter of credit because it contained detailed terms on which payment would occur).
16
Another missing or confusing item is the customer. The document is captioned "RE: Thomas Wells". Wells was an employee of Titan and not indebted to Transparent. Counsel for Transparent conceded at oral argument that it had no claim against Wells personally. Only the recitation that the document was issued "at the request of" Titan in addition to that of Wells offers support for application to Titan's transactions. If we must choose between reading the document as standing behind Wells or standing behind Titan, where the former is what the caption says and the latter is a felony (given limitations on credit unions' activities, 12 U.S.C. Sec. 1757), the choice is simple. Transparent balked (as well it should) when asked whether a document saying something like "at the request of Exxon Corp., we undertake to assume the obligations of Titan Tool" would allow Transparent to invoke the letter of credit to collect a debt due from Exxon. Transparent suggested that we dip beneath the surface of this document to see that the negotiations leading to its issuance grew out of commercial dealings between Transparent and Titan, but we have explained already why courts do not consider parol evidence when evaluating letters of credit.
17
The document is silent or obscure on every significant question. Such writings do not promote certainty in commercial transactions. Why a credit union put the words "letter of credit" to a document is beyond us; perhaps the National Credit Union Administration ought to have a few words with the management at the Paysaver Credit Union. Whatever this document may be, it is not a "credit" under Secs. 5-102 and 5-103 of the UCC.
18
AFFIRMED.
*
Honorable Robert A. Grant, of the Northern District of Indiana, sitting by designation
1
Paysaver took a cross appeal to assert this argument, an unnecessary and confusing step. Jordan v. Duff & Phelps, Inc., 815 F.2d 429, 439 (7th Cir.1987)
2
This enlightening case does not appear in the official reports, perhaps because it is the invention of A.P. Herbert, Uncommon Law 201-06 (1935), but given what does appear in the official reports, Board of Inland Revenue v. Haddock has its attractions
| {
"pile_set_name": "FreeLaw"
} |
199 F.2d 372
Mary F. PERRY, Administratrix of the Estate of Fred Perry,Deceased, Appellant,v.PENNSYLVANIA RAILROAD COMPANY, Appellee.
No. 11500.
United States Court of Appeals Sixth Circuit.
Oct. 23, 1952.
Young & Young, Norwalk, Ohio, and Charles F. Scanlon, Akron, Ohio, for appellant.
Shumaker, Loop, Kendrick & Winn, Toledo, Ohio, for appellee.
Before SIMONS, Chief Judge, and MARTIN and MILLER, Circuit Judges.
PER CURIAM.
1
This appeal was heard upon the record, briefs of counsel for respective parties, and oral argument by counsel for appellee, no counsel appearing for appellant;And the Court being advised, it is ordered that the judgment of the District Court be and is affirmed. Canterbury v. Pennsylvania Railroad Co., 158 Ohio St. 68, 107 N.Ed.2d 115; Smiley v. Arrow Spring Bed Co., 138 Ohio St. 81, 33 N.E.2d 3, 133 A.L.R. 960.
| {
"pile_set_name": "FreeLaw"
} |
949 F.2d 453
292 U.S.App.D.C. 278, 60 USLW 2383
Michael E. HUBBARD, Appellee,v.ENVIRONMENTAL PROTECTION AGENCY, Appellant.Michael E. HUBBARD, Appellant,v.ADMINISTRATOR, ENVIRONMENTAL PROTECTION AGENCY, Appellee.
Nos. 90-5250, 90-5233.
United States Court of Appeals,District of Columbia Circuit.
Argued Sept. 16, 1991.Decided Dec. 3, 1991.On Petition for Rehearing andSuggestion for Rehearing En BancMarch 2, 1992.
[292 U.S.App.D.C. 279] Appeals from the United States District Court for the District of Columbia (Civil Action No. 83-00564).
John D. Bates, Asst. U.S. Atty., with whom Jay B. Stephens, U.S. Atty., R. Craig Lawrence and Mark E. Nagle, Asst. U.S. Attys., Washington, D.C., were on the brief, for appellant in 90-5250 and appellee in 90-5233.
Peter B. Broida, Arlington, Va., for appellee in 90-5250 and appellant in 90-5233.
Before EDWARDS and WALD, Circuit Judges, and FAIRCHILD,* Senior Circuit Judge, United States Court of Appeals for the Seventh Circuit.
Opinion for the Court filed by Circuit Judge HARRY T. EDWARDS.
Opinion concurring in part and dissenting in part filed by Circuit Judge WALD.
HARRY T. EDWARDS, Circuit Judge:
1
In 1982, Michael Hubbard applied for but was denied a job with the Environmental Protection Agency ("EPA"). The District Court found that EPA acted unlawfully in failing to hire Hubbard because of his exercise of First Amendment rights. The District Court ruled that, as appropriate equitable relief, Hubbard was entitled to be instated as a criminal investigator at EPA, at a grade and pay scale equal to that of persons hired in 1982; however, the trial court ruled that Hubbard could not be awarded back pay pursuant to an equitable action under the First Amendment. The District Court also refused to consider Hubbard's claim for attorney's fees under 28 U.S.C. § 2412(d) (1988). Hubbard here appeals from the denial of back pay and the trial court's failure to rule on his request for fees; the Government cross-appeals on the question of liability.
2
We agree with the trial judge that EPA violated Hubbard's First Amendment rights, so we affirm the judgment of the District Court on the question of liability. We reverse and remand, however, on the judgments with respect to back pay and fees.
I. BACKGROUND
3
This litigation has now consumed a decade; unfortunately, the disagreements between [292 U.S.App.D.C. 280] the parties seem as great now as when this law suit was initiated. The history of the case is detailed in the District Court's first judgment issued in 1984, a prior panel opinion of this court reviewing that judgment, a subsequent decision by this court sitting en banc, and two decisions of the District Court rendered following a remand of the case after en banc review. See Hubbard v. EPA, 809 F.2d 1 (D.C.Cir.1986), vacated in part and aff'd sub. nom. Spagnola v. Mathis, 859 F.2d 223 (D.C.Cir.1988) (en banc), on remand, Hubbard v. EPA, 735 F.Supp. 435 (D.D.C.1990), modified, 739 F.Supp. 654 (D.D.C.1990). To put the case in focus, we offer here a brief review of the principal facts.
4
In 1981, while a detective with the District of Columbia Metropolitan Police Department ("MPD"), Hubbard participated in the highly publicized Capitol Hill drug investigation, pursuing allegations of drug use and distribution by Members of Congress and their staffs. Hubbard's involvement, and apparently the entire investigation, began when he received a tip from members of columnist Jack Anderson's staff, Jack Mitchell and Indy Badhwar. Following the tip, Hubbard arranged, with the help of Anderson's staff, to use a phone in Representative Robert K. Dornan's office as a cover to receive messages. The investigation eventually led to a number of arrests for alleged drug violations.
5
After the initial arrests in the case became public, Representative Dornan, who was a member of the Select Committee on Narcotics, requested an update on the investigation. Hubbard then met with the congressman, his assistant, Mitchell and Badhwar. Hubbard outlined the investigation and began to name suspects. Representative Dornan cut him off and requested a written memo, which Hubbard later provided; the memo named several suspects. The memo was later sent by Dornan's office to Anderson's office and to the Select Committee. Anderson published several columns about the investigation, although none of the suspects was named in any of the initial stories.
6
Sometime after publication of the story, officials at MPD removed Hubbard from the investigation; however, upon considering the situation, the MPD Chief of Police rejected a recommendation of disciplinary action against Hubbard. Accordingly, Hubbard was never sanctioned by MPD for any improper communications with Representative Dornan or the press. On this point, the trial court specifically found that "Hubbard's communications regarding the investigation were not insubordinate.... Hubbard was removed from the case after the publicity broke, but ultimately, was neither reassigned nor demoted. It was the considered judgment of his superiors in the police department that Hubbard did not act inappropriately in his communications regarding the investigation." 735 F.Supp. at 439.
7
In 1982, Hubbard applied for an investigator position with the newly formed Criminal Investigations Division at EPA. EPA's personnel division rated Hubbard's application "highly qualified." He was invited for an interview with Peter Beeson, the hiring official and Division director, William Graff, the chief of investigations, and Gary Steakley, the deputy chief. Both Graff and Steakley recommended that Hubbard be hired. Beeson, however, acted to block Hubbard's application.
8
Before his interview with Hubbard, Beeson apparently had talked with his fiancee, Laura Kiernan, a Washington Post reporter, about Hubbard's supposed press contacts. Although Kiernan refused to offer any information, Beeson claims to have had a "gut feeling" that Hubbard had made improper contacts with the press during the Capitol Hill investigation. Although Beeson admitted that he acted on these unverified suspicions, he did not share them with Graff or Steakley. As a consequence, Hubbard was told that he was rejected for employment because he lacked the requisite experience in white collar and corporate investigations. The District Court found as follows:
9
Because Hubbard had veteran's preference status, Beeson was required to prepare a "passover" document to justify selection of any applicant with a lower ranking than Hubbard on the certificate of eligibles. The passover document finally submitted to the EPA Personnel [292 U.S.App.D.C. 281] Office indicated that Hubbard was not selected because he lacked the requisite white collar or corporate investigative experience. However, Hubbard had some white collar experience through training and school and, furthermore, had extensive experience in class I felony investigations. This experience satisfied the criteria listed in the Vacancy Announcement. See Joint Exhibit 1 (position requires skill in conducting investigations involving major corporations, white collar crime, and fraud). Moreover, several of the successful applicants had less white collar or corporate experience than Hubbard.
10
735 F.Supp. at 437.
11
Later in 1982, Hubbard discovered that MPD colleagues with no corporate or white collar crime investigation experience had been hired. After pursuing administrative remedies, he sued, originally bringing actions under the Privacy Act, 5 U.S.C. § 552a, and the Constitution. Under the Constitution, Hubbard sought both equitable relief based on the First Amendment and Bivens-type damages. After the District Court dismissed all of his claims, Hubbard appealed and this court reinstated his equitable action, but affirmed the dismissal of his damages action. Hubbard v. EPA, 809 F.2d at 11-12; Spagnola v. Mathis, 859 F.2d at 226-30.
12
Following remand and trial on the First Amendment claim, the District Court found that EPA had refused to hire Hubbard in violation of his First Amendment rights. Hubbard v. EPA, 735 F.Supp. 435 (D.D.C.1990). In its initial opinion on remand, the District Court ruled that Hubbard should be instated and awarded back pay, but that no attorneys' fees would be awarded. Id. at 440. In a subsequent memorandum opinion, 739 F.Supp. 654 (D.D.C.1990), the District Court affirmed its liability ruling but reversed its award of back pay.
13
Hubbard's appeal challenges the denial of back pay and attorneys' fees. EPA cross appeals, contending that the District Court erred in finding that it violated Hubbard's speech rights.
II. THE FIRST AMENDMENT CLAIM
14
In Pickering v. Board of Education, 391 U.S. 563, 574, 88 S.Ct. 1731, 1738, 20 L.Ed.2d 811 (1968), the Supreme Court held that an employee's "exercise of his right to speak on issues of public importance may not furnish the basis for his dismissal from public employment." In evaluating challenges under Pickering, the courts have utilized a four-prong test:
15
[T]he Pickering cause of action has four elements. First, the public employee must have been speaking on a matter of public concern. If the speech is not of public concern, "it is unnecessary ... to scrutinize the reasons for [the] discharge," at least "absent the most unusual circumstances." Second, the court must "balance" the interests of the employee, "as a citizen, in commenting upon matters of public interest and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through it employees." Third, the employee must prove that his speech was a substantial or motivating factor in his discharge. Finally, the government employer must be given an opportunity to prove that it would have reached the same decision even absent the protected conduct.
16
The first two inquiries are questions of law for the court to resolve. The latter two are questions of fact ordinarily left to the jury.
17
Hall v. Ford, 856 F.2d 255, 258 (D.C.Cir.1988) (citations omitted).
18
EPA does not seriously contest the first and third prongs of the test. The District Court found, and we agree, that Hubbard's speech touched a matter of public concern. "Certainly, the allegation that members of Congress use illegal narcotics is a matter of public concern." 735 F.Supp. at 438. Additionally, at the time he communicated with Representative Dornan, Hubbard was not involved in any dispute regarding his job. Often, where speech has been found not to be of public concern, "the content, form, and context" have revealed it to address personal employment grievances. See Connick v. Myers, 461 [292 U.S.App.D.C. 282] U.S. 138, 147-48, 103 S.Ct. 1684, 1690-91, 75 L.Ed.2d 708 (1983). Hubbard had no such personal grievances in this case. The Government points to some testimony suggesting that Hubbard was frustrated with MPD's slow pace on the investigation, Trial Transcript ("Tr.") vol. I, at 155, reprinted in Joint Appendix ("J.A.") 140, but this surely does not contradict or otherwise detract from the conclusion that the disputed event was a matter of public concern. Indeed, Hubbard's motivation, unless personal, is irrelevant to whether the speech itself is a matter of public concern.1
19
EPA also effectively concedes that Hubbard's speech was a "substantial" or "motivating" factor in the decision not to hire him. Beeson admitted as much at trial, e.g., Tr. vol. I, at 170-75, reprinted in J.A. 155-60, and the District Court specifically found that Beeson's belief that Hubbard had press contacts, not lack of corporate crime investigation experience, was "the real reason" Beeson did not hire Hubbard. 735 F.Supp. at 437.
20
In light of the foregoing, we find that Hubbard was "speaking on a matter of public concern," and that his "speech was a substantial or motivating factor" in EPA's decision not to hire him. We turn now to consider the second and fourth prongs of the Pickering test, the principal foci of EPA's cross-appeal.
A. The Pickering Balance
21
Under the second prong of Pickering, the court's task "is to arrive at a balance between the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting efficiency of the public services it performs through its employees." Pickering, 391 U.S. at 568, 88 S.Ct. at 1374-75. In this case, the District Court struck the balance in favor of Hubbard.
22
[T]he government in this case failed to demonstrate that Hubbard, by virtue of his prior contacts with the press, could not perform the job of criminal investigator with the EPA successfully. Nor did the government attempt to show that it had an interest in discipline or morale in the workplace which would be irreparably compromised by Hubbard's presence.
23
735 F.Supp. at 438-39 (citations omitted).
24
The EPA asserts that the District Court struck the wrong balance and erred by (1) requiring a showing of harm to discipline and morale, thereby ignoring the impact on the efficiency of the office, (2) discounting the special deference that should be accorded law enforcement agencies, and (3) imposing an irreparable harm standard. We disagree. The District Court committed no legal error in its judgment and, on the record at hand, the court was fully justified in reaching the result that it did.
25
Hubbard's investigation for MPD began as a result of tips received from the Anderson staffers and continued through Hubbard's cover in Representative Dornan's office. Hubbard did not communicate outside this circle and asked Dornan's office to keep the written memo "confidential." Tr. vol. I, at 124-25. Thus, this case does not present a situation in which a government employee has jeopardized an employer's operation by calling a press conference or indiscriminately leaking sensitive information. Nor does this case involve an employee who acted with disloyalty or in a manner otherwise at odds with the legitimate interests of his employer. Hubbard was not disciplined by MPD; he was not found to have engaged in insubordinate or otherwise wrongful conduct; and [292 U.S.App.D.C. 283] he did not compromise the Capitol Hill drug investigation. See 735 F.Supp. at 439. These findings by the trial court, which are not clearly erroneous, make it clear that Hubbard did nothing to impair the efficiency of the MPD operation, and nothing that he did at MPD reasonably indicated that he would adversely affect the efficiency of EPA's operation.
26
Even if we owe no deference to the factual findings of the District Court and engage in de novo review, we would still find in Hubbard's favor.2 Hubbard's report to Representative Dornan clearly served the public interest by informing a policymaker responsible for drug policy of suspected use and distribution among Members of Congress and their staffs. EPA introduced no evidence that the Capitol Hill drug investigation suffered in any way. Although the documentary evidence suggests that Hubbard's claims that Members of Congress were involved may have been exaggerated, no names were made public by Anderson's office until after those names were presented to the federal grand jury and the House Ethics Committee. See H.R.REP. NO. 559, 98th Cong., 1st Sess. 390 (1983) (reprinting a Jack Anderson column), introduced as Defendant's Exhibit A. In fact, the Special Counsel appointed by the House Ethics Committee found that Hubbard did not leak the names of Members to Anderson. Id. at 14. Finally, as noted above, the MPD Chief of Police reviewed the case and specifically declined to take any disciplinary action against Hubbard.
27
It is hardly surprising that Hubbard suffered no discipline at MPD; as the trial court correctly found, Hubbard's contacts with Dornan were authorized.
28
[I]t was United States Representative Robert K. Dornan who authorized the use of his office and telephone number as a front for Hubbard's undercover work on Capitol Hill. Conducting an investigation with the aid of persons outside the police organization carries a certain amount of risk of unauthorized or premature disclosure. It appears to the Court that in authorizing this investigation, the Metropolitan Police Department made a judgment that the benefits of cooperation in this case outweighed this risk. In light of these circumstances, it is clear to the Court that Hubbard's initial contacts with the press and Representative Dornan were authorized, and deserving of first amendment protection.
29
739 F.Supp. at 656.
30
Furthermore, we find the EPA's alleged concern over the efficiency and confidentiality of its investigations to be pretextual. This rationale was not offered until after Beeson had decided not to hire Hubbard. When he first passed over Hubbard, Beeson acted on nothing more than a "gut feeling" he assertedly developed when he mentioned Hubbard's name to his fiancee, Laura Kiernan. Tr. vol. I, at 174, reprinted in J.A. 159. After talking with Kiernan, Beeson apparently rejected Hubbard on the basis of supposed press contacts without knowing anything about the context of those contacts. Beeson testified that he "press[ed] [Laura Kiernan] on more than one occasion for information she might have [on Hubbard]," but she "refused to give it and basically made it clear that [any information she had] was not firsthand but rather it was hearsay." Tr. vol. I, at 148, reprinted in J.A. 133. Nonetheless, Beeson confirmed that he
31
had made a determination, based on basically my gut feeling from my interactions with Laura, together with an absence of white collar crime and corporate experience, that Mr. Hubbard was not going to be hired; that I would pass him over, and we drafted a passover document for that purpose. And, the passover document was based on his lack of white collar crime and corporate defendant experience.
32
Tr. vol. I, at 151-52, reprinted in J.A. 136-37.
33
As Beeson admitted, "the primary reason" he passed over Hubbard was the information [292 U.S.App.D.C. 284] that he gleaned from his fiancee. Tr. vol. I, at 164-65, reprinted in J.A. 149-50. The "other reason," i.e., Hubbard's alleged lack of white collar crime experience, id., was a sham. On this latter point, the trial court specifically found that
34
the real reason Beeson decided not to hire Hubbard was his belief that Hubbard was responsible for press leaks which compromised the Capitol Hill investigation. The Court is troubled by the fact that officials at EPA were not straightforward with their true reasons for passing over Hubbard. Their attempts to conceal the truth, and the assertion of a patently inadequate basis for rejecting Hubbard, buttress the Court's conclusion that EPA's actions regarding Hubbard's application were constitutionally suspect.
35
735 F.Supp. at 437.
36
It was only after Beeson had acted to block the hiring of Hubbard that he had occasion to discuss Hubbard's involvement in the Capitol Hill drug investigation with MPD Detective Dave Hopkins. Hopkins told Beeson that Hubbard had communicated with Representative Dornan about the investigation. But at no time did Beeson find out exactly what was said, to whom, or to what effect. Although he gained no concrete information from Hopkins, Beeson nonetheless claimed that his talk with Hopkins "provided an additional sign of [Hubbard's] lack of sensitivity to the proper handling of sensitive information in an ongoing investigation." Tr. vol. I, at 157, reprinted in J.A. 142. On cross-examination, however, Beeson reiterated that his view not to hire Hubbard was formed well before he talked with Hopkins:
37
Q. As I understand it, your decision not to hire Mike Hubbard was made on the 19th of August, at least two weeks before your conversation with Mr. Hopkins; right?
38
A. Yes. At that point my decision was based on my gut feelings in talking with Laura [Kiernan].
39
Tr. vol. I, at 170-71, reprinted in J.A. 155-56. Thus, based solely on his "gut feelings" about Hubbard's unverified contacts with the press, Beeson rejected Hubbard's bid for employment.
40
The obvious weakness in the Government's case is that there was no real content to Beeson's rejection of Hubbard on the basis of supposed press contacts; thus, we are left with an adverse employment action based on nothing more than the speech of a prospective employee with respect to a matter of public concern. In an apparent effort to avoid this hole in its case, the Government now asserts that law enforcement agencies are entitled to something approaching an irrebuttable presumption that their efficiency is compromised whenever their employees speak publicly. This position is baseless.
41
As we have held in the past, a police officer does "not completely shed his First Amendment rights when he accept[s] employment as a public servant. 'Policemen, like teachers and lawyers, are not relegated to a watered-down version of constitutional rights.' " Tygrett v. Washington, 543 F.2d 840, 849 (D.C.Cir.1974) (quoting Garrity v. New Jersey, 385 U.S. 493, 500, 87 S.Ct. 616, 620, 17 L.Ed.2d 562 (1967)). We recognize that some decisions have held that "[t]he First Amendment does not protect personal behavior in the law enforcement context to the same extent that it does in other areas of Governmental concern," McMullen v. Carson, 754 F.2d 936, 939-40 (11th Cir.1985). Even accepting this as true, however, it does not follow that the individualized consequences of an officer's speech may be ignored. See Tygrett, 543 F.2d at 849-50 ("[D]ischarge [can] be justified only by a specific finding that the statements in question adversely affected his efficiency as a police officer or the efficiency of the Department as a police force.") (emphasis added); McGehee v. Casey, 718 F.2d 1137 (D.C.Cir.1983) (conducting a case specific review of the CIA's decision, pursuant to regulations, to censor parts of a former agent's writings).
42
Furthermore, this is not a case in which the employer claims that the employee violated some agency "regulation" prohibiting the release of information. See, e.g., Jurgensen v. Fairfax Cty., 745 F.2d 868, 883-84 (4th Cir.1984). Hubbard was authorized [292 U.S.App.D.C. 285] to work through Congressman Dornan; the trial court found that he engaged in no act of insubordination with respect to the investigation; and it is undisputed that he was never disciplined by MPD for any improper conduct during the investigation.3 Thus, even if a "regulation" against the release of information could obviate the need for an individualized assessment under Pickering, there is no evidence in this case to indicate that MPD invoked any such regulation or that Hubbard breached it.
43
EPA also argues that its decision is entitled to increased deference because it was faced with a hiring decision, not a disciplinary decision. Merely because an employer is hiring rather than firing, however, does not justify unconstitutional action. There can be no serious question that even individuals without property interests in their jobs cannot be discriminated against on the basis of their speech. See, e.g., Rankin v. McPherson, 483 U.S. 378, 383-84, 107 S.Ct. 2891, 2896-97, 97 L.Ed.2d 315 (1987) (holding that a probationary employee may not be fired for speech reasons); Mount Healthy Board of Educ. v. Doyle, 429 U.S. 274, 283-84, 97 S.Ct. 568, 574, 50 L.Ed.2d 471 (1977) (same); Franklin v. Atkins, 562 F.2d 1188, 1190 (10th Cir.1977) (In a Pickering case, the court wrote: "[T]he Regents need give no reason for a refusal to hire, and in fact need have no reason at all. However, it is equally obvious that they could not refuse to hire for a constitutionally impermissible reason.") (citations omitted), cert. denied, 435 U.S. 994, 98 S.Ct. 1645, 56 L.Ed.2d 83 (1978).
44
In making hiring decisions, employers are free to draw "reasonable inferences of harm from the [prospective] employee's speech, his position, and his working relationship with his superior." Hall v. Ford, 856 F.2d at 261. Indeed, in assessing prospective employees, an employer need not prove actual harm or make a showing of "irreparable injury" in order to survive a challenge under Pickering. As the Court said in Connick, an employer is not required to "tolerate action which he reasonably believed would disrupt the office, undermine authority, and destroy close working relationships," 461 U.S. at 154, 103 S.Ct. at 1694 (emphasis added); and an employer need not "allow events to unfold" in determining whether actual harm might occur, id. at 152, 103 S.Ct. at 1692. Nonetheless, it is also clear that "unadorned speculation as to the impact of speech ... on the government's enterprise will not suffice." Hall, 856 F.2d at 261. In this case, Hubbard was denied a job solely on the basis of Beeson's "unadorned speculation" about Hubbard's supposed press contacts.
45
EPA failed to show in any way that Hubbard's discussions with Dornan, Mitchell and Badhwar compromised his efficiency or the efficiency of the MPD. With the District Court, we conclude that "the selecting official at EPA made the decision not to hire Hubbard on an impermissible basis--Hubbard's exercise of his first amendment right of free speech," 739 F.Supp. at 656, and that "the government in this case failed to demonstrate that Hubbard, by virtue of his prior contacts with the press, could not perform the job of criminal investigator with the EPA successfully." 735 F.Supp. at 438.
46
On the basis of all of the foregoing, we conclude that, under the second prong of Pickering, the balance of interests clearly weigh in favor of Hubbard.
47
B. Would EPA Have Made the Same Decision Absent Hubbard's Speech?
48
Under the fourth prong of Pickering, the employer must be given the opportunity to prove that it would have reached the same decision even absent the protected conduct. Mt. Healthy, 429 U.S. at 287, 97 S.Ct. at 576; Hall, 856 F.2d at 258. This is a question of fact, Hall, 856 F.2d at 258, and, as such, the trial court's findings on this point may not be set aside unless "clearly erroneous." See Anderson v. Bessemer City, 470 U.S. 564, 573-81, 105 S.Ct. 1504, 1511-15, 84 L.Ed.2d 518 (1985); Pullman-Standard v. Swint, 456 U.S. 273, 102 S.Ct. 1781, 72 L.Ed.2d 66 (1982). The District [292 U.S.App.D.C. 286] Court found that Beeson's beliefs about Hubbard's speech were the but-for cause of EPA's refusal to hire. We have no basis to overturn this finding.
49
EPA asserts that Hubbard's lack of white collar and corporate crime investigation experience made Hubbard unqualified. But, the trial testimony demonstrated that white collar and corporate crime experience was not a mandatory qualification; experience investigating class I felonies, which Hubbard had, was an adequate substitute. Tr. vol. I, at 63 (Testimony of William Steakley). Other candidates without white collar or corporate crime experience were hired. Id. at 86. The District Court concluded:
50
The record reflects that Hubbard's qualifications were equal to or exceeded those of lower-ranked candidates ultimately hired for the positions. Hubbard was not offered a position despite the recommendation of Steakley, shared by Graff, that he be hired. In light of this evidence, the Court concludes that were it not for Hubbard's speech regarding the Capitol Hill investigation, he would have been hired as a criminal investigator by EPA.
51
735 F.Supp. at 439.
52
In sum, there can be no doubt on this record that the District Court was correct in finding that EPA violated Hubbard's First Amendment rights when it refused to hire him.
III. ATTORNEYS' FEES
53
Because we affirm the District Court's liability determination, we proceed to decide whether Hubbard may recover attorneys' fees or back pay or both. In this section, we conclude that the District Court on remand should entertain a petition for attorneys' fees.
54
In his proposed findings of fact and law, Hubbard requested the opportunity to submit a petition for attorneys' fees under the relevant part of the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412 (1988). Relying on Unification Church v. INS, 762 F.2d 1077 (D.C.Cir.1985), the District Court held that Hubbard could not recover fees under section 2412(b) because his claim was not analogous to an action that would give rise to a fee award claim under 42 U.S.C. § 1988. 735 F.Supp. at 440. Hubbard sought reconsideration, asserting that his claim would fall under section 2412(d), which awards attorneys' fees
55
in any civil action (other than cases sounding in tort), including proceedings for judicial review of agency action, brought by or against the United States in any court having jurisdiction of that action, unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust.
56
28 U.S.C. § 2412(d)(1)(A) (1988). The District Court denied the motion for reconsideration.
57
In light of EPA's appeal on the liability issue, there is no harm done in the District Court's failure to consider the request for fees under section 2412(d). See Melkonyan v. Sullivan, --- U.S. ---, 111 S.Ct. 2157, 2162, 115 L.Ed.2d 78 (1991) (time for bringing EAJA petition begins when judgment is final and not appealable). The District Court was in error, however, in suggesting that there was no issue under section 2412(d). Hubbard clearly is a "prevailing party" under relevant case law, see Hensley v. Eckerhart, 461 U.S. 424, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983) (holding that a partially prevailing party is still a prevailing party), and would be even if he had only been entitled to instatement, as the District Court thought. See also Raton Gas Transmission Co. v. FERC, 891 F.2d 323, 327-28 (D.C.Cir.1989). On remand the District Court should entertain Hubbard's petition for fees.
IV. THE CLAIM FOR BACK PAY
58
The District Court heard Hubbard's First Amendment action pursuant to its general federal question jurisdiction to decide all cases "arising under the Constitution, laws, or treaties of the United States." 28 U.S.C. § 1331 (1988). "This jurisdictional grant provides not only the authority to decide whether a cause of action is stated by a plaintiff's claim that he has been injured by a violation of the Constitution, [292 U.S.App.D.C. 287] but also the authority to choose among available judicial remedies in order to vindicate constitutional rights." Bush v. Lucas, 462 U.S. 367, 374, 103 S.Ct. 2404, 2409, 76 L.Ed.2d 648 (1983) (citation omitted).
59
Hubbard clearly is entitled to full equitable relief. Both the prior panel and en banc decisions, while ruling out Bivens-damages, held that the court could grant equitable relief. Hubbard, 809 F.2d at 11-12; Spagnola, 859 F.2d at 229-30. Equitable relief against the United States is authorized by the Administrative Procedure Act ("APA"), 5 U.S.C. § 702 (1988),4 which waives sovereign immunity for relief other than money damages. Hence, Hubbard's ability to recover back pay, as distinct from Bivens-damages, turns on whether or not back pay is properly characterized as equitable relief. We believe that it is.5
A. Back Pay as Equitable Relief
60
Courts have recognized the equitable nature of back pay awards in a number of different contexts. Generally, these decisions hold that back pay constitutes the very thing that the plaintiff would have received but-for the defendant's illegal action; back pay is thus seen to reflect equitable restitution. Some decisions also justify a back pay award as incidental to an equitable instatement order. On either rationale, there is strong authority supporting Hubbard's claim for back pay relief in this case.
61
A case in point is Bowen v. Massachusetts, 487 U.S. 879, 108 S.Ct. 2722, 101 L.Ed.2d 749 (1988), in which the Supreme Court expressly described back pay as an equitable award. The Court in Bowen considered a challenge to a disallowance of Medicaid disbursements made by the Secretary of Health and Human Services. The Court held that section 702's waiver of sovereign immunity extended to monetary awards which could be characterized as equitable relief. The Court specifically cited "reinstatement ... with back pay" to illustrate a form of equitable relief, as distinguished from money damages.
62
Our cases have long recognized the distinction between an action at law for damages--which are intended to provide a victim with monetary compensation for an injury to his person, property, or reputation--and an equitable action for specific relief--which may include an order providing for the reinstatement of an employee with back pay, or for "the recovery of specific property or monies, ejectment from land, or injunction either directing or restraining the defendant officer's actions."
63
487 U.S. at 893, 108 S.Ct. at 2731-32 (quoting Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 688, 69 S.Ct. 1457, 1460, 93 L.Ed. 1628 (1949)). Although the reference to "back pay" is offered only by way of example in Bowen, it is a critically important citation because the entire Bowen decision focuses on the distinction between money awarded in equity as specific relief and "money damages."
64
The Court's statement in Bowen is hardly surprising, for the concept of back pay as equitable relief has been recognized by the Supreme Court in other contexts as well. In Albemarle Paper Co. v. Moody, 422 U.S. 405, 95 S.Ct. 2362, 45 L.Ed.2d 280 (1975), for example, the Court characterized back pay under Title VII as equitable relief. Although noting that Congress had [292 U.S.App.D.C. 288] included back pay among several statutory remedies available to redress Title VII violations, the Court observed that the judicial discretion to award back pay "is equitable in nature," consistent with the "historic power of equity to award lost wages." Id. at 416, 95 S.Ct. at 2371. In fact, the Court characterized the statutory reference to back pay, see 42 U.S.C. § 2000e-5(g) (1988), as a congressional reference to courts' inherent authority, not as a grant of any new remedial authority.
65
It is true that "[e]quity eschews mechanical rules ... [and] depends on flexibility." But when Congress invokes the Chancellor's conscience to further transcendent legislative purposes, what is required is the principled application of standards consistent with those purposes and not "equity [which] varies like the Chancellor's foot." ...
66
....
67
It is also the purpose of Title VII to make persons whole for injuries suffered on account of unlawful employment discrimination. This is shown by the very fact that Congress took care to arm the courts with full equitable powers. For it is the historic purpose of equity to "secur[e] complete justice."
68
422 U.S. at 417-18, 95 S.Ct. at 2371-72 (quoting Holmberg v. Armbrecht, 327 U.S. 392, 396, 66 S.Ct. 582, 584, 90 L.Ed. 743 (1946); Brown v. Swann, 35 U.S. (10 Pet.) 497, 503, 9 L.Ed. 508 (1836)); see also 118 Cong.Rec. 7168 (1971) ("The provisions of this subsection are intended to give the courts wide discretion in exercising their equitable powers to fashion the most complete relief possible.") (statement of Senator Williams, introducing the Conference Report to the 1972 Title VII amendments).
69
In Seventh Amendment cases, where the right to a jury trial turns on whether the relief sought is legal or equitable, the Court has continued to note the equitable nature of Title VII back pay awards. In Curtis v. Loether, 415 U.S. 189, 94 S.Ct. 1005, 39 L.Ed.2d 260 (1974), the Court held that damages under Title VIII for race-based denials of housing were legal in nature and must be awarded in a jury trial. For contrast, the Court cited the back pay remedy under Title VII.
70
We need not, and do not, go so far as to say that any award of monetary damages must necessarily be "legal" relief. A comparison of Title VIII with Title VII of the Civil Rights Act of 1964, where the courts of appeals have held that jury trial is not required in an action for reinstatement and backpay, is instructive, although we of course express no view on the jury trial issue in that context. In Title VII cases the courts of appeals have characterized backpay as an integral part of an equitable remedy, a form of restitution.
71
Id. at 196-97, 94 S.Ct. at 1009-10 (citations and footnote omitted). Similarly, in Chauffeurs, Teamsters and Helpers, Local No. 391 v. Terry, 494 U.S. 558, 110 S.Ct. 1339, 108 L.Ed.2d 519 (1990), the Court reiterated that it has noted that "backpay sought from an employer under Title VII would generally be restitutionary in nature." 110 S.Ct. at 1349.6 See also Lehman v. Nakshian, 453 U.S. 156, 166-67, 101 S.Ct. 2698, 2704-05, 69 L.Ed.2d 548 (1981); Great American Federal Savings & Loan Assn. v. Novotny, 442 U.S. 366, 375, 99 S.Ct. 2345, 2350, 60 L.Ed.2d 957 (1979); Lorillard v. Pons, 434 U.S. 575, 584-85, 98 S.Ct. 866, 872, 55 L.Ed.2d 40 (1978).
72
Those Courts of Appeals which have addressed the issue have been unanimous in holding that an action for back pay under Title VII, at least when joined with a claim for reinstatement and not joined with a damages claim, is equitable and gives rise to no jury trial right. See Ramos v. Roche Products, Inc., 936 F.2d 43, 49-50 (1st Cir.1991); Walton v. Eaton Corp., 563 F.2d 66, 69, 84 (3d Cir.1977); Cox v. Babcock & Wilcox Co., 471 F.2d 13, 14 (4th Cir.1972); Johnson v. Georgia Highway Express, Inc., 417 F.2d 1122, 1125 (5th Cir.1969); Moore v. Sun Oil Co., 636 F.2d 154, 156[292 U.S.App.D.C. 289] (6th Cir.1980); Grayson v. Wickes Corp., 607 F.2d 1194, 1196 (7th Cir.1979); Harmon v. May Broadcasting Co., 583 F.2d 410 (8th Cir.1978) (per curiam); Slack v. Havens, 522 F.2d 1091, 1094 (9th Cir.1975); Snider v. Circle K Corp., 923 F.2d 1404, 1407 (10th Cir.1991); Lincoln v. Board of Regents, 697 F.2d 928, 934 (11th Cir.), cert. denied,464 U.S. 826, 104 S.Ct. 97, 78 L.Ed.2d 102 (1983). This line of cases also answers the possible contention that Title VII awards, because authorized by statute, are somehow different than back pay awards. The constitutional question does not change because Congress has created the right. See Curtis, 415 U.S. at 194, 94 S.Ct. at 1008.
73
Although not confronting the Seventh Amendment question directly, this Circuit has endorsed the proposition that in a Title VII action "back pay is not in the nature of a claim for damages, but rather an integral part of the statutory equitable remedy." Evans v. Sheraton Park Hotel, 503 F.2d 177, 186 (D.C.Cir.1974) (quoting Johnson v. Georgia Highway Express, 417 F.2d at 1125).7
74
Another area in which the Supreme Court has recognized the equitable nature of back pay awards is in actions under the Fair Labor Standards Act. In Mitchell v. Robert DeMario Jewelry, Inc., 361 U.S. 288, 80 S.Ct. 332, 4 L.Ed.2d 323 (1960), the Court held that courts had equitable jurisdiction to award back pay. The Court first characterized the specific action in question, an action by the Secretary of Labor to enjoin violations of section 15(a)(3) of the Act, 29 U.S.C. § 215(a)(3), as an equitable action. Id. at 292, 80 S.Ct. at 335. The Court then held it within a court's equitable jurisdiction to award back pay to protect the rights created in the Act. Id. at 292-93, 80 S.Ct. at 335-36. Notably, the remedial section of the FLSA, unlike Title VII, at the time contained no reference either to back pay or equitable relief in general. See 29 U.S.C. § 217 (1958) (District Courts may "for cause shown, ... restrain violations of section 15"). The Court expressly refuted the idea that a statute must authorize a back pay award. "The court below took as the touchstone for decision the principle that to be upheld the jurisdiction here contested 'must be expressly conferred by an act of Congress or be necessarily implied from a congressional enactment.' In this the court was mistaken." 361 U.S. at 290, 80 S.Ct. at 334. Quoting from Porter v. Warner Holding Co., 328 U.S. 395, 398, 66 S.Ct. 1086, 1089, 90 L.Ed. 1332 (1946), where the Court used its equitable jurisdiction to force the refund of rents extracted in violation of wartime price controls, the Court continued: "Unless otherwise provided by statute, all the inherent equitable powers of the District Court are available for the proper and complete exercise of that jurisdiction." 361 U.S. at 291, 80 S.Ct. at 334.
75
Implied private rights of action under the Title VI prohibition of discrimination against the handicapped provide yet another context in which the Supreme Court has recognized the equitable nature of back pay awards. See Consolidated Rail Corp. v. Darrone, 465 U.S. 624, 104 S.Ct. 1248, 79 L.Ed.2d 568 (1984). In Darrone, the Court faced as a threshold matter the question whether or not the implied right of action survived the plaintiff's death. The Court held that it did:
76
Without determining the extent to which money damages are available under § 504 [29 U.S.C. § 794], we think it clear that § 504 authorizes a plaintiff who alleges intentional discrimination to bring an equitable action for backpay.
77
Id. at 630, 104 S.Ct. at 1252.
78
In addition to the foregoing areas, the courts of appeals have authorized equitable back pay awards in a number of other cases. See, e.g., Bertot v. School Dist. No. 1, 613 F.2d 245, 250 (10th Cir.1979) (en banc) (equitable back pay remedy available in Pickering cases); McKinley v. City of Eloy, 705 F.2d 1110, 1116 n. 3 (9th Cir.1983) (same); Cline v. Roadway Express, Inc., 689 F.2d 481, 488-90 (4th Cir.1982) (recognizing equitable nature of back pay [292 U.S.App.D.C. 290] award under Age Discrimination in Employment Act); Dickerson v. Deluxe Check Printers, Inc., 703 F.2d 276, 281 (8th Cir.1983) (same); Troy v. City of Hampton, 756 F.2d 1000, 1002 (4th Cir.) (back pay under Veteran's Reemployment Rights Act is equitable), cert. denied, 474 U.S. 864, 106 S.Ct. 182, 88 L.Ed.2d 151 (1985); Skeets v. Johnson, 805 F.2d 767, 774-75 (8th Cir.1986) (awarding equitable back pay for interim between termination in violation of due process and the required hearing), rev'd on other grounds, 816 F.2d 1213 (8th Cir.1987) (en banc); McGhee v. Draper, 639 F.2d 639, 646 (10th Cir.1981) (same); Gurmankin v. Costanzo, 626 F.2d 1115, 1122 (3d Cir.1980) (awarding equitable back pay in action under 42 U.S.C. § 1983 to victim of discrimination on the basis of blindness), cert. denied, 450 U.S. 923, 101 S.Ct. 1375, 67 L.Ed.2d 352 (1981); McFerren v. County Board of Educ., 455 F.2d 199, 203-04 (6th Cir.) (holding there was no jury trial right where court ordered reinstatement and back pay to teachers fired after desegregation order; in discrimination case, back pay is equitable), cert. denied, 407 U.S. 934, 92 S.Ct. 2461, 32 L.Ed.2d 817 (1972); Santiago-Negron v. Castro-Davila, 865 F.2d 431, 441 (1st Cir.1989) (in patronage hiring case, back pay award, if not joined with damages claim, is equitable).8
79
These precedents aside, we think in this case Hubbard's back pay request constitutes an equitable remedy. In Terry, the Supreme Court considered two ways the plaintiffs' action for back pay might be equitable: if it was restitutionary or if it was incidental to or intertwined with injunctive relief. 110 S.Ct. at 1348. Both of these factors apply here. Hubbard was denied a specific job and the pay that goes with it. An award of instatement and back pay gives Hubbard the precise thing to which he was entitled and therefore constitutes specific restitution. See RESTATEMENT OF RESTITUTION § 4 (1937) (equity awards the specific thing taken). Although such an award involves money, that alone does not take it outside equity. See DAN B. DOBBS, HANDBOOK ON THE LAW OF REMEDIES 135 (1973) ("[o]ccasionally a money award is also a specie remedy"), quoted in Bowen v. Massachusetts, 487 U.S. at 895, 108 S.Ct. at 2732.
80
In arguing that back pay cannot be restitution, the dissent, in our opinion, makes two errors. First, it assumes that restitution can only derive from unjust enrichment. Unjust enrichment, however, defines only half the field.
81
Lawyers use the word "restitution" in at least two senses. "Restitution" means recovery based on and measured by unjust enrichment. It also means restoration in kind of a specific thing. Both usages are part of any complete definition of restitution. [George] Palmer [author of the leading restitution treatise] and the Restatement [of Restitution ] use the word both ways....
82
Douglas Laycock, The Scope and Significance of Restitution, 67 TEX.L.REV. 1277, 1279 (1989) (footnotes omitted). It is in the sense of restoration that Dobbs' statement that money can be a specie remedy is best understood. Second, the dissent misconceives the "thing taken." By stating that back pay "compensates for the time [Hubbard] was wrongfully kept off the job," the dissent has conceived of the thing taken solely as the right to work. By analogy to a specific performance action, the dissent's hypothetical employment contract contains only one term--that Hubbard shall work for the EPA. Such a contract, although possibly not void for lack of consideration, is surely not what either party would have imagined and is surely not what Hubbard [292 U.S.App.D.C. 291] would have received but-for EPA's unconstitutional actions. The "thing taken" must have been both the position and the pay. Our interpretation does not eliminate the concept of compensatory damages. Here, they might have been damages for stigmatic injury, costs incurred for retraining or relocation, or other consequential injuries. Simply because the restitutionary measure equals the primary compensatory element does not cause it to lose its character as restitution. See Laycock, supra, at 1285-86.
83
The money that Hubbard seeks would not be awarded to compensate for an infringement of an intangible right, as in Bivens actions. Rather, it is intertwined with, and flows directly from, an award of instatement--relief that can only be granted by a court in equity.
B. Waiver of Sovereign Immunity
84
Our conclusion that a back pay award to Hubbard would constitute equitable relief largely disposes of any question regarding sovereign immunity. Section 702 of the APA waives that immunity for all suits seeking specific relief and we think an equitable award of back pay clearly qualifies.
85
The Supreme Court's decision in Bowen v. Massachusetts makes clear that section 702's proviso excluding money "damages" did not mean that no monetary relief could be awarded. 487 U.S. at 891-901, 108 S.Ct. at 2730-31. As noted above, the Court used an equitable award of back pay as an example of the relief that would be permitted under section 702.9 Since Bowen, two courts have stated, albeit one in dicta, that an award of back pay would fall within section 702. Ulmet v. United States, 888 F.2d 1028, 1030-31 (4th Cir.1989) (finding jurisdiction in the district court to award back pay, although sanctioning its decision to defer to the Claims Court); DeVargas v. Mason & Hanger-Silas Mason Co., 911 F.2d 1377, 1381 (10th Cir.1990) (dicta), cert. denied, --- U.S. ---, 111 S.Ct. 799, 112 L.Ed.2d 860 (1991); see also Gleason v. Malcom, 718 F.2d 1044, 1048 (11th Cir.1983) (in rejecting a First Amendment damages claim, the court wrote: "As a federal employee, she could have sought equitable relief, i.e., reinstatement and back pay, pursuant to the Administrative Procedure Act"); Nixon v. United States, 938 F.2d 239, 251 n. 4 (D.C.Cir.1991) (Edwards, J., concurring in part and dissenting in part) ("Moreover, in the wake of the Supreme Court's decision in Bowen, it would appear that even had Nixon sought back pay in this action, his suit would still not be one for 'money damages' within the meaning of 5 U.S.C. § 702.").10
86
[292 U.S.App.D.C. 292] If Bowen 's use of back pay as an illustration is not sufficiently persuasive, we think the reasoning of that decision compels a finding that back pay is within section 702's waiver. By its terms, section 702 waives sovereign immunity for all relief other than "money damages." The Bowen Court relied heavily on this circuit's decision in Maryland Dept. of Human Resources v. Dept. of Health & Human Servs., 763 F.2d 1441 (D.C.Cir.1985), to construe that term and held that it did not encompass all monetary relief. Money given "to substitute for a suffered loss" constituted damages whereas " 'attempt[s] to give the plaintiff the very thing to which he was entitled' " were specific relief and within the waiver. See Bowen, 487 U.S. at 895, 108 S.Ct. at 2732; Maryland Dept. of Human Resources, 763 F.2d at 1446 (quoting D. DOBBS, supra, at 135). "The fact that in the present case it is money rather than in-kind benefits ... cannot transform the nature of the relief sought--specific relief, not relief in the form of damages." 487 U.S. at 895, 108 S.Ct. at 2733; 763 F.2d at 1446. No less than the funds restored to Massachusetts in Bowen, we think Hubbard's back pay, being part of the very thing EPA unconstitutionally withheld, constitutes specific relief.11
87
Reviewing the legislative history of section 702, the Bowen Court noted that Congress intended "to eliminate the sovereign immunity defense in all equitable actions for specific relief against a Federal agency or officer acting in an official capacity." H.R.REP. NO. 1656, 94th Cong., 2d Sess. 9 (1976); S.REP. NO. 996, 94th Cong., 2d Sess. 8 (1976), quoted in Maryland Dept. of Human Resources, 763 F.2d at 1447; Bowen, 487 U.S. at 899, 108 S.Ct. at 2734 (emphasis added). The dissent, in distinguishing between equitable relief and specific relief, glosses over this statement from both committees. Both Bowen and Maryland Dept. of Human Resources applied this statement to a list of actions contemplated by the committee which included not only "Federal grant-in-aid programs," but also "agricultural regulations, governmental employment, tax investigations, postal-rate matters, administration of labor legislation, control of subversive activities, [and] food and drug regulation." H.R.REP. NO. 1656 at 9; S.REP. NO. 996 at 8 (emphasis added).
88
We agree with the dissent that little in the legislative history of section 702 points toward including back pay awards within the waiver. The question may not have occurred to the committee given the existence of the Back Pay Act. Nonetheless, despite the dissent's reference to "the hard nosed rules of statutory construction," nothing in the statute or the legislative history excludes back pay recoveries. The interpretation question is whether back pay constitutes "money damages" within the meaning of section 702's exclusion. The Supreme Court in Bowen held that an award of money constituted "money damages" only when the money "substitute[s] for a suffered loss." Bowen, 487 U.S. at 894, 108 S.Ct. at 2732 (quoting Maryland Dept. of Human Resources, 763 F.2d at 1446 (quoting D. DOBBS, supra, at 135)). Here, the back pay does not substitute for any damage, such as pain or defamation, but is the exact thing Hubbard should have received. Second, the dissent's statutory construction argument, being built on silence,, [292 U.S.App.D.C. 293] is actually based on the cited canon of construction that sovereign immunity waivers should be narrowly construed. To the extent canons are reliable in statutory interpretation, see, e.g., WILLIAM N. ESKRIDGE & PHILIP P. FRICKEY, CASES AND MATERIALS ON LEGISLATION: STATUTES AND THE CREATION OF PUBLIC POLICY 689 (1988) (noting that canons may be used on any side of a construction argument), "remedial statutes should be broadly construed" might be more appropriate given Congress' expressed intent that plaintiffs with meritorious claims against the government not be barred by sovereign immunity. See H.R.REP. NO. 1656 at 8, 9; S.REP. NO. 996 at 7, 8: ("enactment of [the bill] is 'urgent' in order to remove 'the unnecessary injustice caused by sovereign immunity' " (quoting Professor Kenneth Davis); "the time now [has] come to eliminate the sovereign immunity defense in all equitable actions for specific relief").12
89
The Government contends that, under Bowen, money awarded can only be specific relief when there is a statutory requirement that those monies be paid. In other words, the Government seems to argue that equitable relief can never include money unless the money sought is given pursuant to a specific statutory authorization. But of course this makes no sense in light of the Court's reference to "back pay" as equitable relief and the legislative history which lists "government employment" among the equitable actions for which specific relief may be granted. Although Bowen refers to the Medicaid statute which Massachusetts used to assert that payments had been wrongfully withheld, the opinion of the Court focuses on the dichotomy between substitutionary and restitutionary relief. See, e.g., 487 U.S. at 901, 108 S.Ct. at 2735. The Court's reasoning in this regard appears to draw on the equitable maxim "Equity regards that as done which ought to be done." See generally GEORGE L. CLARK, PRINCIPLES OF EQUITY § 20 (1919); 1 MELVILLE M. BIGELOW, JOSEPH STORY'S COMMENTARIES ON EQUITY JURISPRUDENCE 68-69 (13th ed. 1886). An equity court seeks to restore the plaintiff to the position she would have been in had the defendant's illegal action never taken place. Cf. Jacksonville Port Auth. v. Adams, 556 F.2d 52, 56-57 (D.C.Cir.1977) (holding that District Court may award money due under a statute even though time for disbursement had expired). Had EPA acted constitutionally, Hubbard would have received the pay in question.
90
Additionally, in Bowen and Maryland Dept. of Human Resources, the statutory entitlement was necessary to create the cause of action. The grant-in-aid statutes, and only the statutes, provided the grounds on which the plaintiffs could complain that they, in the words of section 702, had "suffer[ed] a legal wrong ... or [been] adversely affected within the meaning of a relevant statute." 5 U.S.C. § 702 (1988). Here, the First Amendment provides the cause of action and, as noted above, the Supreme Court has held that even plaintiffs with no prior property interest in their employment cannot be discharged for exercising those rights. As the resolution of [292 U.S.App.D.C. 294] the fourth prong of the Pickering test necessarily shows, only EPA's violation of Hubbard's First Amendment rights prevented him from being employed and paid as a criminal investigator.
91
That the First Amendment creates the rights sued upon also points up the error in the District Court's ruling. Relying on United States v. Testan, 424 U.S. 392, 96 S.Ct. 948, 47 L.Ed.2d 114 (1976), the District Court held that it did not have the power to award back pay, because, it said, "[t]he established rule is that one is not entitled to the benefit of a position until he has been duly appointed to it." 739 F.Supp. at 655. Testan, however, concluded only that no relief was due because there was no statute covering failures to upgrade job classifications. The plaintiffs in Testan asserted no cause of action except those based on the Back Pay Act and the Classification Act. And, as the Court noted, neither statute created a substantive right whose breach makes the United States liable for pay lost through allegedly improper classifications. See 424 U.S. at 398-407, 96 S.Ct. at 953-57. Here, however, the First Amendment gives that substantive right.13
92
Finally, to the extent that statutory definition of the amount due may be necessary to characterize monetary awards as specific relief, we find no difficulty here. Hubbard's grade and step, and hence pay, are governed by federal employment regulations. And, to the extent the District Court is required to exercise discretion, we think it no different than interpreting the Medicaid statute or determining back pay in a Title VII dispute.
V. CONCLUSION
93
In sum, we find that EPA violated Michael Hubbard's First Amendment rights when it refused to hire him as a criminal investigator. He is, therefore, entitled to instatement and back pay as if he had been hired. Furthermore, the District Court on remand should entertain an attorneys' fees petition under 28 U.S.C. § 2412(d).
94
WALD, Circuit Judge, concurring in part and dissenting in part:
95
I join the majority in affirming the district court's ruling that the Environmental Protection Agency ("EPA") acted unlawfully in failing to hire Hubbard, and in reversing the district court's refusal to consider Hubbard's claim for attorney's fees. I respectfully dissent, however, from the majority's holding that 5 U.S.C. § 702 waives the sovereign immunity of the United States as to Hubbard's claim for back pay.
96
Section 702 waives the sovereign immunity of the United States in actions in which the aggrieved party seeks "relief other than money damages." 5 U.S.C. § 702 (1988). Relying on the Supreme Court's ruling in Bowen v. Massachusetts, 487 U.S. 879, 108 S.Ct. 2722, 101 L.Ed.2d 749 (1988), and on a series of cases that classify back pay for various purposes as "equitable" relief, the majority reasons that back pay pursuant to an order of instatement is not "money damages" and therefore does not fall outside the limits of § 702's waiver of sovereign immunity. The majority's argument is by no means implausible, and indeed awarding Hubbard back pay would work no injustice in light of the court's findings as to EPA's unconstitutional actions. The obstacle to my assent is that I do not believe that § 702, properly construed, encompasses claims for monetary [292 U.S.App.D.C. 295] awards of back pay as a remedy for constitutional torts.1
97
The text of § 702 specifically excludes claims for "money damages" from its waiver of sovereign immunity. The legislative history of § 702 makes clear that it "withdraw[s] the defense of sovereign immunity in actions seeking relief other than money damages, such as an injunction, declaratory judgment, or writ of mandamus." H.R.Rep. No. 1656, 94th Cong., 2d Sess. 4 (1976) (emphasis supplied). The House and Senate Reports say unequivocally that the waiver is "limited only to actions of this type for specific relief." Id. (emphasis supplied); S.Rep. No. 996 at 4.2 Because back pay or lost wages traditionally have been viewed as money damages and not specific relief, see Dan B. Dobbs, Handbook on the Law of Remedies 924-27, 929-31 (1973) ("Dobbs on Remedies" ); Arthur G. Sedgwick, A Treatise on the Measure of Damages 3, 1343 (9th ed. 1920), Hubbard's back pay claim falls within the "money damages" exception to the § 702 waiver.
98
Nothing in the legislative history of the 1976 amendments to § 702--two committee reports and two sets of hearings3--suggests otherwise. The majority notes only that both committee reports listed "governmental employment" as one of the areas that would be affected by the waiver of sovereign immunity in amended § 702. Majority opinion ("Maj. op.") at 468. The reference appears to have originated in Professor Cramton's testimony before the Senate Judiciary Committee as part of a general reference to cases "challenging government regulatory and enforcement activity." Sovereign Immunity: Hearing before the Subcommittee on Administrative Practice and Procedure of the Senate Committee on the Judiciary, 91st Cong., 2d Sess. 120 (1970).4 There is, however, nothing to indicate that this oblique reference to a general category of cases that could be affected by the amendment was meant to indicate that claims for back pay, as opposed to injunctive or declaratory relief,, [292 U.S.App.D.C. 296] would be excepted from the exception for money damages.5
99
Moreover, one of the law review articles cited in the House Report, see H.R.Rep. No. 1656 at 8 n. 21, is devoted entirely to the limitation sovereign immunity placed on effective prosecution of federal employment discrimination cases. See Charles F. Abernathy, Sovereign Immunity in a Constitutional Government: The Federal Employment Discrimination Cases, 10 Harv. C.R.-C.L.L.Rev. 322 (1975). Yet, the article concludes only that "injunctive relief in an employment discrimination case ... should not be barred by sovereign immunity principles." Id. at 366 (emphasis supplied).
100
As the majority recognizes, Maj. op. at 467 n. 10, the weight of authority before Bowen indicated that § 702 did not waive the sovereign immunity of the United States as to claims for back pay. See, e.g., Hostetter v. United States, 739 F.2d 983, 985 (4th Cir.1984) (dicta); McCartin v. Norton, 674 F.2d 1317, 1321-22 (9th Cir.1982); Sheehan v. Army & Air Force Exch. Serv., 619 F.2d 1132, 1139-40 (5th Cir.1980), rev'd on other grounds, 456 U.S. 728, 102 S.Ct. 2118, 72 L.Ed.2d 520 (1982); Glines v. Wade, 586 F.2d 675, 681-82 (9th Cir.1978), rev'd on other grounds, 444 U.S. 348, 100 S.Ct. 594, 62 L.Ed.2d 540 (1980); Cook v. Arentzen, 582 F.2d 870, 874-75 (4th Cir.1978). My colleagues argue, however, that Bowen changed all that by expressly and implicitly including back pay within the category of "monetary relief" that does not run afoul of the "money damages" exception to § 702's waiver.6
101
Certainly nothing in the holding of Bowen indicates that back pay falls within the waiver of sovereign immunity in § 702. Drawing upon Judge Bork's exhaustive prior interpretation of § 702, the Bowen Court reiterated that the reference to "other than money damages" in § 702 invoked the basic distinction in the law of remedies between "damages," which "normally refers to a sum of money used as compensatory relief," and "specific remedies," which "give the plaintiff the very thing to which he was entitled." Bowen, 487 U.S. at 895, 108 S.Ct. at 2732 (quoting Maryland Dept. of Human Resources v. Department of Health and Human Services, 763 F.2d 1441, 1446 (1985)) (internal quotations and citations omitted). While noting that money is most often awarded as compensation for a wrong and is therefore classifiable as "damages"--and not within § 702's waiver--the Court also recognized that occasionally an award of money may constitute a specie remedy that would fall within the § 702 waiver. Id. The Court cited as examples of such exceptions to "money damages" judicial orders to specifically perform a contract to borrow money, to make future monthly support payments, or to fulfill a promise to pay a money bonus under a royalty contract. Id.
102
In Bowen itself, the federal government was withholding funds to which the state of Massachusetts claimed it was rightfully entitled by law. The purpose of the state's suit, the Court held, was to recover those funds and thus it constituted a suit for specific relief, or, as our court had earlier dubbed it, "specific monetary relief." Id. at 899-900, 108 S.Ct. at 2735. In sum, the Court concluded that[292 U.S.App.D.C. 297] [t]he State's suit ... is not a suit seeking money in compensation for the damage sustained by the failure of the Federal Government to pay as mandated; rather it is a suit seeking to enforce the statutory mandate itself, which happens to be one for the payment of money.
103
Id. at 900, 108 S.Ct. at 2735 (emphasis in original).
104
The holding of Bowen thus offers no support for Hubbard's claim that § 702 waives the sovereign immunity of the United States for back pay. Hubbard's suit is not one to enforce a statutory or constitutional mandate that he be paid a specified sum of money. Nor does Hubbard seek specific performance of an agreement to pay him a specified sum of money. The constitutional right that Hubbard is entitled to enforce is his right not to be discriminatorily barred from the job he sought. The "specific relief" that Hubbard seeks and was granted by the district court is a right to perform as a criminal investigator at EPA. See generally Dobbs on Remedies at 924-31 (discussing separately the specific remedy of reinstatement and the damages remedy of lost wages). An award of back pay would be the classic case of "money damages" to compensate him for the time he was wrongfully kept off the job.
105
The only support for Hubbard in Bowen is a single sentence of dicta suggesting that an award of back pay may be included within an order for specific relief. In making the noncontroversial point that not all monetary awards are "damages," the Court stated that
106
[o]ur cases have long recognized the distinction between an action at law for damages--which are intended to provide a victim with monetary compensation for an injury to his person, property, or reputation--and an equitable action for specific relief--which may include an order providing for the reinstatement of an employee with back pay, or for the "recovery of specific property or monies, ejectment from land, or injunction either directing or restraining the defendant officer's actions."
107
Id. at 893, 108 S.Ct. at 2731-32 (quoting Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 688, 69 S.Ct. 1457, 1460, 93 L.Ed. 1628 (1949)) (emphasis deleted). It is admittedly unclear from that laconic phrase whether the Court was labelling back pay as a form of specific relief, or simply stating the unremarkable proposition that courts often include a back pay award along with the specific remedy of reinstatement in order to afford complete relief. See generally Dobbs on Remedies at 84 (noting that in a fully merged system such as that in the federal courts, a single court adjudicates both legal and equitable claims). The majority argues that the Court meant that an award of back pay itself is a form of specific relief for purposes of § 702; I am doubtful that that was the intended meaning as it would contradict the existing law and the academic authorities that the Court itself cites later in the Bowen opinion. Thus, I do not find this one statement to be dispositive on the issue of whether § 702 waives the sovereign immunity of the United States as to claims for back pay.
108
Bowen cites Dobbs on Remedies for the basic distinction between compensatory damages and specific relief. Id. at 895, 108 S.Ct. at 2732. Yet Dobbs' treatise is quite clear that back pay or lost wages is compensatory relief in the nature of damages. See Dobbs on Remedies at 924-27, 69 n. 18. Additionally, classifying back pay as specific, as opposed to compensatory, relief contradicts the Bowen Court's repeated description of the Back Pay Act, 5 U.S.C. § 5596, as a law that provides compensation for past injury. 487 U.S. at 901 n. 31, 904 n. 39, 906 n. 42, 108 S.Ct. at 2735 n. 31, 2737 n. 39, 2738 n. 42. Indeed, the Court's several references to the Back Pay Act tend to deflate the notion that the Court was ruling that § 702 waives sovereign immunity as to back pay, for such a holding would render the Back Pay Act itself largely superfluous.7
109
[292 U.S.App.D.C. 298] The majority also argues from other areas of the law where back pay has been classified as equitable relief that it is not "money damages" for purposes of federal sovereign immunity. Maj. op. at 463-66. But I fear the majority misconstrues the essential inquiry in these contexts as they contrast with this one. Regardless of how back pay is treated for other purposes, such as the Seventh Amendment right to jury trial, the crucial issue here is what Congress intended by the phrase "other than money damages" when it amended 5 U.S.C. § 702. According to Bowen itself, Congress was drawing the traditional distinction between compensatory and specific relief. Bowen, 487 U.S. at 895, 108 S.Ct. at 2732. And, regardless of what courts call it in different circumstances, there is no escaping the fact that back pay is designed to compensate an aggrieved party.
110
This is surely the case with regard to the antidiscrimination remedies of Title VII of the Civil Rights Act of 1964. The majority relies on Albemarle Paper Co. v. Moody, 422 U.S. 405, 95 S.Ct. 2362, 45 L.Ed.2d 280 (1975), for the proposition that back pay is deemed an equitable remedy under Title VII. Maj. op. at 463. The language of Albemarle makes clear, however, that back pay under Title VII is designed to "compensat[e]" or "make whole" the victim of illegal discrimination. Id. at 418-19, 95 S.Ct. at 2372.
111
[T]he general rule is, that when a wrong has been done, and the law gives a remedy, the compensation shall be equal to the injury. The latter is the standard by which the former is to be measured. The injured party is to be placed, as near as may be, in the situation he would have occupied if the wrong had not been committed.
112
Id. (quoting Wicker v. Hoppock, 6 Wall. 94, 99, 18 L.Ed. 752 (1867)).8 Likewise, the majority cites, among other Title VII cases, United States v. N.L. Industries, 479 F.2d 354, 378 (8th Cir.1973), for the proposition that back pay is a form of specific relief. Maj. op. at 466, n. 9. The N.L. Industries court itself, however, noted that back pay "is compensation for the tangible economic loss resulting from an unlawful employment practice." Id. at 379 (internal quotation omitted). Indeed, the use of the label "equitable" to describe the mixed law and equity remedial scheme of Title VII has prompted one scholar to comment that "equitable remedies in the Title VII context mean something quite different than traditional notions of equity." Minna J. Kotkin, Public Remedies for Private Wrongs: Rethinking the Title VII Back Pay Remedy, 41 Hastings L.J. 1301, 1375 (1990).9 Thus, whether or not back pay may, on occasion, be called an "equitable" remedy or even "specific relief" under Title VII, it has never been seriously contested that its essence is "money damages" to compensate for injuries suffered.10
113
As the majority points out, back pay has also on occasion been called a form of "restitution." Maj. op. at 462, 465-66. See Curtis v. Loether, 415 U.S. 189, 197, 94 [292 U.S.App.D.C. 299] S.Ct. 1005, 1010, 39 L.Ed.2d 260 (1974) (dicta) (back pay under Title VII considered to be a form of restitution); cf.Chauffeurs, Teamsters and Helpers, Local No. 391 v. Terry, 494 U.S. 558, 110 S.Ct. 1339, 1348, 108 L.Ed.2d 519 (1990) (back pay under the Labor Management Relations Act was not restitutionary where suit was against plaintiffs' union as opposed to plaintiffs' employer). This designation, as well as deviating from the classical definition of restitution as a remedy designed to undo unjust enrichment of the defendant without regard to the loss suffered by the plaintiff, see Restatement of Restitution general scope note at 1 (1937); Dobbs on Remedies at 1-2; David A. Webster, Beyond Federal Sovereign Immunity, 49 Ohio St.L.J. 725, 736 (1988) (discussing the remedy of restitution and its application to the Supreme Court's ruling in Bowen v. Massachusetts ), provides no counterpoint either to Congress' direct evidence that amended § 702 was not to include any form of money damages.11
114
Like Sherlock Holmes' dog that did not bark, it is hard to imagine that the long and hard-fought battle for the § 702 waiver of sovereign immunity would have been waged without any mention of back pay as an exception to the "money damages" bar. See, e.g., Roger C. Cramton, Nonstatutory Review of Federal Administrative Action: The Need for Statutory Reform of Sovereign Immunity, Subject Matter Jurisdiction, and Parties Defendant, 68 Mich.L.Rev. 387 (1970); Charles F. Abernathy, Sovereign Immunity in a Constitutional Government: The Federal Employment Discrimination Cases, 10 Harv.C.R.-C.L.L.Rev. 322 (1975); Clark Byse, Proposed Reforms in Federal "Nonstatutory" Judicial Review: Sovereign Immunity, Indispensable Parties, Mandamus, 75 Harv.L.Rev. 1479 (1962). Such a conclusion is particularly puzzling in view of the Supreme Court's oft-repeated insistence that "we must construe waivers strictly in favor of the sovereign." Library of Congress v. Shaw, 478 U.S. 310, 318, 106 S.Ct. 2957, 2963, 92 L.Ed.2d 250 (1986). If back pay awards are indeed waived by § 702, they are truly the "stealth exception" to sovereign immunity.
115
If wishes could trump the hard-nosed rules of statutory construction, I would happily join my colleagues in reversing the district court's denial of Hubbard's claim for back pay. Unfortunately, I do not construe Bowen 's dicta as authoritatively ruling that Congress intended the waiver in § 702 to encompass claims for back pay. I therefore must dissent from that part of the majority's otherwise excellent opinion.[292 U.S.App.D.C. 300] ORDER
116
March 2, 1992.
117
Before: MIKVA, Chief Judge, WALD, EDWARDS, RUTH B. GINSBURG, SILBERMAN, BUCKLEY, WILLIAMS, D.H. GINSBURG, SENTELLE, HENDERSON, and RANDOLPH, Circuit Judges.HENDERSON, and RANDOLPH, Circuit Judges.
118
The Suggestion For Rehearing En Banc of appellee/cross-appellant and the response thereto have been circulated to the full Court. The taking of a vote was requested. Thereafter, a majority of the judges of the Court in regular active the full Court. The taking of a vote was requested. Thereafter, a majority of the judges of the Court in regular active service voted in favor of the suggestion on the question of whether "the Administrative Procedure Act, 5 U.S.C. § 702 service voted in favor of the suggestion on the question of whether "the Administrative Procedure Act, 5 U.S.C. § 702 (1988), ... waives sovereign immunity for ... back pay." Hubbard v. EPA, 949 F.2d 453, 462 (D.C.Cir.1991). (1988), ... waives sovereign immunity for ... back pay." Hubbard v. EPA, 949 F.2d 453, 462 (D.C.Cir.1991). Upon consideration of the foregoing it isUpon consideration of the foregoing it is
119
ORDERED, by the Court en banc, that the suggestion is granted in part and denied in part. The aforementioned remedy issue will be considered and decided by the Court sitting en banc.
120
It is Further Ordered, by the Court en banc, that the injunctive relief ordered by the District Court and affirmed by a panel of this court, 949 F.2d at 462 ("Hubbard clearly is entitled to full equitable relief. Both the prior panel and en banc this court, 949 F.2d at 462 ("Hubbard clearly is entitled to full equitable relief. Both the prior panel and en banc decisions ... held that the court could grant equitable relief. Hubbard, 809 F.2d at 11-12; Spagnola, 859 decisions ... held that the court could grant equitable relief. Hubbard, 809 F.2d at 11-12; Spagnola, 859 F.2d at 229-30."); id. at 470 ("[H]e is, therefore, entitled to instatement"); Hubbard, 735 F.Supp. 435, 440 (D.D.C.1990), on reconsideration, 739 F.Supp. 654, 657 (D.D.C.1990), clarified, 1990 WL 134824, 1990 U.S. Dist. LEXIS 11661 (D.D.C. reconsideration, 739 F.Supp. 654, 657 (D.D.C.1990), clarified, 1990 WL 134824, 1990 U.S. Dist. LEXIS 11661 (D.D.C. Sept. 5, 1990) ("The Court intends for plaintiff to receive a position and salary equivalent to that Sept. 5, 1990) ("The Court intends for plaintiff to receive a position and salary equivalent to that to which he would have advanced by the date of his instatement, had he not been denied a position in 1982 for to which he would have advanced by the date of his instatement, had he not been denied a position in 1982 for constitutionally impermissible reasons."), is not disturbed by this order and is not subject to en banc review.constitutionally impermissible reasons."), is not disturbed by this order and is not subject to en banc review.
121
A future order will govern further proceedings.
*
Sitting by designation pursuant to 28 U.S.C. § 294(d) (1988)
1
The Government asserts that Hubbard's motivation makes this case identical to Foster v. Ripley, 645 F.2d 1142 (D.C.Cir.1981), where the court found against the employee. In Foster, a section head of the Smithsonian faced a reorganization that would have cost him much of his jurisdiction. The employee induced outside clients to pressure the Smithsonian board by telling the clients that the reorganization would compromise the Smithsonian's ability to meet those clients' needs. The court found that the employee failed to stay within proper channels in making his complaint known and that he had acted "to advance his own interests as an employee, interests that would be no different if his employer were not the government." Id. at 1148. Here, there is no evidence that Hubbard acted in any way for his own benefit
2
Although it is clear that we must perform the balancing de novo, whether or not we defer to the factual findings of the District Court to conduct that balancing is unclear. See Connick, 461 U.S. at 150 n. 10, 103 S.Ct. at 1692 n. 10 (calling for "independent constitutional judgment on the facts of the case"). Here, because we agree with the District Court under either formula, we need not resolve the issue
3
In its appeal to this court, EPA has made no claim that Hubbard violated some MPD regulation in his handling of the Capitol Hill drug investigation
4
That section provides in part:
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. An action in a court of the United States seeking relief other than money damages and stating a claim that an agency or an officer or employee thereof acted or failed to act in an official capacity or under color of legal authority shall not be dismissed nor relief therein be denied on the ground that it is against the United States or that the United States is an indispensable party.
5 U.S.C. § 702 (1988).
5
Although the Government does not advance the point, we think it important to note that our decision to award back pay does not give rise to exclusive jurisdiction in the Claims Court. See United States v. Connolly, 716 F.2d 882, 886-87 (Fed.Cir.1983) (en banc) (Claims Court did not have Tucker Act jurisdiction because First Amendment, by its terms, does not mandate payment of money), cert. denied, 465 U.S. 1065, 104 S.Ct. 1414, 79 L.Ed.2d 740 (1984); Clark v. Library of Congress, 750 F.2d 89, 103 n. 31 (D.C.Cir.1984) (same)
6
Terry involved an employees' suit for damages against their Union for breach of the duty of fair representation. Although the employees' lost earnings were a measure of damages, the relief was nonetheless viewed as legal, not equitable. Lost earnings were not the very thing to which the plaintiffs would have been entitled from the Union had there been no breach of the duty of fair representation; however, lost earnings were a legitimate measure of compensation due for the injuries suffered by plaintiffs by virtue of the Union's wrongdoing
7
Of course, the Seventh Amendment question is in no way before us now. We note these decisions merely to demonstrate that courts have recognized backpay as an equitable remedy
8
We have identified one case where the court has treated back pay as legal damages. We believe, however, that it does not present the situation reflected here or in the cases above. In Sester v. Novack Investment Co., 638 F.2d 1137 (8th Cir.), modified, 657 F.2d 926 (8th Cir.) (en banc), cert. denied, 454 U.S. 1064, 102 S.Ct. 615, 70 L.Ed.2d 601 (1981), the Eighth Circuit held that the plaintiff was entitled to a jury trial on his 42 U.S.C. § 1981 reverse discrimination suit. The plaintiff sought back pay and damages, but not reinstatement. The court found that the back pay sought was legal damages. Id. at 1142 ("We conclude that back pay or lost wage determinations are inherently in the nature of legal damages."). The Eighth Circuit seems to have questioned that case, however. See Brewer v. Parkman, 918 F.2d 1336 (8th Cir.1990), vacated and modified, 938 F.2d 860 (8th Cir.1991) (en banc). In Brewer, the plaintiff had sought back pay incidental to reinstatement and the court characterized the award as equitable. 918 F.2d at 1343
9
The dissent suggests that this statement merely establishes that back pay often is awarded together with reinstatement. The Title VII cases do not see it this way, for they type back pay as relief more akin to reinstatement than to damages. Additionally, several courts have characterized back pay as specific relief. See Bowen, 487 U.S. at 893, 108 S.Ct. at 2731 ("an equitable action for specific relief--which may include an order providing for the reinstatement of an employee with back pay"); Franks v. Bowman Transp. Co., 424 U.S. 747, 751, 96 S.Ct. 1251, 1258, 47 L.Ed.2d 444 (1976) ("the District Court declined, however, to grant the unnamed members of classes 3 and 4 any other specific relief sought, which included an award of backpay"); Riddle v. Cerro Wire & Cable Group, Inc., 902 F.2d 918, 922 (11th Cir.1990) ("The EEOC's complaint sought specific relief for Riddle in the form of backpay and promotion."); Ward v. Arkansas State Police, 653 F.2d 346, 348 (8th Cir.1981) ("The consent decree ... established guidelines for back pay and other specific relief"); McClain v. Wagner Elec. Corp., 550 F.2d 1115, 1118 (8th Cir.1977) ("the settlement ... gave no specific relief such as back pay"); United States v. N.L. Indus., Inc., 479 F.2d 354, 378 (8th Cir.1973) ("The Government requests specific relief for individual applicants, including backpay differentials"); City of Fort Smith v. Driggers, 305 Ark. 409, 808 S.W.2d 748, 753 (1991) (the "complaint sought specific relief in the form of promotion and back pay"); Eureka Teacher's Ass'n v. Board of Educ., 202 Cal.App.3d 469, 247 Cal.Rptr. 790, 794 (1988) (" 'Back pay clearly is specific monetary relief incidental to the requested orders that appellant be hired and that respondents be enjoined from discriminating against him.' ") (quoting Snipes v. City of Bakersfield, 145 Cal.App.3d 861, 193 Cal.Rptr. 760, 765 (1983)). But see General Telephone Co. v. EEOC, 446 U.S. 318, 326, 100 S.Ct. 1698, 1704, 64 L.Ed.2d 319 (1980) ("EEOC can secure specific relief, such as hiring or reinstatement, constructive seniority, or damages for backpay"). General Telephone might be distinguished because EEOC, acting on behalf of employees and the general public, is not suing for back pay owed it
10
We recognize that, before Bowen, several courts found that back pay awards do not fall within section 702. Because these decisions were issued before Bowen, and were premised on an assumption that all awards of monetary relief fell outside the waiver, we do not view these cases as dispositive of the issue before us. In fact, the Government does not even seek to rely on them. See Hostetter v. United States, 739 F.2d 983, 985 (4th Cir.1984) (dicta); McCartin v. Norton, 674 F.2d 1317, 1321-22 (9th Cir.1982); Sheehan v. Army & Air Force Exch. Serv., 619 F.2d 1132, 1139-40 (5th Cir.1980), rev'd on other grounds, 456 U.S. 728, 102 S.Ct. 2118, 72 L.Ed.2d 520 (1982); Glines v. Wade, 586 F.2d 675, 681-82 (9th Cir.1978), rev'd on other grounds, 444 U.S. 348, 100 S.Ct. 594, 62 L.Ed.2d 540 (1980); Cook v. Arentzen, 582 F.2d 870, 874-75 (4th Cir.1978). Cf. Ulmet v. United States, 888 F.2d 1028, 1030 (4th Cir.1989) (Cook v. Arentzen not good law after Bowen )
11
The dissent asserts that Dobbs is "quite clear that back pay or lost wages is compensatory relief in the nature of damages." To the extent that Dobbs' view controls either Bowen or ourselves, Dobbs may be read to embrace the idea that back pay may be specific relief. Given that Dobbs recognizes the restitutionary/substitutionary dichotomy as central to specific relief, the cited passages admit of that interpretation. Dobbs' statement of the measure of damages, what the contract would have brought the employee, is exactly consistent with our interpretation. See also ROBERT S. THOMPSON & JOHN A. SEBERT, JR., REMEDIES: DAMAGES, EQUITY AND RESTITUTION § 2.02 (1983) (Specific performance is specific relief and award of contract price is specific performance.); EDWARD D. RE, CASES AND MATERIALS ON REMEDIES 310 (1987) (same). As we noted previously, that lost wages is a damage measure does not mean it is not also specific relief
12
Contrary to the dissent's claim, the Senate Judiciary Committee had before it at least two examples where sovereign immunity was used to bar specific monetary relief, including back pay. The dissent contends that the "governmental employment" cases cited to the Senate Judiciary Committee by Professor Roger Cramton did not include any cases where sovereign immunity barred a back pay award. One of the cases did, however, involve a claim for lost wages. See Leber v. Canal Zone Cent. Labor Union, 383 F.2d 110, 114-15 (5th Cir.1967) (In concluding that the Secretary of the Army was an indispensable party, the court wrote: "The Secretary must authorize the payment of any former differential. He must order the payment to employees of any monetary losses resulting from invalid regulations."), cert. denied, 389 U.S. 1046, 88 S.Ct. 769, 19 L.Ed.2d 838 (1968). Additionally, in the law review article advocating the amendment to section 702, Professor Cramton, in the same footnote discussing the cases cited to the committee, noted another case where sovereign immunity barred the recovery of specific monetary relief. See Roger C. Cramton, Nonstatutory Review of Federal Administrative Action: The Need for Statutory Reform of Sovereign Immunity, Subject Matter Jurisdiction, and Parties Defendant, 68 MICH.L.REV. 387, 423 n. 161 (1970); American Guaranty Corp. v. Burton, 380 F.2d 789, 790-91 (1st Cir.1967) (sovereign immunity barred recovery of funds taken from debtor's estate, pursuant to statute, and deposited in the Referee's Salary and Expense fund)
13
The Bowen Court refers to the Back Pay Act solely as an illustration of the type of action for money that gives rise to the exclusive jurisdiction of the Claims Court. The phrasing the Court employs relates only to the test for Claims Court jurisdiction--"whether the ... legislation which the claimant cites can fairly be interpreted as mandating compensation by the Federal Government for the damage sustained." Bowen, 487 U.S. at 906 n. 42, 108 S.Ct. at 2738 n. 42 (quoting Eastport S.S. Corp. v. United States, 178 Ct.Cl. 599, 372 F.2d 1002, 1009 (1967)). Furthermore, our decision here does not increase duplication with the Back Pay Act. Hubbard, because he was not an employee at the time the action was taken against him, was not covered by the Back Pay Act. See 5 U.S.C. § 5595(a)(2) (1988); Testan, 424 U.S. at 405-07, 96 S.Ct. at 956-57. Any duplication based on permitting an equitable action to federal employees is based on the clear law of this circuit and beyond question at this point. See Spagnola, 859 F.2d at 229-30
1
Indeed, a Bivens action, where available, is the usual damages remedy for such constitutional torts. Earlier incarnations of this action, however, found such a remedy unavailable to Hubbard. See Spagnola v. Mathis, 859 F.2d 223, 230 (D.C.Cir.1988) (en banc )
2
See also H.R.Rep. No. 1656 at 5 ("[t]hese actions usually take the form of a suit for injunctive, declaratory or mandamus relief"); S.Rep. No. 996 at 4 (same); H.R.Rep. No. 1656 at 20 ("[the proposed amendment will not] expos[e] the Government to new liability for money damages"); S.Rep. No. 996 at 19 (same); Sovereign Immunity: Hearing before the Subcommittee on Administrative Practice and Procedure of the Senate Committee on the Judiciary, 91st Cong., 2d Sess. 30-31 (1970) (noting that "[t]he explicit exclusion of monetary relief makes clear that sovereign immunity is abolished only in actions for specific relief (injunction, declaratory judgment, mandatory relief, quiet title and ejectment)") (prepared comments of Professor Roger C. Cramton). And, as Professor Kenneth Davis stated in his Senate testimony:
[the] principal effect [of the proposed amendment to § 702] is to allow suits for specific relief.... Perhaps ninety per cent of the cases affected will be suits for injunction or declaratory judgment or for both, and perhaps most of the rest will be suits for relief in the nature of mandamus. But all other specific relief is covered, including specific performance, quieting title, ejectment, habeas corpus, and all other forms of specific relief.
Id. at 222.
3
See H.R.Rep. No. 1656, 94th Cong., 2d Sess. (1976); S.Rep. No. 996, 94th Cong., 2d Sess. (1976); Sovereign Immunity: Hearing before the Subcommittee on Administrative Practice and Procedure of the Senate Committee on the Judiciary, 91st Cong., 2d Sess. (1970); Administrative Procedure Act Amendments of 1976: Hearings before the Subcommittee on Administrative Practice and Procedure of the Senate Committee on the Judiciary, 94th Cong., 2d Sess. (1976)
4
Professor Cramton presented a "sampling of recent cases ... [where] sovereign immunity has been a serious issue," including several cases relating to "government employment." Sovereign Immunity: Hearing before the Subcommittee on Administrative Practice and Procedure of the Senate Committee on the Judiciary, 91st Cong., 2d Sess. 120, 122 (1970) (citing Leber v. Canal Zone Cent. Labor Union & Metal Trades Council, 383 F.2d 110 (5th Cir.1967), cert. denied, Bramlett v. Leber, 389 U.S. 1046, 88 S.Ct. 769, 19 L.Ed.2d 838 (1968); Mulry v. Driver, 366 F.2d 544 (9th Cir.1966); Manhattan-Bronx Postal Union v. Gronouski, 350 F.2d 451 (D.C.Cir.1965), cert. denied, Manhattan-Bronx Postal Union v. O'Brien, 382 U.S. 978, 86 S.Ct. 548, 15 L.Ed.2d 469 (1966))
5
The majority suggests that Leber, supra, involved a claim for lost wages and thus supports the notion that the amended § 702 waives sovereign immunity for similar claims for back pay. Maj. op. at 468-69 n. 12. Both the appellate and trial court decisions in Leber are quite explicit, however, that the plaintiffs sought declaratory and injunctive relief, not lost wages. Canal Zone Cent. Labor Union & Metal Trades Council v. Fleming, 246 F.Supp. 998, 999 (D.C.Z.1965) ("[t]his action was begun ... by the filing of a complaint praying for a declaratory judgment that certain regulations are ... invalid and for an injunction restraining the further implementation of the regulations") (emphasis supplied); Leber, 383 F.2d at 113 ("[t]his appeal is from a decision ... declaring that certain regulations ... are invalid ... and enjoining the ... enforc[ement of] these regulations"). The passage cited by the majority noting that the Secretary of the Army "must order the payment to employees of any monetary losses resulting from invalid regulations," 383 F.2d at 114-15, refers to an obligation imposed on the Secretary by federal law, 383 F.2d at 115 & n. 9, not to the particular relief sought by the plaintiff employees
6
Despite dicta from two other circuits, see Maj. op. at 466-67, we will be the first circuit to hold that § 702 waives sovereign immunity for claims of back pay
7
See United States v. Testan, 424 U.S. 392, 404, 96 S.Ct. 948, 956, 47 L.Ed.2d 114 (1976) (noting that the Back Pay Act "expressly provide[s] money damages as a remedy against the United States in carefully limited circumstances")
8
The Albemarle Court's use of the term "equitable remedy" in relation to back pay clearly referred to the courts' equitable discretion under Title VII whether or not to award back pay at all. See 422 U.S. at 414-18, 95 S.Ct. at 2370
9
The same point can be made about Mitchell v. Robert DeMario Jewelry, Inc., 361 U.S. 288, 80 S.Ct. 332, 4 L.Ed.2d 323 (1960), Maj. op. at 464-65, which held that pursuant to the "historic power of equity to provide complete relief," a district court could award lost wages to private employees discharged in violation of the Fair Labor Standards Act. 361 U.S. at 292, 80 S.Ct. at 335. This equitable power of the court, however, in no way obscures the basic fact that the award was "compensatory" in nature. Id. at 293, 80 S.Ct. at 336
10
See, e.g., Arthur G. Sedgwick, A Treatise on the Measure of Damages 3 (1920) (noting that "[e]quity ... gives specific relief by decreeing the very thing to be done which was agreed to be done.... But, as a general rule, it refrains from awarding pecuniary reparation for damage sustained") (emphasis supplied); id. at 1343 (under the heading "Damages for wrongful discharge," noting that "[t]he general rule in cases of wrongful discharge ... is that the plaintiff has a right to recover the stipulated wages for the full time"); see also Dobbs on Remedies at 924-27, 929-31
11
Professor Laycock, upon whom the majority relies for the proposition that restitution also encompasses "restoration in kind of a specific thing," Maj. op. at 465-66, nowhere says that an award of back pay falls under this category of restitution:
"Restitution" is sometimes used in a third sense--to restore the value of what plaintiff lost.... But restitution of the value of what plaintiff lost is simply compensatory damages. Used in this sense, "restitution" loses all utility as a means of distinguishing one body of law from another. Restitution must be distinguished from compensation, either by its focus on restoration of the loss in kind or by its focus on defendant's gain as a measure of recovery.
Douglas Laycock, The Scope and Significance of Restitution, 67 Tex.L.Rev. 1282-83 (1989). An award of back pay to Hubbard grants him the "value" of the job for which he was wrongfully excluded and is thus compensatory damages, not "in kind" restitution.
Indeed, the Supreme Court has expressly rejected attempts in other contexts to label compensatory damages as "equitable restitution" for purposes of escaping the Eleventh Amendment:
But that portion of the District Court's decree which petitioner challenges ... requires payment of state funds, not as a necessary consequence of compliance in the future with a substantive federal-question determination, but as a form of compensation to those whose applications were processed on the slower time schedule at a time when petitioner was under no court-imposed obligation to conform to a different standard. While the Court of Appeals described this retroactive award of monetary relief as a form of "equitable restitution," it is in practical effect indistinguishable in many aspects from an award of damages against the State. It will to a virtual certainty be paid from state funds, and not from the pockets of the individual state officials who were the defendants in the action. It is measured in terms of a monetary loss resulting from a past breach of a legal duty on the part of the defendant state officials.
Edelman v. Jordan, 415 U.S. 651, 668, 94 S.Ct. 1347, 1358, 39 L.Ed.2d 662 (1974). See also Quern v. Jordan, 440 U.S. 332, 337, 99 S.Ct. 1139, 1143, 59 L.Ed.2d 358 (1979) ("[w]e rejected the notion that simply because the lower court's grant of retroactive benefits had been styled 'equitable restitution' it was permissible under the Eleventh Amendment").
| {
"pile_set_name": "FreeLaw"
} |
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
_____________
No. 98-3389
George Hedges, *
*
Appellant, *
*
v. * Appeal from the United States
* District Court for the Western
George Randy Poletis, * District of Missouri
*
Appellee. *
____________
Submitted: March 12, 1999
Filed: June 3, 1999
____________
Before McMILLIAN, MORRIS SHEPPARD ARNOLD, Circuit Judges, and
NANGLE,1 Senior District Judge.
____________
NANGLE, Senior District Judge.
George Hedges appeals the district court’s2 grant of summary judgment to
appellee George Randy Poletis wherein the court held that Poletis is entitled to
qualified immunity for his role in the civil commitment of Mr. Hedges. We affirm.
1
The HONORABLE JOHN F. NANGLE, Senior United States District Judge
for the Eastern District of Missouri, sitting by designation.
2
The HONORABLE FERNANDO J. GAITAN, JR., United States District Judge
for the Western District of Missouri.
I. BACKGROUND
George Hedges, a 52 year old homosexual male and resident of Lake Lotawana,
Missouri, was involuntarily committed to a mental institution on August 18, 1995, in
part due to the involvement of the Lake Lotawana chief of police, George Poletis. At
the time, Hedges and his neighbors, James and Dorothy Snodgrass, were engaged in
an ongoing neighborhood feud. Lake Lotawana police were aware of the situation as
both parties made frequent calls reporting one another for alleged nuisances.
Appellant’s App. at 92-93, 109-113, 149.
Poletis became the police chief of Lake Lotawana, Missouri in May 1995. Id.
at 310. Soon thereafter, the mayor received a letter from Hedges concerning the feud.
Enclosed with that letter was a copy of a letter written by Hedges’ psychiatrist, Dr.
Mark Prochaska. Id. at 104-107. The doctor’s letter indicated that Hedges suffered
from anxiety, major depression, and obsessive compulsive personality disorder, that he
was taking numerous psychotropic medications, and that he had purchased a firearm
for self-protection. Id. at 105.
The mayor passed the letter to Poletis and directed him to pull all reports
regarding the dispute between Hedges and the Snodgrasses. Id. at 95. Poletis
reviewed nine police reports, letters written by Hedges to the former mayor, and
memoranda written by the officers most familiar with the situation. Id. at 92-93, 108-
13, 144, 148-49. The general impression of the reporting officers was that Hedges was
potentially dangerous. Id. at 92-93, 109-13. However, Poletis did not think that
probable cause existed at that time for emergency involuntary commitment.
Accordingly, he referred the matter for investigation to Western Missouri Mental
Health Center. Appellant’s App. at 155, 311.
2
Thomas Wells, a mental health coordinator, handled the investigation. Id. at 85.
After discovering that Hedges had made no current threats against anyone, Wells
decided to close the case on August 3, 1995, without notifying Poletis. Id. at 78-80,
311. Poletis called Wells on August 8, 1995 to report that Hedges had regressed and
had been seen beating himself and threatening a neighbor. Id. at 178, 311. On August
17, 1995, Wells interviewed a female neighbor who stated that Hedges had been
relatively calm for ten days. Id. at 179, 311. That evening, he received a call from a
male neighbor asking him to continue the investigation. Id. The next morning, Wells
received another call from a male indicating that police had recommended he and his
family leave their dock so as not to be at risk of being shot by Hedges. Id. Wells
contacted Poletis for affidavits. Poletis stated that he was aware of the situation and
would obtain the affidavits. Id. at 180. Wells obtained affidavits from Poletis, two
officers who had responded to Hedges’ disturbance calls, and James Snodgrass, and
subsequently applied for Hedges’ involuntary commitment. Id. at 115-124, 311. The
Jackson County Probate Court heard the evidence ex parte and ordered Hedges into
custody on August 18, 1995. He was released from the mental health center on August
21, 1995. Id. at 114, 311.
Hedges filed suit against Poletis alleging claims for denial of due process and
denial of equal protection in violation of 28 U.S.C. § 1983. Id. at 8-15. In particular,
Hedges alleged that Poletis deliberately provided false information to Wells and sought
to commit Hedges because he was homosexual. Id. at 312. Summary judgment was
granted in favor of Poletis on the issue of qualified immunity on August 25, 1998. Id.
at 310-22.
II. DISCUSSION
The Court reviews de novo the district court’s grant of summary judgment. Burk
v. Beene, 948 F.2d 489, 492 (8th Cir. 1991). When evaluating a motion for summary
judgment, the court must draw all reasonable inferences in favor of the non-moving
3
party and refrain from assessing credibility. Miller v. Nat’l Cas. Co., 61 F.3d 627, 628
(8th Cir. 1995). The non-moving party, however, may not simply rest upon the
pleadings, but must point to evidence in the record sufficient to raise a genuine issue
for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 324; 106 S. Ct. 2548, 2553; 91 L. Ed.
2d 265 (1986); Matthews v. Trilogy Communication, Inc., 143 F.3d 1160, 1163-64 (8th
Cir. 1998).
Officials are entitled to qualified immunity only 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; 102
S. Ct. 2727, 2738; 73 L. Ed. 2d 396 (1982). The standard is one of objective
reasonableness, and amounts to whether, in August 1995, Poletis knew or reasonably
should have known his conduct violated a clearly established right. Harlow, 457 U.S.
at 818-19; 102 S. Ct. at 2738; 73 L. Ed. 2d 396; Anderson v. Creighton, 483 U.S. 635,
639; 107 S. Ct. 3034, 3038-39; 97 L. Ed. 2d 396 (1987). Therefore, the first step in
the analysis must be to determine whether Hedges had a clearly established statutory
or constitutional right. In Anderson v. Creighton, 483 U.S. 635, 640; 107 S. Ct. 3034,
3039; 97 L. Ed. 2d 396 (1987), the Supreme Court stated that, in order for a person to
have a clearly established right, “[t]he contours of the right must be sufficiently clear
that a reasonable official would understand that what he is doing violates that right.”
Also, if the official can show “extraordinary circumstances” and can demonstrate that
the law defining the violation was unknown and unknowable, he will be entitled to
immunity for his actions. Harlow, 457 U.S. at 819; 102 S. Ct. 2727, 2738; 73 L. Ed.
2d 396; Slone v. Herman, 983 F.2d 107, 109 (8th Cir. 1993).
A. Due Process Claim
Hedges had clearly established due process rights. If Poletis lied in order to
convince the mental health investigator to begin commitment proceedings, then his
conduct violated a clearly established constitutional right because it is clearly
4
established that the Fourth Amendment requires a truthful factual showing sufficient to
constitute probable cause. Ricciuti v. N.Y.C. Transit Auth. et al., 124 F.3d 123, 130
(2d Cir. 1997) (“When a police officer creates false information likely to influence [a
factfinder’s] decision and forwards that information to prosecutors, he violates the
accused’s constitutional right to a fair trial . . . .”); Stemler v. City of Florence, 126
F.3d 856, 872 (6th Cir. 1997) (“Under law that was clearly established in 1994, [the
officer] would have violated [the § 1983 plaintiff’s] right to due process if he
knowingly fabricated evidence against her, and if there is a reasonable likelihood that
the false evidence could have affected the judgment of the jury.” (citations omitted));
Burk v. Beene, 948 F.2d 489, 494 (8th Cir. 1991).
Poletis cites Harris v. Pirch, 677 F.2d 681, 686 (8th Cir. 1982), for the
proposition that “when a court evaluates police conduct relating to an arrest, its
guideline is good faith and probable cause.” However, a defendant’s good faith or bad
faith is irrelevant to the qualified immunity inquiry. Instead, as noted above, the
standard is one of “objective reasonableness.” Malley v. Briggs, 475 U.S. 335, 344;
106 S. Ct. 1092, 1097-98; 89 L. Ed. 2d 271 (1986). In testing the “objective
reasonableness” of Poletis’ actions, the “question ... is whether a reasonably
well-trained officer in [Poletis’] position” would have known that his statement, if false,
failed to establish probable cause and that he should not have turned it over to the
mental health investigator. Malley, 475 U.S. at 345; 106 S. Ct. at 1098; 89 L. Ed. 2d
271 (footnote omitted). While Poletis’ statements on their face may have established
probable cause to have Hedges committed, if material information in the statement was
known by him to be false, or if he had no reasonable basis for believing it, then it was
not objectively reasonable for him to use it to convince the mental health coordinator
to begin the commitment process. Burk v. Beene, 948 F.2d 489, 494 (8th Cir. 1991).
Thus, the case turns on whether Hedges provided sufficient evidence to create
a material issue of fact as to the truthfulness of Poletis. Appellee asserts, and the
district court found, Appellant’s App. at 315, that there was no evidence that Poletis’
5
statements3 to the mental health investigator were false. Appellant’s contention that
Poletis knowingly communicated false information to the mental health investigator, is
not supported by the evidence in the record.
Poletis’ August 8th statement was supported by an affidavit signed by Snodgrass
on August 9, 1995, Appellant’s App. at 119-21, and by a police report by Officer
Luzier signed on August 4, 1995, id. at 122-23. Appellant’s bare assertions that this
statement was false is not sufficient to create a genuine issue of material fact on the
issue. Celotex Corp., 477 U.S. at 324; 106 S. Ct. at 2553; 91 L. Ed. 2d 265. The
August 18th comment cannot be verified. However, the only proof proffered by
Hedges that this statement is false is the fact that no officer testified in a deposition that
the alleged dock incident occurred. Appellant’s Br. at 9-10. Drawing all reasonable
inferences in favor of Hedges, this merely suggests that Snodgrass was lying about
being warned to get off his dock and not that Poletis lied when he communicated his
awareness of the situation to the mental health investigator. Indeed, given the multitude
of prior incidents in the police reports concerning Hedges, and the fact that many
officers were worried about Hedges and considered him a danger to the Snodgrasses,
it seems logical that Poletis would have believed Snodgrass was telling the truth and
would have supplied that information to the investigator. Officers Luzier, Schulze, and
others wrote reports showing an increasing irrationality on the part of Mr. Hedges,
beginning in about February of 1995. Appellant’s App. at 126-34. In the context of
these reports, it seems that a reasonable officer in Poletis’ situation would have
believed Hedges to be dangerous and would have communicated that belief to the
3
Hedges points to the two statements made by Poletis after the commitment
investigation was closed which caused the investigator to reopen the case: the
statement of August 8, 1995, wherein Poletis told the investigator that Hedges made
threats toward a neighbor and the statement of August 18, 1995,wherein Poletis stated
that he was aware of the alleged dock incident and would get affidavits. Hedges
contends that Poletis knew these statements were false at the time he communicated
them to the mental health investigator.
6
mental health investigator. Accordingly, because there is no evidence, other than
Hedges’ own bare assertions, that Poletis lied and since a reasonable officer in Poletis’
position would have believed Hedges to be dangerous, Poletis is entitled to qualified
immunity on the due process claim.
B. Equal Protection Claim
Hedges had a clearly established right to equal protection, in that it is unlawful
for state officials to discriminatorily enforce the laws against a disfavored class of
persons solely on the basis of their membership in that class. Snowden v. Hughes, 321
U.S. 1, 8; 64 S. Ct. 397, 401; 88 L. Ed. 497 (1944). In order to prove unlawful
discrimination, Hedges need not prove that he is a member of a “suspect classification.”
Batra v. Board of Regents of Univ. of Neb., 79 F.3d 717, 721 (8th Cir. 1996).
However, the discrimination must be intentional, and the government’s motive must fail
to comport with the requirements of equal protection. Id.
Both the district court and the parties spend a great deal of time discussing proof
of Poletis’ motive. Hedges points to the fact that it was generally well-known in Lake
Lotawana that Hedges was homosexual, and thus Poletis must have known about it too.
Appellant’s App. at 204, 211, 233. Additionally, some officers testified that they
remember discussing the issue with Poletis. Id. However, mere knowledge that
Hedges was a member of disfavored class is not enough to prove intentional
discrimination. Batra, 79 F.3d 717, 721 (“[T]he relevant prerequisite is unlawful
discrimination, not whether plaintiff is part of a victimized class.”); Phillips v. Fisher,
445 F. Supp. 552, 556 (D. Kan. 1977) (“The mere fact that plaintiffs are [members of
a disfavored group] does not automatically entitle them to claim that anything that has
happened to them has happened because they are [members of that group].”).
Even drawing all inferences in favor of Hedges, the evidence supports the
inference that Poletis was motivated more from the fact that he believed Hedges to be
7
dangerous than from the fact that he was a homosexual. Several officers had expressed
concern that Hedges was dangerous, and some had even seen Hedges with his gun.
Appellant’s App. at 109-18. The evidence available to Poletis supported his conclusion
that Hedges was the potentially dangerous party in the neighborhood dispute.
Accordingly, because there is no evidence, apart from Hedges’ bare assertions, that
Poletis intentionally discriminated against Hedges because of his homosexuality,
Poletis is entitled to qualified immunity on this claim as well.
Appellant also raises the argument that the district court improperly assessed the
credibility of the witnesses, particularly Poletis, in granting summary judgment.
Because appellant did not provide sufficient evidence to create a genuine issue of
material fact concerning Poletis’ credibility, the district court properly granted summary
judgment in this case.
III. CONCLUSION
Finding the district court properly granted summary judgment on the issue of
qualified immunity, we hereby affirm.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
8
| {
"pile_set_name": "FreeLaw"
} |
COURT OF APPEALS FOR THE
FIRST DISTRICT OF TEXAS AT HOUSTON
ORDER
Appellate case name: Danny Barforough v. Nationstar Mortgage, LLC and U.S. Bank
National Association
Appellate case number: 01-16-00266-CV
Trial court case number: 2015-08217
Trial court: 133rd District Court of Harris County
On August 16, 2016, we abated this case for the trial court to render a final judgment by
ruling on appellees’ request for attorneys’ fees and costs. See TEX. R. APP. P. 27.2 (permitting
abatement for trial court to render final judgment). On November 28, 2016, the district clerk filed
a supplemental clerk’s record containing an order by the trial court granting appellee’s request for
attorney’s fees and costs. Accordingly, we REINSTATE this case on the Court’s active docket.
The parties have already filed briefs and the appellate record has been filed in this Court.
The case will be set for submission at the earliest practicable time.
It is so ORDERED.
Judge’s signature: /s/ Rebecca Huddle
Acting individually
Date: January 12, 2017
| {
"pile_set_name": "FreeLaw"
} |
60 F.2d 538 (1932)
YOUNGCLAUS
v.
OMAHA FILM BOARD OF TRADE et al.
No. 364.
District Court, D. Nebraska, Lincoln Division.
July 2, 1932.
Kirkpatrick, Good & Dougherty, of York, Neb., and Moyer & Moyer, of Madison, Neb., for plantiff.
Arthur F. Mullen, Sr., and Arthur F. Mullen, Jr., both of Omaha, Neb., and Bruce Bromley and George Shea, both of New York City, for defendants.
MUNGER, District Judge.
In this suit the plaintiff seeks to enjoin the defendant from enforcing a plan of operation, which he alleges is in violation of the anti-trust laws of the United States. The plaintiff is engaged in business as an exhibitor of moving pictures in Madison, Neb. At Norfolk, Neb., less than fifteen miles away, is a rival moving picture exhibitor. Norfolk is a city having a population of over 9,000 and less than 12,500. The defendant distributors and others entered into an agreement among themselves not to license the use of a picture by the plaintiff for a period of time (not exceeding ten days) after the picture had been displayed by the rival theater at Norfolk.
It has been the custom of distributors of moving pictures to place in contracts licensing the use of such pictures by exhibitors a provision that the licensee is to have the right to exhibit the picture a certain number of days before it may be exhibited in other theaters in the same territory, although such other theaters may have licenses to exhibit the same picture, and to place in the license contracts of such other theaters a provision that the picture must not be exhibited until the end of this so-called protection period.
The agreement of which the plaintiff complains is as follows:
"Uniform Zoning and Protection Plan for the Omaha Distribution Territory.
"July 22, 1930
"The following Zoning and Protection Plan is the result of careful study of the protection and run situations in the City of Omaha and the Omaha Distribution Territory by General Committee representing all interests and established for the purpose of working out a uniform plan for runs and protection that would be fair and reasonable to all concerned.
"The General Committee and Sub-committees held a series of meetings from June 23 to July 22, 1930, at Omaha, Nebraska, considering complaints and suggestions that have been made or filed concerning runs and protection.
"A continuing zoning committee was appointed by the General Committee for the season of 1930-31 as follows:
"R. S. Ballantyne R. W. Thayer
"S. W. Fitch Harry Goldberg
"Phil Monsky E. R. Cummings
"W. H. Creal W. A. Bowker
"Sam Epstein H. B. Day
"C. A. Brown C. E. Williams
"Regina Molseed, Secretary to Committee.
"The above committee will meet as the occasion requires hereafter as determined by the Committee, to hear any complaints of any Exhibitor or Distributor in the territory with reference to this Zoning and Protection Plan, and to determine what is proper and fair zoning or classification of any theatre not covered herein or that may be constructed during such season. A circular letter is being sent to all exhibitors in the territory advising them of the existence of the Continuing Zoning Committee and any requests or complaints for the attention of the Committee should be addressed to Regina Molseed, Secretary to the Continuing Zoning Committee, Omaha Film Board of Trade, Medical Arts Building, Omaha, Nebraska.
"Protection and run clauses in all contracts should be complete, explicit and impossible to misinterpret. Verbal protection is unenforcible. By having the runs in the territory uniform and clearly defined, costly and disagreeable blunders and mistakes in booking may be avoided and eliminated. By restricting protection within reasonable limits enterprising exhibitors can book attractions at earlier dates when they will produce greater revenue at their theaters. We ask that you do your part in carrying out the Zoning Plan as agreed upon in spirit as well *539 as in contract, thereby making the plan and its provisions a part of your contract by reference.
"First run theatres may specify protection over suburban theatres by naming the theatres and number of days' protection in their contracts, provided the theatre and number of days are within the maximum defined in the Zoning Plan. Subsequent runs may define the prior run theatres they will or will not follow in their contracts. Adjacent suburbs and towns within ten miles of the city limits are considered as part of the same city in determining first run theatre protection over the city theatres in such town or city.
"Classification of admission to be arrived at by night prices. In theatres charging various admissions, classification to be determined by admission on the particular picture as to the admission charged, e. g., if a theatre charges 30c admission on Sunday, Monday and Tuesday they would be entitled to protection period set aside for 30c run. If admission of 25c is charged on other days of the week protection provided for this classification must prevail on the run of the picture.
"All plans or devices to avoid a true admission classification or run for any theatre, such plan or device for the evasion of a true admission price classification or run may cause the reclassification of such theatre by Zoning Committee, who in their discretion may classify the theatre in accordance with the actual admission value of such theatre.
"Runs and Protection
"Paramount, World and Orpheum, Omaha, maximum protection in the City of Omaha after the last day of exhibition over all subsequent run as follows:
38 days over theatres charging admission of 35c
42 " " " " " " 30c
56 " " " " " " 25c
77 " " " " " " 20c
98 " " " " " " 15c
120 " " " " " " 10c
"State, Omaha, maximum protection after the last day of exhibition over all subsequent runs as follows:
28 days over theatres charging admission of 35c
35 " " " " " " 30c
42 " " " " " " 25c
63 " " " " " " 20c
84 " " " " " " 15c
106 " " " " " " 10c
"Paramount, World and Orpheum, Omaha, maximum protection after the last day of exhibition, thirty (30) days over Strand, Broadway and Liberty, Council Bluffs. Seven (7) days additional for each five (5c) cents less charged in admission.
"State, Omaha, maximum protection after the last day of exhibition, twenty-eight (28) days over Strand, Broadway and Liberty, Council Bluffs. Seven (7) days additional for each five cents (5c) less charged in admission.
"Strand and Broadway, Council Bluffs, maximum protection after the last day of exhibition, fourteen (14) days over the Liberty, charging an admission of 30c and seven (7) days additional for each five cents (5c) less in admission.
"Paramount, World and Orpheum, Omaha, maximum protection after the last day of exhibition as follows:
"28 days over theatres located within a radius of from 1 to 25 miles of Omaha.
"7 days over theatres located within a radius of from 25 to 35 miles of Omaha.
"Council Bluffs, maximum protection after the last day of exhibition as follows:
"7 days over theatres located in Iowa within 35 mile radius of Omaha.
"Sioux City, Iowa.
"Capital and Orpheum, Sioux City, Ia., maximum protection after the last day of exhibition as follows:
38 days over theatres charging admission of 35c
42 " " " " " " 30c
56 " " " " " " 25c
77 " " " " " " 20c
98 " " " " " " 15c
120 " " " " " " 10c
"Iowa and Princess, Sioux City, Ia., maximum protection after the last day of exhibition as follows:
28 days over theatres charging admission of 35c
35 " " " " " " 30c
42 " " " " " " 25c
63 " " " " " " 20c
84 " " " " " " 15c
106 " " " " " " 10c
"First run theatres, Sioux City, Iowa, maximum protection after the last day of exhibition as follows:
"21 days over all theatres located within a radius of from 1 to 25 miles of Sioux City.
"Stuart, Orpheum and Lincoln, Lincoln, Nebraska, maximum protection after the last day of exhibition as follows:
38 days over theatres charging admission of 35c
42 " " " " " " 30c
56 " " " " " " 25c
77 " " " " " " 20c
98 " " " " " " 15c
120 " " " " " " 10c
*540 "Colonial and Rialto, Lincoln, Nebraska, maximum protection after the last day of exhibition as follows:
28 days over theatres charging admission of 35c
35 " " " " " " 30c
42 " " " " " " 25c
63 " " " " " " 20c
84 " " " " " " 15c
106 " " " " " " 10c
"First Run Theatre, Lincoln, Nebraska, maximum protection after the last day of exhibition as follows:
"14 days over all theatres located within a radius of from 1 to 20 miles of Lincoln.
"Out-State Protection between Towns.
"Towns of 20,000 to 15,000 population to have 14 days protection within a radius of 15 miles.
"Towns of less than 15,000 to 12,500 population to have 12 days protection over a radius of 15 miles.
"Towns of less than 12,500 to 9,000 population to have protection of 10 days over a radius of 15 miles.
"Towns of less than 9,000 to 5,000 population to have protection of 10 days over a radius of 10 miles.
"Towns of less than 5,000 population shall not have protection to exceed 7 days over a radius of 10 miles.
"This same provision was intended to apply and has always applied in favor of out-state exhibitors as well as city exhibitors.
"(2) The Plan limits normally subsequent run theatres contracting for a prior run only so far as it limits the amount of protection that may be accorded.
"(3) Any exhibitor whose protection is provided for under the Plan may agree with the distributor for a less amount of protection than is provided in the Plan."
The defendants contend that this plan was a mere statement of the maximum protection period which could be granted to the Norfolk theater. Obviously the plan is mandatory upon the distributors to grant some period of protection. The course of dealing under it shows that it was intended that the distributors should grant whatever period (not exceeding ten days) which the Norfolk theater should request. Whatever the length of the period, whether for one day or more, the distributors limited their freedom to contract according to their individual judgments, as to the period of protection to be accorded to the Norfolk theater and to be imposed upon the plaintiff. This agreement has been enforced against the plaintiff.
Whatever may be the right of the distributors separately and individually to license the exhibition of pictures by contracts giving to the licensees the exclusive right of exhibition for a period of time, a combination of distributors, such as exists here, controlling a large part of the trade in interstate commerce, to refrain from competition among themselves in making such licensing agreements with exhibitors, by agreeing that they will each grant a substantial period of protection to one exhibitor over a rival distributor in competitive territory, is an unreasonable restraint of interstate trade, and is condemned by the anti-trust laws of the United States.
The plaintiff is entitled to the right to bargain with distributors who are free from a combination among themselves not to bargain with the plaintiff unless he shall consent that his rival shall have had the first opportunity to exhibit a picture.
The recent cases of Paramount Famous Lasky Corp. v. United States, 282 U. S. 30, 51 S. Ct. 42, 45, 75 L. Ed. 145, and United States v. First National Pictures, Inc., 282 U. S. 44, 51 S. Ct. 45, 75 L. Ed. 151, state the principles which are applicable in this case.
An argument has been made in this case of the need of protection for the exhibitor who purchases the right to display a picture but the same contention in principle was presented to the court in the Paramount Famous Lasky Corporation Case, wherein the right was asserted to contract for arbitration as a method of settling disputes, and the court said:
"The Sherman Anti-Trust Act (15 USCA §§ 1-7, 15) seeks to protect the public against evils commonly incident to the unreasonable destruction of competition, and no length of discussion or experimentation amongst parties to a combination which produces the inhibited result can give validity to their action. Congress has so legislated `as to prevent resort to practices which unduly restrain competition or unduly obstruct the free flow of such commerce, and private choice of means must yield to the national authority thus exerted.' Eastern States Lumber Ass'n. v. United States, supra, page 613 of 234 U. S., 34 S. Ct. 951, 954 [58 L. Ed. 1490, L. R. A. 1915A, 788].
"It may be that arbitration is well adapted to the needs of the motion picture industry; but, when under the guise of arbitration parties enter into unusual arrangements *541 which unreasonably suppress normal competition, their action becomes illegal.
"In order to establish violation of the Sherman Anti-Trust Act, it is not necessary to show that the challenged arrangement suppresses all competition between the parties or that the parties themselves are discontented with the arrangement. The interest of the public in the preservation of competition is the primary consideration. The prohibitions of the statute cannot `be evaded by good motives. The law is its own measure of right and wrong, of what it permits, or forbids, and the judgment of the courts cannot be set up against it in a supposed accommodation of its policy with the good intention of parties, and, it may be, of some good results.' Standard Sanitary Mfg. Co. v. United States, 226 U. S. 20, 49, 133 S. Ct. 9, 15, 57 L. Ed. 107."
A decree is entered accordingly.
| {
"pile_set_name": "FreeLaw"
} |
56 F.3d 70NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.
Kenneth R. BRYDON, Petitioner-Appellant,v.George INGLE, Respondent-Appellee.
No. 94-16443.
United States Court of Appeals, Ninth Circuit.
Submitted May 2, 1995.*Decided May 5, 1995.
Before: WALLACE, Chief Judge, HUG and NOONAN, Circuit Judges.
1
MEMORANDUM**
2
California prisoner Kenneth R. Brydon appeals pro se the district court's denial of his habeas corpus petition brought under 28 U.S.C. Sec. 2254. Brydon contends that his due process rights were violated when the Board of Prison Terms (Board), acting en banc, rejected the decision of a three-member panel of the Board to grant Brydon parole. We have jurisdiction pursuant to 28 U.S.C. Secs. 1291, 2253. We review de novo the district court's denial of a habeas corpus petition, see Adams v. Peterson, 968 F.2d 835, 843 (9th Cir. 1992) (en banc), cert. denied, 113 S. Ct. 1818 (1993), and affirm.
3
Brydon contends that the Board's proposed decision became a final decision granting him parole after the Board's Decision Review Unit completed review and before the en banc panel acted. We assume for the purposes of appeal that Brydon has a liberty interest in parole if the Board's initial decision granting him parole is final. See Perveler v. Estelle, 974 F.2d 1132, 1134 (9th Cir. 1992).
4
Here, the proposed decision stated, "Due [sic] not release pris[oner] until final decision from BPT and all administrative decisions met & final." Although the decision is not a model of clarity, we agree with the district court that the panel obviously intended that the proposed decision would not be effective until the entire review process was complete. See also Cal. Code Regs. tit. 15, Sec. 2041 (1990)1 (proposed decisions "shall be reviewed prior to their effective date"). Furthermore, the dissenting member of the panel issuing the proposed decision referred the matter for an en banc hearing. This referral prevented the proposed decision from becoming final until after a decision by the Board's en banc panel. See also Cal. Code Regs. tit. 15, Secs. 2043-44 (proposed decision does not become final until review by en banc panel). Although Brydon claims that the dissenting member did not refer the matter for en banc review, the district court's contrary finding was not clearly erroneous. See Thomas v. Brewer, 923 F.2d 1361, 1366 (9th Cir. 1991).
5
Brydon next contends that the Board's en banc panel had no authority to review the proposed decision because its review occurred more than forty-five days after the hearing date by the three-member panel. See Cal. Code Regs. tit. 15, Secs. 2044 ("full board shall review within a maximum of forty-five days from the date of the hearing" the proposed decision).
6
A threshold requirement to a substantive or procedural due process claim is the plaintiff's showing of a liberty interest, protected by the Constitution, in being paroled. Greenholtz v. Inmates of Nebraska Penal and Correctional Complex, 442 U.S. 1, 7 (1979); Board of Regents v. Roth, 408 U.S. 564, 570-71 (1972); Baumann v. Arizona Dep't of Corrections, 754 F.2d 841, 843 (9th Cir. 1985). "A state may create a constitutionally protected liberty interest by establishing regulatory measures that impose substantive limitations on the exercise of official discretion." Baumann, 754 F.2d at 844; see also Bermudez v. Duenas, 936 F.2d 1064, 1067 (9th Cir. 1991) (per curiam). However, no protected entitlement to release exists unless a state scheme includes a formula which mandates release after the occurrence of specified events. Baumann, 754 F.2d at 844 (stating that the unique "shall/unless" formula was decisive in Greenholtz).
7
The time limits contained in the Board's regulations "do not create a right to have the specified action taken within the time limits.... and the failure to meet them does not preclude taking the specified action beyond the time limits." Cal. Code Regs. tit. 15, Sec. 2000(a)(9). Because the California regulatory scheme does not impose time limits on the ability of the Board's en banc panel to review proposed parole decisions, Brydon was not denied due process by the en banc decision. See Baumann, 754 F.2d at 844; see also Bermudez, 936 F.2d at 1067.
8
AFFIRMED.
*
Because we unanimously find this case suitable for decision without oral argument, we deny Brydon's request for oral argument. See Fed. R. App. P. 34(a); 9th Cir. R. 34-4
**
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3
1
Because we find no merit to Brydon's claims based upon the 1990 version of the California Code of Regulations, we need not address his claim that the district court erred by using the 1994 version of the Regulations
| {
"pile_set_name": "FreeLaw"
} |
12 F.3d 1102
NOTICE: Eighth Circuit Rule 28A(k) governs citation of unpublished opinions and provides that no party may cite an opinion not intended for publication unless the cases are related by identity between the parties or the causes of action.Michael MANN, Appellant,v.UNITED STATES of America, Appellee.
No. 92-3470.
United States Court of Appeals,Eighth Circuit.
Submitted: October 4, 1993.Filed: January 4, 1994.
Appeal from the United States District Court for the Western District of Missouri.
Before LOKEN, Circuit Judge, FLOYD R. GIBSON, Senior Circuit Judge, and HANSEN, Circuit Judge.
W.D.Mo.
AFFIRMED.
PER CURIAM.
1
Michael A. Mann, a federal prisoner, appeals the district court's1 order denying his motion for postconviction relief under 28 U.S.C. Sec. 2255. We affirm.
2
In July 1987, the government charged Mann and two others with robbing a federally-insured credit union, in violation of 18 U.S.C. Sec. 2113(a). A jury found Mann guilty, and the district court sentenced him to eighteen years of imprisonment. We affirmed his conviction. United States v. Mann, No. 87-2438 (8th Cir. July 7, 1988) (unpublished per curiam).
3
In 1991, Mann filed this motion and an amended motion arguing that (1) there was no evidence that the credit union was federally insured; (2) counsel rendered ineffective assistance; (3) the district court committed error by giving an aiding-and-abetting instruction to the jury; (4) the court improperly refused to give two cautionary jury instructions he requested; (5) statements Mann made to arresting officers and to a deputy marshal should not have been admitted into evidence; and (6) the court was biased against him because it overruled numerous defense objections and admitted unfavorable evidence against him. He also raised numerous other claims which do not require discussion here. Following the government's response, the district court denied Mann's motion without a hearing.
4
On appeal, Mann challenges the government's contention below that it introduced at trial a certificate of insurance showing that the credit union was federally insured. He renews his other arguments regarding instructional error, judicial bias, and inadmissibility of his post-arrest statements. He also argues that the court erred in ruling on many of his grounds (particularly, ineffective assistance) without first holding an evidentiary hearing.
5
Certificate of Insurance. We see no reference in the trial transcript to a certificate of insurance or to the insured status of the credit union. The record contains other evidence, however, that the government introduced the certificate of insurance into evidence. A pretrial list of exhibits filed by the government shows "Certificate of Insurance" as exhibit two. Another copy of the exhibit list appears in the record near the trial minutes. This copy contains handwritten entries, such as those normally entered by a court reporter or calendar clerk during a trial, which indicate that exhibit two was received without objection at 10:01 a.m. on the first day of trial-forty-five minutes after a credit union employee began her testimony. A district court need not hold an evidentiary hearing in a section 2255 case when the files and records conclusively show that the claimant is not entitled to relief. United States v. Schmitz, 887 F.2d 843, 844 (8th Cir. 1989) (per curiam). The record here shows that the certificate was received into evidence, thereby providing a basis for the jury finding of insured status.
6
Ineffective assistance. Mann argues that counsel was ineffective because he threatened to withdraw if Mann testified at trial, and he failed to inform Mann that he could petition for certiorari to the Supreme Court. We conclude that the district court properly rejected these ineffective-assistance claims. The right to testify is a fundamental one, which only the defendant may waive. El-Tabech v. Hopkins, 997 F.2d 386, 388 (8th Cir. 1993). Mann did not, however, state specifically what he would have testified or how that testimony would have changed the outcome of his trial. He also has failed to show his case was "certworthy." Thus, he has not satisfied the prejudice prong of the Strickland test. See Strickland v. Washington, 466 U.S. 668, 694 (1984). We also conclude that the district court properly rejected Mann's other ineffective-assistance claims, because they either were too vague or failed for lack of a showing of prejudice.
7
Aiding-and-abetting instruction.Mann argues that the district court's instruction on aiding and abetting resulted in his conviction of a crime with which he was not charged and of which he had no notice. Mann did not object at trial to the instruction, and-as the district court observed-he did not raise the claimed error on direct appeal. He must therefore show cause and prejudice to excuse his procedural default. See United States v. Frady, 456 U.S. 152, 167-68 (1982). Mann stated below that counsel intentionally overlooked this issue on direct appeal. Even if he has thereby shown cause, he has failed to show prejudice, because we agree with the district court that the instruction was proper. See United States v. Lincoln, 925 F.2d 255, 256 (8th Cir.) (indictment need not be amended before instructing jury, and convicting defendant, on lesser offense of aiding and abetting principal crime), cert. denied, 111 S. Ct. 2838 (1991). Mann cannot claim unfair surprise because the government's proposed jury instructions, which were mailed to defense counsel before trial, contained an aiding-and-abetting instruction. Moreover, the evidence supported the instruction. See id. at 256 (defendant had clear notice of instruction before trial began, and ample evidence justified instruction).
8
Cautionary jury instructions/motion to suppress statement to arresting officers. We agree with the government that these issues were decided against Mann on direct appeal. Thus, we need not revisit them. See United States v. Kraemer, 810 F.2d 173, 177 (8th Cir. 1987) (per curiam) (issues decided on direct appeal cannot be raised in section 2255 motion).
9
Statement to deputy marshal.Deputy United States Marshall Carol Vollmecke testified at trial that Mann asked her in July 1987 about the penalty for bank robbery. When she told him it depended on whether a gun was involved, he replied that he did not have a gun-"the other guy" did. Mann argues his statement should have been excluded as unsubstantiated hearsay. He did not object to the challenged statement as hearsay at trial. In any event, we agree with the government that the statement was not hearsay under Federal Rule of Evidence 801(d)(2)(A) (statement not hearsay if it is party's own statement, offered against party). The record negates Mann's additional argument that the government acted in bad faith in not earlier disclosing the statement.
10
Judicial bias/remaining claims.We agree with the district court and the government that Mann's claim regarding judicial bias fails for lack of specificity. After reviewing Mann's remaining claims and the government's responses-which served as the basis for the district court's rejection of those claims-we conclude that the court properly denied Mann's motion without an evidentiary hearing. We also deny Mann's motion for appointment of counsel.
11
Accordingly, we affirm.
1
The HONORABLE SCOTT O. WRIGHT, Senior United States District Judge for the Western District of Missouri
| {
"pile_set_name": "FreeLaw"
} |
Filed 7/19/13 P. v. Quinton CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D063231
Plaintiff and Respondent,
v. (Super. Ct. No. SCS172950)
ERIC QUINTON,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County, David J.
Danielsen, Judge. Affirmed.
Law Offices of Russell S. Babcock and Russell S. Babcock, under appointment by
the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
In 2003, Eric Quinton was convicted of making criminal threats (Pen. Code,1
§ 422). He admitted two serious/violent felony prior convictions ("strike priors") within
1 All further statutory references are to the Penal Code unless otherwise specified.
the meaning of section 667, subdivisions (b) through (i). Quinton was sentenced to an
indeterminate term of 25 years to life.
Following the passage of Proposition 36 (Three Strikes Reform Act of 2012),
Quinton filed a petition to recall his sentence pursuant to section 1170.126. The trial
court denied Quinton's petition finding that his 2003 conviction for criminal threats was a
serious felony and thus Quinton was not eligible for sentence modification.
Quinton filed a timely notice of appeal.
Counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436
(Wende) and Anders v. California (1967) 386 U.S. 738 (Anders) raising a possible, but
not arguable issue. We offered Quinton the opportunity to file his own brief on appeal,
but he has not responded.2
DISCUSSION
As we have previously noted, appellate counsel has filed a brief indicating he is
unable to identify any argument for reversal and asks this court to review the record for
error as mandated by Wende, supra, 25 Cal.3d 436. Although counsel has not separately
set out the possible, but not arguable, issue as required by Anders, supra, 386 U.S. 738,
counsel has cited Anders, and the record and brief make clear there is only one possible
issue. That issue is whether Quinton, who is serving a third strike sentence following his
2003 conviction for a serious felony with two strike priors, is eligible for sentence
2 The facts of the underlying offense are not relevant to the issues before this court.
Thus we will omit the traditional statement of facts.
2
modification under Proposition 36. He is not eligible for sentence modification given
that his third strike conviction was for a serious felony.
We have reviewed the entire record in accordance with Wende, supra,
25 Cal.3d 436 and Anders, supra, 386 U.S. 738, and have not found any arguable
appellate issues. Competent counsel has represented Quinton on this appeal.
DISPOSITION
The order denying Quinton's petition for sentence modification is affirmed.
HUFFMAN, J.
WE CONCUR:
BENKE, Acting P. J.
HALLER, J.
3
| {
"pile_set_name": "FreeLaw"
} |
218 S.C. 500 (1951)
63 S.E.2d 459
ARCHAMBAULT ET AL.
v.
SPROUSE
16463
Supreme Court of South Carolina.
February 7, 1951.
*501 *502 Messrs. M. Martin Davis and I.H. Jacobson, of Charleston, for Appellant.
Messrs. Sinkler, Gibbs & Simons, of Charleston, for Respondents.
*503 February 7, 1951.
OXNER, Justice.
This is a suit in equity to enjoin appellant, defendant below, from proceeding with the erection of what is termed a two story garage apartment upon the rear of his lot, it being contended that said structure violates certain restrictive covenants applicable to a subdivision known as Palmetto Gardens located in North Charleston, South Carolina, and to require appellant to remove so much of said building as violates said restrictions. The cause was referred to the Master for Charleston County, who after holding a number of references and taking a vast amount of testimony, recommended that the relief sought in the complaint be granted. His report was confirmed by the Circuit Court and this appeal followed.
During 1940 and 1941, the Defense Homes Corporation, a Federal housing agency, erected in said subdivision approximately 250 houses which were rented to war workers. At the conclusion of the war emergency, said corporation proceeded to sell said houses and by 1946, the entire subdivision was owned by individuals. The Master, who visited the premises, found that "all of these homes are of permanent and substantial character and the subdivision may properly be called a high class residential section, being one of the finest in the Charleston area." All of said lots were sold subject to the following conditions and restrictions which were duly recorded in the R.M.C. Office for Charleston County on June 25, 1941:
"A. All lots in the tract shall be known and described as residential lots. No structures shall be erected, altered, placed, *504 or permitted to remain on any residential building plot other than one detached single-family dwelling not to exceed two and one-half stories in height and a private garage for not more than two cars and storage. Buildings incidental to residential use may be erected.
"B. No building shall be located nearer to the front lot line or nearer to the side street line than the building setback lines shown on the recorded plat. In any event, no building shall be located on any residential building lot nearer than 20 feet to the front lot line, nor nearer than 10 feet to any side street line. No building, except a detached garage or other outbuilding located on rear one-fourth of lot, shall be located nearer than five feet to any side lot line. On corner lots garage shall be placed against inside lot line.
"C. No residential structure shall be erected or placed on any building plot, which has an area of less than 5000 square feet or a width of less than 50 feet at the front building setback line.
"D. No noxious or offensive trade or activity shall be carried on upon any lot, nor shall anything be done thereon which may be or become an annoyance or nuisance to the neighborhood.
"E. No trailer, basement, tent, shack, garage, barn or other outbuilding erected in the tract shall at any time be used as a residence temporarily or permanently, nor shall any structure of a temporary character be used as a residence.
"F. No dwelling costing less than $3,000.00 shall be permitted on any lot in the tract. The ground floor area of the main structure, exclusive of one-story open porches and garages, shall be not less than 650 square feet in the case of a one-story structure, nor less than 500 square feet in the case of a one and one-half, two or two and one-half story structure.
"G. A five foot (5') easement on the back line of each lot and a two foot six inch (2' 6") easement on each side line *505 of each lot is reserved for use of poles, wires, sewers, and other public utilities.
"H. No persons of any race other than the Caucasian race shall use or occupy any building of any lot except that this covenant shall not prevent occupancy by domestic servants of a different race domiciled with owner or tenant."
Appellant and respondents are property owners in said subdivision. Appellant purchased his home in 1946, at a cost of $4,450.00. There are five rooms, including two bedrooms, and a bath in his house, which is occupied by himself, his wife and mother-in-law. During the fall of 1948, he commenced construction of a two story combined dwelling and garage upon the rear of his lot. The plans called for a two car garage, a large utility room and a stairwell on the first floor, and for a kitchen, bathroom, two bedrooms with closets, a living room and an enclosed porch on the second floor. The Master found that this structure was "clearly intended to be an entirely independent and self-sufficient living unit complete with all facilities and not in any way dependent on the original building at the front of the lot." Appellant testified that the house in which he lived was inadequate for his needs; that he desired additional space to accomodate relatives who visited him; and that he had no present intention of using the second floor of the new structure for servants' quarters or of renting it to strangers. However, there was other testimony to the effect that appellant had stated that he "intended to live in it himself and rent his house." Appellant says that he has expended approximately $4,200.00 on this building, which he contends is now 85% complete, and that it would require about $750.00 additional to finish it.
Respondents commenced this action on March 1, 1949. They alleged that the structure being erected violated restriction A, E, and F heretofore set out. Appellant denied the material allegations of the complaint, alleged that the restrictions permitted the construction of a garage apartment, and set up the following affirmative defenses: (1) That at *506 a meeting of the Palmetto Gardens Civic Club held on February 8, 1949, attended by respondents, a resolution was passed waiving all current violations of the restrictive covenants and that respondents were bound by this resolution. (2) That numerous property owners in Palmetto Gardens, including respondents or some of them, had heretofore and were now violating certain of these restrictions and by reason thereof were estopped to assert the infractions set forth in the complaint. (3) That a building permit for this garage apartment was issued in October, 1948, and that the respondents were guilty of laches in taking no action to prevent the erection of this structure until after appellant had expended large sums of money.
Within due time respondents moved to strike the affirmative defenses from the answer upon the ground that none of them constituted a defense to the cause of action set forth in the complaint. The Circuit Court granted this motion. On appeal we held that they were improperly stricken and the order of the Circuit Court was reversed. Archambault v. Sprouse, 215 S.C. 336, 55 S.E. (2d) 70, 72. It was there stated: "All of the issues presented by the appeal involve the defenses of waiver, laches, estoppel and acquiescence under various and diverse circumstances, which it seems to us can best be determined by a trial on the merits. It might be that a strict construction of defendant's affirmative defenses, under the applicable rules of law, would be adverse to him, but we are not disposed at this stage of the case to define and determine the rights of the parties merely on the pleadings."
We shall first determine whether there has been a violation of any of the restrictive covenants. The Master held that the structure now being erected violated restrictions A and E. Having reached this conclusion, he considered it unnecessary to determine whether there was a violation of restriction F. We are in accord with this view. The structures permitted on a lot in this subdivision are clearly limited by restriction A to "one detached single family *507 dwelling", not exceeding a certain height, "a private garage for not more than two cars and storage", and "buildings incidental" to the use of such residence. Appellant contends that the structure in controversy may be properly classified as one "incidental to residential use". We do not think so. The word "incidental" is defined in Black's Law Dictionary, Third Edition, as follows: "Depending upon or appertaining to something else as primary; something necessary, appertaining to, or depending upon another which is termed the principal; something incidental to the main purpose." Undoubtedly this was the meaning contemplated in the restriction under consideration. Clearly the apartment on the second floor of this structure, a complete living unit having substantially the same accommodations as the main structure, cannot be said to be incidental to the use of appellant's residence. It was manifestly intended that only one dwelling house should be placed on each lot. This conclusion is fortified by restriction E which provides that no garage or other outbuilding erected on the lot "shall at any time be used as a residence temporarily or permanently, nor shall any structure of a temporary character be used as a residence."
Appellant argued that the meanings of restrictions A and E are rendered doubtful by restriction H and that such doubt should be resolved in favor of the free use of the property and against restriction. We do not think restriction H has that effect. It relates solely to the class of persons who may reside in this subdivision. It was intended to restrict the subdivision to those of the Caucasian race. However, the servants of property owners or their tenants, regardless of race, are permitted to reside on the premises. Assuming, without deciding, that it would be permissible for an owner to provide servants' quarters over his garage, it is obvious that the second floor of the structure under consideration was not constructed for that purpose.
Our attention is called to the rule that restrictions of this character are to be construed most strictly against the grantor and persons seeking to enforce *508 them and any substantial doubt or ambiguity must be resolved in favor of unrestricted use of the property. But, as pointed out in Sprouse v. Winston, 212 S.C. 176, 46 S.E. (2d) 874, this rule has no application where, as here, there is no ambiguity and the meaning of the parties has been clearly expressed.
We now turn to appellant's affirmative defenses which raise issues of waiver, laches and estoppel. These are largely factual questions which must be considered in the light of the well settled rule that in an equity case findings of fact by a master or a referee, concurred in by a circuit judge, will not be disturbed by this Court unless it appears that such findings are without evidentiary support or are against the clear preponderance of the evidence. Epworth Orphanage v. Long, 207 S.C. 384, 36 S.E. (2d) 37; Samuel v. Young, 214 S.C. 91, 51 S.E. (2d) 367; Wolfe v. Wolfe, 215 S.C. 530, 56 S.E. (2d) 343; Phipps v. Phipps, 216 S.C. 248, 57 S.E. (2d) 417.
There is no hard or fast rule as to what constitutes laches. In stating the law applicable to this issue, we said on the first appeal of this case, 215 S.C. 336, 55 S.E. (2d) 70, 11 A.L.R. (2d) 388: "If there has been unreasonable delay in asserting claims, or if, knowing his rights, a party does not seasonably avail himself of means at hand for their enforcement, but suffers his adversary to incur expense or enter into obligations or otherwise change his position, or in any way by inaction lulls suspicion of his demands to the harm of the other, or, if there has been actual or passive acquiescence in the performance of the act complained of, then equity will ordinarily refuse her aid for the establishment of an admitted right, especially if an injunction is asked. * * * Diligence is an essential prerequisite to equitable relief of this nature. * * * But so long as there is no knowledge of the wrong committed and no refusal to embrace opportunity to ascertain facts, there can be no laches. * * *
*509 "On the other hand, one who openly defies known rights, in the absence of anything to mislead him or to indicate assent or abandonment of intent to oppose on the part of others, is not in a position to urge as a bar failure to take the most instant conceivable resort to the courts."
We shall now endeavor to apply the foregoing principles to the facts of this case. It is undisputed that appellant was thoroughly familiar with the restrictions on this property. Indeed, he boasted that he "could come nearer repeating them" than any of the other residents. Several years prior to the institution of this action, he brought a suit for the purpose of requiring one of his neighbors to remove a garage which had been erected on a location which he contended violated restriction B. This Court held that he was entitled to the relief sought. Sprouse v. Winston, supra, 212 S.C. 176, 46 S.E. (2d) 874.
Appellant says that construction of this building was commenced about the middle of September, 1948. A building permit was issued on October 13th which appeared in the local paper on November 27th, but was not seen by any of the respondents. While appellant testified that by November the work had progressed beyond the first story, none of the respondents at that time had any knowledge of the intended use of this structure. One of them testified that he first learned that the second story was to be used as an apartment about Christmas but took no immediate action because he thought a matter of that kind was handled by some state or county agency. The other respondents did not acquire this information until some time in January, 1949. Soon thereafter a discussion arose among some of the residents as to what action should be taken. During the latter part of January, a committee called on appellant who insisted that he was not violating the building restrictions. On January 31, 1949, counsel employed by a group of these residents advised appellant by letter that an apartment on the second floor would constitute a violation of the restrictive covenants and *510 that the necessary steps would be taken to restrain any such violation. Shortly thereafter a notice was mailed to all property owners in this subdivision of a meeting to be held on February 8th for the purpose of discussing the building restrictions. This meeting was attended by about 150 residents including most, if not all, of the respondents. One of those who had been most active in leading the movement to enforce the building restrictions advised that no action be taken against appellant. A motion was made and carried that all past violations of the restrictions be considered "closed issues" but that immediate steps be taken to prevent any future violations. Respondents said they were so astonished at this change of viewpoint on the part of several who had previously been such staunch advocates of enforcement of the restrictions that they refrained from voting. A day or two later respondents formed another group for the purpose of enforcing compliance with the restrictions. This group took the matter up with the same firm of attorneys previously consulted and who had written the letter of January 31, 1949. On February 15th these attorneys advised appellant by letter that while the group of property owners by whom they were formerly retained had decided not to press the matter, they had now been employed by a different group who intended to restrain him from violating the restrictions. This action was thereafter commenced on March 1, 1949. On March 8th a meeting was held of the Palmetto Gardens Civic Club, an unincorporated association, which was attended by about 75 members. The club voted overwhelmingly in favor of assisting in the prosecution of the action which had been commenced.
Throughout this controversy the position of appellant has been that the erection of this structure did not constitute a violation of the restrictive covenants. One of the witnesses testified that about Christmas of 1948, while being shown through the building, he suggested to appellant that the use of the second floor as an apartment might constitute a violation of the restrictions, to which appellant replied: "The *511 covenants are not worth a damn, you can do anything you want to. * * * I have my building permit and talked it over with my neighbors next door and the framing is up and if anybody wants to complain it will not do them any good." Even after appellant was advised of impending litigation by the letter of January 31, 1949, he continued with the construction and admitted that more work was done on the building in February than during the preceding December or January.
We think the foregoing evidence is entirely sufficient to sustain the conclusion of the Master, concurred in by the Circuit Court, that respondents did not acquiesce in appellant's violation of the building restrictions nor do anything reasonably calculated to cause him to think that they would not be enforced, and that respondents acted with reasonable promptness. It cannot be said as a matter of law that respondents should have known of the intended violation during November or the early part of December, 1948. It was not incumbent upon them to busy themselves with an inspection of the building or to watch the construction in the anticipation that appellant was planning to violate the restrictive covenants. Loudenslager v. Pacific Improvement Co., 93 N.J. Eq. 218, 115 A. 752. They had a right to assume that appellant, who had two years previously brought suit to force his neighbor to comply with the restrictions, would not himself commit an infraction. The fact that a two-story building was being erected on the rear of appellant's lot did not necessarily show a violation of the restrictions. It is the construction of an apartment on the second floor which constitutes the violation and this fact was not known to respondents until the latter part of December or January. It may be reasonably inferred under all the circumstances that after acquiring such knowledge, respondents acted with reasonable diligence. We do not have a situation, as appeared in several of the cases cited by appellant, where the violation was of such character that it should have been observed by any passerby. We also have the further consideration that *512 appellant proceeded deliberately. He was adamant in the position that he had a right to erect the structure. He assumed the risk that his interpretation of the covenants might be incorrect.
We next consider the effect of the resolution passed at the meeting held on February 8, 1949, to which all residents of Palmetto Gardens were invited. As pointed out in the first appeal of this case, this meeting had no "official status." It was not within the power of the majority to conclude the rights of all those present. They could not legally bar the minority from proceeding to enforce compliance with the restrictive covenants. It is true that appellant may have been led to believe by the adoption of this resolution that the property owners in this subdivision intended to waive any violation caused by the erection of this structure and that he could proceed with the work, but any such belief must have been dispelled one week later when he received a letter from the attorneys employed by respondents to the effect that proper action would be taken to enforce compliance with the restrictions. During this interim of one week, appellant could not have incurred much expense.
Finally, it is contended that any right of respondents to injunctive relief is barred by their own violations of some of the restrictive covenants. We find no evidence of such violations. Indeed, there has been remarkable success in maintaining the standard set out in these restrictions and preserving the general building scheme. But assuming that the acts complained of are sufficient to constitute a violation of some of the restrictions, they are of a minor nature and not of such character as to affect the value or enjoyment of other property in the subdivision. On the previous appeal in this case, 215 S.C. 336, 55 S.E. (2d) 70, we said: "The general rule should likewise be stated that the violation of some of the less important restrictions, but not the restriction in question, by some of the plaintiffs does not deprive them, much less the other plaintiffs, of the right to relief in equity."
*513 All exceptions are overruled and the order appealed from is affirmed.
FISHBURNE, STUKES and TAYLOR, JJ., and L.D. LIDE, A.A.J., concur.
| {
"pile_set_name": "FreeLaw"
} |
948 F.Supp. 573 (1996)
Stephen T. HALEY, II, Plaintiff,
v.
VIRGINIA COMMONWEALTH UNIVERSITY, Defendant.
Civil Action No. 3:96CV442.
United States District Court, E.D. Virginia, Richmond Division.
December 19, 1996.
*574 Jay Joseph Levit, Levit & Mann, Eileen N. Wagner, Richmond, VA, for Plaintiff.
Pamela Finley Boston, David Lee Ross, Virginia Commonwealth University, Office of the Attorney General, Richmond, VA, for Defendant.
MEMORANDUM OPINION
RICHARD L. WILLIAMS, Senior District Judge.
This matter is before the Court on the motion of the defendant, Virginia Commonwealth University, to dismiss and/or for summary judgment. The plaintiff, Stephen Haley, has filed a motion for summary judgment as well. For the reasons stated below, the Court grants the defendant's motion and dismisses the case with prejudice.
*575 Introduction
Stephen Haley ("Haley") was a graduate student and employee at the Medical College of Virginia, a division of Virginia Commonwealth University ("VCU"), a state university. A fellow student and employee, who has intervened as a plaintiff in this case under the pseudonym Jane Doe ("Doe"), filed charges of sexual harassment against him. Haley was found guilty and was separated from the school for two years. Haley has sued VCU for damages and injunctive relief on theories of: (1) sex discrimination and denial of equal benefits in violation of Title IX, 20 U.S.C. § 1681, et seq.; (2) denial of equal protection and due process in violation of the Fourteenth Amendment; and (3) sex discrimination and failure to protect him from unfounded charges of discrimination in violation of state law.
The gist of Haley's complaint is that VCU unfairly railroaded him through the procedures it uses to prosecute claims of sexual harassment, and that it did so pursuant to a discriminatory policy whereby the school presumes that allegations of sexual harassment are valid, particularly where the alleged harasser is male and the victim is female. VCU's motion to dismiss and/or for summary judgment is based on several theories: (1) that suing VCU is the equivalent of suing the Commonwealth of Virginia, and that as a result VCU cannot be sued for alleged Fourteenth Amendment violations; (2) that, again because suing VCU is the same as suing the Commonwealth, the Eleventh Amendment provides immunity from suit on the state law claims; and (3) that there is no evidence to support Haley's discrimination claim, or his other claims for that matter.
Factual Background
In January of 1992, Stephen Haley was a student at VCU doing some of his studies in the laboratory of Dr. Andras Szakal. Sometime that month, Jane Doe began working alongside him. Both received wages and tuition credit for their work. According to Doe, Haley subjected her to verbal and physical abuse and harassment throughout her employment in the lab (about 2½ years). She complained to Dr. Szakal on more than one occasion, but was never satisfied with the results of any action taken. Thus, in July of 1994, she submitted a written charge of sexual harassment and took a leave of absence from school. She filed a formal grievance in September, 1994.
VCU proceeded as provided under its written Rules and Procedures. It began by assigning Jennifer Chapman, assistant director of the recreational sports department, to investigate Doe's complaint. After more than two months of trying unsuccessfully to set up a meeting with Haley, Chapman had Dr. Robert Clifton, the Dean of Student Affairs and Administrator of the Rules and Procedures, threaten to proceed without Haley's input. Then Haley submitted an affidavit giving his story. He also met with Chapman, bringing two attorneys, but at the meeting he apparently just submitted his affidavit.
Clifton reviewed the investigation, determined that Haley was guilty of violating that part of the University Rules and Procedures providing that no person shall willfully "harass or intimidate any person," and imposed a sanction of probation plus a requirement that Haley seek counseling. He notified Haley of his decision and explained to him that he had a right under the VCU Rules and Procedures to appeal the decision to the University Hearing Board.
Haley exercised this right of appeal and his case was referred to the Hearing Board for the presentation of witnesses and evidence. He was provided with a hearing date, given an explanation of the format, and told he could contact Dr. Ruth Epps, the Chairman of the Hearing Board, if he had any questions. After one postponement per Haley's request, the hearing was held on March 24, 1995. The Board allowed Haley to present evidence on his own behalf, despite his failure to submit the evidence to Clifton before the morning of the hearing as he was required to do by the Rules. The Board followed its written procedure regarding the role of an accused student's attorneys: Haley was only allowed to use one, and that one *576 attorney's role was limited to that of advisor. The attorney could not make arguments or examine or cross-examine witnesses.
By letter of March 29, 1995, the Hearing Board informed Haley that it, too, found him guilty of sexual harassment and that his sanction was to be a two-year separation from the University. It appears that the sanction was increased from the probation imposed by Dean Clifton so as to allow Jane Doe to complete her studies at VCU without having to come into contact with Haley. The letter cited three specific instances of conduct that the Hearing Board felt created a hostile environment and were harassing in nature, but also referred to "other statements detailing [Haley's] past behavior" as "contribut[ing] significantly to the creation of the above mentioned intimidating, hostile and offensive working and educational environment."
By letter of April 7, Haley appealed the Hearing Board's decision to the University Appeal Board. That Board notified him on April 14 that it would hear his appeal on May 10, 1995. Clifton gave Haley a description of the appeal procedure and format, offered him copies of the audio tapes from his hearing before the Hearing Board, and gave him the name and phone number of the Chairman of the Appeal Board, Dr. Charles Janus. Haley attempted to get the hearing postponed so that he could get a written transcript of his Hearing Board proceedings, but his request was denied. He then waived his right to present his case orally and requested that he be permitted to submit his position in writing by May 15. It appears that this request was ignored, for the hearing, at which Haley failed to appear, proceeded on May 10. On May 12 the Appeal Board recommended to Dr. Eugene Trani, President of VCU, that he affirm the Hearing Board's decision.
On May 9, Haley contacted Dr. Trani, asking him not to make any final decision until he had an opportunity to submit his position in writing and asking for a meeting between Dr. Trani, Haley, and Haley's attorney. Dr. Trani seems to have ignored the request for a meeting, but he had reviewed Haley's documentation when, on May 30, he accepted the recommendation of the University Appeal Board and affirmed the finding of Haley's guilt and affirmed his punishment.
Haley does not dispute that the chronology of events was as described above. However, he contends that various aspects of VCU's set written procedures, and of his actual proceedings, were discriminatory, flawed, and unfair.
Haley makes two complaints about VCU's written policies. The first is that VCU's sexual harassment guide for faculty, staff, and students includes a statement that "the preponderance of sexual harassment complaints are valid." The statement goes on to say that students may charge faculty members, or employees may charge supervisors, with meritless accusations of harassment, but it does not specify that students might make spurious allegations against one another. Haley claims that these statements show that VCU presumes the validity of all sexual harassment complaints except perhaps where they are filed by students or employees against faculty members or supervisors. According to Haley, these statements show that VCU is unaware of or at least does not care about the possibility of spurious claims by students against one another.
Haley's second complaint about VCU's written policies involves the examples of sexual harassment included in the same sexual harassment guide for faculty, staff, and students. Four of the six examples involve male harassers and female victims. One of the others involves a woman harassing a man, and the final example involves two homosexual men. Haley argues from these examples that VCU has a bias in favor of women's complaints against men, and that its policy of presuming the validity of sexual harassment complaints between students has a much more detrimental impact on men than it does on women.
Haley makes the following complaints about the way Doe's complaint against him was handled:
*577 (1) That two authors of the policy statements complained of above were involved in the investigation of his claim.
(2) That the Hearing Board's finding of guilt was based entirely on three incidents acknowledged by him in his affidavit, and not on any testimony from Doe or any other witnesses, a point Haley views as important because he further contends that Doe's affidavits and live testimony were contradictory and thus unreliable.
(3) That the first of these three cited instances occurred in the spring of 1992, and was thus time-barred due to VCU's two-year statute of limitations on bringing complaints of sexual harassment (Doe did not bring charges against Haley until July, 1994).
(4) That none of the three cited instances occurred within ten months of one another, making them too isolated and nonpervasive to constitute sexual harassment, a point Haley alleges is particularly strong if the time-barred incident is dropped from the picture.
(5) That Haley's lawyer was not allowed to speak at his hearing, while Doe's lawyer was allowed to do so repeatedly.
(6) That Dean Clifton, who was supposed to be a neutral administrator, argued vociferously on Doe's behalf before the Hearing Board and made unfounded and prejudicial allegations concerning Haley's cooperativeness.
(7) That Haley was effectively denied his right to counsel before the Appeal Board a right he argues he was guaranteed due to the Board's arbitrary refusal to grant the continuance he sought.
Analysis
VCU's Motion to Dismiss:
Haley sets forth the proper jurisdictional basis for his Title IX claim. He also sets forth sufficient facts in his complaint to state a claim under 20 U.S.C. § 1681. Further, there is no reason to believe that VCU is not a proper defendant to a Title IX action. Thus, this claim survives VCU's motion to dismiss. See Yusuf v. Vassar College, 35 F.3d 709 (2nd Cir.1994) (ruling, on facts very similar to those in the case at bar, that it was error for the District Court to grant the defendant's motion to dismiss the plaintiff's Title IX claim for allegedly discriminatory university disciplinary proceedings).
Haley's complaint purports to bring state law claims under the Court's pendent jurisdiction. However, the Eleventh Amendment precludes any suit which seeks relief against a sovereign state in federal court unless Congress or the state has waived the state's immunity from such suit. Seminole Tribe of Florida v. Florida, ___ U.S. ___, ___ - ___, 116 S.Ct. 1114, 1122-23, 134 L.Ed.2d 252, 265-66 (1996). It does not matter whether the plaintiff is a citizen of the same state or a different one, or whether the relief sought is monetary or injunctive. Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 100-102, 104 S.Ct. 900, 907-909, 79 L.Ed.2d 67 (1984). Suing VCU is the functional and legal equivalent of suing the Commonwealth of Virginia, and the school thus shares the state's Eleventh Amendment immunity absent a waiver. See, e.g., Huang v. Board of Governors of the University of North Carolina, 902 F.2d 1134, 1138 (4th Cir.1990). Neither Congress, nor VCU, nor the Commonwealth of Virginia has waived this immunity as regards Haley's state law claims. See Id. (requiring "the most express language or [] overwhelming implication" to find a waiver). Therefore, VCU's motion to dismiss must be granted as to the state law claims. Even were the Court able to hear these state law claims, it would decline to exercise its supplemental jurisdiction to hear them because, as is discussed below, all of Haley's federal claims are being dismissed with prejudice. See 28 U.S.C. § 1367(c)(3).
The rest of Haley's complaint is premised upon violations of the equal protection and due process clauses of the Fourteenth Amendment. He cites no jurisdictional basis for these claims other than 28 U.S.C. § 1331, but it is presumed that the basis is 42 U.S.C. § 1983. The United States Supreme Court has stated unequivocally that a state cannot be sued under § 1983, the reason *578 being that § 1983 does not constitute a waiver of the state's Eleventh Amendment immunity. Will v. Michigan Department of State Police, 491 U.S. 58, 66, 109 S.Ct. 2304, 2309, 105 L.Ed.2d 45 (1989); Quern v. Jordan, 440 U.S. 332, 341, 99 S.Ct. 1139, 1145, 59 L.Ed.2d 358 (1979). Because, as noted above, suing VCU is the functional and legal equivalent of suing the state, VCU's motion to dismiss must also be granted as to Haley's claim for alleged Fourteenth Amendment violations.
VCU's motion to dismiss having been considered and ruled upon, Haley is left only with his claim for relief under Title IX.
VCU's Motion for Summary Judgment:
Summary judgment shall be granted where "there is no genuine issue as to any material fact" and "the moving party is entitled to judgment as a matter of law." Fed. R.Civ.Proc. 56(c). Accordingly, summary judgment is appropriate against a party who, after adequate time for discovery, "fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). In opposing a properly supported motion for summary judgment, a plaintiff cannot merely rely on the allegations and denials in his pleadings. Rather, he must set forth specific facts showing that there are genuine issues for trial by presenting affirmative evidence from which a jury might return a verdict in his favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256-57, 106 S.Ct. 2505, 2514-15, 91 L.Ed.2d 202 (1986). This must be done as to every element of the plaintiff's claim. Celotex, 477 U.S. at 322-23, 106 S.Ct. at 2552-53.
As stated above, Haley's complaint properly sets forth a claim for relief under Title IX. However, the pleadings, affidavits, transcripts, and other evidence now before the Court show that there is no genuine issue of material fact as to Haley's Title IX claim and that VCU is therefore entitled to judgment as a matter of law.
Because Title IX, which prohibits sex discrimination in education, was enacted to supplement the Civil Rights Act of 1964, courts have interpreted it by looking to the case law developed under Titles VI and VII. See Yusuf v. Vassar College, 35 F.3d 709, 714 (2nd Cir.1994). Litigation under the Age Discrimination in Employment Act is instructive as well. The substantive elements of a federal discrimination claim are (1) that the plaintiff is a member of a protected class, (2) that the plaintiff suffered an unfavorable action, and (3) that but for the plaintiff's membership in the protected class, the adverse action would not have been made. Lovelace v. Sherwin-Williams Co., 681 F.2d 230, 238 (4th Cir.1982). This third element requires proof of discriminatory intent. Id.; International Brotherhood of Teamsters v. United States, 431 U.S. 324, 335 n. 15, 97 S.Ct. 1843, 1854 n. 15, 52 L.Ed.2d 396 (1977). Because of this requirement, it is not sufficient for Haley to prevail on his Title IX claim for him to prove that the finding of his guilt or his allegedly severe punishment resulted from procedurally or otherwise flawed proceedings. Rather, he must show a causal connection between the allegedly flawed outcome and the alleged gender bias. Yusuf, 35 F.3d at 715.
In discrimination cases, it is commonly the situation that the plaintiff cannot adduce direct evidence of discriminatory motive. Haley finds himself in this situation, for he has failed to produce any direct evidence of gender bias. The closest he can come is his citation to that part of the VCU Rules and Procedures that gives four examples of males harassing females and only one of a woman harassing a man (and a sixth example involving one homosexual man harassing another). Even if this citation evidenced a gender bias, it is insufficient evidence standing alone to support Haley's allegations. A plaintiff must be able to adduce substantial evidence to support his contentions; a mere iota of evidence, followed by conclusory allegations of discriminatory intent, will not suffice. See Charles A. Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure, Civil 2d, § 2727, ns. 42-44 and accompanying text (1983); see also O'Connor v. Consolidated Coin Caterers Corp., 56 F.3d 542, 548-49 *579 (4th Cir.1995) (isolated statements about age insufficient evidence for ADA claim to survive motion for summary judgment).
Haley might suggest that two other allegations could be construed as evidencing a gender bias: that Does' attorney was allowed to speak while Haley's was not, and that Dean Clifton appeared biased against him throughout the proceedings. However, these allegations at best reflect a bias against people accused of sexual harassment and in favor of victims and indicate nothing about gender discrimination. Comparing Haley's attorney to Doe's attorney is like comparing apples and oranges, for Haley and Doe were not similarly situated at the proceedings. In addition, Doe's attorney's "participation" in the proceedings was so minimal as to be practically irrelevant, and it went largely unobjected to by Haley or his counsel.[1] That Doe's attorney was favored over Haley's attorney is thus a frivolous claim. Haley's claim regarding Dean Clifton is simply another version of his claim that VCU presumes that sexual harassment claims are valid and by no means reflects a gender bias. In fact, from his complaints about the examples of sexual harassment in the VCU sexual harassment guide, it appears to be Haley's contention that an equal amount of sexual harassment is directed from women to men, which would make a bias against accused students absolutely gender-neutral even under Haley's theory of the case. That Haley has a fundamental misunderstanding of what it takes to prove a discrimination claim is evident from his own pleadings: he states in his brief responding to defendant's motion for summary judgment, and supporting his cross-motion for summary judgment, that a "presumption that the preponderance of sexual harassment charges are valid ... is gender discriminatory even if the victim were male and the harasser were female, and even in the cases of homosexuals." Plaintiff's brief at 15. The mere fact that sexual harassment proceedings have as their subject sexual behavior and speech does not itself implicate sex discrimination, even if a University does have a practice of railroading accused students. At any rate, the VCU Rules and Procedures do not suggest that Dean Clifton was supposed to take a neutral role in the proceedings as Haley would have us believe. While the Rules and Procedures do state that the administrator's role at the informal complaint stage is that of a "neutral mediator to resolve the complaint," they prescribe nothing about neutrality at the formal complaint stage. Because the hearing board acts as a neutral party to resolve the complaint, there is no reason to believe that Dean Clifton was required to be neutral. To the contrary, it appears from the record that it may have actually been Dean Clifton's role in the proceedings before the Hearing Board to help present evidence against Mr. Haley, given that there was no formal prosecutor.
In discrimination cases analogous to Haley's, where there is no direct proof of an illegal bias, the plaintiff can still survive a properly instituted motion for summary judgment by taking advantage of the McDonnell scheme of burdens and rebuttable presumptions. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). In McDonnell, the plaintiff set out to prove racially discriminatory hiring practices, but had no direct evidence of discrimination. The Supreme Court stated that he could still survive a motion for summary judgment by showing that (i) he belonged to the racial minority; (ii) he applied and was qualified for an open job position; (iii) he was rejected; and (iv) the employer continued to seek applications from similarly qualified individuals. Such a showing was deemed to create a rebuttable presumption of discrimination, and the burden *580 then shifted to the employer to advance a non-discriminatory reason for rejecting the plaintiff. If the employer could do so, the presumption reverted to one of non-discrimination, and the burden shifted back to the plaintiff to show that the reason advanced was pretextual. Id. at 802-804, 93 S.Ct. at 1824-1825. The evidence used at this stage of the analysis could include the same evidence that was advanced by the plaintiff to initially shift the burden of production to the defendant, but this stage called for a higher level of specificity. Lovelace, 681 F.2d at 239-240.
Where the alleged discrimination is not in hiring, but is in some other form of employer or educational action, Courts out of necessity must alter the exact terms of the McDonnell test. Moore v. City of Charlotte, NC, 754 F.2d 1100, 1105 (4th Cir.1985). However, the basic requirement remains the same: the plaintiff, in order to create a presumption of illegal discrimination and shift the burden to the defendant, must show that he has been treated differently from similarly situated people outside of the protected class.[2] Hence, in Lovelace, 681 F.2d at 239, McDonnell was adapted such that an ADEA plaintiff alleging discriminatory discharge could shift the initial burden by showing that he was performing at a level that met employer's legitimate expectations and that the employer sought someone else to do the same work. Similarly, in Moore, the burden-shifting scheme was adapted such that a plaintiff alleging race discrimination in the enforcement of employee disciplinary measures could create the presumption of discriminatory intent through a showing that the prohibited conduct he engaged in was similar to that engaged in by employees outside of the protected class and that he received more severe disciplinary measures than those others. 754 F.2d at 1105-06; see also Cook v. CSX Transport Corp., 988 F.2d 507, 511 (4th Cir.1993) (using same adaptation as Moore); Evans v. Technologies Applications & Service Co., 80 F.3d 954, 960 (4th Cir.1996) (adapting McDonnell to claim of discrimination in promoting employees).
In the case at bar, there are two ways to frame Haley's allegations, but neither suffices under the McDonnell scheme as adapted in analogous cases. First, Haley can be viewed as alleging that it was discriminatory to separate him from the school. Such a case would fall into the Lovelace framework. When the claim is looked at in this manner, it fails for two reasons. First, because he was found to have harassed Jane Doe, Haley cannot show that he was performing at a level that met his employer's or his educational institution's legitimate expectations, and he thus cannot shift the burden to VCU to adduce a non-discriminatory reason for his separation from the university. Second, even if he could shift the burden, VCU has advanced a legitimate and non-discriminatory reason for suspending Haley: that he was sexually harassing Doe. This would shift the burden back to Haley, who has adduced no evidence whatsoever that this non-discriminatory rationale is pretextual. While, as noted above, the plaintiff need not present new evidence at this stage of the analysis, the evidence presented by Haley does not meet the heightened level of specificity called for by Lovelace.
The second way to view Haley's claim is as alleging that he was sexually discriminated against in the way the disciplinary proceedings were held. Under this view, the case falls into the Moore and Cook adaptations of McDonnell, and Haley's initial burden becomes one of showing that female students accused of similar conduct were treated more favorably. Haley adduces no such evidence. All of his evidence pertains to his own proceedings, and there are no comparisons to accounts of other accused students, nor are there even naked allegations that similarly situated women are or even men would be treated differently. This could possibly be excused by data showing that women rarely, if ever, are accused of sexual harassment, *581 coupled perhaps with evidence that women accused of other VCU rules violations are treated differently than men are, but Haley makes no such contentions. Haley presents absolutely no evidence about how other students are treated in their proceedings before VCU's Hearing and Appeal Boards. Therefore, Haley cannot shift the burden to VCU to advance non-discriminatory reasons for its conduct under the Moore and Cook formula.
Because Haley cannot set forth a prima facie case of sexual discrimination, or in the alternative, if he can, he does not show the non-discriminatory reasons VCU advances for its conduct to be pretextual, his Title IX discrimination claim must be dismissed on VCU's motion for summary judgment.
Even if Haley stated a claim for relief for alleged violations of the Fourteenth Amendment for instance, if he has properly stated a claim for injunctive relief the Court would grant VCU's motion for summary judgment on this issue as well. Any claim of an equal protection violation based on Haley's status as a male would necessarily fail for the same reasons Haley's Title IX claim fails: he has utterly failed to evidence any gender-based action. Because there is no suspect class other than gender in which Haley claims membership, and because VCU's actions in separating him from the school have an easily conceivable basis in fact, there are no other grounds for an equal protection challenge. Any claim of a due process violation would fail because Haley received all the process he was due, as is further explained below.
Haley's allegations of impropriety which might support a procedural due process claim are that the authors of a supposedly discriminatory policy statement were involved in his investigation; that he was found guilty based on scant evidence, some of which was time-barred under VCU's own Rules and Procedures; that he was hindered in the use of his attorney; and that Dean Clifton did not act in a neutral manner.[3]
The seminal case discussing the process due a student subject to discipline by a public school is Goss v. Lopez, 419 U.S. 565, 95 S.Ct. 729, 42 L.Ed.2d 725 (1975).[4]Goss states that the precise procedure due in any given situation varies with the circumstances, and that it can even vary within the context of school discipline depending on the severity of the discipline being ordered. Id. at 578, 583, 95 S.Ct. at 738, 740. For instance, the ruling in Goss as to the procedure due in that case is specifically limited to where the discipline at issue is a short suspension. Goss is still instructive in the instant case, however, in that it states the bottom line for school discipline cases involving possible suspension or dismissal: that the accused student is entitled to notice and a hearing. Id. at 578, 95 S.Ct. at 738. Goss also points out two primary inquiries that can be applied across the board: one is whether the administration's action was arbitrary, and another is whether the alleged procedural defects impinged upon the accuracy of the findings made by the school administration, though it is acknowledged that even indubitably accurate findings do not justify a severe deprivation of due process. Id. at 581, 95 S.Ct. at 739. The bottom line of Goss, however, is that a student subject to discipline must be afforded prior notice and a hearing.
Because Goss involved a short-term suspension, it is not particularly helpful as to the sort of hearing to which an accused student in Haley's position is entitled. However, the *582 Court of Appeals for the Fourth Circuit explored the application of Goss to a factual scenario very similar to Haley's in Henson v. Honor Committee of U. Va., 719 F.2d 69 (1983). In Henson, the plaintiff charged that his disciplinary expulsion proceedings before the University of Virginia Honor Committee were constitutionally infirm in that he was denied representation by an attorney and in that the traditional rules of evidence were not followed. In granting summary judgment for the defendants, the Fourth Circuit noted that the Supreme Court had "made it plain that `the judicial model of an evidentiary hearing is neither a required, nor even the most effective, method of decisionmaking in all circumstances. The essence of due process is the requirement that `a person in jeopardy of serious loss be given notice of the case against him and an opportunity to meet it.''" Id. at 73-74 (citing Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976)). The Court then cited Goss for the proposition that trial-like proceedings are not required by the Constitution in this setting. Id. The procedures afforded the plaintiff in Henson were adequate because (1) Henson had notice of the charges against him; (2) he had the opportunity to be heard before a disinterested tribunal; (3) he was confronted by his accusers; (4) he had a right of appeal; and (5) he was given the benefit of student "lawyers" and was able to consult with his personally retained attorney, though the attorney was not allowed to participate in the proceedings as an advocate. Id.
The procedure afforded Haley in his proceedings at VCU was similar to that afforded the plaintiff in Henson in nearly every respect, with the exception that Haley was not offered the services of a student "lawyer." This aspect of Henson's trial was not mentioned as dispositive of his case, nor was it deemed constitutionally required. It was simply one aspect of what made the procedure used in his disciplining constitutionally adequate. The Court must conclude that the procedures afforded Haley were adequate as well. Of utmost importance are that Haley had ample notice of his hearing, was confronted by his accusers, was heard before a disinterested tribunal, and had a right to appeal the Hearing Board's decision.
Haley might argue that his case is different in that he alleges that VCU did not adhere to its written procedures, whereas in Henson, it was conceded by the plaintiff that the University of Virginia and its Honor Committee acted in full compliance with their internal methodology. 719 F.2d at 75. However, the variances asserted by Haley either are not truly contrary to written procedure, or are de minimis. That the authors of a supposedly discriminatory policy statement were involved in his investigation is in no way contrary to any part of the VCU Rules and Procedures, nor is the fact that Dean Clifton may not have acted in a neutral manner. Because Haley was afforded a neutral fact-finder (the Hearing Board), these contentions do not implicate due process. While Haley asserts in his brief that he had a right to the assistance of an attorney before the Appeals Board, this right is not spelled out in the Rules and Procedures; further, there is no evidence that Haley was either actually or effectively denied this right. This claim thus also fails to support a due process violation. That Haley was found guilty based on allegedly scant evidence is not a condemnation of the procedure at all; rather, it is a complaint about the substantive fairness of the result of his hearing.
This leaves the only true possible variance between VCU's written Rules and Procedures and the procedures used during Haley's dismissal: the consideration of an incident barred by VCU's own two-year statute of limitations. This incident was brought up before the Hearing Board, and it was mentioned in the letter to Haley informing him of the Hearing Board's decision. Given that this is the sole variance from established and constitutionally valid procedure, and that there were other incidents as well as more evidence on which Haley's dismissal was based, it can hardly be said that his proceedings were constitutionally infirm. In addition, Haley's submissions to the Court do not reflect that he ever made an objection as to this matter before appealing the decision of the Hearing Board. Finally, it is far from clear whether the time-barred incident *583 played a role in the determination of Haley's sanction or his finding of guilt. The Hearing Board was not required to give Haley an explanation of its decision, and the opening of the letter referring to the time-barred incident in fact does not give a basis for the decision. Rather, the reference to that incident appears in a portion of the letter suggesting to Haley that he seek counseling about his attitudes toward women. It is at least as reasonable, if not more so, to view that reference as part of an explanation of why VCU was recommending counseling, as it is to view it as an explanation of the finding of guilt or of the actual sanction of separation.
Nothing about Haley's dismissal was arbitrary, capricious, or so shocking to the conscience so as to implicate substantive due process rights. See United States v. Salerno, 481 U.S. 739, 746, 107 S.Ct. 2095, 2101, 95 L.Ed.2d 697 (1987) ("So-called `substantive due process' prevents the government from engaging in conduct that `shocks the conscience.'") It is not the role of a federal court to reexamine the factual determinations made by school administrative bodies where those decisions are supported by such ample evidence as exists here.
Conclusion
Because VCU is an arm of the Commonwealth of Virginia, it is not liable for Mr. Haley's claims of alleged Fourteenth Amendment violations. Even if it were, his Fourteenth Amendment claims would fail for lack of a supporting basis in fact, in evidence, and in theory. Again because VCU is an arm of the Commonwealth, it is not liable to Mr. Haley for alleged violations of state law. Even if it were, the Court would decline to exercise its supplemental jurisdiction over them pursuant to 28 U.S.C. § 1367(c)(3). While Haley can bring a Title IX suit against the University, the record establishes that there is no direct or indirect evidence or discriminatory intent, nor is there sufficient evidence to establish a presumption of such intent under the McDonnell framework and its various adaptations. As such, the Court grants VCU's motion to dismiss and/or for summary judgment and dismisses Haley's complaint with prejudice.
NOTES
[1] Statements by Doe's counsel appear at pages 46, 57, 99, 100, and 125-126 of the transcript of Haley's administrative hearing. The first instance was simply her informing the panel that neither she nor her client had received Haley's evidence in advance of his hearing; the second related to some people "milling around" the hearing room; the third was an objection to Haley's counsel standing behind Ms. Doe; the fourth and fifth related to her having attempted to tape-record the hearing; and the final episode involved a squabble in which both attorneys participated before Chairman Epps took the proceedings off the record. Given these incontestible facts, and given that Doe's attorney made no arguments before the panel and examined no witnesses, she could hardly be said to have participated in Haley's hearing any more than Haley's own attorney did.
[2] In age discrimination cases, it is not always required that the favored person be outside of the protected class. It is sometimes sufficient that the favored person be a younger person within the statutorily defined class. O'Connor v. Consolidated Coin Caterers Corp., ___ U.S. ___, 116 S.Ct. 1307, 134 L.Ed.2d 433 (1996). However, there is no relevant analogy in gender discrimination cases, so the favored person must be outside of the class.
[3] Haley's briefs supporting his motion for summary judgment and opposing VCU's for the most part simply argue the facts as Haley sees them and attempt to support these facts in accompanying exhibits. They do not set forth which facts are offered in support of which theories of recovery, nor do they cite much authority as to why the facts might support any of his various claims. Indeed, Haley's briefs are practically devoid of legal analysis. One exception is the use of Yusuf but that case arose out of a 12(b)(6) motion to dismiss, not a motion for summary judgment under Rule 56.
[4] There is a difference in the procedure due for dismissal or suspension for academic reasons and that due where it is for disciplinary reasons. See Board of Curators of the University of Missouri v. Horowitz, 435 U.S. 78, 86, 98 S.Ct. 948, 953, 55 L.Ed.2d 124 (1978). In the instant case, VCU must be held to the more stringent standard applied to disciplinary dismissals, for which Goss is the seminal case.
| {
"pile_set_name": "FreeLaw"
} |
130 So.2d 35 (1961)
Hazel Curlee JOHNSON
v.
L. L. HARRISON et al.
7 Div. 452.
Supreme Court of Alabama.
March 2, 1961.
Rehearing Denied May 25, 1961.
*36 Knox, Jones, Woolf & Merrill, Anniston, for appellant.
Chas. Thomason, Anniston, for appellees.
LIVINGSTON, Chief Justice.
This is an appeal from a decree of the Circuit Court of Calhoun County, in Equity, in a suit brought by the heirs at law of H. F. Harrison, deceased, against Hazel Curlee Johnson, the niece of the deceased, to set aside a deed executed by Harrison during his lifetime to Mrs. Johnson, the appellant.
The complaint as last amended sought cancellation of the deed on four grounds: (1) mental incapacity of the grantor, (2) undue influence on the part of the grantee in the deed, (3) lack of delivery of the deed during the life of the grantor, and (4) forgery.
The lower court found that the deed was executed by the grantor named therein, that there was no undue influence exercised over him and that he was mentally capable of executing the deed, but that there had been no delivery in the lifetime of the grantor named in the deed and therefore it was ineffectual to pass title.
The deed sought to be cancelled was entered into on March 26, 1954, by and between H. F. Harrison, party of the first part, and Hazel Curlee Johnson, party of the second part, and was in words and figures as follows:
"The State of Alabama
"Calhoun County
"This Indenture, made and entered into on this 26th day of March, 1954, by and between H. F. Harrison, party of the first part, and Hazel Curlee Johnson, party of the second part:
"Witnesseth: That, for and in Consideration of the sum of One Thousand and no/100 Dollars, to the partof the first part in hand paid by the partof the second part, the receipt whereof is hereby acknowledged, the partof the first part hagranted, bargained and sold, and doby these presents grant, bargain, sell and convey unto the partof the second part, the following described real property, to-wit:
"Lot No. Sixteen (16) in Block `C' fronting Sixty (60) feet on the West Side of Leighton Avenue and running back of equal width One Hundred Sixty (160) feet to an alley, as shown by the map of Corning Highlands, duly recorded in the Probate Office of Calhoun County, Alabama, situated in Anniston, Calhoun County, Alabama. This her home her life time and after he death her daughters will become *37 owner of same Daughters Margarette Johnson and Stephenie Johnson.
"To Have and to Hold, together with all and singular the rights, tenements, hereditaments, and appurtenances thereunto belonging or in anywise appertaining, unto the party of the second part, her heirs and assigns, in fee simple.
"And the party of the first pard does hereby covenant with the party of the second part that she is lawfully seized in fee of the said premises, that she had a good right to sell and convey the same; that said premises are free from incumbrance; and that he will warrant, and will forever defend the title to said premises against the lawful claims and demands of all persons whomsoever.
"In Witness Whereof, the party of the first part has hereto set his hand and seal, on this, the day and year herein first above written.
"(Signed) H. F. Harrison (L.S.)"
Appellant, in assigning errors, presents two questions: (1) that the minor children of Hazel Curlee Johnson, Margarette and Stephenie Johnson, are not made parties to the suit, and that they as remaindermen of the suit property are indispensable parties; (2) that the evidence is sufficient to show effectual delivery of the deed during the lifetime of the grantor and that the court erred in its finding as a matter of law from the testimony in this cause that there was no delivery of the deed during the lifetime of H. F. Harrison (grantor).
The deed was found in a tin box which was still in the possession of the grantor at the time he took his life. After his death, the brother of Mrs. Johnson, Hoyt Curlee, got the box and opened it and the deed was taken from the box. Hoyt Curlee said in the presence of the grantee (Mrs. Curlee Johnson):
"Hazel, we have something in this box that concerns you."
Hazel looked surprised and her mother said that she was surprised.
Hoyt Curlee testified that some time before Mr. Harrison (grantor) died, he showed the deed here involved to him (Hoyt Curlee) and told him to take the deed, and that he (Hoyt Curlee) told the grantor that he had no place to keep it. Curlee testified that he told Mr. Harrison:
"I told him to keep them for me, when I did get a safe place to keep them I would come and get them."
This transaction between the deceased grantor and Hoyt Curlee took place some two months before the grantor died.
The appellant has correctly stated the law as to who are indispensable parties, but it is not applicable to this case upon proper construction of the deed involved.
All conveyances of land are construed as fees unless expressly limited. Title 47, § 14, Code of 1940. In construction of deed, intent of parties will be sought in entire instrument. Stratford v. Lattimer, 255 Ala. 201, 50 So.2d 420; Reynolds v. Reynolds, 208 Ala. 674, 95 So. 180; Hardee v. Hardee, 265 Ala. 669, 93 So.2d 127, and cases therein cited.
Another rule of construction of deeds is that when subsequent words are of doubtful import, they cannot be construed as to contradict the preceding words which are certain. Petty v. Boothe, 19 Ala. 633; McCombs v. Stephenson, 154 Ala. 109, 44 So. 867; Head v. Hunnicutt, 172 Ala. 48, 55 So. 161; Hardee v. Hardee, supra.
Also, the granting clause in deed determines interest conveyed and when not obscure or ambiguous it prevails over introductory statements or recitals. Henry v. White, 257 Ala. 549, 60 So.2d 149; Wright v. Smith, 257 Ala. 665, 60 So.2d 688; Green v. Jones, 257 Ala. 683, 60 So.2d 857; Hardee v. Hardee, supra.
*38 In other words, the presumption is, and all doubts are resolved in favor of a fee simple estate. The intention to create a lesser estate than a fee must clearly appear, for the courts will not construe the grantor's words as conveying a lesser estate if a different meaning can fairly be given to them.
Looking at the deed as a whole, the first sentence shows a grant to one grantee. True, there were no words of inheritance following, therefore, we look to the next words following description. This sentence contains an unintelligible and a non-sensical phrase "her daughters will become owner of same Daughters Margarette Johnson and Stephenie Johnson."
With such phrasing, the sentence is not clear or certain, it is obscure and of doubtful import. It requires editing, punctuating, and adding to the sentence.
The next part of the deed clearly states "her heirs and assigns, in fee simple." The next sentence states "she is lawfully seized in fee of the said premises, that she had a good right to sell and convey the same."
The deed imports a fee simple title in all its clauses but one, which is of doubtful import. These facts, plus the presumption that every estate in lands is to be taken as a fee unless clear and expressed terms are shown to the contrary, leads to the conclusion that the grantee, Hazel Curlee Johnson, received a fee simple title; therefore, there is no interest conveyed to her daughters, Margarette and Stephenie Johnson, whom appellant claims are indispensable parties and have an interest in suit. Consequently, there was no failure on the part of complainants to join indispensable parties.
The second argument for reversal advanced by appellant is that the trial court in his decree held that the testimony, as a matter of law, was insufficient to show a delivery of the deed during the lifetime of the grantor.
Whether the judge in his decree held that there was no delivery as a matter of law or as a matter of fact is not clear, and the decree is ambiguous in this respect. The decree, in pertinent part, reads as follows:
"And upon a consideration thereof, the court makes a finding of fact, as follows:
"1. The deed in question in this cause was found among H. F. Harrison's papers after his death. This being so, the burden was upon the respondent to show delivery of said deed by clear and convincing evidence.
"There two houses on the property involved in this case, one of them being rented and the other being occupied as the home of H. F. Harrison. There was no change of possession as to this property, so far as the evidence showed. H. F. Harrison continued to live on the property until his death and there was a complete absence of proof as to who collected the rent on the other house after the time of the alleged delivery of the deed. There was testimony showing that at the time of the opening of the box, which contained the papers of H. F. Harrison, that the respondent, Hazel Curlee Harrison, made the statement, when the deed to her was found, that she was as much surprised as anyone else about the deed. All of these things being considered, and assuming without passing on the truthfulness of the testimony of Hoyt Curlee, as to an alleged delivery of the deed in question to him, the court is not convinced that there was a delivery of the deed during the lifetime of H. F. Harrison.
"2. The deed in question was executed by H. F. Harrison, who was of sound mind at the time, and said deed was not the result of any undue influence exerted on him by the respondent, or anyone else. * * *"
*39 In order to rule on appellant's assignment of error we must first ascertain what the judge meant in his decree. Decrees are to be construed like any other written instrument and it is proper to look to the record and pleadings in order to interpret said decree. Schwab v. Schwab, 255 Ala. 218, 50 So.2d 435; Taunton v. Dobbs, 240 Ala. 287, 199 So. 9; Murray v. Service Transport Co., 254 Ala. 683, 49 So.2d 221; Doss v. Wadsworth Red Ash Coal Co., 185 Ala. 597, 64 So. 341; Griffin v. Proctor, 244 Ala. 537, 14 So.2d 116. While these cases do not deal with the exact facts and recitals, the propositions of law in them have application here.
The portion of the decree which appellant claims states there was no delivery as a matter of law is as follows:
"* * * and assuming without passing on the truthfulness of the testimony of Hoyt Curlee, as to an alleged delivery of the deed in question to him, * * *"
This phrase standing alone would tend to import that the court decreed no delivery as a matter of law, but looking at the record and decree as a whole, we think the court decreed no delivery as a matter of fact. The portion of the decree that appellant relies on comes under the heading of "Finding of facts." Also, the court stated "the court is not convinced," which imports that the facts or testimony given were not enough in his mind, sitting as trier of facts, to convince him that grantor intended to divest himself of title, the question of delivery being one of fact and based on the intention of the grantor. Alford v. Henderson, 237 Ala. 27, 185 So. 368; Dawson v. J. A. Lindsey & Co., 223 Ala. 169, 134 So. 662; Hinson v. Byrd, 259 Ala. 459, 66 So.2d 736.
Our construction leads us to the conclusion that the trial court intended to say that even if Hoyt Curlee's testimony is true, he is not convinced that this manifested an intent on grantor's part to divest himself of the title to said property, this being a question of fact and not of law.
Such finding of the Chancellor of the lower court, in our opinion, not being plainly erroneous or palpably wrong, we will not disturb such a finding. Trans-America Ins. Co. v. Wilson, 262 Ala. 532, 80 So.2d 253; Lamar v. Lamar, 263 Ala. 391, 82 So.2d 558; Adams Supply Co. v. United States Fidelity & Guaranty Co., 269 Ala. 171, 111 So.2d 906; Hagan v. Crowley, 265 Ala. 291, 90 So.2d 760.
Having considered the entire record as it bears on the issues, it is the opinion of this court that the decree of the Court of Equity granting relief to complainants should be affirmed.
Affirmed.
SIMPSON, GOODWYN and COLEMAN, JJ., concur.
| {
"pile_set_name": "FreeLaw"
} |
ACCEPTED
14-15-00694-CV
FOURTEENTH COURT OF APPEALS
HOUSTON, TEXAS
12/28/2015 10:31:59 AM
CHRISTOPHER PRINE
CLERK
FILED IN
14th COURT OF APPEALS
HOUSTON, TEXAS
12/28/2015 10:31:59 AM
CHRISTOPHER A. PRINE
Clerk
| {
"pile_set_name": "FreeLaw"
} |
450 So.2d 181 (1984)
Julia Ann MITCHELL
v.
STATE.
6 Div. 120.
Court of Criminal Appeals of Alabama.
January 10, 1984.
Rehearing Denied March 20, 1984.
Certiorari Denied May 25, 1984.
*182 Orson L. Johnson, Birmingham, for appellant.
Charles A. Graddick, Atty. Gen., and Fred F. Bell, Asst. Atty. Gen., for appellee.
Alabama Supreme Court 83-692.
HARRIS, Judge.
The Jefferson County Grand Jury, in its October, 1982 session, indicted appellant, *183 Julia Ann Mitchell, for the murder of Clarence Quarels. On February 1, 1983, she was found guilty as charged, and on February 11, 1983, she was sentenced to twenty years in the state penitentiary.
At trial, in preliminary testimony, David Hubbard stated that he had known Clarence Quarels for twenty years, that they worked together, had lived together for a year and that they were good friends. He testified that he had known Ms. Mitchell all of his life, that she and Quarels were going together, and that she stayed overnight at Quarels' house about three nights a week. He characterized their relationship as that of boyfriend and girlfriend.
Hubbard next recounted events which concluded in the death of Quarels on July 17, 1982. He testified that at 4:30 a.m., on the morning in question, he was awakened by Ms. Mitchell and Mr. Quarels arguing in the street. She was hollering and Quarels tried to get her to come inside. When she refused to come in, he locked the front screen door and went back into the kitchen. Hubbard, who remained in the front room, saw Ms. Mitchell cut the screen, let herself in and go into the bedroom. Later, while Hubbard and Quarels were talking in the front room, she rushed out of the bedroom and said, "I'm going to kill you," and began hitting Quarels in the chest with a knife. Hubbard grabbed her, seizing the weapon, and Quarels collapsed on the floor. Ms. Mitchell stood over him and said, "Oh, I done killed Mr. Clarence," upon which she ran out of the house. In answer to Hubbard's call, both the paramedics and the Birmingham Police Department sent personnel to the scene, where they found Quarels' body.
Mr. Quarels and Ms. Mitchell had been drinking and Hubbard had seen them together the previous night at a party. He testified that they argued often, and that it was his opinion that they were both drunk when they came in that morning.
Detective Ann Ballard, of the Birmingham Police Department, testified that on July 17, at about 8:10 or 8:15 a.m., after advising Ms. Mitchell of her rights, she took a tape recorded statement from her.
In her statement, Ms. Mitchell said that she and Mr. Quarels always argued and that on the morning in question she and Quarels had been drinking and arguing. She got a sharp knife from the kitchen, and, planning to cut him on the arm to "shut him up for a while," she hit him with a knife. She stated that she had not realized she cut him till after Hubbard stopped her and took the knife away. When she realized that Mr. Quarels was injured she ran to a neighbor's house where she remained until the police came for her.
Testimony revealed that Ms. Mitchell had been without sleep for some twenty-three or twenty-four hours and that she had been drinking the night before and that she was upset at the time of making the statement. It was also shown that she was properly advised of her rights, and there was no evidence indicating that she was mistreated in any way, or that any promise of any kind was made to her to induce her to make a statement.
Appellant raises six issues for consideration on appeal. The first issue raised is whether it was error for the court to permit the State to use its peremptory challenges to exclude all black females from the jury. (Apparently, there was a black male on the jury.) At the hearing on appellant's motion for new trial, appellant's counsel asserted that the district attorney in the case had, in violation of appellant's constitutional rights, systematically excluded Black females from the jury.
This issue has been addressed many times and it is clear that it is not error for a prosecuting attorney to strike a jury on the basis of race. Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965); Robinson v. State, 428 So.2d 167 (Ala.Cr. App.1982); Carpenter v. State, 404 So.2d 89 (Ala.Cr.App.1980), cert. denied, 404 So.2d 100 (Ala.1981); and cases cited therein.
In an extensive discussion of the history and purposes of the peremptory challenge *184 in jury selection, this court, in Allen v. State, 414 So.2d 163, 168 (Ala.Cr.App.1982), held that "[n]o appellate court should attempt to second guess the prosecution's use of its peremptory challenges."
In Swain v. Alabama, supra, the Supreme Court recognized the possibility that constitutional rights may be violated by a State's deliberate and continued exclusion of Blacks from juries through the use of peremptory challenges. The court added, however, that a defendant bears a heavy burden when he seeks to show systematic discrimination of constitutionally significant magnitude. There is, in fact, a presumption in any particular case that the district attorney used the State's peremptory challenges to obtain a fair and impartial jury. Swain v. Alabama, supra; Thigpen v. State, 49 Ala.App. 233, 270 So.2d 666 (1972).
Appellant cites State v. Brown, 371 So.2d 751 (La.1979), where the court found that the defense made out a prima facie case, unrebutted by the State, that there had been systematic exclusion of blacks from the particular petit jury and from prior petit juries. The defense in Brown, supra, presented several witnesses who testified to a systematic and continuing practice of such exclusion of Blacks; hence, the case was reversed and remanded for a new trial.
In this case, appellant offered no proof by way of statistics, facts or testimony from any witness that there existed any continued and systematic exclusion of Blacks from petit juries. Inasmuch as appellant proffered mere unsubstantiated allegations, her argument that the State's peremptory challenges were unconstitutional is untenable.
The second issue raised by appellant is whether the trial court erred in denying appellant's motion to suppress her inculpatory statement.
It is a well settled rule of law in Alabama that a statement made subsequent to arrest is prima facie involuntary and inadmissible at trial, and that the State must demonstrate voluntariness and a Miranda predicate in order to get admission of the statement. Thomas v. State, 373 So.2d 1167 (Ala.1979); Eakes v. State, 387 So.2d 855 (Ala.Cr.App.1978); Lewis v. State, 295 Ala. 350, 329 So.2d 599 (1976). The voluntariness of a statement is, however, a question of law to be determined by the trial court upon preliminary proof and that court's decision will not be disturbed on appeal unless it appears contrary to the great weight of evidence, or is manifestly wrong. Balentine v. State, 339 So.2d 1063 (Ala.Cr.App.1976), cert. denied, 339 So.2d 1070 (Ala.1976); Daniels v. State, 53 Ala. App. 666, 303 So.2d 166 (Ala.Cr.App.1974); Stewart v. State, 49 Ala.App. 681, 275 So.2d 360 (1973).
There is ample evidence whereby the court could have determined that appellant's statement was voluntarily given. Thus, the trial court's decision on the issue must be upheld.
The third issue raised is whether the trial court committed error in admission of State's exhibits six and seven, which were photographs of the knife which killed the victim, and of the deceased.
The test for determining admissibility of a photograph is whether it is a true and accurate representation of the subject which it purports to represent, as it existed at the time pertinent to inquiry. Elmore v. State, 414 So.2d 175 (Ala.Cr.App.1982); Osborn v. Brown, 361 So.2d 82 (Ala.1978).
The court in Osborn, supra, held that "... the determination as to the sufficiency of the preliminary proofs offered to identify the photograph or show that it is an accurate representation of the objects which it purports to portray is a matter within the sound discretion of the trial court and will not be reviewable except for gross abuse," at 86. Hurst v. State, 397 So.2d 203 (Ala.Cr.App.) cert. denied, 397 So.2d 208 (Ala.1981); Carpenter v. State, 400 So.2d 427 (Ala.1981); Moon v. Nolen, 294 Ala. 454, 318 So.2d 690 (1975).
*185 Generally, photographs are admissible if they are verified by a person familiar with the subject matter of the photograph and if they are relevant to some disputed or material issue, illustrate or elucidate some other relevant fact or evidence, or corroborate or contradict some other evidence offered. Photographs may also be admitted if they have some tendency to shed light on, strengthen, or illustrate other testimony in the case. Donner v. State, 409 So.2d 461 (Ala.Cr.App.1981).
Testimony of the State's witness established that the photographs correctly depicted the scene at the time they were taken. Both the murder weapon and the victim's body were certainly relevant in this trial. We find no abuse of discretion.
The fourth issue raised by appellant is whether the trial court erred in sentencing her to twenty years in the penitentiary under § 13A-5-6(a)(4) Code of Alabama 1975.
Appellant was convicted of murder, which is a class A felony under § 13A-6-2(c), Code of Alabama 1975. In regard to sentencing in Class A felony convictions, § 13A-5-6 reads in pertinent part:
"(4) For a Class A felony in which a firearm or deadly weapon was used or attempted to be used in the commission of the felony, not less than 20 years."
Appellant argues that this section is not mandatory and should not be applied in her case since there were mitigating factors involved. The factors she specifies as mitigating were: the fact that the incident occurred at four or five o'clock in the morning, the drinking bout which preceded the murder, the fact that there was a "domestic" quarrel, and that the murder weapon was a knife kept in the kitchen, as opposed to being a pistol, firearm or other deadly weapon.
We find the language of the applicable statute clear and its meaning plain. The jury in this case, with all mitigating factors before them, found Ms. Mitchell guilty of murder. The knife used by Ms. Mitchell certainly qualified as a deadly weapon. Thus, sentencing under § 13A-5-6(a)(4) was proper.
The fifth issue appellant raised is whether use of a chart by the trial court in its oral charge to the jury constituted reversible error. There was no objection made at trial to the use of the chart, and hence, no adverse ruling to be reviewed. The correctness of the trial court's oral charge cannot be challenged for the first time on appeal. Jackson v. State, 375 So.2d 558 (Ala.Cr.App.1979); Hafley v. State, 342 So.2d 408 (Ala.Cr.App.), cert. denied, 342 So.2d 412 (Ala.1977); Cox v. State, 280 Ala. 318, 193 So.2d 759 (1967).
Lastly, appellant contends that the prosecutor's closing arguments were prejudicial and thereby denied appellant due process.
The parts of the prosecutor's closing argument which appellant objects to were as follows:
"(1) MR. BOUDREAUX: So, what's the defense in this case? Well, it's what I call a multiple choice defense. Mr. Johnson, he figures well, it can't be alibi because she was caught there at the scene and confessed to it. So, what have we got left? We have got self-defense or insanity.
"MR. JOHNSON: Now, Judge, I'm going to object to this. There is no insanity in this case. And I think this is highly improper.
"THE COURT: He's talking about what lawyers do, I guess, sometimes, in these cases. I might urge you to perhaps get away from this area. But I'm not going to sustain your objection at this time, Pete.
"MR. JOHNSON: We respectfully except.
"MR. BOUDREAUX: When we get all of these defenses that you can elect from, the defense attorney has got to pick one that he thinks the jury will buy.
"MR. JOHNSON: Now, Judge, I object to this. I think this is improper argument.
"THE COURT: Scott, I don't think that you can impute to Mr. Johnson any type *186 of suggestion that he might do something inappropriate or improper to manufacture evidence or fictionalize the defense. So, I will sustain.
"MR. BOUDREAUX: I wasn't trying to imply that, Your Honor. I'm just trying to discuss with the jury the options open in this case
"THE COURT: All right.
"MR. BOUDREAUX: She's a murderer.
"MR. JOHNSON: Judge, I object to that improper argument.
"THE COURT: What crime was committed, if any, ladies and gentlemen, is exclusively your province to determine.
"MR. BOUDREAUX: But when you go home and talk to your friends and neighbors you can tell them that you done your good deed and you cut another one loose.
"MR. JOHNSON: Judge, I object to this improper argument.
"THE COURT: All right. Let's move on."
This court held in Sprinkle v. State, 368 So.2d 554, 561 (Ala.Cr.App.1978), cert. denied, 368 So.2d 565 (Ala.1979): "Trials are adversary in nature and a vigorous prosecution and defense is to be expected. Neither side should be hampered too closely in making its particular presentation." (citations omitted)
In addition, the trial judge in a criminal prosecution has broad discretion in controlling closing arguments. Hurst v. State, 397 So.2d 203 (Ala.Cr.App.), cert. denied, 397 So.2d 208 (Ala.1981); Elston v. State, 56 Ala.App. 299, 321 So.2d 264 (1975); Smith v. City of Birmingham, 36 Ala.App. 72, 52 So.2d 394 (1951). Each case must necessarily be determined on its own peculiar facts, and the trial judge, who is in the best position to determine when closing arguments are prejudicial and what curative measures are called for, is given wide discretion. Hurst, supra; Garrett v. State, 268 Ala. 299, 105 So.2d 541 (1958).
After careful consideration of the record before us, we cannot hold that, as a matter of law, the trial court abused its discretion during the prosecutor's closing arguments.
We have examined each issue raised by appellant, and we have searched the record for errors injuriously affecting the substantial rights of appellant and have found none. The judgment of conviction and sentencing is affirmed.
AFFIRMED.
All the Judges concur.
| {
"pile_set_name": "FreeLaw"
} |
April 28, 1999
The Honorable Elton Bomer Opinion No. JC-0038
Secretary of State of Texas
P.O. Box 12697 Re: Authority of the Secretary of State to adopt
Austin, Texas 7871 l-2697 rules restricting use of state t%nds for voter
registration under chapter 19 of the Election
Code (RQ-524)
Dear Secretary Bomer:
Your predecessor asked whether the Secretruy of State may adopt rules that prohibit the use
of state funds available under chapter 19 of the Election Code to pay for costs associated with the
normal operations of the voter registrar’s office. We believe that the Secretary of State has the
authority to adopt and has appropriately exercised that authority by adopting rules prohibiting use
of chapter 19 funds for the normal operations of the voter registrar’s office.
Chapter 19 of the Election Code provides that each county voter registrar is entitled to
twenty-five cents from state funds for each new registration; forty cents for each canceled and
updated registration; and, in each even-numbered year, forty cents multiplied by the difference
between the number of registered voters and the number of initial registrations certified for the two
previous voting years. TEX. ELEC. CODE. ANN. 5 19.002(a) (Vernon Supp. 1999). After June 1 of
each year, the Comptroller of Public Accounts is to issue to each registrar a warrant in an amount
that does not exceed the amount the registrar is entitled to under the above provisions ifthe registrar
submits a voucher that is approved by the Secretary of State. Id. 5 19.002(b). The Secretary of State
is directed to prescribe the “procedures necessary to implement this subsection [relating to the
issuance of the warrants].” Id. Additionally, the Comptroller of Public Accounts may not issue a
warrant if she receives notice from the Secretary of State that the registrar is not in substantial
compliance with the reporting requirements of the registration service program. Id. 19.002(d).’
‘Section 19.002(d) and section 18.064provide that the ComptmllerofPublic Accountsmaynot issue a warrant
for chapter 19 funds if she is notified by the Secretary of State that the registrar is not in “substantial compliance” with
sections 14.025, 16.032, 18.042, OI 18.063 01 with the rules implementing the registration service program. Section
16.032 requires the registrar to cancel a voter’s registration in certain circumstances; section 18.042 requires filing
before the biannual primary and general elections a statement of the number of registered voters; and section 18.063
requires that the registrar file with the Secretary of State information as to new, changed, and canceled registrations.
Section 14.025, which required tiling biannually information as to renewal voter registration certificates mailed but
retimed to the registrar because the voter was no longer at the mailing address of record, was repealed in 1995. See
Act ofMay 27, 1995,74th Leg., R.S., ch. 797,s 44, 1995 Tex. Gen. Laws4153,4168.
The Honorable Elton Bomer - Page 2 (X-0038)
Section 19.004 provides that “[sltate funds disbursed under this chapter may be used only
to delay expenses of the registrar’s office in connection with voter registration, including additional
expenses related to implementation of the National Voter Registration Act of 1993 (42 U.S.C.
Section 1973gg et seq.).“* Id. $ 19.004. That section also directs the Secretary of State to “specify
the procedures that result in additional expenses and that are required to implement that federal law.”
Id. Significantly, section 19.006 provides that “[tlhe commissioners court may not consider the
availability of state fkds under this chapter in adopting the county budget for the office ofthe voter
registrar.” Id. 5 19.006 (Vernon 1986).
The rules at issue provide in pertinent part that “[clhapter 19 funds may be used to pay for
any item or service designed to increase the number of registered voters in the state, maintain and
report an accurate list of the number of registered voters, and/or increase the effkiency of the voter
registration office[,]” and, conversely, that the funds “may not be used to fund the normal day-to-day
operation of the voter registrar’s office.” 1 TEX. ADMIN. CODE 55 81.13, .14 (West 1998); see also
id. $5 81.12 (county must provide for normal operations and chapter 19 funds shall be expended
exclusively for voter registration items); 81.28 (expenses related to implementation of federal
National Voter Registration Act). The normal day-to-day operation, the rules provide, must be
funded by “the Commissioners Court when adopting the budget for voter registration in their
county.” Id. 5 81.14. “Normal day-to-day operations” means “any duty required to be performed
by counties under the Texas Election Code.” Id. Examples of the statutory duties include without
limitation “the physical acceptance and processing of voter registration certificates and renewals
under Chapter 13 [of the Election Code], notices and corrections made under Chapter 15 and
Chapter 16 and the processing and cost of supplying voters lists under $ 18.001 [of the Election
Code].” Id.
In evaluating the Secretary of State’s authority to promulgate these rules, we consider two
factors: (1) whether the Secretary of State has express or implied authority by statute to adopt such
rules; and (2) whether he has exceeded that authority in adopting the specific rules. See Railroad
Comm’n v. Lone Srur Gns Co., 844 S.W.2d 679, 685 (Tex. 1992) (agency can adopt only rules
authorized by and consistent with its statutory authority).
First, we address the Secretary of State’s authority to adopt administrative rules with respect
to chapter 19 funds. An agency may only adopt rules as authorized by its statutory authority. Lone
Star, 844 S.W.2d at 685. Its authority to promulgate rules may be expressly conferred on it by
statute or implied from other powers and duties given or imposed by statute. Id. We note that the
Secretary of State does not have express general authority to adopt rules. Nor does he have express
‘The National Voter Registration Act of 1993, 42 U.S.C.A. $5 1973gg-1973gg-10(West 1998). generally
requires that government offices provide registrationmaterials,and specificallyprovides for updating addresses for voter
registration purposes in accordance with driver’s license information updates. The law also prevents cancellation for
two general elections of registrations due to voter failing to update address information. The 1995 Texas legislation,
which amended section 19.004of the Election Code with reference to the new federal law, also made extensive changes
to ofher provisions of the Election Code to bring state law into compliance with the new federal requirements. See Act
of May 27, 1995,74th Leg., R.S., ch. 797.5 32, 1995 Tex. Gen. Laws 4153.4162.
The Honorable Elton Bomer - Page 3 (~~-0038)
authority to adopt rules relating to the expenditure of the chapter 19 state funds. But he does have
authority horn which such rule-making authority specifically relating to chapter 19 funds may be
inferred.
The Secretary of State is the chief election officer of the state. TEX. ELEC. CODE ANN.
5 31 .OOl (Vernon 1986). He is given broad powers to “obtain and maintain uniformity in the
application, operation, and interpretation of [the Election] code” and in performing this duty to
“prepare detailed and comprehensive written directives and instructions relating to and based on this
code.” Id. 5 31.003. More specifically, he is directed to oversee chapter 19 state funds, see id.
5 19.002(b), (d) (Vernon Supp. 1999), and to prescribe procedures to implement the disbursement
of such funds, id. $9 19.002(b), (d), ,004. Given the Secretary of State’s express powers to interpret
the election laws generally and to oversee chapter 19 state funds specifically, we conclude that he
has the implied authority to adopt administrative rules with respect to the state funds. See GulfLand
Co. v. Atlantic Refining Co., 13 1 S.W.2d 73,82 (Tex. 1939) (implying Railroad Commission’s rule-
making authority from its authority to execute and enforce oil and gas conservation statutes). We
emphasize that our opinion as to the Secretary of State’s implied rule-making authority is limited
to the subject of this request, namely, chapter 19 funds.
Next, we address whether the Secretary of State exceeded his rule-making authority in
promulgating rules specifically prohibiting use of chapter 19 funds for the normal operations of the
voter registrar’s office. An agency may only adopt rules as are consistent with its statutory authority.
Lone Star, 844 S.W.2d at 685. In deciding whether an administrative agency has exceeded its
statutory authority, the determinative factor is whether the rule’s provisions are in harmony with the
general objectives of the particular statute. Id. It is the opinion of this office that the rules are
consistent with the Secretary of State’s authority under chapter 19.
Section 19.004 provides that state funds disbursed to county registrars may only be used “to
defray expenses of the registrar’s office in connection with voter registration.” TEX. ELEC. CODE
ANN. $ 19.004. This provision by its terms does not prohibit the use of such funds to pay for
expenses associated with the normal operations of the registrar’s offrce. However, section 19.004
cannot be viewed in isolation but must be considered in conjunction with other provisions of chapter
19 to determine the legislature’s intent. See Union Bunkers Ins. Co. Y. Shelton, 889 S.W.2d 278,280
(Tex. 1994) (primary consideration in construing statute is to effect legislature’s intent); Burr v.
Bernhard, 562 S.W.2d 844, 849 (Tex. 1978) (court must look to entire act, not just one provision,
to determine legislative intent; one provision cannot be given meaning out of harmony or
inconsistent with other provisions even though susceptible of such construction standing alone).
Section 19.006 prohibits the commissioners court from considering the state funds in adopting the
county budget for the voter registrar’s office. Section 19.002(b) directs that the state funds be paid
directly to the voter registrar’s offtce rather than to the county treasury. As explained below, the
enactment of these provisions as part of the substantive recodification of the Election Code in 1985
indicates that the legislature intended to limit the purposes for which chapter 19 funds could be used.
See TEX. GOV’T CODE ANN. 5 311.023(2), (4) (in construing statute, may consider circumstances
under which statute or former statutory provision enacted).
The Honorable Elton Bomer - Page 4 (X-0038)
Before 1985, the state funds could be used for any reasonable expenses of the registrar’s
office associated with voter registration. The legislature adopted the predecessor provisions of the
current voter registration system in 1966, following the United States Supreme Court’s declaration
in Harper Y. Virginia State Board of Elections, 383 U.S. 663 (1966), that the poll tax was
unconstitutional. Under article 5.19b of the former Election Code, the Comptroller of Public
Accounts issued annual warrants to each county in the amount of twenty-five cents for each voter
registered, and the proceeds of the warrants were to be “deposited in the county treasury for general
revenue purposes.“’ In 1971, the legislature increased the warrant amounts and directed that the
proceeds be deposited in a “special fund” in the county treasury “to be used for defraying the
expenses of the [voter] registrar’s office in the registration of voters,” and Ikrther directed that none
of the monies were to be retained as “fees of office” by registrars in counties where officials were
compensated on a fee basis.4 In 1977, the legislature amended former article 5.09a to provide that
“[tlhe expenses of the registrar in excess ofthe reimbursements received i?om the state under [article
5.19b] shall be borne by the c~unty.“~ In short, the state funds were provided to the counties to
replace the poll tax and to partially reimburse the counties for the expenses of the voter registrar’s
office that they would have otherwise been required to fund. Accordingly, in 1983, Attorney
General Opinion JM-61 construed the provisions then in effect to permit the use of the funds to
defray any reasonable expenses incurred by the registrar’s office in the registration process.
But the substantive revisions made to these provisions in 1985 as part of the substantive
recodification of the Election Code evidence a legislative intent to depart from the way state funds
for voter registration had been handled under the prior law.6 Most notably, the provision codified
as section 19.006, and headed “State Funds Not Part of County Budget,” directs that “[tlhe
commissioners court may not consider the availability of state funds under this chapter in adopting
the county budget for the office of the voter registrar.” TEX. ELEC. CODE ANN. 5 19.006 (Vernon
1986). We read this provision as indicating a legislative understanding that the funding of the
registrar’s office in amounts sufficient to enable that office to performits minimal statutory duties
is the responsibility of the county, see, e.g., Tex. Att’y Gen. Op. No. JM-770 (1987) at 3 (citing
authorities for proposition that commissioners court must fund reasonable expenses of county
offices), and a legislative intent that chapter 19 funds not be used for such basic expenses. See
Amen’can Surety Co. ofNew Yorkv. Axtell, 36 S.W.2d 715,719 (Tex. 1931) (legislature presumed
‘See Act of Feb. 22,1966,59th Leg., 1st C.S., ch. 1, sec. 2.5 5 lb, 1966 Tex. Gen. Laws 1,9, amended by Act
ofMay31,1971,62dLeg.,RS.,ch. 827,s 13,197l Tex.Gen.Laws2509,2522,ondActofMay23,1975,64thLeg.,
R.S.,ch.296,~13,1975Tex.Gen.Laws750,761,repealedbyActofMay13,1985,69thLeg.,R.S.,ch.211,~9,1985
Tex. Gen. Laws 802, 1076.
‘Act ofMay 31, 1971,62d Leg., RX, ch. 827.5 13, 1971 Tex. Gen. Laws 2509,2522.
‘Act of May 28, 1977,65th Leg., RX, ch. 609,s 1, 1977 Tex. Gen. Laws 1497, 1498.
Wnlike many of the codes adopted in the COUIX of the state’s ongoing program of statutory revision, the
Election Code of 1985 made numerous substantive changes to prior law. See Act of May 13,1985,69th Leg., RX, ch.
2 11, $ 1, 1985 Tex. Gen. Laws 802. The provisions regarding state timding for voter registration, found principally in
article 5.19b of the former code, were located in Election Code chapter 19. See id. at 835-36.
The Honorable Elton Bomer - Page 5 (JC-0038)
to have intended some change to existing law when amendment was enacted and effect must be
given to amendment).
Consistent with this interpretation, the provisions of former article 5.09a-that the expenses
of the registrar’s office in excess ofthe reimbursements received from the state shall be borne by the
county-did not reappear in the 1985 Election Code. The scheme suggested by these former
provisions, that state fimds would be used to finance, or “reimburse” the county for, the same
expenses of the registrar’s office that county funding would otherwise be required to meet, finds no
support in the current provisions. Also, the current provisions direct that the warrants issued by the
Comptroller of Public Accounts be paid directly to the voter registrar’s office. This is a change from
the prior law, which directed that the state funds be paid to the county treasury, and a further
indication that the chapter 19 funds are not intended to be for the same purposes as county funds
appropriated to the registrar’s office from the county treasury. TEX. ELEC. CODE ANN. 5 19.002(b)
(Vernon Supp. 1999).
Our interpretation that after the 1985 amendments to chapter 19 state funds may not be used
to pay for the basic operations of the voter registrar’s office is supported by the Secretary of State’s
long-standing construction of these amendments. Under the law in effect before the adoption of the
current Election Code in 1985, the Office of the Secretary of State had opined, as had this office in
Attorney General Opinion JM-61, that state funds disbursed to counties for voter registration could
“be used for any activity related to voter registration.” Secretary of State Election Law Opinion
JWF-7 (1983) at 2. However, since the adoption of the new Election Code in 1985 containing the
provisions discussed above, all secretaries of state have consistently taken the position that basic
operation expenses of the voter registrar’s office must be paid from the county budget, and that
chapter 19 state “funds are to be used to enhance the voter registration functions of the voter
registrar’s office.“’ In 1991, the Secretary of State adopted detailed rules to such effect. See 16 Tex.
Reg. 2825 (1991) (adopting 1 TEX. ADMIN. CODE 3 81.11) (proposed July 20,1988) (Secretary of
State’s Office). These rules were amended, effective October 1, 1995. See 20 Tex. Reg. 7277
(1995) (repealing former 1 TEX. ADMIN. CODE 5 81.11 and adopting new 1 TEX. ADMIN. CODE
@ 81.1 l-.29). The amended rules continue to embody that position. See 1 TEX. ADMIN. CODE $5
81.12-.14. The Secretary of State’s long-standing interpretation that chapter 19 funds may not be
used to pay for the basic operations of the voter registrar’s office is entitled to serious consideration
given that it is consistent with the legislative intent to limit the use of the state funds as evidenced
by the post-1985 amendments to chapter 19. See Texas Water Comm ‘n v. Brushy CreekMun. Utd.
‘Directive Regarding Voter RegistrationFinancing Under Chapter I9 ofthe Texas ElectionCode 7 (Tex. Office
ofthe Secretary of State Sept. 29, 1989), id. at 1 (emphasis removed) (also directing that state funds not to be used to
fund day-to-day operations of registrar’s oft&); accordDirective, Disbursement of Funds Under Chapter 19, Texas
Election Code 1 (Tex. Off& of the Secretary of State June 28, 1988). The directives go on to distinguish between
particular expendihwzs payable with state funds-for example, costs associated with temporary, part-time, and seasonal
contract personnel; certain travel expenses; certain outlays for equipment-and those which are the county’s
responsibility-that is, costs of performing the office’s statutorily required voter registration duties. See also
Memorandum, Addendum to June 28, 1988 Directive Regarding Disbursement of Funds Under Chapter 19, Texas
Election Code (Tex. Office of the Secretary of State July 8, 1988) (superseding “travel” portion of earlier directive).
The Honorable Elton Bomer - Page 6 (x-0038)
Dist., 917 S.W.2d 19,21 (Tex. 1996) (construction of statute by agency charged with its execution
entitled to serious consideration unless clearly inconsistent with legislative intent).
Finally, in regard to the Secretary of State’s interpretation that state funds may not be used
for basic operations of the registrar’s office, we observe that the legislature specifically revisited
chapter 19 in 1989, 1993,1995, and 1997,‘but did not amend the statute to provide otherwise. As
indicated above, the Secretary of State’s construction has remained the same since 1985. We note
that the duration of the construction here is not as long as in the cases in which the Texas courts have
applied the doctrine of legislative acquiescence. See Humble Oil & Refining Co. v. Culvert, 414
S.W.2d 172,180 (Tex. 1967) (administrative construction in place for forty-six years of such long-
standing that it should not be changed without clear legislative direction); Fleming Foods of Texas,
Inc. v. Sharp, 95 1 S.W.2d 278,28 1 (Tex. App.-Austin 1997, pet. granted) (legislature’s decision not
to change law regarding refund claim standing indicates legislative acceptance of Comptroller of
Public Account’s interpretation in place before 198 1 recodification of Tax Code). However, a period
of fourteen years with four legislative sessions in which chapter 19 has been reexamined is some
evidence that the legislature concurs with the Secretary of State’s construction. Accordingly, the
legislature’s decision not to amend the law with respect to permitted uses of the state Funds as
relevant here, despite the several amendments over the years to chapter 19, is some evidence of
legislative acceptance of the Secretary of State’s interpretation. See Culvert, 414 S.W.2d at 180
(ambiguous statute construed by proper administrative officers, when re-enacted without any
substantial change in verbiage will ordinarily receive same construction); Sharp, 95 1 S.W.2d at 281
(legislature’s decision not to change law regarding refund claim standing indicates legislative
acceptance of Comptroller of Public Account’s interpretation).
In sum, the Secretary of State has implied authority to adopt rules relating to chapter 19 state
funds. Consistent with section 19.006 of the Election Code, prohibiting the commissioners court
from considering state funds in adopting the county budget for the voter registrar’s office, and
section 19.002(b), directing that they be paid directly to the voter registrar’s office rather than to the
county treasury, the Secretary of State has adopted rules prohibiting the use of disbursed funds for
the normal day-to-day operations of the voter registrar’s office. Because the Secretary of State’s
‘See Act of May 4, 1989,71st Leg., R.S., ch. 114, $5,1989 Tex. Gen. Laws 472 (amending section 19.002
to provide for Secretary of State’s monitoring of registrar’s compliance with requirements regarding registrar’s tiling
of statement of number of registered voters with Secretary of State, and providing for withholding of chapter 19 funds
in event of noncompliance); Act of May 28, 1993,73d Leg., R.S., ch. 916, $ 21, 1993 Tex. Gen. Laws 3880, 3884
(amending section 19.002 and various provisions of chapter 18, titled “Procedures for Identifying Registered Voters,”
to allow SecretaryofState’s withholding state funds fromregisnariflatter“is not insubstantialcompliance withSection
14.025, 16.032, 18.042 cn 18.063 or with rules implementing the registration service program”); Act ofMay 27, 1995,
73d Leg., R.S., ch. 797, 5 32, 1995 Tex. Gen. Laws 4153,4162 (adding to section 19.004 stipulation that state funds
may be used only to defray registration expenses provision that such expenses include those necessary to comply with
National Voter Registration Act of 1993,42 U.S.C. $5 1973gg to 1973gg-10); Act ofMay 16, 1997,75th Leg., R.S.,
ch. 454, 6 7, 1997 Tex. Gen. Laws 1750, 1751 (amending section 19.001(a) to require registrar to prepare and submit
statement to Comptmller of Public Accounts containing number of registrations for which information was updated for
previous voting year and section 19.002(a) to decrease state timds for new registrations and provide state funds for
updated registrations under section 19.001(a)).
The Honorable Elton Bomer - Page 7 (X-0038)
rules prohibiting use of chapter 19 state funds for the normal operations of the county voter
registrar’s office are consistent with his authority under chapter 19, he has properly exercised his
authority in adopting such rules.
SUMMARY
The Secretary of State has authority to adopt mles prohibiting
the use of state funds made available under chapter 19 ofthe Election
Code to pay costs associated with the normal operations of the county
voter registrar’s office.
JOHN CORNYN
Attorney General of Texas
ANDY TAYLOR
First Assistant Attorney General
CLARK KENT ERVIN
Deputy Attorney General - General Counsel
ELIZABETH ROBINSON
Chair, Opinion Committee
Prepared by Sheela Rai
Assistant Attorney General
| {
"pile_set_name": "FreeLaw"
} |
940 So.2d 431 (2006)
CLEMENT
v.
STATE.
No. 2D05-1918.
District Court of Appeal of Florida, Second District.
October 20, 2006.
Decision without published opinion. Affirmed.
| {
"pile_set_name": "FreeLaw"
} |
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 19a0107p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, ┐
Plaintiff-Appellee, │
│
> No. 17-4264
v. │
│
│
THOMAS G. THOMPSON, │
Defendant-Appellant. │
┘
Appeal from the United States District Court
for the Southern District of Ohio at Columbus.
No. 2:15-cr-00081-1—Algenon L. Marbley, District Judge.
Argued: December 6, 2018
Decided and Filed: May 29, 2019
Before: MOORE, CLAY, and DONALD, Circuit Judges.
_________________
COUNSEL
ARGUED: Russell S. Bensing, Cleveland, Ohio, for Appellant. Alexis J. Zouhary, UNITED
STATES ATTORNEY’S OFFICE, Cincinnati, Ohio, for Appellee. ON BRIEF: Russell S.
Bensing, Cleveland, Ohio, for Appellant. Alexis J. Zouhary, UNITED STATES ATTORNEY’S
OFFICE, Cincinnati, Ohio, for Appellee.
_________________
OPINION
_________________
KAREN NELSON MOORE, Circuit Judge. Defendant-Appellant Thomas Thompson
appeals the district court’s denial of his motion to terminate his civil-contempt sanctions in
accordance with 28 U.S.C. § 1826. Because we determine that Thompson’s sanctions do not fall
No. 17-4264 United States v. Thompson Page 2
under the eighteen-month incarceration limitation of § 1826, we AFFIRM the district court’s
order.
I. BACKGROUND
This case originated as part of consolidated civil actions filed in 2005 and 2006 against
Thompson and numerous other business-entity defendants. See Civ. R. 3 (Compl.), 2:06-CV-
00292 (S.D. Ohio)1; Williamson v. Recovery Ltd. P’ship, 731 F.3d 608, 616–17 (6th Cir. 2013)
(discussing the factual and procedural background of the civil case). The civil plaintiffs were a
group of employees and one business hired by Thompson to assist him in locating a long-sunken
ship and recovering the treasures it contained. Williamson, 731 F.3d at 616. Following the
discovery of the ship and the removal of various items, including gold, the plaintiffs filed suit to
recover some of the profits they contended they were owed. Id. During the course of that
litigation, the district court entered a preliminary injunction instructing Thompson that “he shall
not sell, encumber, transfer or diminish in value” any re-strike or commemorative gold coins he
had in his possession. Civ. R. 738 at 1–2 (Page ID #13314–15). If the coins were not in
Thompson’s possession, Thompson was instructed to “submit a declaration under oath
describing in detail the parties to whom the coins were transferred, any consideration received or
outstanding, the date of such transfer, and the names of the recipients.” Id. at 2 (Page ID
#13315). The district court subsequently entered a temporary restraining order when Thompson
transferred the coins to a third-party trust. See Civ. R. 770 at 1 (Page ID #13704). The order
prohibited the trust “from disposing of, encumbering, transferring or diminishing in value in any
way the 500 gold restrike coins.” Id.
Prior to the temporary restraining order but after Thompson failed to provide the
information detailed in the preliminary injunction, the district court issued an order requiring
Thompson to attend a hearing in August 2012 to “show cause why the Court should not hold him
in contempt.” Civ. R. 761 at 1 (Page ID #13490). The district court explained that if Thompson
did not attend the hearing, a warrant would be issued for his arrest. Id. When Thompson failed
1Because this appeal references two district-court cases, this opinion will refer to the record of the 2006
civil case as “Civ. R.” and the record of Thompson’s criminal case as “Crim. R.”
No. 17-4264 United States v. Thompson Page 3
to appear, and instead absconded to Florida, an arrest warrant was issued. See Crim. R. 3 at 2
(Crim. Compl.) (Page ID #5). A criminal complaint was filed against Thompson charging him
with failing to comply with the district court’s orders in violation of 18 U.S.C. § 401(3).2 Id. at
Page ID #3, 8. Following his arrest in January 2015, an information was filed charging
Thompson with violating § 401(3). Crim. R. 13.
In March 2015, Thompson entered into a Rule 11(c)(1)(C) plea agreement, Crim. R. 14,
which the district court later accepted, see Crim. R. 20 at 28–29 (Page ID #91–92). Pursuant to
his plea agreement, Thompson agreed to:
assist the Parties in Case No. 06-CV-0292, and any other party identified by the
Court as having an interest, in identifying and recovering assets. Defendant
agrees to testify under oath at a proceeding, amounting to a debtor’s examination
to identify and recover assets. This examination shall include, but is not limited
to, questions regarding the gold strike commemorative coins which were the
subject of previous orders in Case No. 06-CV-0292. After Defendant answers
questions in the debtor’s examination, a reasonable time will be permitted for a
process amounting to civil discovery to verify answers and trace assets. After the
debtor’s examination and a reasona[b]le period of time for discovery, if the
government is satisfied that all questions have fully [sic] answered, it shall
recommend to the Court that the civil contempt be deemed “cured.” This term
shall not bar the Court from adducing and ordering a sentence including
incarceration in this case for criminal contempt. The government acknowledges
that it is the Parties’ intention that the identification of property and assets shall
proceed as a condition of Defendant’s cooperation under the terms of this
Agreement and that the determination of whether Defendant has in fact
cooperated in this regard shall be made by this Court and only by this Court,
consistent with the terms and conditions of this Agreement. Further, the
government acknowledges that it is the Parties’ intention that any sanctions or
consequences arising from Defendants’ failure to cooperate in the identification
and recovery of assets in Case No. 06-CV-0292 be determined and imposed by
this Court as part of the instant proceeding, and only by this Court as part of the
instant proceeding . . . .
Crim. R. 14 at 2–3 (Page ID #49–50). Prior to sentencing, certain parties from the civil action,
as well as a state-appointed receiver from a connected state action, filed a motion to enforce the
218 U.S.C. § 401(3) states: “A court of the United States shall have power to punish by fine or
imprisonment, or both, at its discretion, such contempt of its authority, and none other, as . . . [d]isobedience or
resistance to its lawful writ, process, order, rule, decree, or command.”
No. 17-4264 United States v. Thompson Page 4
plea agreement against Thompson. See Crim. R. 28 at 1 (Page ID #128). On September 22,
2015, the district court ordered Thompson to “submit to a debtor’s examination, pursuant to the
terms of his plea agreement, during the week of October 19, 2015.” Crim. R. 33 at 1–2 (Page ID
#218–19).
Although Thompson initially sat for the examination, the civil parties and receiver filed a
motion to hold Thompson in civil contempt for violating the plea agreement. See Crim. R. 46 at
1–4 (Page ID #300–03). The movants contended that not only did Thompson refuse to provide
sufficient answers to their questions regarding the location of the coins, but when the
government attempted to schedule another examination, “Thompson’s counsel announced that
Thompson [wa]s invoking his Fifth Amendment privilege and w[ould] not answer any further
questions.” Id. at 4 (Page ID #303). In response to this motion, on November 16, 2015, the
district court ordered Thompson “to submit to a second debtor’s examination by the Government
and the Williamson plaintiffs” and “to comply with the terms of his plea agreement, in particular,
Section 4(a).” Crim. R. 50 at 1 (Page ID #494). The district court then quoted from paragraph
4(a) of the plea agreement, explaining that Thompson had agreed to:
assist the Parties in Case No. 06-CV-0292, and any other party identified by the
Court as having an interest, in identifying and recovering assets. Defendant
agrees to testify under oath at a proceeding, amounting to a debtor’s examination,
to identify and recover assets. This examination shall include, but is not limited
to, questions regarding the gold strike commemorative coins which were the
subject of previous orders in Case No. 06-CV-0292.
Id. at 2 (Page ID #495). The district court noted that “[i]f Thompson does not comply with the
Court’s Order to sit for the debtor’s examination, he will be ordered to show cause why he
should not be held in civil or criminal contempt for failure to comply with a Court order.” Id.
Following another delay, Crim. R. 54 (12/4/15 Gov’t Notice) (Page ID #500), Thompson
appeared at an examination on December 14, 2015, but refused to answer any questions, Crim.
R. 56 at 1–2 (Show Cause Hr’g Order) (Page ID #505–06). The district court then ordered
Thompson to appear in court the next day to “show cause as to why this Court should not hold
him in civil or criminal contempt for failure to comply with the November 16, 2015 Order.”
Crim. R. 56 at 2 (Page ID #506). The order quoted the same section of paragraph 4(a) of the
No. 17-4264 United States v. Thompson Page 5
plea agreement as the November 16, 2015 order. The show-cause hearing was scheduled for the
same day as his previously scheduled sentencing. Id.
On December 15, 2015, the district court conducted Thompson’s criminal-contempt
sentencing and civil-contempt show-cause hearing. After stating the sentencing factors under 18
U.S.C. § 3553(a), the court sentenced Thompson to two years of imprisonment for criminal
contempt. Crim. R. 67 at 32–37 (Sentencing Tr.) (Page ID #666–71). However, the district
court held Thompson’s criminal sentence in abeyance until Thompson completed any civil-
contempt sentence imposed during the show-cause hearing, which immediately followed the
criminal-contempt sentencing. Id. at 39 (Page ID #673). After the conclusion of the show-cause
hearing, the district court held Thompson in civil contempt for “not cooperating during the”
December 14, 2015 debtor’s exam, in violation of the district court’s November 16, 2015 order.
Id. at 73 (Page ID #707). The district court ordered Thompson to “be incarcerated indefinitely
until you comply with this Court’s order to provide the type of information that you had
previously agreed to provide.” Id. at 73–74 (Page ID #707–08). He was also ordered to pay the
court a fine of $1,000 per day. Id. at 75 (Page ID #709). In an accompanying written order, the
district court cited its “inherent power to enforce compliance with [its] lawful orders” as the
basis for its decision to order the civil-contempt sanctions. Crim. R. 63 at 3 (12/16/15 Contempt
Order) (Page ID #623) (quoting Shillitani v. United States, 384 U.S. 364, 370 (1966)). The
district court concluded that it would assess Thompson’s compliance every sixty days. Id. at 5
(Page ID #625). This court dismissed Thompson’s appeal of his criminal-contempt conviction
and sentence for lack of jurisdiction because the district court had expressly reserved entry of
judgment in the criminal case “pending Thompson’s purge of a civil contempt order entered in
the same case.” See United States v. Thompson, No. 15-4424 (6th Cir. Nov. 21, 2016) (order).
Upon reaching eighteen months of incarceration for civil contempt, Thompson sought to
terminate his civil-contempt sanctions. Crim. R. 111. Thompson contended that his actions fell
under the recalcitrant-witness statute, 28 U.S.C. § 1826(a), which provides:
Whenever a witness in any proceeding before or ancillary to any court or grand
jury of the United States refuses without just cause shown to comply with an
order of the court to testify or provide other information, including any book,
paper, document, record, recording or other material, the court, upon such refusal,
No. 17-4264 United States v. Thompson Page 6
or when such refusal is duly brought to its attention, may summarily order his
confinement at a suitable place until such time as the witness is willing to give
such testimony or provide such information. No period of such confinement shall
exceed the life of—
(1) the court proceeding, or
(2) the term of the grand jury, including extensions,
before which such refusal to comply with the court order occurred, but in no event
shall such confinement exceed eighteen months.
28 U.S.C. § 1826(a). Because his confinement had reached eighteen months, Thompson asserted
he was entitled to release. Crim. R. 111 at 2 (Page ID #999). On November 27, 2017, the
district court denied Thompson’s motion, concluding that “[t]he plea agreement requires Mr.
Thompson not just to provide information, but also to ‘assist the Parties’ in ‘identifying and
recovering assets’ and otherwise to comply with the terms of his plea agreement.” Crim. R. 138
at 4 (Page ID #1244). Noting that “the utility of Mr. Thompson’s assets as evidence is almost
beside the point” and that “it is the economic value of the treasure that the Court seeks,” the
district court determined that because Thompson was required both to testify and to help recover
assets, § 1826 did not apply to him. Id. at 6 (Page ID #1246). Additionally, referencing a
previous status order in April 2017, Crim. R. 108, the district court noted that the plea agreement
contemplated non-testimonial acts, such as “the signing of a limited power of attorney that
allows the government to probe the contents of the Belizean trust,” which the parties believed
contained some of the gold coins, Crim. R. 138 at 2 (Page ID #1242).
On December 6, 2017, Thompson filed this timely appeal. See Fed. R. App. P.
4(a)(1)(B). Following the government’s motion to dismiss for lack of jurisdiction, a panel of this
court expressly found that “[t]he district court’s order is effectively final, and thus appealable,”
under the collateral order doctrine. Order at 3 (6th Cir. Mar. 8, 2018).
II. STANDARD OF REVIEW
We review de novo questions of statutory interpretation, such as the scope of 28 U.S.C.
§ 1826. United States v. White, 846 F.3d 170, 174 (6th Cir.), cert. denied, 137 S. Ct. 2203
(2017). As to the district court’s denial of Thompson’s motion to lift his sanctions, we ordinarily
review a district court’s interpretation of its own order for abuse of discretion. Michigan v. City
No. 17-4264 United States v. Thompson Page 7
of Allen Park, 954 F.2d 1201, 1213 (6th Cir. 1992). However, the unique procedural posture of
Thompson’s case disrupts this standard. When the district court initially considered whether
Thompson was in contempt, it examined its two prior orders––issued on September 22, 2015 and
on November 16, 2015––and the language of Thompson’s plea agreement. See Crim. R. 63 at 2–
3 (12/16/15 Contempt Order) (Page ID #622–23). However, both the September and November
orders merely ordered Thompson to fulfill his obligations under the plea agreement and quoted
particular language from paragraph 4(a) of the agreement. See Crim. R. 33 at 1–2 (9/22/15
Order) (Page ID #218–19); Crim. R. 50 at 1–2 (11/16/15 Order) (Page ID #494–95). Similarly,
in determining whether § 1826’s eighteen-month incarceration limit applied to Thompson’s
sanctions, the district court again examined the language of the plea agreement, noting that the
court had previously determined that Thompson was in contempt based on his failure to fulfill
his duties under the plea agreement. Crim. R. 63 (12/16/15 Contempt Order).
Thus, although the district court was technically examining its December 2015 contempt
order when it denied Thompson’s motion to lift his sanctions, because the district court’s order
was predicated on its interpretation of the plea agreement, the district court was more accurately
examining the terms and conditions of that agreement. Consequently, we will examine the
district court’s denial of Thompson’s motion for what it actually was: an interpretation of
Thompson’s plea agreement. Under these circumstances, we review de novo the district court’s
construction of the plea agreement, while examining for clear error the district court’s factual
conclusions “such as whether there was an agreement and the substance of that agreement.”
United States v. Quesada, 607 F.3d 1128, 1131 (6th Cir. 2010). Finally, in interpreting plea
agreements, “this Court uses traditional principles of contract law.” United States v. Lukse, 286
F.3d 906, 909 (6th Cir. 2002). “Whether a contract term is ambiguous is a question of law for
the court to determine” under a de novo standard. Nw. Ohio Adm’rs, Inc. v. Walcher & Fox,
Inc., 270 F.3d 1018, 1023, 1025 (6th Cir. 2001) (noting that “[w]e review the district court’s
conclusions of law de novo”), cert. denied, 122 S. Ct. 1606 (2002).
III. DISCUSSION
We have rarely interpreted the scope of 28 U.S.C. § 1826. A review of the case law of
this court, as well as other Circuit courts, identifies two primary decisions addressing this statute:
No. 17-4264 United States v. Thompson Page 8
United States v. Mitchell, 556 F.2d 371 (6th Cir.), cert. denied, 98 S. Ct. 406 (1977), and
Armstrong v. Guccione, 470 F.3d 89 (2d Cir. 2006), cert. denied, 128 S. Ct. 486 (2007).
In Mitchell, two criminal defendants were ordered to submit voice exemplars in
preparation for their own trial. 556 F.2d at 381. The voice exemplars were necessary for the
government to match the criminal defendants to voice recordings taken during a sting operation.
Id. After the defendants refused to provide the exemplars, the district court held the defendants
in civil contempt and ordered them incarcerated. Id. at 381, 383. The defendants asserted that
under § 1826, their incarceration could not exceed eighteen months. Id. at 384. Noting that
§ 1826 was meant to limit the district court’s inherent authority to hold the defendants in civil
contempt, this court ultimately concluded that § 1826 was applicable and, therefore, defendants
could not be incarcerated in excess of eighteen months. Id. This court further explained that the
defendants were, indeed, “witnesses” as understood by the statute and that because the order
required the defendants to provide “information” in the form of the voice exemplars, § 1826
encompassed their conduct. Id.; see also Palmer v. United States, 530 F.2d 787, 789 & n.3 (8th
Cir. 1976) (concluding that handwriting exemplars constitute “other information” under § 1826).
In Armstrong, the Second Circuit considered whether a district court’s order requiring the
defendant to turn over various corporate assets to a court-appointed receiver fell within § 1826.
470 F.3d at 93. Noting that the Mitchell court determined that the order requiring the defendants
to submit voice exemplars constituted an order to provide other information “presumably
because the voice exemplars were sought for their informational content and had no other value,”
the Second Circuit ultimately concluded that an order requiring merely the production of assets
did not constitute an order to provide information. Id. at 109–10 (“[T]he order which Armstrong
refused to obey commands the production of gold bullion, valuable coins, and antiquities that are
sought not because of any information they might contain, but because they are objects of
monetary value that are the property of the corporation in receivership.”). Finally, the Second
Circuit explained that, although the production of a computer hard drive might fall within the
statute, where it “presumably contains records of the Princeton funds,” nonetheless the issue was
moot because Armstrong had been ordered to provide both the hard drive and the tangible assets.
Id. at 110. Given this legal background, we now examine whether, given the terms of
No. 17-4264 United States v. Thompson Page 9
Thompson’s plea agreement, the statutory limitations of § 1826 apply to Thompson’s
contemptuous conduct.
A. Order to Sit for A Debtor’s Examination
As an initial matter, and for the sake of clarity given this procedurally and factually
complicated case, we note that even if Thompson’s plea agreement required Thompson to
engage in non-testimonial conduct, if Thompson were held in contempt solely for testimonial
conduct, such as failing to participate in a debtor’s examination and answer questions truthfully,
§ 1826 would plainly apply to him. Parts of Thompson’s plea agreement explained that
Thomson was required to “testify under oath at a proceeding, amounting to a debtor’s
examination” and that the examination would “include, but [wa]s not limited to, questions
regarding the gold strike commemorative coins.” Crim. R. 14 at 2 (Page ID #49) (emphasis
added). Were Thompson to be held in contempt solely for failing to fulfill those particular
requirements, Thompson would clearly be “refus[ing] . . . to comply with an order of the court to
testify or provide other information.” 28 U.S.C. § 1826 (emphasis added). Put differently, the
only way Thompson could cure his contempt in such a scenario would be to engage in the exact
type of conduct encompassed by § 1826. None of the government’s arguments undermine this
analysis.
First, even if Thompson’s plea agreement (and the district court’s order requiring him to
comply with its terms) encompasses non-testimonial conduct in addition to “testify[ing]” or
“provid[ing] other information,” the possible scope of the agreement does not control if
Thompson’s only contemptuous conduct were refusing to testify in a debtor’s examination.
Armstrong is instructive here. As noted above, the Second Circuit in Armstrong ultimately
determined that because the defendant was in contempt for failing to follow an order requiring
him both to turn over assets (non-testimonial) and to surrender a computer hard drive containing
“other information,” it ultimately did not matter that the hard drive would conceivably fall within
§ 1826’s limitations. Armstrong, 470 F.3d at 110. However, the Second Circuit further
explained that, even though the order required Armstrong to engage in those two types of
conduct, “[i]f Armstrong were being confined solely because of his refusal to produce the
computer files, we would need to consider whether the eighteen-month cap of § 1826(a)
No. 17-4264 United States v. Thompson Page 10
applies.” Id. The Second Circuit’s comment was presumably based on the understanding that,
even if § 1826 applied to Armstrong’s failure to turn over “other information”––i.e., the
computer hard drive––because he was also required to engage in non-testimonial conduct which
did not have a corresponding incarceration limit––turning over the monetary assets––the
eighteen-month limitation did not ultimately impact the length of Armstrong’s incarceration for
civil contempt. Conversely, if Thompson were held in contempt solely for failing to testify––
conduct that falls squarely within § 1826––Thompson’s incarceration for civil contempt could
last only eighteen months.
In response, the government asserts that Thompson is not a “witness” as traditionally
understood under § 1826 because Thompson’s testimony was sought only in service of finding
items (the gold coins) which had no independent informational value. Appellee Br. at 32–34.
The government’s argument finds some support in § 1826’s limited legislative history. See
Organized Crime Control Act of 1970, Pub. L. No. 91-452, 84 Stat. 922–23 (1970) (explaining
that the statute was enacted “to seek the eradication of organized crime in the United States by
strengthening the legal tools in the evidence-gathering process”); S. Rep. 91-617 at 57 (1969)
(noting that the statute “represents the best efforts of the committee to codify and spell out the
powers of the courts to deal with witnesses who are unlawfully withholding information
necessary to move forward an investigation”). However, given the procedural posture of this
case, we are not prepared to say that Thompson’s testimony would be of no evidentiary value to
the 2006 civil plaintiffs, particularly since those same plaintiffs were pursuing a conversion
claim against Thompson based on the gold coins. See generally Williamson, 731 F.3d at 616;
see also In re Younger, 986 F.2d 1376, 1378 (11th Cir. 1993) (concluding that § 1826 applies to
bankruptcy proceedings and implicitly recognizing that the defendant’s “refus[al] to answer
questions in a bankruptcy case concerning the location of certain assets” which he had been
ordered to surrender fell under the eighteen-month incarceration limitation); In re Martin-
Trigona, 732 F.2d 170, 174–76 (2d Cir.), cert. denied, 105 S. Ct. 191 (1984) (determining
implicitly that an order requiring the defendant to testify regarding the status of his assets in a
bankruptcy proceeding fell under § 1826).
No. 17-4264 United States v. Thompson Page 11
Furthermore, as we noted in Mitchell, the limited legislative history of § 1826, while
instructive, is of “minimal value.” Mitchell, 556 F.2d at 384. Given the plain language of the
statute, were Thompson to be held in contempt for failing solely to sit for a debtor’s examination
and to testify about the location of his assets, § 1826 would limit his incarceration for civil
contempt to eighteen months. See Henson v. Santander Consumer USA Inc., 137 S. Ct. 1718,
1725 (2017) (“[I]t is never our job to rewrite a constitutionally valid statutory text under the
banner of speculation about what Congress might have done had it faced a question that . . . it
never faced.”); Bridewell v. Cincinnati Reds, 155 F.3d 828, 830 (6th Cir. 1998) (“[W]e c[an]not
look to the legislative history to contravene the clear and unambiguous language of the statute.”).
The government also argues that the requirement in Thompson’s plea agreement that he
testify in a debtor’s examination “was only in service of the primary objective: ‘identifying and
recovering assets.’” Appellee Br. at 28–29. Therefore, according to the government, to the
extent Thompson’s testimony was relevant to the identification and recovery of the assets,
§ 1826 is inapplicable. But as stated, the debtor’s examination amounts to testimonial conduct
that would fall within § 1826 eighteen-month incarceration limitation. This is so without regard
to whether Thompson’s testimony would be necessary to assist the parties in recovering assets.
As explained in further detail below, however, Thompson’s contempt was not predicated
only on his failure to testify or answer questions; rather, because Thompson also failed to fulfill
the non-testimonial requirements of his plea agreement, § 1826 does not limit Thompson’s
period of incarceration.
B. Non-Testimonial Conduct
As noted above, Thompson’s plea agreement required Thompson to “testify under oath at
a proceeding, amounting to a debtor’s examination” and to answer “questions regarding the gold
strike commemorative coins.” Crim. R. 14 at 2 (Page ID #49). This is not, however, the only
conduct Thompson was required to engage in under the plain language of the plea agreement
and, significantly, was not the only basis on which the district court held Thompson in contempt.
Rather, Thompson’s plea agreement––and the district court’s November 2015 order requiring
Thompson to abide by its terms––also explained that Thompson was required to “assist” the civil
No. 17-4264 United States v. Thompson Page 12
plaintiffs “in identifying and recovering assets.” Id. at 2–3 (Page ID #49–50). Such a
requirement to assist in “recovering assets” is broad: recovering assets could, and likely would,
require Thompson both to provide information regarding the location of assets and to undertake
various non-testimonial actions, such as signing a limited power of attorney to enable the parties
to review the contents of a trust and recover any assets located within the trust. See Crim. R. 108
(4/25/17 Status Order); Crim. R. 138 (11/27/17 Order Denying Mot. to Terminate Sanctions).3
By requiring Thompson to “assist” the parties “in identifying and recovering assets,” the plea
agreement and the district court’s order explicitly left open the likelihood that Thompson’s mere
testimony would be insufficient, particularly in “recovering” Thompson’s assets.
Thompson counters that although the first sentence of paragraph 4(a) of the plea
agreement appears broad, the subsequent language indisputably limits what the parties meant by
the term “assist.” However, the unambiguous language of the plea agreement does not support
Thompson’s conclusion.4 While the agreement goes on to explain that “Defendant agrees to
testify under oath at a proceeding, amounting to a debtor’s examination, to identify and recover
assets,” there is no suggestion in the agreement that the debtor’s examination is the only means
by which Thompson is expected (and indeed, required) to “assist” the parties “in identifying and
recovering assets.” As noted above, the term “recover” clearly anticipates broader types of
actions than a debtor’s examination. Additionally, the fact that the plea agreement provides that,
“[a]fter [Thompson] answers questions in the debtor’s examination, a reasonable time will be
3Although Thompson does not address whether an order requiring him to sign a limited power of attorney
would fall within § 1826’s limitations, we conclude such an action is clearly non-testimonial and thus outside the
scope of § 1826. The act of signing a limited power of attorney is a legal tool that does not, in and of itself, express
or contain any information. And unlike voice or handwriting exemplars, there is no informational value in the actual
document containing Thompson’s signature––it cannot be compared to other, similar documents, and although it
allows the parties to gain information by searching the contents of the trust, that information is not inherent to the
document bearing Thompson’s signature. Cf. Mitchell, 556 F.2d at 384; Palmer, 530 F.2d at 789 n.3. Thus,
although § 1826 enumerates various forms that “other information” may take, including “any book, paper,
document, record, recording or other material,” the plain language of § 1826 makes clear that it is the informational
value of those documents that designates them as “other information.” 28 U.S.C. § 1826.
4Because we conclude that the terms of Thompson’s plea agreement are unambiguous, we need not
examine whether the district court committed clear error in interpreting the facts underlying the agreement. See
United States v. Debreczeny, 69 F. App’x 702, 705–06 (6th Cir. 2003) (“If the terms of [a] plea agreement are
equivocal . . . , the district court has discretion to interpret its terms. ‘The content of a plea agreement and what the
parties agreed to is a question of fact for the district court that is reviewed for clear error.’” (quoting Lukse, 286 F.3d
at 909)).
No. 17-4264 United States v. Thompson Page 13
permitted for a process amounting to civil discovery to verify answers and trace assets” and, if
the government “is satisfied that all questions have [been] fully answered, it shall recommend to
the Court that the civil contempt be deemed ‘cured,’” does not help Thompson. Similar to the
requirement that Thompson sit for a debtor’s examination, this language does not indicate that
Thompson will be required only to testify or provide “information.” Instead, it shows the
parties’ belief that, were Thompson to testify truthfully, the parties would be able successfully to
“verify [Thompson’s] answers and trace assets,” thus enabling both the identification and
recovery of those assets. This provision does not implicitly or explicitly limit what “assist” in
“recovering assets” might entail. Finally, the plea agreement notes that “the identification of
property and assets shall proceed as a condition of Defendant’s cooperation under the terms of
this Agreement.” Again, beyond reiterating Thompson’s responsibility to identify assets, a plain
reading of this statement does not limit what, precisely, Thompson will be required to do to assist
in recovering those assets. This statement merely specifies what one condition of the agreement
would be––successfully identifying assets––rather than explicitly limiting Thompson’s
responsibilities under the agreement.
Along with encompassing non-testimonial conduct, the record evidence shows that
before the eighteen-month limitation under § 1826 became applicable, Thompson was, in fact, on
notice that his contempt order included his failure to engage in non-testimonial conduct,
specifically his failure to execute a limited power of attorney. During a debtor’s examination in
January 2017, the civil parties attempted to have Thompson sign a limited power of attorney to
permit them to examine the contents of a trust Thompson owned to determine whether the trust
contained the coins. Crim. R. 94 at 1–2 (1/16/17 Joint Status Report) (Page ID #859–60); Crim.
R. 99 at 9 (1/10/17 Status Hr’g Tr.) (Page ID #923). Thompson refused. Id. Following various
orders and status conferences, in April 2017, the district court concluded that Thompson’s plea
agreement, “which requires Mr. Thompson ‘to assist the Parties in Case No. 06-CV-0292, and
any other party identified by the Court as having an interest, in identifying and recovering
assets,’ contemplates, among other things, exactly what the government seeks here: the signing
of a limited power of attorney that allows the government to probe the contents of the Belizean
trust.” Crim. R. 108 at 3 (4/25/17 Status Order) (Page ID #990); see also Crim. R. 114 at 10
(4/21/17 Status Hr’g Tr.) (Page ID #1026) (overruling Thompson’s objection to executing the
No. 17-4264 United States v. Thompson Page 14
power of attorney). In the April 25, 2017 Status Order, the district court explicitly ordered
Thompson to sign a limited power of attorney pursuant to paragraph 4(a) of his plea agreement
within twenty-eight days. Crim. R. 108 at 3 (Page ID #990). On May 23, 2017, the parties
submitted a joint status report explaining that Thompson had refused to execute the power of
attorney. Crim. R. 110 at 1 (Page ID #997). Thompson’s continued refusal was confirmed in
two later status hearings. See Crim. R. 127 at 4–5 (6/30/17 Status Hr’g Tr.) (Page ID #1159–60);
Crim. R. 130 at 4 (8/18/17 Status Hr’g Tr.) (Page ID #1195).
Based on these records, the April 25, 2017 order––issued almost two months before the
eighteen-month limitation under § 1826 became applicable––clearly put Thompson on notice
that, in order to cure his contempt, Thompson not only would have to sit for a debtor’s
examination and provide truthful testimony, but also would have to execute a limited power of
attorney to permit the parties to “probe” the contents of a Belizean trust. After all, Thompson
was not held in contempt for only refusing to submit to the debtor’s examination; rather,
Thompson was ordered to comply with all the terms of his plea agreement, including “assisting”
the parties “in identifying and recovering assets.” See Crim. R. 67 at 73 (12/15/15 Contempt
Hr’g Tr.) (Page ID #707) (“Mr. Thompson was in violation of the Court’s November 16, 2015,
order which simply required him to abide by the terms of his plea agreement, including
paragraph 4A which . . . stated that he would assist the parties in identifying and recovering the
assets . . . .”); R. 63 at 5 (12/16/15 Contempt Order) (Page ID #625) (“The Court will impose an
indefinite sentence of incarceration for civil contempt until Thompson complies with the Court’s
order to sit for the debtor’s examination and assist the Civil Litigants in identifying and
recovering assets.”). Additionally, because Thompson was on notice that he was required to
engage in non-testimonial conduct to cure his contempt before his incarceration exceeded
eighteen months, the fact that Thompson was also in contempt for failing to testify at a debtor’s
examination––conduct which would fall under § 1826’s limitation––is immaterial. See
Armstrong, 470 F.3d at 110. Section 1826 thus does not provide Thompson relief.
In summary, to the extent Thompson still refuses to comply with the district court’s order
to sign a limited power of attorney, § 1826 does not limit the length of Thompson’s
incarceration. Rather, the length Thompson’s incarceration is restricted only by the Due Process
No. 17-4264 United States v. Thompson Page 15
Clause and, if applicable, any changed circumstances which prohibit Thompson from curing his
contempt. See Shillitani, 384 U.S. at 371 (“[T]he justification for coercive imprisonment as
applied to civil contempt depends upon the ability of the contemnor to comply with the court’s
order.”); Armstrong, 470 F.3d at 110–12 (examining whether the defendant’s confinement for
civil contempt violated the Due Process Clause). Because Thompson has not presented any
argument under either theory, we affirm the district court’s order denying Thompson’s motion to
terminate his sanctions pursuant to 28 U.S.C. § 1826.
C. District Court’s Statements During Status Hearings
Although we determine that, because Thompson’s contempt currently includes his failure
to engage in non-testimonial conduct, § 1826 does not apply to him, one more issue warrants
further consideration, namely the district court’s evolving statements regarding Thompson’s
contempt. Ultimately, we determine that this issue does not undermine our conclusion as to the
applicability of § 1826.
Both in his appellate briefs and at oral argument, Thompson asserts that because the
district court has framed his contempt in terms of his failure to testify and provide information,
Thompson’s actions clearly fall within § 1826. See Appellant Br. at 19–21; Reply Br. at 3–5. It
is true that, when Thompson was initially held in contempt, the district court focused on
Thompson’s refusal to answer questions posed to him during the debtor’s exam and noted that
Thompson could cure his contempt if he provided truthful answers. See Crim. R. 67 at 69
(12/15/15 Contempt Hr’g Tr.) (Page ID #703) (explaining that Thompson’s delays are always
“on the eve of each critical proceeding where we get to the pivotal question: Where is the
treasure? Where are the assets? Where’s the loot?”); id. at 74 (Page ID #708) (“Once you
perform the act required by the Court, that is, agree to sit down and participate in the debtor’s
examination, this term of incarceration will be lifted as you will have purged yourself of the
contempt.”); id. at 78 (Page ID #712) (“[I]f you go in there and answer the questions directly and
honestly and not evasively . . . then you can purge yourself of the contempt.”). The district court
reiterated these statements in later status hearings. See Crim. R. 115 at 20 (9/9/16 Status Hr’g
Tr.) (Page ID #1070) (“We will reconvene this hearing on November the 9th to determine
whether Mr. Thompson is ready to disclose the whereabouts of the gold.”); Crim. R. 116 at 4
No. 17-4264 United States v. Thompson Page 16
(11/9/16 Status Hr’g Tr.) (Page ID #1077) (“Mr. Thompson certainly has the ability to purge
himself once he makes the decision . . . to disclose his knowledge of the whereabouts of the
gold.”). Were the district court to have explained Thompson’s contempt solely in terms of his
failure to provide answers and testify, § 1826 would apply to him. See supra Part III.A. After
all, if a district court expressly (and consistently) limits the actions which a contemnor must
undertake in order to cure his contempt, then the contemnor cannot later be faulted for failing to
cure his contempt based on other conduct of which he had no notice.
The problem for Thompson, however, is that the district court’s contempt order was not
limited only to Thompson’s failure to attend a debtor’s examination and truthfully answer
questions. Rather, as the district court explained at the contempt hearing and in the
accompanying written order, Thompson was held in contempt for failing to attend a debtor’s
examination and otherwise perform the requirements of his plea agreement. See Crim. R. 67 at
73 (12/15/15 Contempt Hr’g Tr.) (Page ID #707); R. 63 at 5 (12/16/15 Contempt Order) (Page
ID #625). And as Thompson was well aware following the district court’s April 2017 hearing
and order, such contempt included his failure to sign a limited power of attorney.
Furthermore, the district court’s statements that Thompson could cure his contempt by
sitting for a debtor’s examination and answering questions truthfully do not indicate that, in the
appropriate situation, Thompson would not also be required to engage in other, non-testimonial
conduct. Cf. Crim. R. 108 at 3 (4/25/17 Status Order) (Page ID #990) (requiring Thompson to
execute a limited power of attorney). The district court’s statements are, instead, specific to the
context of the contempt hearing and status hearings and the factual issues then before the district
court. At the time the district court made these statements, Thompson’s only contemptuous
actions revolved around his failure to answer questions in good faith during a debtor’s
examination; the concern regarding the limited power of attorney or the Belizean trust was not
yet squarely before the court. When that issue arose, the district court ordered Thompson to
follow the terms of his plea agreement by executing the limited power of attorney and,
furthermore, described Thompson’s contempt in terms of his refusal to execute the document.
No. 17-4264 United States v. Thompson Page 17
See Crim. R. 130 at 13 (8/18/17 Status Hr’g Tr.) (Page ID #1204) (“Mr. Thompson can purge his
contempt quite easily by signing the power of attorney and submitting to the debtor’s exam.”).5
Finally, paragraph 4(a) of Thompson’s plea agreement explains that “the government
acknowledges that it is the Parties’ intention that any sanctions or consequences arising from
Defendant’s failure to cooperate in the identification and recovery of assets in Case No. 06-CV-
0292 be determined and imposed by this Court as part of the instant proceeding, and only by this
Court as part of the instant proceeding.” Crim. R. 14 at 3 (Page ID #50). Thompson thus
explicitly acknowledged and agreed to a situation in which, depending on Thompson’s failure to
“cooperate in the identification and recovery of assets,” the district court would be permitted to
determine which sanctions (such as civil contempt) would be appropriate. The district court did
just that when it ordered Thompson both to testify at a debtor’s examination and to execute a
limited power of attorney in order to cure his civil contempt. Consequently, although the district
court’s directive to Thompson may have evolved based on the parties’ needs under the plea
agreement, this does not undermine our conclusion that Thompson’s sanctions fall outside the
scope of 28 U.S.C. § 1826.
IV. CONCLUSION
For the reasons set forth above, we AFFIRM the district court’s denial of Thompson’s
motion to terminate his civil-contempt sanctions.
5During the April 21, 2017 status hearing in which the district court concluded that Thompson was required
to execute a limited power of attorney under his plea agreement, the district court again described Thompson’s
contempt in terms of Thompson’s refusal to testify at the debtor’s examination. See Crim. R. 114 at 28 (Page ID
#1044) (“[H]e needs to be able to put himself in a position to purge himself of contempt by answering questions as
to the location of the gold, et cetera.”). However, context again limits the significance of the district court’s
statement. During the April 2017 hearing, the district court ordered Thompson to execute the power of attorney,
reasoning it was required under his plea agreement. Id. at 10 (Page ID #1026). Thompson had not yet refused to
comply with the district court’s order to sign the power of attorney, and any contempt Thompson faced was thus still
limited to Thompson’s refusal to answer questions during the debtor’s examination. Notably, after Thompson
refused to execute the limited power of attorney in May 2017, the district court broadened its discussions regarding
Thompson’s contempt. See Crim. R. 127 at 15 (6/30/17 Status Hr’g Tr.) (Page ID #1170) (asking whether
Thompson was prepared “to comply with the plea agreement and purge himself of the contempt”); Crim. R. 130 at
13 (8/18/17 Status Hr’g Tr.) (Page ID #1204) (noting that Thompson could purge his contempt “by signing the
power of attorney and submitting to the debtor’s exam” (emphasis added)).
| {
"pile_set_name": "FreeLaw"
} |
749 F.Supp. 315 (1990)
VIKONICS, INC., Plaintiff,
v.
The UNITED STATES of America, Defendant,
and
Science Applications International Corporation, Defendant-Intervenor.
Civ. A. No. 90-2423.
United States District Court, District of Columbia.
November 2, 1990.
Sam Zalman Gdanski, Spring Valley, N.Y., for plaintiff.
John Martin, Asst. U.S. Atty., Washington, D.C., for U.S.
Paul C. Fuener, Michael W. Clancy, Roberta M. Echard, Washington, D.C., for defendant-intervenor.
*316 MEMORANDUM ORDER
JOHN GARRETT PENN, District Judge.
Plaintiff Vikonics, Inc. ("Vikonics") filed this "disappointed bidder" suit on October 2, 1990. By Order filed October 4, 1990, the Court denied Vikonics' motion for a temporary restraining order. The case is now before the Court on Vikonics' Motion for a Preliminary Injunction, filed on October 11, 1990. The Court heard argument on the motion on October 23, 1990. After careful consideration of the motion, the opposition thereto, together with the record in this case, the Court concludes that the motion should be denied for the reasons set forth below.
I.
The Western Currency Facility of the Bureau of Engraving and Printing (hereinafter "Bureau") is being constructed near Fort Worth, Texas, to meet the currency production needs of the United States. Contracting for the new facility is being conducted for the Bureau by the United States Corp of Engineers (hereinafter "Corps"). The Western Currency Facility is expected to begin production in January 1991. Affidavit of Eugenie E. Foster, dated October 3, 1990 (hereinafter "Foster Aff.").
A Request for Proposals ("RFP") for the computerized integrated security system to be installed at the Western Currency Facility was issued on October 30, 1989. Affidavit of William D. Brown, dated October 18, 1990, para. 6 (hereinafter "Brown Aff."). The solicitation was re-issued by Errata on March 12, 1990. In response to the RFP as revised, five companies submitted proposals. Upon evaluation of these proposals, only Vikonics and defendant-intervenor Science Applications International Corporation ("SAIC") were determined to be in the competitive range for award.
The specifications of the solicitation included an intercom system and a closed circuit television system ("CCTV") among other things. The RFP specified certain acceptable manufacturers for these products and also allowed the offerors to submit requests to use substitute products. Redcom Laboratories, Inc. was identified as an acceptable manufacturer for the intercom system. With respect to the CCTV system, Diamond Electronics was listed as an acceptable manufacturer.
Paragraph 1.03(B)(1) of Section 01630 of the RFP required offerors to designate on a compliance summary form whether they were proposing the product called for by name in the solicitation or whether they were proposing an equally acceptable substitute. Additionally, each offeror was required to submit a "compliance certification" form certifying that any proposed substitute system, equipment, materials, software and other products had been thoroughly investigated and will meet or exceed standards of quality and performance of specified products. See RFP, section 01630, para. 1.03(C)(1). Paragraph 1.03(A)(3) of Section 01630 of the solicitation further states that the "Contracting Officer [would] review requests for substitutions during evaluation of proposals to determine acceptability." The RFP requires the Contracting Officer to evaluate technical data unfavorably where "deviations, departures, variations, exceptions, and divergences [might] have an adverse effect upon specified requirements ..." RFP, section 00851, para. 1.01(F). The solicitation also states that "[a]ny resulting award of the Contract to the Offeror shall not constitute actual, or implied, approval by the Government, of any portion of such technical data." RFP, section 00851, para. 1.01(I). Finally, the RFP allows the contracting officer to reconsider approval of any substitution "if additional data indicates that substitution will not meet required performance and criteria or specified product." RFP, section 01630, para. 1.03(D)(3). If this occurs, the RFP requires the contractor to provide the specified product. Id.
SAIC indicated in its proposal that with respect to the CCTV system, it was proposing a Burle, Inc. product instead of the Diamond, Inc. product specified in the solicitation. Additionally, with respect to the intercom system, SAIC proposed to provide *317 a Stenophone product instead of the Redcom product specified in the solicitation. By execution of the compliance certification form, SAIC certified that its substitute products would meet or exceed RFP requirements. Plaintiff proposed, however, to provide both the Diamond CCTV product and the Redcom intercom product.
In the evaluation of the proposals, the substitutions proposed by SAIC were noted and those elements of SAIC's proposal were evaluated. According to the Contracting Officer, there was not sufficient information included in SAIC's submission to adequately evaluate the substitution proposed on the CCTV system. See Brown Aff. at para. 36. In addition, questions were raised regarding whether SAIC's proposed substitution for intercom system complied with the RFP's requirement. Id. at para. 34. The technical evaluators, who did not have the benefit of full technical data, commented that the system was not "non-blocking."[1]Id.
The evaluation plan utilized for the proposals included a complex scoring methodology to measure the degree of technical compliance of the offerors with the requirements of the RFP. Under this methodology, a score of 1000 points constituted full compliance with the RFP. Scores below 1000 points measured the shortfall in compliance and scores above 1000 points measured the extent to which RFP requirements were exceeded by an offeror. Id. at paras. 24-29.
On the basis of the information supplied in SAIC's proposal, SAIC's technical score was down-graded with respect to the CCTV requirement and the intercom requirement. With respect to the intercom requirement, the maximum weighted score which could be achieved for full compliance was 31.2. Id. at para. 30. As a result of the information supplied by SAIC in its proposal, SAIC received a score of 24.96. Id. at para. 34. Similarly, with respect to the CCTV requirement, the maximum weighted score which could be achieved for full compliance was 4.25 points. Id. at para. 29. SAIC was given a score of 2.15 points in this category. Id. Since Vikonics proposed to provide both of the brand name products for these requirements, it received the maximum score possible for full compliance in these two categories.
Overall, SAIC received a final score of 1,108.38 and Vikonics received a final score of 912.35. Id. at para. 43. Additionally, the price of Vikonics' proposal significantly exceeded the price of SAIC's proposal. Id. at para. 21. On July 19, 1990, the contract was awarded to SAIC. Prior to commencement of this suit, SAIC submitted the specified Diamond equipment, rather than the Burle product, for the CCTV system. Additionally, on September 7, SAIC provided additional information concerning the Stenophone intercom system, its proposed substitute. SAIC stated that the system would have 15 non-blocking channels. The government determined that 23 channels would be necessary, and so informed SAIC by letter dated October 15, 1990. See Affidavit of Robert J. Hobbs, dated October 18, 1990.
II.
In the instant motion, Vikonics requests an order preliminarily enjoining the government from continuing performance on the contract with SAIC pending a determination of the case on the merits. In order to be entitled to injunctive relief, the moving party must establish that it is likely to prevail on the merits, that it will suffer irreparable injury if injunctive relief is denied, that the other parties will not suffer substantial injury if injunctive relief is granted, and that the granting of injunctive relief is in the public interest. Washington Metropolitan Area Transit Authority v. Holiday Tours, Inc., 182 U.S.App.D.C. 220, 222, 559 F.2d 841, 843 (1977) (hereinafter WMATA v. Holiday Tours). The district court has broad discretion in balancing these factors. Foundation on Economic Trends v. Heckler, 756 F.2d 143, 157 (D.C. *318 Cir.1985). As the court explained in WMATA v. Holiday Tours, "The necessary `level' or `degree' of possibility of success will vary according to the court's assessment of the other factors." 559 F.2d at 843. Thus, even if a plaintiff has not made a particularly strong showing of likelihood of success on the merits, a court may, in the proper exercise of its discretion, grant temporary injunctive relief if the plaintiff demonstrates that the other three equitable factors weigh in his favor. After careful consideration of the motions, the Court concludes for the following reasons that the motion should be denied.
First, the Court will briefly address the likelihood of whether Vikonics will prevail on the merits. "The court's role in reviewing agency contract decisions is limited to determining whether the agency acted in accord with applicable statutes and regulations and had a rational basis for its decisions." Delta Data Systems Corp. v. Webster, 744 F.2d 197, 204 (D.C.Cir.1984) (citations omitted). Under this standard of review, the Court is not authorized to conduct a de novo review, or to substitute its judgment for that of the agency. Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 823, 28 L.Ed.2d 136 (1971). Vikonics argues that the contract was awarded to SAIC in violation of the solicitation and the Competition in Contracting Act, 10 U.S.C. 2304(a)(1)(A) (Supp. IV. 1988). Vikonics specifically contends that SAIC's proposed substitutions for the security intercom system and the CCTV system failed to meet the specification requirements, and that the government's award of the contract to SAIC constituted an impermissible waiver or relaxation of the specification requirements. By so doing, Vikonics charges that the government relaxed its technical requirements for SAIC, but not for the other offerors, and this prejudiced Vikonics' ability to receive a contract award in this solicitation. In Vikonics' view, the Solicitation required the government to reject SAIC's proposal outright because it was technically deficient.
For the following reasons, the Court concludes that Vikonics has not made a sufficient showing that it is likely to succeed on the merits. The solicitation must be read as a whole in determining whether the government violated the applicable rules. In making its point, plaintiff, however, relies principally on the provision that requires that the agency review requests for substitutions during the evaluation of proposals to determine acceptability. Although it appears that the government did make efforts to review SAIC's proposed substitutions during evaluation of proposals, the present record shows that the government failed to make a determination on the acceptability of the Burle and Stenophone products prior to awarding the contract to SAIC. In fact, the government concedes that because there was insufficient data to make a conclusive determination on the acceptability of these products at that time, it decided to rely on SAIC's certification that the products would meet or exceed the standards of the specified products. In Vikonics' view, rather than rely on SAIC's certification, the RFP required the government to reject SAIC's proposal since it proposed substitutions which had not yet been determined to be acceptable. This Court has not been able to locate any provision of the RFP which places this requirement on the government.
Moreover, when viewing the solicitation as a whole, there appears to be even less support for such a requirement. For example, the solicitation allows for the down scoring of unfavorable technical deviations in a proposal. This provision would seem to controvert a requirement that proposals which include possibly unacceptable substitutions be rejected. Additionally, the solicitation allows the contracting officer to reconsider approval of any substitution if additional data shows that it is unacceptable. Implicit in this provision is a recognition that the agency may not have all of the relevant data necessary to make a final determination during the evaluation of proposals. Finally, given the disparity in the price of Vikonics' proposal as compared to SAIC's, and the difference in the technical compliance scores earned, it is unlikely that Vikonics' can show any competitive prejudice resulting from the government's actions. *319 The record shows that SAIC's proposal was superior in both of these areas, and that even if the specifications of the solicitation were relaxed for all of the offerors as Vikonics' alleges it had been for SAIC Vikonics' would not be able to make up the difference in price or technical score.
The Court is also mindful that, according to the contracting officer, Vikonics' proposal had several technical flaws which resulted in an overall score of 912.35 in the area of technical compliance. Thus, were the rules of the solicitation to operate as Vikonics' suggests, the government would have had to throw out Vikonics' proposal along with SAIC's.
Second, Vikonics has failed to show that absent injunctive relief it will suffer irreparable injury. On the issue of irreparable injury, Vikonics has submitted the supplemental affidavit of John Strong, a Vice President of Vikonics. See Affidavit of John Strong, dated October 22, 1990 (hereinafter "Strong Aff."). Strong asserts that the value of Vikonics' stock has dropped, that it has had difficulty raising capital, and that its bond rating may be damaged because it was not awarded the contract. Strong Aff. at paras. 4-6. In the Court's view, Vikonics' is merely speculating on these points. Moreover, it's unlikely these harms will be alleviated by the injunctive relief requested in this motion, i.e. issuance of a stop work order pending a determination on the merits.
Third, for the reasons set forth in the Memorandum Order denying Vikonics' motion for a temporary restraining order, the Court again concludes that the government would not suffer substantial injury if injunctive relief were granted. See Memorandum Order filed October 4, 1990. With respect to SAIC, however, an injunction may result in the risk of financial harm caused by performance delays.
Fourth, while the public interest favors government compliance with applicable statutes and regulations, it's clear that Vikonics has not made a satisfactory showing that it is likely to succeed on the merits. Under these circumstances, the public interest weighs against disruption of contract performance.
After weighing all of the above factors, the Court finds that injunctive relief should be denied. Vikonics has not sufficiently established that it is likely to succeed on the merits or that it will suffer irreparable harm if injunctive relief is denied. Further, the Court finds that if injunctive relief were granted, SAIC would face the risk of economic harm. Finally, the public interest favors denial of the motion.
In view of the foregoing, it is hereby
ORDERED that plaintiff's motion for a preliminary injunction is denied.
NOTES
[1] Non-blocking means that whenever the receiver is picked up a dial tone, rather than a busy signal, can be obtained. Brown Aff. at para. 32.
| {
"pile_set_name": "FreeLaw"
} |
145 B.R. 830 (1991)
In re George A.C. WOOLLEY, III, Debtor.
Thomas L. VISOTSKY, Plaintiff,
v.
George A.C. WOOLLEY, III, Defendant.
Bankruptcy No. 90-32439-T, Adv. No. 90-3189-T.
United States Bankruptcy Court, E.D. Virginia, Richmond Division.
March 29, 1991.
*831 Charles L. Williams, Christopher M. Malone, Thompson & McMullan, Richmond, Va., for plaintiff.
James F. Pascal, Richmond, Va., for debtor, defendant.
*832 MEMORANDUM OPINION
DOUGLAS O. TICE, Jr., Bankruptcy Judge.
Introduction and Procedural Background
The plaintiff, Thomas L. Visotsky, initiated this adversary proceeding on September 30, 1990, pursuant to § 523(a)(2)(A) of the Bankruptcy Code. His complaint seeks exception from discharge of a state court judgment against the debtor, George A.C. Woolley, III, involving the sale of a security based on an untrue statement.
Plaintiff moved for summary judgment pursuant to Bankruptcy Rule 7056. At the conclusion of a hearing on this motion held January 16, 1991, this court awarded partial summary judgment for plaintiff finding that: (1) debtor made a false representation; (2) plaintiff relied on the representation; and (3) plaintiff was damaged as a result of the representation.
On January 22, 1991, trial was held on two remaining issues: (1) whether debtor knew that the representation was false when made and (2) whether debtor made the representation with the intent to deceive the plaintiff.
Based upon the facts and conclusions stated in this opinion the court holds that plaintiff's judgment against the debtor is excepted from discharge.
Findings of Fact
In July 1986, Woolley began employment with L & A Petroleum, Inc., an oil and gas development firm based in Richmond. Previously, Woolley held financial management positions with two major Richmond corporations and taught at a local university from which he received a master's degree in business administration.
L & A Petroleum was controlled by Lance A. Lastinger, President. In addition to Lastinger there were three other full time employees in the headquarters office, including Woolley. Woolley, whose title was Vice President, was responsible for the marketing of drilling programs to the investment public.
Woolley contacted Visotsky in early September 1986 to solicit an investment in a joint venture for drilling an oil and natural gas well known as Holligan 2. The prospectus for this joint venture, dated February 21, 1986, described the project as a $1,200,000.00 drilling program on property located in Brazos County, Texas. Initial drilling had begun in July 1986.
Woolley mailed a Holligan 2 prospectus to Visotsky on September 3, 1986. The prospectus included data on L & A Petroleum's recently-marketed Holligan 1 drilling program on a property adjacent to the site for Holligan 2. (The marketing of Holligan 1 had been concluded before Woolley joined L & A Petroleum.) In the margin of the prospectus, Woolley wrote the following statement concerning Holligan 1: "This well is currently doing about 900 BBL [barrels]/day."
During the solicitation period Woolley on two or three occasions made similar oral representations to Visotsky concerning the 900 barrel per day production of Holligan 1.
In his statements to Visotsky concerning the 900 barrel per day production of Holligan 1, Woolley primarily relied on oral representations to this effect made to him by Lastinger. It was Lastinger's practice to hold weekly meetings with the other three Richmond employees at which time he would give them production information. That information was then typically sent to investors in form letters prepared by Lastinger but often signed by the individual L & A Petroleum sales representatives.
According to an administrative assistant for L & A Petroleum, Lastinger regularly received, often on a weekly basis, accurate written production reports from the well sites in Texas. These reports were usually placed in the company files. In fact, and as revealed by these production reports, the production of oil by Holligan 1 was considerably less than the 900 barrels a day represented by Woolley to Visotsky. Woolley testified that he did not become aware of the existence of these documents until after Lastinger left the company in June 1987.
*833 On his typed cover letter to Visotsky accompanying the prospectus, Woolley wrote in the margin: "This is as far from wildcatting as you can get." During the sales negotiations, Woolley also offered to provide Visotsky a guarantee from L & A Petroleum of his proposed investment in Holligan 2.
Woolley also sent to Visotsky a packet of L & A Petroleum investor update letters relative to Holligan 1, including a letter dated September 17, 1986. This letter stated that "frac water" was being recovered from Holligan 1, and "[w]e are allowing the well to produce at about 100 barrels of fluid per day." The evidence is inconclusive as to whether Visotsky received this letter before or after he invested in Holligan 2.
Visotsky invested $30,000.00 in Holligan 2 on September 30, 1986. Although drilling of the site was completed in October 1986, the well was plagued with difficulties and never produced sufficient oil to become commercially viable. Visotsky continued to receive investor updates concerning Holligan 2, including a letter from Woolley dated May 20, 1987, stating "total return on this investment will be excellent".
In December 1987, Visotsky received a check for $28.56 representing his share of Holligan 2 production revenue. He received no additional payments on his investment.
In the spring of 1987 Woolley learned from Lastinger that there were "some problems" with both Holligan 1 and 2. However, Woolley did not inform Visotsky of the problems with either Holligan 1 or 2.
In late May or early June 1987, Lastinger left the company and the three remaining Richmond employees attempted to reorganize and seek new investors to complete development of Holligan 2. This effort was not successful, and the company ceased operations in late 1987.
Visotsky filed a civil complaint against Woolley in the Circuit Court of the City of Richmond in February 1989, alleging violation of Va.Code Ann. § 13.1-522(C) (Repl.Vol.1989), a securities broker liability statute. Following trial under this complaint, the circuit court ruled that Woolley sold a security to Visotsky by means of an untrue statement of a material fact. As part of the ruling, the circuit court found that Woolley failed to sustain the burden of proof imposed on him by § 13.1-522(C) that he did not know and in the exercise of reasonable care could not have known of the existence of the untrue statement. Visotsky v. Woolley, Case No. N-6145-4, Circuit Court of the City of Richmond (1990). Accordingly, the circuit court entered judgment against Woolley on June 19, 1990, for the value of the investment, $30,000.00, less the return of $28.56. The court also awarded Visotsky attorneys' fees and interest of 6% per annum interest on the unpaid judgment.
On August 7, 1990, Woolley filed a Chapter 7 bankruptcy petition.
Discussion
Plaintiff bases his dischargeability complaint on 11 U.S.C. § 523(a)(2)(A) of the Bankruptcy Code which provides in part:
(a) A discharge under Section 727 . . . does not discharge an individual debtor from any debt
(2) for money, property, services, . . . to the extent obtained by
(A) false pretenses, a false representation, or actual fraud. . . .
11 U.S.C. § 523(a)(2)(A) (1991). The false representation or fraud relied upon by the plaintiff is Woolley's statement on several occasions that the adjoining well, Holligan 1, was producing 900 barrels of oil per day when in fact it was producing substantially less.
Plaintiff must prove the following five elements to establish non-dischargeability under § 523(a)(2)(A): (1) the debtor made false representations; (2) that at the time he knew the representations were false; (3) that he made them with the intention and purpose of deceiving the creditor; (4) that the creditor relied on such representations; and (5) that the creditor sustained the alleged loss and damage as the proximate result of the representations having been made. Sweet v. Ritter Finance *834 Co., 263 F.Supp. 540, 543 (W.D.Va. 1967), cited in Ward v. Wyatt (In re Wyatt), 87 B.R. 874, 877 (Bankr.E.D.Va. 1988).
In determinations of dischargeability under § 523(a)(2)(A), collateral estoppel may bar relitigation of issues resolved in state court. Krenowsky v. Haining (In re Haining), 119 B.R. 460, 464 (Bankr.D.Del. 1990). As stated above, this court granted summary judgment for plaintiff for the 1st, 4th and 5th elements based on the state court proceeding.
However, Va.Code Ann. § 13.1-522(C) (Repl.Vol.1989) under which the state court judgment lies, does not require a finding of intent to deceive.[1] Therefore, neither intent nor knowledge was established at the state court proceeding, and summary judgment was not available as to the 2nd and 3rd elements.
From an evidentiary perspective, a state court record is relevant and admissable in a § 523(a)(2)(A) dischargeability proceeding where the testimonial and documentary evidence concerns the same parties, transactions, and occurrences. In re Haining at 462. Therefore, the state court record in the earlier Visotsky v. Woolley litigation is admissible in this bankruptcy proceeding and may be considered by the court in ruling on the complaint.
The appropriate standard of proof for plaintiff in an exception to discharge case is the preponderance of the evidence standard. Grogan v. Garner, 498 U.S. 279, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991).
Knowledge
Here, the defendant Woolley testified that at the time he made the representations concerning production of the adjoining well, he believed the statements to be true and that he did not learn the truth until much later. His defense is that he relied on Lastinger's representations. Consequently, he argues that he did not have the requisite knowledge or intent to defraud Visotsky.
However, plaintiff may establish debtor's actual knowledge by a showing of reckless indifference to the truth. Stamford Mun. Employees' Credit Union, Inc. v. Edwards (In re Edwards), 67 B.R. 1008, 1010 (Bankr.D.Conn.1986) (emphasis added). The knowledge element for exception to discharge is satisfied if the debtor's representation was known to be false or recklessly made without knowing whether it was true or false. In re Taylor, 514 F.2d 1370, 1373 (9th Cir.1975), cited in Mann v. Houtman (In re Houtman), 568 F.2d 651, 655 (9th Cir.1978); Birmingham Trust Nat'l Bank v. Case, 755 F.2d 1474, 1476 (11th Cir.1985).
Reckless conduct refers to unreasonable conduct in disregard of a known or obvious risk from which it is highly probable that harm would follow. W. Page Keeton, William A. Prosser & W. Page Keeton on Torts, 213 (5th ed. 1984). It is usually accompanied by a conscious indifference to the consequences. Id. In contrast, negligence is characterized as mere thoughtlessness or inadvertence or simple inattention. Id. at 214.
Where the knowledge element is based on recklessness, the conduct must exceed negligence and rise to the level of reckless disregard for truth. Arney v. Moran (In re Moran), 120 B.R. 379, 390 (Bankr.W.D.Va.1990). Recklessness is usually determined by a pattern of conduct. See Orval Davis Tire Co. v. Hamm (In re Hamm), 92 B.R. 386, 388 (Bankr.W.D.Mo. 1988).
Predictions or opinions as to anticipated profits that the declarant does not in fact hold or declarations made with reckless indifference for the truth may bar a discharge in bankruptcy. McMillan v. Firestone (In re Firestone), 26 B.R. 706, *835 715 (Bankr.S.D.Fla.1982); Chase Manhattan Bank v. Fordyce (In re Fordyce), 56 B.R. 102, 105 (Bankr.M.D.Fla.1985). In concluding that defendants' beliefs concerning the accuracy of the representations were not honestly held, the Firestone Court noted that "[s]elf delusion, even if existent does not justify baseless representations." U.S. v. Amrep Corp., 560 F.2d 539, 546 (2d Cir.1977), cert. den., 434 U.S. 1015, 98 S.Ct. 731, 54 L.Ed.2d 759 (1977) cited in McMillan v. Firestone (In re Firestone), 26 B.R. at 716.
Reckless reliance by a debtor on the statements of another may be grounds for non-dischargeability even where the debtor had no actual knowledge that the statements made to plaintiff were false. In re Houtman, 568 F.2d at 656; David v. Annapolis Banking & Trust Co., 209 F.2d 343, 344 (4th Cir.1953). See In re Sweet, 263 F.Supp. at 543.
Although Woolley made repeated statements that Holligan 1 produced 900 barrels per day he testified that he sent the September 17, 1986, letter to Visotsky before he made the investment on September 30, 1986. That letter stated that current production of Holligan 1 was only 100 barrels a day. From this alone, the court easily concludes that Woolley's misrepresentations were made with reckless indifference. The truth was literally in his hands.
Woolley's written statement on the cover letter accompanying the prospectus stated: "This is about as far from wildcatting as you can get." This was a prediction concerning profits. Yet Woolley made it clear that he had no way of knowing whether the statement was reasonably accurate. Woolley testified that he knew nothing about the oil and gas industry. He made no investigation of data on which to make his profit/risk statements about Holligan 2. For over one year he never inquired about any production data on either Holligan 1 or 2. Woolley must have known that his continuing representations, on which Visotsky relied to his detriment, had no reasonable factual basis.
Woolley's conduct demonstrated a consistent pattern of misrepresentation. His "900 barrel per day production" statement was made repeatedly. After Visotsky made the investment on September 30, 1986, Woolley continued to provide him with a series of exaggerated production figures. As late as May 20, 1987, Woolley sent a letter to Visotsky stating that the total return on his investment in Holligan 2 would be "excellent". His decision not to inform Visotsky of the production troubles in Holligan 1 and 2 was reckless and in conscious indifference to the consequences.
In an exception to discharge case, the court may consider the debtor's conduct in light of his prior business expertise. See Livingston v. Hospelhorn (In re Hospelhorn), 18 B.R. 395, 398 (Bankr.S.D.Ohio 1981). Woolley's conduct must be evaluated in view of his advanced business degree, his previous position as a member of the business faculty at a local university and prior employment in financial management with two of the largest corporations in Virginia. This court concludes that his actions in this matter were not simply negligent but rather a reckless disregard for the truth. Plaintiff has established the knowledge element for exception to discharge.
Intent
The conclusion that defendant knew that his representations were false is closely linked to the issue of intent to deceive. In a § 523(a)(2)(A) proceeding intent to deceive may logically be inferred from a false representation which the debtor knows or should know will induce another to invest. See First Nat'l Bank of Red Bud v. Kimzey (In re Kimzey), 761 F.2d 421, 424 (7th Cir.1985). A defendant who asserts a fact to be of his own knowledge, or so positively as to imply that he has knowledge, when he knows that he does not in fact know whether what he says is true, is found to have the intent to deceive. Prosser at 742.
As with the knowledge element required for exception to discharge, a showing of reckless indifference to the truth is sufficient to demonstrate the requisite intent to deceive. In re Edwards, 67 B.R. at 1010; In re Hospelhorn, 18 B.R. at 398; In re Houtman, 568 F.2d at 656. "[W]here, as here, a person knowingly or recklessly makes a false representation which the person *836 knows or should know, will induce another to make a loan, intent to deceive may logically be inferred." Carini v. Matera, 592 F.2d 378, 380 (7th Cir.1979) (emphasis added) cited in In re Firestone, 26 B.R. at 717. But see Cowher's Trucking, Inc. v. Zack (In re Zack), 99 B.R. 717, 722 (Bankr. E.D.Va.1989), where Chief Judge Bostetter of this district held that negligence or reckless disregard for the truth is not sufficient to establish the intent to deceive element for exception to discharge.
In a dischargeability action under § 523(a)(2)(A) intent may be inferred from evidence presented of the surrounding circumstances of the case. In re Wyatt, 87 B.R. at 878; Eastern Food Service, Inc. v. Leger (In re Leger), 34 B.R. 873, 877 (Bankr.D.Mass.1983); In re Hamm, 92 B.R. at 388. This is so because direct proof of intent, i.e. debtor's state of mind, is nearly impossible to obtain. In re Leger, 34 B.R. at 877; In re Edwards, 67 B.R. at 1010. The false representation coupled with the debtor's conduct is sufficient to permit the court to infer the requisite intent. Id. However, while intent to deceive may be inferred from the totality of the circumstances, it cannot be presumed. Schwalbe v. Gans (In re Gans), 75 B.R. 474, 486 (Bankr.S.D.N.Y.1987).
In determining whether there was intent to deceive, the court may rely on a pattern of representations to infer intent. In re Firestone, 26 B.R. at 717. Subsequent conduct may reflect back to the promisor's state of mind and thus may be considered in ascertaining whether there was fraudulent intent. In re Haining, 119 B.R. at 464.
Intent was inferred where the court was satisfied that the debtor was "willing to paint as bright a picture as might be necessary" to induce an investment from the plaintiff". In re Moran, 120 B.R. at 390. "The emphasis of this [intent] element in a § 523(a)(2)(A) discharge is on the debtor's intention to induce action by the creditor as a direct result of the debtor's representation." Norton Bankr.L. & Prac., § 27.41 (1990).
This court infers the requisite intent from Woolley's pattern of misrepresentations concerning the production of Holligan 1. Furthermore, Woolley admitted that when Lastinger told him in late spring 1987 about problems with both Holligan 1 and 2, he withheld this information from Visotsky.
Woolley's representations about the production of Holligan 1, the absence of "wildcatting" risk in Holligan 2, and his offer to provide a guarantee of the investment all suggest an intent to do whatever was necessary to induce Visotsky to invest. Woolley's representations were directly focused on inducing Visotsky to invest.
Despite his assertions at trial, Woolley did not overcome the depth of the circumstantial evidence presented by plaintiff. In § 523(a)(2)(A) discharge cases "[w]hen the creditor introduces circumstantial evidence proving the debtor's intent to deceive, the debtor `cannot overcome [that] inference with an unsupported assertion of honest intent.'" In re Hamm, 92 B.R. at 38 (quoting Matter of Van Horne, 823 F.2d 1285, 1287 (8th Cir.1987)).
The plaintiff has carried his burden of proof of establishing the nondischargeability of his claim under Section 523(a)(2)(A) of the Bankruptcy Code. An appropriate order will be entered.
NOTES
[1] The statute provides that one who "materially aids" in the sale of a security by means of an untrue statement is liable "unless able to sustain the burden of proof that he did not know, and in the exercise of reasonable care could not have know, of the existence of the facts by reason of which the liability is alleged to exist." It thus shifts the burden of proof on knowledge to the defendant.
| {
"pile_set_name": "FreeLaw"
} |
Opinions of the United
2007 Decisions States Court of Appeals
for the Third Circuit
10-22-2007
Santana-Gonzalez v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 06-2965
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2007
Recommended Citation
"Santana-Gonzalez v. Atty Gen USA" (2007). 2007 Decisions. Paper 305.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/305
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2007 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact [email protected].
PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
__________
No. 06-2965
__________
HAIDEE DE REGLA SANTANA GONZALEZ,
Petitioner
vs.
ATTORNEY GENERAL OF
THE UNTIED STATES,
Respondent
__________
On Petition for Review of an Order of
the Board of Immigration Appeals
U.S. Department of Justice
(BIA No. A97-437-427)
Immigration Judge: Daniel Meisner
__________
Submitted Under Third Circuit L.A.R. 34.1(a)
September 20, 2007
Before: SLOVITER, SMITH, and GARTH, Circuit Judges.
(Opinion Filed: October 22, 2007)
OPINION
Garth, Circuit Judge
In 1997, Congress amended the Immigration and
Nationality Act (“INA”) to allow a notice of removal hearing to be
served on an alien by regular mail, as opposed to certified mail,
return receipt requested. In this case, an Immigration Court sent
Petitioner Haidee de Regla Santana Gonzalez (“Petitioner”) a
notice of hearing by regular mail, which Petitioner claims she
never received. The questions presented in her Petition are
essentially twofold: (1) what presumption of receipt attaches to a
notice of hearing sent by regular mail; and (2) how an alien
claiming non-receipt of a notice sent by regular mail can rebut that
presumption, thereby entitling her to an evidentiary hearing on that
claim. We will grant her Petition.
I.
Petitioner is a 35 year old native and citizen of Cuba. She
arrived at Newark International Airport on November 5, 2003,
without a valid visa or valid entry document. Upon arrival, a
Department of Homeland Security (“DHS”) officer apprehended
her. Petitioner then informed the officer that she feared returning
to Cuba. As a result, the DHS paroled her into the United States.
The DHS immediately served Petitioner with a Notice to
Appear. The Notice to Appear charged her as removable under
Section 212(a)(7)(A)(i)(I) of the Immigration and Nationality Act
(“INA”), 8 U.S.C. § 1182(a)(7)(A)(i)(I).1 Additionally, the Notice
to Appear listed Petitioner’s address as “721 25th Street, Union
City, New Jersey 07087,” which was the address she gave the DHS
upon arrival and the residence where her uncle, his wife, and their
son lived.
1
This statute renders inadmissible any alien who, at the time of
application for admission, was not in possession of a valid
unexpired immigrant visa, reentry permit, border crossing card,
or other valid entry document, and a valid unexpired passport, or
other suitable travel document. 8 U.S.C. § 1182(a)(7)(A)(i)(I)
2
The Notice to Appear did not provide a date for the
Petitioner to appear before an Immigration Judge (“IJ”). Instead,
it only ordered Petitioner to appear before an IJ in Newark, New
Jersey, on a date “to be set” at a time “to be set.” The Notice to
Appear also stated that Petitioner should immediately notify the
Immigration Court “in writing” on “Form EOIR-33” of any
address change.
On January 7, 2004, the Immigration Court in Newark, New
Jersey sent a Notice of Hearing to Petitioner’s Union City address.
The Notice of Hearing stated that the Immigration Court had
scheduled her case for a hearing on January 15, 2004. This notice
was sent via ordinary first-class mail.
Petitioner resided at the Union City address from her arrival
in November 2003 until the beginning of January 2004. She then
moved to Homestead, Florida. During her stay in Union City,
Petitioner claims she never received the Notice of Hearing.
Petitioner further claims that, before moving to Homestead, her
uncle’s wife called the DHS to advise it of the Petitioner’s
impending move.
After moving to Homestead, Petitioner asked the Florida
Department of Children & Families Services for assistance with
her immigration case. According to Petitioner, a person affiliated
with the organization called the DHS’s Newark office to advise it
that Petitioner had moved to Homestead, Florida. Petitioner claims
that, during her stay in Homestead, her uncle had been asked by
Petitioner to forward any mail addressed to her in Union City to
her new address in Homestead. According to Petitioner, she never
received any Notice of Hearing from her uncle while in
Homestead.
On January 15, 2004, the Immigration Court held
Petitioner’s removal hearing. Petitioner did not appear.
Accordingly, the IJ issued an in absentia order removing Petitioner
to Cuba.
In February 2004, Petitioner moved to Las Vegas, Nevada.
Upon arriving in Las Vegas, Petitioner communicated with the
Catholic Charities of Southern Nevada, as well as her present
counsel, for assistance with her immigration case. In September
3
2004, Petitioner’s counsel discovered the in absentia removal
order after calling the Executive Office of Immigration Review.
Petitioner then filed a motion to rescind the removal order and to
reopen her immigration case. I n h e r mo t i o n t o r e o p e n ,
Petitioner submitted an affidavit stating that she had not received
the Notice of Hearing while living in Union City. The affidavit
also stated that her uncle did not send her any Notice of Hearing
after she moved to Florida, nor did he advise her of any notice sent
to Petitioner at his Union City address. The IJ denied her motion
without a hearing. The IJ found that Petitioner failed to provide
sufficient evidence tending to establish non-receipt of the Notice
of Hearing. Specifically, the IJ noted that the Notice of Hearing
“was not returned as undeliverable” and that Petitioner failed “to
provide probative evidence that tends to plausibly explain or
confirm the claim of nondelivery.”
Petitioner then appealed to the Bureau of Immigration
Appeals (“BIA”). In her submission to the BIA, Petitioner argued
that the IJ erred in holding that she failed to rebut the presumption
of receipt of the Notice of Hearing. Petitioner also argued that,
under Salta v. INS, 314 F.3d 1076 (9th Cir. 2002), she was entitled
to an evidentiary hearing regarding her claim of non-receipt. The
BIA disagreed. In a written decision, the BIA affirmed the IJ’s
holding that Petitioner failed to rebut the presumption of effective
delivery. Specifically, the BIA relied on Matter of Grijalva, 21
I&N Dec. 27 (BIA 1995), and held that the Notice of Hearing was
entitled to a “presumption of effective delivery.” The BIA also
rejected Petitioner’s claim that she was entitled to an evidentiary
hearing regarding non-receipt of the notice. On this point, the BIA
stated:
Finally, while [Petitioner] asserts that her
relatives forwarded all her mail to her in Florida,
but did not forward the Notice of Hearing, she
has failed to provide an affidavit from them so
stating.
This Petition for Review timely followed. The Petition,
among other things, sought a reversal of the BIA’s order, an
order rescinding and reopening removal proceedings, and an
order remanding those proceedings to the BIA with instructions
4
to remand to the IJ.
II.
We exercise jurisdiction to review the BIA’s final order of
removal under Section 242(a) of the INA, 8 U.S.C. § 1252(a).
Because the BIA adopted the findings of the IJ and also
commented on the sufficiency of the IJ’s determinations, this
Court reviews the decisions of both the BIA and the IJ. See Xie
v. Ashcroft, 359 F.3d 239, 242 (3d Cir. 2004). We review these
decisions under the highly deferential “abuse of discretion”
standard. INS v. Abudu, 485 U.S. 94, 105 (1988); Guo v.
Ashcroft, 386 F.3d 556, 562 (2004). As such, these
determinations “‘will not be disturbed unless they are found to be
arbitrary, irrational, or contrary to the law.’” Guo, 386 F.3d at
562 (quoting Tipu v. INS, 20 F.3d 580, 582 (3d Cir. 1994)).
III.
The INA allows an IJ to hold removal proceedings in
absentia if the alien was provided proper written notice of the
proceeding. 8 U.S.C. § 1229a(b)(5)(A). Under the INA, written
notice must be “given in person to the alien (or, if personal
service is not practicable, through service by mail to the alien or
to the alien’s counsel of record, if any).” 8 U.S.C. § 1229(a)(1).
An in absentia removal order may be rescinded, though, if the
alien demonstrates that (1) she was in Federal or State custody
and her failure to appear was through no fault of her own, (2) she
“did not receive notice” of the hearing, or (3) her failure to
appear was because of exceptional circumstances. 8 U.S.C. §
1229a(b)(5)(C). Our focus here is on the second means of
rescinding an in absentia removal order: non-receipt of notice.
As the word “receive” indicates, the key question in reopening a
removal proceeding for lack of notice is not whether the
Immigration Court properly mailed the notice to the alien, but
whether the alien actually received the notice. Lopes v. Gonzales,
468 F.3d 81, 83 (2d Cir. 2006) (citing Joshi v. Ashcroft, 389 F.3d
732, 736 (7th Cir. 2004)).
We turn first to the appropriate standard to be employed
in determining the receipt of a notice of hearing sent by regular
ordinary mail.
5
A.
The IJ found Petitioner’s affidavit insufficient grounds for
reopening her case, stating that Petitioner failed to “provide
probative evidence that tends to plausibly explain or confirm the
claim of nondelivery.” The BIA similarly found Petitioner’s
affidavit insufficient, holding that she had “not overcome the
presumption of effective delivery,” citing to its own precedent in
Matter of Grijalva, 21 I&N Dec. 27 (BIA 1995).
The presumption derived from Matter of Grijalva
involved service of a notice of hearing by certified mail. Prior to
1997, a notice of removal hearing could only be served by
certified mail, return receipt requested. 8 U.S.C. §
1252b(a)(2)(A) (“In deportation proceedings under section 1252
of this title, written notice ... shall be given in person to the alien
(or, if personal service is not practicable, such notice shall be
given by certified mail to the alien or to the alien’s counsel of
record, if any).”) (repealed, effective 1997); 8 U.S.C. §
1252b(f)(1) (“The term ‘certified mail’ means certified mail,
return receipt requested.”) (repealed, effective 1997).2 In
2
This change was apparently aimed at making in absentia orders
easier to obtain and easier to enforce in the face of motions to
reopen. For instance, in remarks documenting the change, which
were contained in Section 304 of the Illegal Immigration Reform
and Immigrant Responsibility Act of 1996, the House Judiciary
Committee commented:
[T]here are often protracted disputes concerning
whether an alien has been provided proper notice
of a proceeding. This impairs the ability of the
government to secure in absentia deportation
orders in cases where aliens fail to appear for
their hearings; in many such cases, aliens will
petition to reopen their hearings on the grounds
that they never received proper notice.
Section 304 addresses these problems with a
6
Grijalva, the BIA held:
[I]n cases where service of a notice of a
deportation proceeding is sent by certified mail
through the United States Postal Service and
there is proof of attempted delivery and
notification of certified mail, a strong
presumption of effective service arises. There is
a presumption that public officers, including
Postal Service employees, properly discharge
their duties. A bald and unsupported denial of
receipt of certified mail notices is not sufficient to
support a motion to reopen to rescind an in
absentia order.... (emphasis added)
This presumption of effective service may be overcome by
the affirmative defense of nondelivery or improper delivery by the
Postal Service. However, in order to support this affirmative
defense, the respondent must present substantial and probative
evidence such as documentary evidence from the Postal Service,
third party affidavits, or other similar evidence demonstrating that
number of new requirements. First, it requires the
INS to establish a central address file to
accurately record address information, including
changes provided by aliens. Second, it provides
that service by mail of the required notice of
hearing is sufficient if there is proof of delivery to
the most recent address provided by the alien.
Third, it authorizes the immigration judge to enter
an in absentia order if the alien fails to appear
provided that there is proof of attempted delivery
at this address. Fourth, it allows an alien to
rescind an in absentia order only in the case of
specified exceptional circumstances or if the alien
demonstrates that notice was not received
notwithstanding the alien’s compliance with the
notice of address requirements.
H.R. Rep. No. 104-469, at 159 (1996).
7
there was improper delivery.
Matter of Grijalva, 21 I&N Dec. at 37 (internal citation
omitted). Accordingly, Grijalva stands for the proposition that a
“strong presumption” of effective service of a notice of hearing
arises when the notice is sent by certified mail, and this
presumption may only be overcome by presenting “substantial and
probative evidence.”
Since 1997, however, a notice of hearing may be served by
regular mail. 8 U.S.C. § 1229(a)(1). In other contexts, we have
long recognized a presumption that ordinary regular mail properly
sent is presumed to be received. See, e.g., Welch & Forbes Inc. v.
Cendant Corp. (In re Cendant Corp. Prides Litig.), 311 F.3d 298,
304 (3d Cir. 2002) (“The common law has long recognized a
presumption that an item properly mailed was received by the
addressee.”) (citations omitted). Such a presumption in the case of
ordinary regular mail is to be contrasted with the “strong
presumption” required in Grijalva in the case of certified mail,
particularly since certified mail carries with it extra assurances of
effective delivery that are absent when letters are sent via ordinary
means. The difference in the strength of presumption, and in its
effect when applied, is a difference which we recognize and
approve, as have other courts of our sister circuits. Lopes v.
Gonzales, 468 F.3d 81, 85 (2d Cir. 2006); Nibagwire v. Gonzales,
450 F.3d 153, 156-57 (4th Cir. 2006); Joshi v. Ashcroft, 389 F.3d
732, 736-37 (7th Cir. 2004); Ghounem v. Ashcroft, 378 F.3d 740,
744-45 (8th Cir. 2004); Salta v. INS, 314 F.3d 1076, 1079 (9th Cir.
2002).
The Ninth Circuit in Sembiring v. Gonzales, --- F.3d ---,
No. 04-74076, 2007 U.S. App. LEXIS 20211 (9th Cir. Aug. 24,
2007), relied upon its holding in Salta that “a weaker
presumption” of effective service applies to service by regular
mail. The court stated as follows:
Under Salta, less evidence was required to
overcome the presumption of effective service
than under Grijalva. This lower evidentiary
standard makes good sense. If a letter is sent by
certified mail, there is a paper trail in Postal
Service records showing both mailing and receipt
8
(or non-receipt). By contrast, there is no Postal
Service paper trail for regular mail. There is
seldom any administrative paper trail either, other
than a copy of the notice in question and,
sometimes, a copy of the envelope in which the
notice was sent.
As we previously held in Salta, “some of the
Grijalva-Arrieta proof requirements (e.g.,
documentary evidence from the Postal Service,
third party affidavits indicating improper
delivery, etc.) ... clearly have no application under
a regular mail regime.” [Salta,] 314 F.3d at 1080.
If the evidence described in Grijalva “were the
standard under the current statute, we would
leave respondents virtually without recourse to
rebut the presumption of effective delivery.”
Ghounem, 387 F.3d at 744. Such a result would
defeat the purpose of Congress’s express
authorization for rescission of in absentia removal
orders when the alien “did not receive notice.” 8
U.S.C. 1229a(b)(5)(C)(ii).
Sembiring, supra at *17-18. We now hold, as do those courts,
that Grijalva’s strict evidentiary standard – a strong presumption
– applies only when a notice from an Immigration Court or the
INS (or Department of Homeland Security) is sent by certified
mail, and that a weaker presumption of receipt applies when such
a notice is sent by regular mail.
B.
The second issue before us is what an alien, such as
Petitioner, must do to demonstrate that she did not receive a
notice of hearing.3 In her motion to reopen, Petitioner essentially
3
In denying Petitioner’s motion to reopen, the IJ stated, “Even
ordinary mail delivery entails a presumption of receipt provided the
letter is properly addressed.” In the Matter of Haidee de Regla
Santana-Gonzalez, File No. A 97 437 427 (EOIR June 9, 2005)
9
submitted three items to the IJ: (1) a brief, which included a
statement of facts and legal argument; (2) an affidavit from
herself; and (3) an affidavit from her counsel, which attached her
entire immigration file obtained from the DHS. Petitioner’s
affidavit was the only piece of evidence directly supporting her
claim of non-receipt. It stated:
10. During the two months I resided in Union City, New
Jersey, I did not receive a Notice of Hearing advising me
of the date to appear before the Immigration Court in
Newark, New Jersey.4
12. In January of 2004, I moved to 15023 SW 302,
Homestead, FL 33033. But, my uncle continued to reside
at 721 25th Street, Union City, NJ 07087 with his wife
and son.
(Meisner, I.J.) (citing Rosenthal v. Walker, 111 U.S. 185 (1894)).
Thereafter, as we recite in the text above, the BIA affirmed the IJ
citing Matter of Grijalva, 21 I&N Dec. 27 (BIA 1995). As we
have recognized, the presumption in Grijalva is a far stronger
presumption of effective delivery than the presumption of effective
delivery by ordinary regular mail. The BIA having applied the
stronger [certified mail] presumption rather than the weaker
[regular mail] presumption, understandably leaves us uncertain as
to the quality and sufficiency of evidence now required to rebut the
presumption of effective delivery of a hearing notice when the
addressee claims non-receipt. The application of two different
standards by the IJ and the BIA clouds the principle of which
presumption applies to Petitioner’s evidence. This is so
particularly since the 1894 Supreme Court precedent cited by the
IJ could not and did not take into account the more recent statutes
which we have discussed dealing with certified and regular mail
delivery. To the extent that the BIA applied an incorrect
presumption under Grijalva, the BIA did not properly exercise its
discretion. See Tipu v. INS, 20 F.3d 580, 582 (3d Cir. 1994)
(“Discretionary decisions of the BIA irrational, or contrary to
law.’”).
4
The Petitioner misnumbered the paragraphs in her affidavit,
omitting the number eleven.
10
13. My uncle, his wife and son regularly sent me mail that
was addressed to me at 721 25th Street, Union City, NJ
07087.
14. My uncle, his wife and son did not send me or advise
me of any mail from the Immigration Court or the
Department [of Homeland Security] advising me to appear
in Court on January 15, 2004.
Has the Petitioner here rebutted this weaker presumption
of receipt which attends ordinary regular mail? The Ninth
Circuit’s decision in Salta v. INS, 314 F.3d 1076 (9th Cir. 2002),
is instructive. The facts of Salta are similar to those at issue here.
In Salta, the issue before the court was: “[H]ow an alien may
meet the burden of demonstrating lack of notice under the new
statute,” which allows service by ordinary mail. Salta v. INS, 314
F.3d 1076, 1079 (9th Cir. 2002). The Ninth Circuit held, as we
do, that service of such notices by ordinary mail is not entitled to
the same presumption as service by certified mail. Id. The Court
then held:
Where a petitioner actually initiates a proceeding
to obtain a benefit, appears at an earlier hearing,
and has no motive to avoid the hearing, a sworn
affidavit from [petitioner] that neither she nor a
responsible party residing at her address received
the notice should ordinarily be sufficient to rebut
the presumption of delivery and entitle
[petitioner] to an evidentiary hearing to consider
the veracity of her allegations.
Id. Thus, under Salta, submission of an affidavit by an alien
claiming non-receipt of a notice of hearing by him or her, or a
responsible person residing at her address, along with
circumstantial evidence corroborating the alien’s claims of non-
receipt may ordinarily be sufficient to raise a factual issue
requiring an evidentiary hearing before the IJ.
After Salta, the Ninth Circuit further clarified the required
evidentiary showing to entitle an alien to a hearing. In
Sembiring, an alien, Sembiring, was ordered deported in absentia
after she claimed that she had failed to receive a notice
11
rescheduling her deportation hearing. When Sembiring appeared
on the original date of her hearing, she was notified that she had
already been ordered deported six days earlier. Sembiring then
wrote a letter to the IJ claiming non-receipt of the rescheduling
notice. The letter was signed, but was neither sworn nor verified.
Her letter was construed as a motion to reopen. The IJ denied
this motion mainly because Sembiring failed to provide a sworn
statement that she never received the notice rescheduling her
hearing. The BIA affirmed.
Sembiring then applied Salta and held that the IJ and BIA
abused their discretion by failing to reopen her proceedings.
Specifically, the court noted that while “[w]e noted in Salta that
an affidavit is one way to establish non-receipt of a notice sent by
regular mail ... a sworn affidavit is not always necessary.”
Sembiring, 2007 U.S. App. LEXIS 20211, at *23. The court
further stated that “[t]he test for whether an alien has produced
sufficient evidence to overcome the presumption of effective
service by regular mail is practical and commonsensical rather
than rigidly formulaic.” Id. at * 18.
The Sembiring court noted that Sembiring brought herself
to the government’s attention by seeking asylum, thereby
showing that she did not have a motive to avoid the hearing. Id.
at *18-21. Furthermore, the record showed that she actually
appeared at the originally scheduled hearing. Id. at *21-22.
Moreover, the government’s evidence did not clearly show that
it was actually mailed to Sembiring’s address. Id. at *22-23.
Nevertheless, based on these facts, the Ninth Circuit held that “a
sworn affidavit was not required to establish that Sembiring did
not receive notice....” Id. at 23. Instead, the court stressed that:
[T]he inquiry contemplated by Salta is a practical
one under which many forms of evidence are
relevant. If there is enough evidence to overcome
the presumption of effective service without a
sworn affidavit, the absence of such affidavit is
not fatal to petitioner’s [motion to reopen for
non-receipt of notice].
Id. at *23. Therefore, the court held that Sembiring had
sufficiently rebutted the presumption of receipt and vacated the
12
in absentia removal order.
Petitioner, like Sembiring, may not have had a motive to
avoid the scheduled hearing. She had little to gain by failing to
appear at the hearing. Moreover, as a native and citizen of Cuba,
she was entitled to apply for adjustment of status under the
Cuban Adjustment Act, Pub. L. No. 89-732, Stat. 1161 (1966)
(reproduced as historical note to 8 U.S.C. § 1255), which would
allow her to apply for permanent residency after only one year of
residing in the United States.
Furthermore, circumstantial evidence in the record
disclosed that Petitioner at all times sought to have a hearing to
adjust her status. While Petitioner had not filed a Form EOIR-33
notifying the Immigration Court of her address change, she had
sought to acquaint the DHS with her change of address by having
her uncle’s wife, along with the Florida Department of Children
& Families Services and the Catholic Charities of Southern
Nevada, inform the DHS of her change of address. Petitioner
also took affirmative action to have her counsel inquire as to her
immigration status. It was only after her counsel investigated her
status that she learned that an in absentia order had been issued
removing her. As a result of her counsel’s actions, counsel’s
affidavit attached the file that he had received through his
Freedom of Information Act (FoIA) request. That file included
the additional information which is summarized above. These
attempts to communicate with the DHS, as reflected by the
record, additionally support Petitioner’s claim that she had not
received notice of any hearing and might now suffice to rebut the
presumption of effective notice which we announce today.
We do not wish to imply that, based on these
circumstances, the IJ should have rescinded the in absentia order
and reopened Petitioner’s removal hearing. Indeed, it is
significant that petitioner failed to follow the clear requirement
that she give written notice of any change in her address, a fact
that needs to be considered by the IJ in making the ultimate
decision. The facts recited above, though, do appear relevant in
determining whether Petitioner has rebutted the presumption of
receipt of the Notice of Hearing.
In light of the fact that our decision today adopts a less
13
stringent standard for determining the presumption of receipt for
notices of hearing sent by regular mail rather than the strong
presumption employed by the BIA, see Grijalva, 21 I&N Dec.
27, and thus establishes a new and different standard when
regular mail is used, we will vacate the BIA’s order of May 9,
2005. Additionally, we will remand to the BIA with directions
to reopen the in absentia order of removal and direct the BIA to
instruct the IJ on remand to apply the less stringent presumption
to the evidence which Petitioner may produce.5 See Adarand
Constructors v. Pena, 515 U.S. 200, 237 (1995) (remanding to
lower court for application of new standard to facts presented).
5
In view of our opinion announcing a standard – a standard for
regular mail notices – which in this case requires a remand to the
IJ, we have no need to address the other arguments made by
Petitioner, both of which involve the non-receipt of the hearing
notice.
14
| {
"pile_set_name": "FreeLaw"
} |
425 S.W.2d 516 (1968)
244 Ark. 457
Jose FIGEROA, Appellant,
v.
STATE of Arkansas, Appellee.
No. 5325.
Supreme Court of Arkansas.
March 25, 1968.
Harry C. Robinson, No. Little Rock, for appellant.
Joe Purcell, Atty. Gen, Don Langston, Asst. Atty. Gen., Little Rock, for appellee.
FOGLEMAN, Justice.
This is an appeal from the judgment of the Pulaski County Circuit Court convicting appellant of the crime of assault with intent to kill. The record reveals that, on the day set for trial, counsel for appellant requested a continuance for the alleged reason that, as appellant was of Mexican descent and unable to testify in his own behalf, additional time was needed to secure the assistance of an interpreter. The trial court overruled this motion. Following the presentation of the State's evidence, the appellant rested without offering *517 any evidence, and the court, sitting as a jury, found appellant guilty of the crime as charged.
For reversal the appellant alleges that the trial court erred in overruling his motion for a continuance and that there is no substantial evidence to support the verdict. These points will be discussed in the order mentioned.
I
Whether a case should be continued or not is generally a matter resting within the sound discretion of the trial court, and unless it clearly appears that the refusal to grant a continuance is an abuse of discretion so as to operate as a denial of justice, the trial court's action does not constitute a ground for a new trial. Allison v. State, 74 Ark. 444, 86 S.W. 409; Smith v. State, 219 Ark. 829, 245 S.W.2d 226. Absent a showing by the moving party that he has exercised due diligence, the trial court will not be held to have abused its discretion in refusing to grant the motion. Bullard v. State, 159 Ark. 435, 252 S.W. 584; Bowman v. State, 213 Ark. 407, 210 S.W.2d 798; Gerlach v. State, 217 Ark. 102, 229 S.W.2d 37.
While it is fundamental that a defendant in a criminal prosecution should be afforded the opportunity to testify in his own behalf, to be confronted with adverse witnesses and to call witnesses in defense of the charges against him, we find that the trial court committed no error in refusing to grant a continuance in this case. The appellant has made no attempt to show the exercise of due diligence on his part. No evidence has been offered to establish his alleged inability to speak or understand the English language. Further, there is no showing in the record before us that appellant was diligent in seeking the services of an interpreter. On the contrary, the record reflects that from the time of his plea of guilty on April 4, 1966, until the date of his trial on July 19, 1967, appellant was before the court with his attorney[1] no fewer than three times. On no occasion, prior to the day of the trial, was it suggested to the court by appellant or his attorney that an interpreter would be required for his defense. Finally, although appellant and his counsel were appraised on June 19, 1967, that the trial would be held on July 19, there is no showing of any effort to obtain the assistance of an interpreter, either at the time the trial date was set or during the following month. On this state of the record, we cannot say that due diligence has been exercised.
II
Appellant next contends that the evidence was not legally sufficient to support a finding that he intended to kill the complainant by his act. The State's evidence consisted wholly of the testimony of officer Lester Hall of the Little Rock Police Department. According to his report and testimony, he received a call to a disturbance at the T-Bone Inn on the David O. Dodd Road. Upon his arrival there he saw appellant sitting in a 1956 Mercury with the motor running. When the officer asked appellant to get out of the car, it at first appeared that he would comply; but as Hall approached the car, the appellant got back in the car and accelerated it toward him. It was necessary for Hall to "run to get out of the way to keep him from running me down"; he had to "hit the ground" in order to get out of the way.
Although an automobile is not ordinarily considered a "deadly weapon" in the criminal sense, it does not tax the imagination to see that appellant's car constituted such a weapon. Hall's life would have been in no greater danger if appellant had fired a gun at him. In Morris v. State, 226 Ark. 472, 290 S.W.2d 624, we said: "No particular instrument or weapon need be employed in order to constitute *518 an assault with intent to kill or murder. Such a crime is ordinarily committed by the use of a weapon, the employment of which is calculated to produce death, but the use of such a weapon is not requisite to the commission of the crime." Certainly it can be inferred from the use of appellant's automobile, as described by officer Hall, that appellant intended to kill the officer. As we said in Craig v. State, 205 Ark. 1100, 172 S.W.2d 256, "While the intent to kill cannot be implied as a matter of law, it may be inferred from facts and circumstances of the assault * * * and all other facts and circumstances tending to reveal defendant's state of mind." See, also, Davis v. State, 206 Ark. 726, 177 S.W. 2d 190, and Nunley v. State, 223 Ark. 838, 270 S.W.2d 904. As we must view the evidence in the light most favorable to the State in determining whether it is sufficient to support a finding of guilty (Cook v. State, 196 Ark. 1133, 121 S.W.2d 87), we are unable to say that the facts here are insufficient to support an inference that appellant intended to kill by his act.
The judgment is affirmed.
NOTES
[1] The attorney who moved for a continuance was not the same attorney who had previously appeared with appellant.
| {
"pile_set_name": "FreeLaw"
} |
Filed 4/11/13 S.S. v. Super. Ct. CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
S.S.,
v.
THE SUPERIOR COURT OF ORANGE
COUNTY,
G047800
Respondent;
(Super. Ct. Nos. DP020946 &
ORANGE COUNTY SOCIAL SERVICES DP020947)
AGENCY, et al.,
OPINION
Real Parties in Interest.
Original proceeding; petition for a writ of mandate to challenge an order of
the Superior Court of Orange County, Jacki Brown, Judge. Petition denied.
Nicole Williams for Petitioner.
No appearance for Respondent.
Law Office of Harold LaFlamme and Yana Kennedy for the Minors.
Nicholas S. Chrisos, County Counsel, Karen L. Christensen and Aurelio
Torre, Deputy County Counsel for Real Party in Interest Orange County Social Services
Agency.
Petitioner S.S., the maternal grandmother and prospective adoptive mother
of child 1 and child 2 (collectively the children), now four and two years old,
respectively, challenges an order removing the children from her care pursuant to
Welfare and Institutions Code section 366.26, subdivision (n) (all statutory references are
to this code). She claims the court abused its discretion when it removed the children
because there was insufficient evidence removal was in their best interests, and it failed
to consider the children‟s circumstances at the time of removal.
Real party in interest Orange County Social Services Agency (SSA)
opposes the petition, arguing there was sufficient evidence to support the court‟s
discretionary ruling ordering removal. The children joined in SSA‟s opposition.
We conclude the court did not abuse its discretion and deny the petition.
FACTS AND PROCEDURAL HISTORY
After child 2 was born in March 2011, he and his two-year-old brother
child 1 were taken into custody by SSA because child 2 and his biological mother1 tested
positive for methamphetamine and marijuana. The children were placed with
grandmother. Six years earlier grandmother had adopted the children‟s half-brother,
R.S., who had been born with methamphetamine in his system, after mother failed to
complete her service plan.
In 2006 there were two child abuse registry referrals against grandmother
about R.S. In one mother was driving while intoxicated with R.S. in the car.
Grandmother advised she allowed mother to take R.S. without supervision because
mother had been taking substance abuse classes for about six months and grandmother
did not believe she had been on drugs or drinking. A dependency petition was filed and
1The biological mother and father‟s parental rights were terminated before these
proceedings but for ease of reference we will refer to them as mother and father.
2
later dismissed after grandmother was put on an intense supervision program. R.S. was
returned to her custody. When asked about this in 2011, grandmother explained she had
not given mother permission to take R.S.
Another referral occurred six months later when mother and her boyfriend,
who had each been drinking, drove home from a party with R.S. in the car. During the
drive in the course of a fight, the boyfriend began to hit mother and during the altercation
hit R.S. in the mouth, cutting his lip. Paramedics were called. Grandmother then allowed
mother to stay overnight at her house despite knowing she was not allowed to do so.
General neglect claims against grandmother were found to be “inconclusive.”
In June 2011 when the children were declared dependents and removed
from parents‟ custody, the court granted parents reunification services. During this time
mother was allowed visits with the children at grandmother‟s home; grandmother was
authorized to act as monitor.
Visits went well until November when mother and grandmother began
arguing. Mother physically attacked grandmother until the babysitter interceded and
grandmother called 911. The children were in the house and not involved. Thereafter,
upon mother‟s report the babysitter had recently been arrested for possession of
methamphetamines and his admission, grandmother had him leave. The babysitter
advised grandmother mother had threatened to kill grandmother and then herself if she
was not allowed to visit the children.
SSA and grandmother set up a safety plan, including grandmother‟s
agreement to call the sheriff‟s department about mother‟s threat. Subsequently
grandmother called the social worker, relating she had not called the sheriff because she
thought the babysitter might have told her about the threat in retaliation for mother‟s
disclosure of his drug arrest. She also was concerned if the sheriffs contacted mother she
might become even more upset. But grandmother did agree to abide by the safety plan
and call 911 if she had any concerns about safety.
3
In December the children‟s counsel asked the court to at least temporarily
move mother‟s visits to another location with a different monitor until mother could
become more stable. A social worker who observed mother visiting at grandmother‟s
home called the interactions “appropriate.” Grandmother told the social worker she did
“not feel threatened” and wanted to continue monitoring the visits at her home. She also
advised she had arranged for another adult to be there during visits. Nevertheless the
court ordered the visits to be at a neutral location until its next review hearing in January
2012. At that hearing the court terminated parents‟ services and set a permanency
hearing (§ 366.26).
In March 2012 in a report originally prepared by the children‟s Court
Appointed Special Advocate (CASA) Kathi Smith noted child 2 appeared to be “very
bonded to his grandmother and to his brothers” and both children were “happy, loved,
and well-cared for.” She also advised grandmother would be “an excellent caregiver.”
On May 5, 2012 a social worker went to grandmother‟s home to
investigate the November 2011 altercation between mother and grandmother. When she
arrived child 2 was there with mother and father; neither grandmother nor the approved
caregiver were present. Mother appeared to be under the influence of something. Mother
was dressed in beachwear and had a bag holding beach paraphernalia; father was also in
beach clothing.
When grandmother arrived home with child 1, he also was dressed in beach
clothes and carried new beach toys. Grandmother explained father was allowed
monitored visitation and a monitor had been there when she had gone to the market. But
the monitor had left before the visit ended. She also stated mother was not allowed to be
at the house. The social worker found a closet full of mother‟s clothes in R.S.‟s bedroom
along with a mattress on his bedroom floor; a pair of mother‟s underwear was nearby.
Grandmother explained one of the children must have taken them out of the
closet. She also stated neither parent lived with her or even stayed the night. She denied
4
there was a family beach day in the offing. She told the social worker she had last seen
mother about the time mother had assaulted her in November but explained child 1 said
he had seen mother on the outside of the backyard fence. A few days later R.S.
confirmed grandmother‟s statement mother had not been there since November and did
not live there.
When the social worker spoke to the monitor, Diane, Diane stated she had
left because she believed grandmother would be home soon and “„was just ready to go
home.‟” Diane is mother‟s godmother. She explained she loves mother a lot and likes to
spend time with her. When she stopped by grandmother‟s home, sometimes mother is
there. Diane does not think mother would harm the children although she did concede
mother was having problems with sobriety.
A safety plan was put in place “[d]ue to the grandmother‟s lack of
boundaries” to include daily safety checks and a prohibition against either parent entering
the home. The social worker also suggested mother‟s belongings be removed from the
house, which grandmother arranged.
SSA then determined the children should be removed from grandmother‟s
care “[d]ue to a constellation of events and risk factors that include the grandmother‟s
inadequate boundaries and judgment regarding the parents.” It did “not believe . . .
grandmother [could] protect the children . . . from their parents . . . .” It noted “poor
decisions” grandmother had made, including in the case of R.S, despite “many years of
involvement with SSA and the Juvenile Court, and ongoing instruction by several
different social workers over the years.” It also described the positives about placement
of the children with grandmother, including grandmother‟s love of the children and her
“belie[f] she is providing them with excellent care,” the children‟s attachment to R.S.,
and CASA Smith‟s belief grandmother should be allowed to adopt.
The next day SSA, joined by counsel for the children, moved to terminate
the children‟s placement with grandmother. Grandmother informed the court she would
5
remain with the children at all times. In the interim the court allowed the children to
remain with her, issued the restraining order against the parents grandmother had
requested, and ordered grandmother to remove all of parents‟ possessions from her home.
The parents‟ permanency hearing report stated grandmother verified she
had removed parents‟ belongings from the home. The social worker did not see “any
obvious signs of” them but could not distinguish mother‟s and grandmother‟s
possessions. It concluded grandmother should not be allowed to adopt because she was
unable to protect the children from their parents. A few weeks later CASA Smith
reported her belief it would be “traumatic” for the children to be removed, grandmother
knew she needed to take part in services, and that the incident in May had made her
realize she needed assistance to help her set boundaries.
There were three case social workers who handled the case for different
periods of time and one social worker who was assigned to evaluating the potential
adoption by grandmother. At the removal hearing, the testimony of the three case social
workers was mixed. Two had no reason to recommend removal of the children from
grandmother. One of them testified that grandmother took good care of them; her
problem was protecting them from mother. He also testified it would be hard on the
children to be separated from grandmother and R.S.
The third case social worker was the one who had been present at the May
incident and she repeated what she had included in her earlier report. She also testified
mother had told her she would be going to the beach after finishing with the children. On
that day she believed there was a “high possibility” the children would need to be
removed. It was her opinion grandmother had problems setting boundaries for the
parents. The social worker was concerned grandmother could be allowing unapproved
visits by mother. She noted Diane‟s statement she sometimes saw mother at
grandmother‟s home. Grandmother had been paying mother‟s cell phone bill but when
she suggested grandmother no longer do so, grandmother agreed she would stop.
6
The adoption social worker was recommending against a home study,
whether or not the children were removed. As opposed to the care social workers, who
look at “short-term care,” she had to look at care extending over the rest of the children‟s
lives. Her concern was that grandmother did not have the “ability to protect the children
from their birth parents,” and she had concluded grandmother did not have the ability to
keep mother away from the children. Grandmother‟s behavior since the May incident did
not change her mind.
CASA Smith saw nothing in her 12 or so visits to grandmother‟s home that
would point to removal. Rather, she saw a “very loving relationship” and believed
removal would be detrimental. The paternal grandmother agreed, praising grandmother‟s
care and testifying removal would be “utterly devastating.”
During grandmother‟s testimony she explained the two incidents with R.S.,
stating as to the first she had never given mother permission to take him in the car and
denying she had ever told the social worker any different. She later testified that as to the
party to which mother had taken him, she had given permission for R.S. to attend because
there was to be a monitor there and there was only a remote possibility mother might be
there. She thought mother had progressed in her treatment so that even if she attended it
would not be a problem
As to the second incident, she stated mother had talked the daycare
provider into letting R.S. leave with her. She also testified mother had never stayed at
her home since that day. She had begun voluntary services after that second incident, had
gone to counseling and Alanon meetings, which she still attended.
Grandmother also stated she had had no personal contact with mother from
the second incident with R.S. until the May 5 incident. As to May 5, she testified she had
not planned for mother to be there. In addition, she denied everyone was wearing beach
clothing, explaining that was normal wear for the the children and that she had purchased
a plastic swimming pool a few weeks earlier. As to the statement by Diane, mother‟s
7
godmother, that she had seen mother at the house, Diane meant her own house, not
grandmother‟s. Grandmother also did not believe it was a problem to let Diane monitor
visits, even though she was close to mother.
Grandmother disagreed with the testimony that she was unable to keep
mother away, although she did concede it was “very stressful to have to constantly push
[mother] away and keep her at a distance . . . .” She believed she could protect the
children, as evidence by her 911 calls when mother had come to her house. She testified
she would enforce the restraining order against the parents. Neither parent should have a
relationship with the children except maybe monitored visitation at a safe place. But she
would never allow anyone to be alone with the children except for herself or R.S.‟s
paternal grandmother, who also loved them.
In ruling in favor of removal of the children the court noted the evidence
that showed grandmother was “a very loving, affectionate and nurturing
woman[,] . . . described [as] quite intelligent and [who] has consistently worked and
shown the children how to prepare their life in a way to be productive and constructive.”
The children‟s best interest “for love, nurturing and good health have been exhibited in
exemplary fashion by” grandmother. But “[t]hat is not the sole responsibility of an
adoptive parent. . . . [S]afety and stability are as important as love and affection. Love
and affection can do so, so very much for a child. But if the child is not safe, it is for
[naught]. [¶] As has been characterized, the safety issue and stability issue, those two
issues have not been provided consistently for the two [children]. . . . [A]s to the totality
of the circumstances, as present from 2010, 2011 and 2012, are such that one cannot
reasonably conclude these children have been safe nor in a stable environment. [¶] . . .
[T]he best interests of the child for safety and stability have not [been exhibited in
exemplary fashion by this caregiver].”
In making these statements the court relied on SSA‟s reports and testimony,
including that of the adoption social worker. Reviewing the totality of the circumstances
8
it also found it was not unreasonable for SSA to conclude that mother, “who is a
concededly criminal person,” did not hesitate to lie when it suited her and had “contact
with these children of an improper nature.” She did not find grandmother credible when
she said she did not know mother was at her house during May 2012. Even though she
told mother to leave she was not surprised to see her.
The court acknowledged the children would be “devastate[ed]” to be
removed, but again emphasized their safety was “fundamental.” It recommended that the
children be removed gradually “with [a] full compl[e]ment of therapy and safety
mechanisms in place . . . .”
DISCUSSION
A child may be removed from the custody of a prospective adoptive parent
if “removal is in the child‟s best interest.” (§ 366.26, subd. (n)(3)(B).) We review a
court‟s decision to terminate placement for abuse of discretion. (In re N.M. (2011) 197
Cal.App.4th 159, 171 [abuse of discretion used in reviewing whether removal of child
from home in child‟s best interest]; see In re C.B. (2010) 190 Cal.App.4th 102, 123, fn. 5
[whether termination of parental rights in child‟s best interest reviewed for abuse of
discretion]), giving the juvenile court‟s decision “„“broad deference‟”” (In re Levi H.
(2011) 197 Cal.App.4th 1279, 1291). In doing so, we view the evidence in the light most
favorable to the court‟s decision (ibid.) and do not substitute our judgment for that of the
trial court (In re Stephanie M. (1994) 7 Cal.4th 295, 318). We do not reverse “„“unless
the trial court has exceeded the limits of legal discretion by making an arbitrary,
capricious or patently absurd determination.”‟” (Ibid.)
None of the witnesses dispute, and the court found that, grandmother is a
wonderful caretaker and the children love her. In addition, there is no disagreement that
it will be very difficult for the children to leave her. The only question is whether, on
9
balance, grandmother can ensure the children‟s safety, specifically whether grandmother
can keep mother away from them.
Grandmother argues the court erred because it failed to take into account
her current circumstances, including her therapy and participation in other services, rather
than exclusively considering the prior occurrences. But the court considered all the
events, the SSA reports, and the testimony, including that of the adoption social worker.
The court specifically stated it had reviewed the totality of the circumstances, which
perforce must include current circumstances. Furthermore, unless there is a specific
failure to include current circumstances in the court‟s analysis, we must presume it did.
(See Armando D. v. Superior Court (1999) 71 Cal.App.4th 1011, 1025.)
Further, only seven months had elapsed since the May 5 incident. Given
the past history of multiple occurrences where grandmother had not protected the
children from mother, that is not a particularly long time to guarantee that, over the long
run, grandmother would not allow additional contact with mother. The court specifically
did not believe grandmother‟s testimony she did not know mother would be visiting on
May 5. And some of grandmother‟s testimony gives pause. She still believed it might be
acceptable for the children to see their parents, albeit at a neutral location with a monitor.
Moreover, she saw nothing wrong with allowing mother‟s godmother, who is close to
mother and enjoys her company, to act as a monitor. And grandmother was unable to
accept responsibility for prior actions, instead making excuses.
Finally, but not least important, grandmother testified it is difficult for her
to “constantly push [mother] away and keep her at a distance . . . .” This does not support
grandmother‟s no doubt well-intentioned belief she would be able to prevent mother from
seeing the children but instead reveals the underlying problem that apparently has
10
plagued grandmother from the beginning.2 Although grandmother focuses on the current
circumstances, the adoption social worker was clear her evaluation was based on the long
term, and it is reasonable to consider grandmother‟s overall history with mother. She had
made promises before to keep mother away and had not been able to fulfill them.
In a related argument grandmother argues SSA did not prove by a
preponderance of the evidence removal was in the children‟ best interests. But, as
discussed above, there was substantial evidence that allowing the children to remain with
grandmother would be detrimental to their best interests. That there was conflicting
evidence is not relevant to our consideration. “On review of the sufficiency of the
evidence, we presume in favor of the order, considering the evidence in the light most
favorable to the prevailing party, giving the prevailing party the benefit of every
reasonable inference and resolving all conflicts in support of the order.” (In re Autumn
H. (1994) 27 Cal.App.4th 567, 576.)
Grandmother relies on the prior ruling of a commissioner who decided the
application for a restraining order. When the commissioner analyzed the circumstances
she came out on the side of keeping the children with grandmother. And grandmother
notes there were no additional negative facts thereafter to bolster a finding of removal.
But, as SSA points out, there was no full hearing with testimony before she issued the
restraining order. In addition, the commissioner stated she would not order removal
“today” (italics added). The fact a second judicial officer reached a different conclusion
after hearing extended testimony does not mean the ruling at issue here was incorrect or
that there was insufficient proof to support it.
2 Grandmother points to the trial court‟s statement the incidents involving R.S.
have limited relevance. But we believe that, even though the specifics of the events may
not be as relevant as those involving the children, the fact the incidents occurred at all is
relevant to show the pattern of grandmother‟s inability to protect the children from
mother.
11
Grandmother also comments that SSA has not taken any action to remove
R.S. from her custody, arguing this proves there is no danger to any of the three children.
But R.S. is grandmother‟s adopted son. His removal from her custody involves a
different procedure with stricter standards. (§ 361, subd. (c).) And there is nothing in the
record to show SSA will not initiate such a procedure.
We do not doubt the court had to make a difficult decision. As stated
above, no one questioned grandmother‟s love for the children. Grandmother disagrees
with the trial court that the children‟s safety and stability is as important as the fact they
have a strong attachment to her and R.S, pointing to testimony to support this. But safety
is a primary factor. Children are removed from their parents‟ custody in the same
situation. The parents may love their children and the children have never known another
home. But if the parents cannot protect them, the children cannot remain in their custody.
We applaud grandmother for the care and love she has given the children
and we sympathize with them. We do not doubt this will be very difficult for them and
agree with the court‟s order of gradual removal and therapy. But the record does not
reveal the court abused its discretion in ordering removal and we must affirm.
DISPOSITION
The petition is denied.
THOMPSON, J.
WE CONCUR:
O‟LEARY, P. J.
RYLAARSDAM, J.
12
| {
"pile_set_name": "FreeLaw"
} |
523 P.2d 16 (1974)
86 N.M. 281
John PADILLA, Petitioner,
v.
STATE of New Mexico, Respondent.
No. 9999.
Supreme Court of New Mexico.
May 10, 1974.
Ordered that petition for writ of certiorari be and the same is hereby denied.
Further ordered that the record in Court of Appeals Cause No. 1249, 86 N.M. 283, 523 P.2d 17 be and the same is hereby returned to the Clerk of the Court of Appeals.
| {
"pile_set_name": "FreeLaw"
} |
49 F.3d 727
Interstate Commercev.Chappell
NO. 94-10650
United States Court of Appeals,Fifth Circuit.
Feb 20, 1995
Appeal From: N.D.Tex., No. 1:93-CV-53
1
VACATED.
| {
"pile_set_name": "FreeLaw"
} |
681 P.2d 1358 (1984)
J.E.C.,[1] Appellant,
v.
STATE of Alaska, Appellee.
No. 6806.
Court of Appeals of Alaska.
May 11, 1984.
*1359 Daniel T. Saluri, Fairbanks, for appellant.
Peter A. Michalski, Asst. Atty. Gen., and Wilson L. Condon, Atty. Gen., Juneau, for appellee.
Before BRYNER, C.J., and COATS and SINGLETON, JJ.
OPINION
SINGLETON, Judge.
J.E.C. was convicted of sexual abuse of a minor, former AS 11.41.440(a)(2). He appeals, contending that the trial court erred in failing to instruct the jury that he had to have a specific intent to arouse or gratify his or the child's sexual desires in order to be convicted of violating AS 11.41.440(a)(2). Alternatively, if no specific intent is required, J.E.C. contends that the statute (1) is unconstitutionally vague, thereby denying his right to procedural due process under article 1, section 7, of the Alaska Constitution and the Fourteenth Amendment of the United States Constitution, (2) deprives him of his right to privacy under article 1, section 22, of the Alaska Constitution, and (3) infringes upon his inherent parental rights in violation of article 1, section 1, of the Alaska Constitution. We affirm.
AS 11.41.440(a)(2) provides: "A person commits the crime of sexual abuse of a minor if, being 16 years of age or older, he engages in sexual contact with a person who is under 13 years of age." AS 11.81.900(b)(51) defines "sexual contact" as follows:
(A) the intentional touching, directly or through clothing, by the defendant of the victim's genitals, anus, or female breast; or
(B) the defendant's intentionally causing the victim to touch, directly or through clothing, the defendant's or victim's genitals, anus, or female breast.
AS 11.41.440(a)(2), supplemented by the definitions contained in AS 11.81.900(b)(51), supersedes former AS 11.15.134(a) which provided:
Lewd or lascivious acts toward children. (a) A person who commits a lewd or lascivious act, including an act constituting another crime, upon or with the body of a child under 16 years of age, intending to arouse, appeal to, or gratify his lust, passions, or sexual desires, or the lust, passions, or sexual desires of the child is punishable by imprisonment for not more than 10 years nor less than one year.
R.C. is the natural daughter of J.E.C. The incidents in question took place between January 1, 1980, and April 4, 1981, when R.C. was five and six years of age. R.C. testified that J.E.C. rubbed between her legs when she was dressed and undressed, that he required her to rub him between his legs, that he rubbed her with his penis, and that these incidents occurred on more than ten occasions. R.C. testified that she first reported these activities while she was in the foster home of Susan Bonjour, residing with another foster child, fifteen-year-old Y.R.C. said that she broached the topic of her molestation to Y., who was also the victim of child molestation.
The state also called Susan Bonjour, who testified that she overheard R.C. tell another *1360 girl, apparently Y., about "specific problems" R.C. had had at home. Bonjour also testified that she was contacted by Jeff Cain, a representative of Family and Youth Services, the following day. Cain told her that he had independently heard of R.C.'s complaints. Bonjour was present when Cain interviewed R.C. Using anatomically-correct dolls, i.e., dolls possessing simulated male and female sexual organs, R.C. acted out her claims against her father in the presence of Bonjour and Cain.[2]
J.E.C. did not testify. His theory of the case as presented by his attorney was that none of the incidents occurred. By implication, he suggested that R.C. had fantasized the incidents as a result of her discussions with Y. in the Bonjour foster home.
In final argument, defense counsel intimated that the jury might infer from the instructions that innocent conduct could result in a conviction, but cautioned the jury that this would be an incorrect interpretation of the instructions.[3] In rebuttal argument, the state's attorney agreed with defendant's interpretation of the instructions. He said:
The instructions, which you should read carefully, which define the elements of *1361 this offense that you must find before you can return a conviction in this case, do not cover the kind of contact that is innocent in nature. I mean it's just not there. The instructions tell you that what is charged here is knowing sexual contact. Knowing means that [J.E.C.] knew that it was sexual in nature. He's not being charged for perhaps rubbing his daughter while drying her after a bath, for spanking her on the posterior or for even patting her on the posterior, normal things that a parent might do without any desire, any sexual motive at all, with his or her own child. The instruction says knowing, and there's a definition of that in there. And it requires that the defendant know that he's engaging in sexual contact. Sexual contact, to arouse his passions or satisfy his sexual passions or that of the child. And that's what the instruction says. People are not charged there is no crime for diapering your child, for wiping him or her off after a bath or otherwise, or for any of the normal kinds of contact that go on between parents and children.
DISCUSSION
We currently have a number of cases pending in which challenges to the constitutionality of AS 11.41.440(a)(2) are presented. The parties in those cases ask us to construe the statute and determine whether it requires specific intent or only general criminal intent. We have concluded that sexual abuse of a minor is a specific intent crime. Flink v. State, ___ P.2d ___, Op. No. 370 (Alaska App., May 11, 1984). Thus, the trial court erred in refusing to give J.E.C.'s proposed instruction.
We are satisfied, however, that this error was harmless beyond reasonable doubt. Connecticut v. Johnson, ___ U.S. ___, 103 S.Ct. 969, 74 L.Ed.2d 823 (1983). We conclude that J.E.C.'s jury necessarily concluded that he acted with knowledge that his acts would lead to his sexual gratification. The jury was told that J.E.C. had to knowingly engage in sexual contact with R.C.; the jury was additionally told that the term "knowingly" means:
A person acts "knowingly" with respect to conduct or to a circumstance described by a provision of law defining an offense when he is aware that his conduct is of that nature or that the circumstance exists; when knowledge of the existence of a particular fact is an element of an offense, that knowledge is established if a person is aware of a substantial probability of its existence, unless he actually believes it does not exist. A person who is unaware of conduct or a circumstance of which he would have been aware had he not been intoxicated acts knowingly with respect to that conduct or circumstance.
This instruction is based upon the revised code's definition of "knowingly." AS 11.81.900(a)(2). While the instruction did not specifically indicate that J.E.C. had to act intentionally to seek sexual arousal or gratification, the prosecutor conceded in final argument that J.E.C. could only be convicted if his actions were intended to arouse or satisfy his sexual passions or those of the child.[4] R.C.'s testimony, that J.E.C. rubbed her with his penis, would certainly support an inference that J.E.C. knowingly engaged in the required conduct with the intent to obtain sexual gratification. Under these circumstances, we find no prejudicial error in the instructions given. See Neitzel v. State, 655 P.2d 325, 338 (Alaska App. 1982). Cf. Reynolds v. State, 664 P.2d 621, 627-28 (Alaska App. 1983).
The judgment of the superior court is AFFIRMED.
BRYNER, Chief Judge, concurring.
For the reasons stated in my separate opinion in Flink v. State, ___ P.2d ___, *1362 Op. No. 370 (Alaska App., May 11, 1984), I would construe the offense of sexual abuse of a minor to require proof of recklessness, and not specific intent, as the applicable culpable mental state. Since, in this case, the trial court failed to give an appropriate criminal intent instruction, I think it committed error.
In arguing this case to the jury, however, both the prosecution and the defense construed the court's instructions to require a jury finding that the defendant knew his contact with the victim was of a sexual nature and thus was not justified. The instructions given by the court were not inconsistent with this interpretation. In fact, the jury was instructed, in general terms, that it was required to find that the defendant acted with criminal intent before it could convict him.
The culpable nature of the sexual contact alleged in this case was unambiguous, and, if the jury determined that the contact occurred, there was little danger of error with respect to the issue of intent. The only factual issue apparently contested at trial was whether the alleged sexual contact occurred at all.
Considering the totality of these circumstances, I would hold that the trial court's failure to give a specific instruction on criminal intent amounted to harmless error. See Neitzel v. State, 655 P.2d 325, 338 (Alaska App. 1982); Reynolds v. State, 664 P.2d 621, 627-28 (Alaska App. 1983).
NOTES
[1] We use J.E.C.'s initials to protect his victim's privacy.
[2] J.E.C. does not question this evidence on hearsay grounds or attack the procedure on appeal. He does not challenge R.C.'s competency to testify or suggest that these procedures altered her memory to his detriment. See E. Loftus, Eyewitness Testimony (1979); State v. Contreras, 674 P.2d 792, 799-802 (Alaska App. 1983). We therefore do not decide these issues.
[3] The relevant instructions provided:
Instruction 2
The Indictment in this case charges that on or about the 1st day of January 1980 through the 4th day of April 1981, at or near Fairbanks, in the Fourth Judicial District, State of Alaska, [J.E.C.], being 19 years of age or older, did unlawfully and knowingly engage in sexual contact with [R.C.], a person under 13 years of age.
To this charge the defendant has entered a plea of "not guilty," which plea places upon the State the burden of proving beyond a reasonable doubt every material allegation contained in the Indictment, as well as the essential elements of the crime of sexual abuse of a minor.
Instruction 4
A person commits the crime of sexual abuse of a minor if, being 16 years of age or older, he engages in sexual contact with a person who is under 13 years of age.
In order to establish the crime of sexual abuse of a minor, it is necessary for the state to prove beyond a reasonable doubt the following:
First, that the event in question occurred at or near Fairbanks, in the Fourth Judicial District, State of Alaska, and on or about the 1st day of January, 1980 through the 4th day of April, 1981;
Second, that [J.E.C.] was 16 years of age or older; and
Third, that the defendant knowingly engaged in sexual contact with [R.C.], who is under 13 years of age.
If you find from your consideration of all the evidence that each of these propositions has been proved beyond a reasonable doubt, then you shall find the defendant guilty.
If, on the other hand, you find from your consideration of all the evidence that any of these propositions has not been proved beyond a reasonable doubt, then you shall find the defendant not guilty.
Instruction 5
As used in these instructions:
"Sexual contact" means the intentional touching, directly or through clothing, by the defendant of the victim's genitals, anus, or female breast or the defendant's intentionally causing the victim to touch, directly or through clothing, the defendant's or victim's genitals, anus, or female breast.
"Unlawfully" means wrongfully or contrary to law.
"On or about" means within close proximity to the month or months alleged. In order to find the defendant guilty of the crime alleged, it is not necessary to find that the alleged act or acts occurred on the exact month or months alleged.
A person acts "knowingly" with respect to conduct or to a circumstance described by a provision of law defining an offense when he is aware that his conduct is of that nature or that the circumstance exists; when knowledge of the existence of a particular fact is an element of an offense, that knowledge is established if a person is aware of a substantial probability of its existence, unless he actually believes it does not exist. A person who is unaware of conduct or a circumstance of which he would have been aware had he not been intoxicated acts knowingly with respect to that conduct or circumstance.
Instruction 6
In the crime charged, there must exist a joint operation of an act or conduct and a culpable mental state. To constitute a culpable mental state, it is not necessary that there exist an intent to violate the law.
[4] Given the instructions, and the parties' arguments to the jury regarding those instructions, we are satisfied that the jury must have concluded that J.E.C. knowingly engaged in conduct knowing that it would lead to sexual arousal. This was the equivalent of a general intent instruction at common law. See Bidwell v. State, 656 P.2d 592, 594 (Alaska App. 1983). However, given the absence of any evidence of diminished capacity in this case, we find any error in failing to distinguish between general and specific intent harmless beyond reasonable doubt.
| {
"pile_set_name": "FreeLaw"
} |
NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 16a0455n.06
No. 15-1758
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
UNITED STATES OF AMERICA, ) Aug 10, 2016
) DEBORAH S. HUNT, Clerk
Plaintiff-Appellee, )
)
ON APPEAL FROM THE
v. )
UNITED STATES DISTRICT
)
COURT FOR THE WESTERN
RYAN VAN STEVENSON, )
DISTRICT OF MICHIGAN
)
Defendant-Appellant. )
)
BEFORE: MERRITT, BATCHELDER, and GILMAN, Circuit Judges.
ALICE M. BATCHELDER, Circuit Judge. Ryan Van Stevenson appeals his
conviction of coercion and enticement of a minor, in violation of 18 U.S.C. § 2422(b). An
investigation conducted by the FBI in 2014 uncovered that Stevenson possessed and solicited
pornographic images of minors, including a 16-year-old girl, E.K. The government offered
Stevenson two separate plea agreements, and, accepting the first offer, he pleaded guilty to one
count of coercion and enticement of a minor. After the release of the Probation Office’s
Presentence Report (PSR), Stevenson moved to withdraw his guilty plea. The United States
District Court for the Western District of Michigan denied his motion and sentenced him to
360 months of imprisonment. Stevenson argues on appeal that the district court abused its
discretion by refusing to grant his motion to withdraw his guilty plea, and by sentencing him
unreasonably. We AFFIRM.
No. 15-1758, United States v. Van Stevenson
I.
In February 2012, 29-year-old Ryan Van Stevenson met 15-year-old E.K. in an online
chatroom dedicated to bondage and discipline, sadism and masochism (BDSM).1 They
developed a master-slave relationship, communicating and sending sexually explicit photographs
through email, text messages, and telephone. In May 2012, when E.K. was 16 years old,
Stevenson sent E.K. a self-authored document titled “Slave Assignment” ordering her to send
him sexually explicit photos and videos.2 E.K. complied.
This relationship continued for two years until E.K., then 18 years old, graduated from
high school, left her parents and home in Portland, Oregon, and moved to Michigan to live with
Stevenson, his wife, and his two daughters. E.K.’s parents flew to Michigan and brought their
daughter back to Oregon with them, but soon thereafter, E.K. boarded another flight and flew
back to Michigan. E.K.’s parents hired private investigators, who gave the information they
collected to federal law enforcement officials, who obtained search warrants for various
locations, including Stevenson’s house. When FBI agents executed the search warrant, they
found CDs, a briefcase, photographs, rolls of film, and other electronic devices, many of which
contained pornographic images of E.K. when she was a minor and other pornographic images of
children.
1
E.K. told Stevenson that she was 19 years old in the chatroom, but that same week she told him
in an email that she was younger. Stevenson acknowledged that the victim’s true age was 15
when he began communicating with her but he claims that he did not know this until discovery.
He admits that after E.K.’s 16th birthday in April 2012 he knew her true age, and, “[f]or the next
two years, [Stevenson] and EK exchanged sexually explicit photos and e-mail messages as part
of an online master-slave relationship.”
2
We find nothing in the record that supports the concurrence’s claim that the the perpetrator was
mentally ill.
-2-
No. 15-1758, United States v. Van Stevenson
II.
Stevenson was arrested and an indictment was filed in the United States District Court for
the Western District of Michigan, charging him with (1) coercion and enticement of a minor, in
violation of 18 U.S.C. § 2422(b)3; (2) receipt of child pornography, in violation of 18 U.S.C.
§§ 2256(8)(A), 2552A(a)(2)(A) and (b)(1); and (3) possession of child pornography, in violation
of 18 U.S.C. §§ 2256(8)(A), 2552A(a)(5)(B) and (b)(2). The factual basis for the charge of
coercion and enticement of a minor was that Stevenson had used the internet to communicate
with a girl under the age of 18 and to persuade her to send him images of herself engaged in
sexually explicit conduct.
On September 29, 2014, the government offered Stevenson a plea agreement in which he
would plead guilty to coercion and enticement of a minor, an offense punishable by a term of
10 years’ to life imprisonment. On December 10, 2014, the government offered Stevenson an
alternative plea agreement in which he would plead guilty to the charge of sexual exploitation of
a child, an offense punishable by a term of 15 to 30 years’ imprisonment. Stevenson signed the
second plea agreement—with the 30-year maximum—on December 16, and the court scheduled
a change-of-plea hearing for December 19. On the morning of the hearing, however, Stevenson
changed his mind, signed the first plea agreement, and pleaded guilty to coercion and enticement
of a minor—with the life-term maximum—which the court accepted. Both plea agreements
contained identical waivers of rights to appeal, including a waiver of Stevenson’s right to appeal
his sentence.
3
The government may charge in the conjunctive and prove in the disjunctive. See United States
v. Pirosko, 787 F.3d 358, 368 (6th Cir.), cert. denied, 136 S. Ct. 518 (2015) (holding that “[i]t is
settled law that an offense may be charged conjunctively in an indictment where a statute
denounces the offense disjunctively. Upon the trial the government may prove and the trial
judge may instruct in the disjunctive form used in the statute.” (quoting United States v. Murph,
707 F.2d 895, 896-97 (6th Cir. 1983) (citation omitted))).
-3-
No. 15-1758, United States v. Van Stevenson
Stevenson’s initial PSR was released on March 9, 2015. The PSR calculated Stevenson’s
Guidelines range as life imprisonment based on a total offense level of 43 and a criminal-history
category of II. Four days later, Stevenson told his counsel that he wanted to withdraw his guilty
plea. Stevenson subsequently filed a motion to withdraw his guilty plea on March 26, 2015. On
April 2, 2015, the district court denied Stevenson’s motion.
Following the production of a revised PSR, the district court held a sentencing hearing in
June 2015. Stevenson raised only two objections at sentencing. First, he challenged the
application of a four-level enhancement for images reflecting sadistic or masochistic conduct.
The court sustained the objection. Second, Stevenson challenged the application of a two-level
enhancement for the use of a computer in furtherance of the offense. The court overruled that
objection.
After ruling on these objections, the district court calculated a total offense level of 40
and a criminal-history category of II, which yielded a Guidelines range of 324 to 405 months’
imprisonment. The district court then sentenced Stevenson to 360 months’ imprisonment, which
was well within the Guidelines range. After the court imposed sentence, Stevenson did not raise
any further objections.
III.
We review for abuse of discretion the district court’s ruling on a motion to withdraw a
plea of guilty. United States v. Haygood, 549 F.3d 1049, 1052 (6th Cir. 2008). A district court
abuses its discretion when “it relies on clearly erroneous findings of fact, or when it improperly
applies the law or uses an erroneous legal standard.” Id. (quoting United States v. Spikes, 158
F.3d 913, 927 (6th Cir. 1998)).
-4-
No. 15-1758, United States v. Van Stevenson
We review sentences for both procedural and substantive reasonableness under the abuse-
of-discretion standard. United States v. Jones, 641 F.3d 706, 711 (6th Cir. 2011). Sentences are
procedurally unreasonable if the district court does not calculate the Guidelines range or
calculates it improperly, treats the Guidelines as mandatory, fails to consider the factors in
18 U.S.C. § 3553(a), selects a sentence based on clearly erroneous facts, or gives an inadequate
explanation for the sentence. Id. When, as here, a defendant fails to “object to the sentence upon
inquiry from the district court,” we review a claim of procedural unreasonableness for plain
error. United States v. Solano-Rosales, 781 F.3d 345, 351 (6th Cir. 2015). “The sentence may
be substantively unreasonable if the district court chooses the sentence arbitrarily, grounds the
sentence on impermissible factors, or unreasonably weighs a pertinent factor.” United States v.
Brooks, 628 F.3d 791, 796 (6th Cir. 2011).
A.
“The withdrawal of a guilty plea prior to sentencing is not an absolute right but is a
matter within the broad discretion of the district court.” United States v. Head, 927 F.2d 1361,
1375 (6th Cir. 1991) (quoting United States v. Spencer, 836 F.2d 236, 238 (6th Cir. 1987)). “A
defendant may withdraw a plea of guilty . . . after the court accepts the plea, but before it
imposes sentence if . . . the defendant can show a fair and just reason for requesting the
withdrawal.” Fed. R. Crim. P. 11(d).
We consider various factors to determine whether a defendant has shown a fair and just
reason for requesting withdrawal, including:
(1) the amount of time that elapsed between the plea and the motion to withdraw
it; (2) the presence (or absence) of a valid reason for the failure to move for
withdrawal earlier in the proceedings; (3) whether the defendant has asserted or
maintained his innocence; (4) the circumstances underlying the entry of the guilty
plea; (5) the defendant’s nature and background; (6) the degree to which the
-5-
No. 15-1758, United States v. Van Stevenson
defendant has had prior experience with the criminal justice system; and
(7) potential prejudice to the government if the motion to withdraw is granted.
United States v. Ellis, 470 F.3d 275, 281 (6th Cir. 2006) (quoting United States v. Bashara, 27
F.3d 1174, 1181 (6th Cir. 1994)). “This rule is designed ‘to allow a hastily entered plea made
with unsure heart and confused mind to be undone, not to allow a defendant to make a tactical
decision to enter a plea, wait several weeks, and then obtain a withdrawal if he believes he made
a bad choice in pleading guilty.’” Id. at 280-81 (quoting United States v. Alexander, 948 F.2d
1002, 1004 (6th Cir. 1991)).
Turning to the first factor, Stevenson pleaded guilty on December 19, 2014, but he did
not file his motion to withdraw his plea until three months later, on March 26, 2015. This circuit
has previously concluded that delays far shorter than Stevenson’s weigh in favor of affirming a
district court’s denial of a motion to withdraw. See, e.g., United States v. Baez, 87 F.3d 805, 808
(6th Cir. 1996) (stating that the strongest factor supporting the district court’s denial of the
defendant’s motion to withdraw was a 67-day delay and the defendant’s failure to justify it);
United States v. Goldberg, 862 F.2d 101, 104 (6th Cir. 1988) (recognizing 55-day delay as
lengthy and supported denial of motion to withdraw). Stevenson’s 97-day delay—more than
three months—weighs in favor of affirming the district court’s denial of his motion to withdraw.
Stevenson attempts to provide a valid reason for the delay, contending that he repeatedly
tried to contact his counsel prior to March 2015 to alert counsel that he regretted pleading guilty.
The record does not support his claim. Moreover, even if Stevenson did contact his counsel or
try to file a motion to withdraw the plea on or about February 4, as he claims, the delay would
still have been greater than six weeks, and this circuit has counted delays of less than six weeks
against the defendant when evaluating the propriety of granting a motion to withdraw. See
Spencer, 836 F.2d at 239 (holding that the district court did not abuse its discretion where there
-6-
No. 15-1758, United States v. Van Stevenson
was a five-week delay). The timing of Stevenson’s motion also undermines his claim: four days
after the release of his PSR, which calculated his Guidelines imprisonment term as life
imprisonment, he told his counsel that he wanted to withdraw his plea. Both the delay in
Stevenson’s filing his motion to withdraw and his failure to provide a valid reason for the delay
weigh in favor of affirming the district court’s denial of his motion.
Stevenson also argues that he is innocent of the crime of coercion and enticement of a
minor “because he did not coerce EK into any activity.” However, to be guilty of a violation of
18 U.S.C. § 2422(b), a defendant must have “knowingly persuade[d], induce[d], entice[d], or
coerce[d] any individual who has not attained the age of 18 years, to engage in . . . any sexual
activity for which any person can be charged with a criminal offense, or attempt[ed] to do so.”
(emphasis added). Stevenson does not dispute that the production of child pornography, that is,
the sexually explicit photographs that he persuaded E.K. to send to him, is such activity.
18 U.S.C. § 2427. Rather, he simply claims that nothing that he did with regard to E.K.
constituted coercion. But this circuit has made it plain that § 2422(b) requires only that “the
defendant had an intent to persuade or to attempt to persuade” a minor to engage in prohibited
sexual activity. United States v. Bailey, 228 F.3d 637, 638 (6th Cir. 2000). Stevenson’s plea
agreement uses the disjunctive language of § 2422(b), and it makes clear that he at least
persuaded or attempted to persuade E.K. to engage in the prohibited activities. And Stevenson
specifically acknowledged at the change-of-plea hearing that he had carried on a lengthy cyber
relationship with E.K. that included his demanding, and her sending, quantities of sexually
explicit pictures.
The circumstances underlying Stevenson’s entry of his guilty plea do not suggest that he
misunderstood what he was doing. He argues that he was confused about the plea because
-7-
No. 15-1758, United States v. Van Stevenson
(1) each of the two plea agreements “describe[d] complicated charges,” (2) he did not have
enough time to consider the second plea agreement, and (3) he switched between the two plea
agreements just before the change-of-plea hearing. However, during the plea colloquy,
Stevenson confirmed that he understood the terms of the agreement and was freely and
voluntarily pleading guilty to Count One of the indictment. He confirmed that he had had an
adequate opportunity to discuss the plea agreement with his counsel and that he was satisfied
with his counsel. He also stated that he did not have any questions regarding the plea agreement
or the charge. He repeated his desire to plead guilty to the charge after the government read
Count One into the record and he stated that he understood that the minimum sentence was
10 years’ imprisonment and that the maximum sentence was life imprisonment. Stevenson also
had sufficient time to consider his plea agreement. He received the first plea agreement, which
he ultimately accepted, on September 29. On December 10 he received the second plea
agreement, which included a lower maximum sentence of 30 years’ imprisonment, but a higher,
15-year, minimum sentence. Although Stevenson initially signed the second agreement, he
ultimately decided to plead guilty under the terms of the first agreement, which he had had more
than two months to consider.
Stevenson does not argue that his nature and background suggest a fair and just reason to
request withdrawal. He does argue, however, that his lack of experience with the federal justice
system weighs in his favor because his last criminal conviction prior to the instant offense
occurred in 2001, and the present case was his first contact with the federal criminal justice
system. Although both of these statements are true, they do not suggest that he is unfamiliar
with guilty pleas. In fact, he has pleaded guilty to criminal charges on four separate occasions in
three different states.
-8-
No. 15-1758, United States v. Van Stevenson
Because the balance of the first six factors weighs in favor of affirming the district
court’s denial of Stevenson’s motion to withdraw his guilty plea we need not evaluate any
prejudice to the government. See United States v. Spencer, 836 F.2d 236, 240 (6th Cir. 1987)
(stating that “the government is not required to establish prejudice that would result from a plea
withdrawal[] unless and until the defendant advances and establishes a fair and just reason for
allowing the withdrawal”). The district court accordingly acted within its discretion when it
denied Stevenson’s motion to withdraw.
B.
Stevenson next argues that his sentence was procedurally and substantively unreasonable
because the district court did not consider certain 18 U.S.C. § 3553(a) factors and because it
based his sentence on a disdain for BDSM relationships. These claims cannot get out of the gate,
however, because of the appeal waiver in Stevenson’s plea agreement.
“A defendant in a criminal case may waive ‘any right, even a constitutional right,’ by
means of a plea agreement.” United States v. Fleming, 239 F.3d 761, 763-64 (6th Cir. 2001)
(quoting United States v. Ashe, 47 F.3d 770, 775-76 (6th Cir. 1995)). Stevenson waived “the
right to appeal the sentence as determined by the Court at sentencing” and the right to appeal
“the manner in which the sentence was determined on the grounds set forth in 18 U.S.C.
§ 3742.” He retained the “right to appeal a sentence that exceeds the statutory maximum of the
count of conviction or is based upon an unconstitutional factor” and the right to appeal “those
objections preserved at sentencing that the Court incorrectly determined the final Guideline
range.”
Stevenson’s waiver was knowing and voluntary and neither of his briefs argues that the
appeal waiver is invalid. He denied having any questions about his plea agreement, confirmed
-9-
No. 15-1758, United States v. Van Stevenson
that he had an adequate opportunity to thoroughly discuss this matter with his attorney, and
confirmed that he understood that he would be giving up certain rights legally to collaterally
attack a sentence that the court would be required to impose. He has waived the challenges to
his sentence that he raises on appeal and his claims do not fall under any of his retained rights to
appeal. Because waivers of rights to appeal in a plea agreement are enforceable, we deem this
claim waived. See Fleming, 239 F.3d at 763-64; see also United States v. Beals, 698 F.3d 248,
255 (6th Cir. 2012) (holding that “[c]riminal defendants may waive their right to appeal as part
of a plea agreement so long as the waiver is made knowingly and voluntarily. When they do so,
[o]nly challenges to the validity of the waiver itself will be entertained on appeal.” (internal
quotation marks and citations omitted, alteration in original)).
IV.
For the aforementioned reasons we AFFIRM the judgment of the district court.
-10-
No. 15-1758, United States v. Van Stevenson
MERRITT, Circuit Judge, concurring. The defendant here pled guilty to using the
“internet to communicate with a girl approximately 15 to 17 years old and persuaded . . . her into
sending images of herself engaged in sexually explicit conduct and the lascivious display of her
pubic area” in violation of 18 U.S.C. § 2422(b), according to the indictment. For so
communicating with the young girl, the statute provides for a “mandatory minimum” sentence of
not less than ten years and a maximum of life imprisonment. The plea agreement allows the
defendant to appeal any sentence that is “unconstitutional.” The defendant has appealed his 30
year sentence. All of the young girl’s conduct here was apparently consensual prompted by her
desire to send sexually explicit pictures to the defendant, to engage in sexual intercourse with
him and to act as his sex “slave.”
In this case we have a mentally ill perpetrator of the crime and an unusually willing,
perhaps mentally disturbed, victim. The perpetrator, a sexual sadist, sought to “enslave” the girl;
and the girl apparently sought to be his sex “slave.” The psychology and the neuroscience
underlying the conduct of both the man and the young girl are a puzzle. It is difficult for the
judicial system to decide what kind of sentence should be imposed in this kind of case. It will
probably cost the taxpayers $1 million or more to keep the defendant incarcerated for 30 years,
and we cannot know now at the time of this appeal whether rehabilitation is likely. The question
of release into community confinement or other forms of supervision must be left to the U.S.
Bureau of Prisons or any future parole system that may be created to deal with sex offenders as
they age and may lose their sadistic sexual proclivities. Like the district court and my
colleagues, I do not know of any better sentence to impose at this time.
-11-
| {
"pile_set_name": "FreeLaw"
} |
218 Cal.App.2d 622 (1963)
GEORGETTE BYARD et al., Plaintiffs and Respondents,
v.
NATIONAL AUTOMOBILE AND CASUALTY INSURANCE COMPANY, Defendant and Appellant.
Civ. No. 27228.
California Court of Appeals. Second Dist., Div. Two.
July 25, 1963.
Anderson, McPharlin & Conners and Robert E. Jones for Defendant and Appellant.
Cleveland & Erpelding and John W. Erpelding for Plaintiffs and Respondents.
HERNDON, J.
National Automobile and Casualty Insurance Company appeals from the judgment entered against it following a nonjury trial of an action brought by respondents upon an undertaking on attachment filed pursuant to section 539 of the Code of Civil Procedure.
In the prior action in which appellant's undertaking was filed, respondents' real property was attached and their motion to quash the attachment was denied. Thereafter a trial on the merits was concluded by a judgment in respondents' favor. They were awarded their costs, which were paid. Subsequently they filed the instant action against appellant on its undertaking on attachment.
[1a] In seeking a reversal of the judgment, appellant makes the following assignment of error: "The trial court erred in awarding, as damages, a sum incurred by [respondents] for attorneys' fees in the defense of the action in which [appellant's] undertaking on attachment was filed."
[2] This contention was definitely rejected by our Supreme Court in Reachi v. National Auto. & Cas. Co., 37 *624 Cal.2d 808, 811-813 [236 P.2d 151]. It was decided therein that California would adopt the prevailing rule, namely, that attorney's fees incurred in the defense of the original action on its merits are recoverable upon a showing that relief from the attachment could not have been obtained by motion or other summary proceeding, and that it was necessary to defend on the merits of the main action in order to defeat the attachment.
[1b] Appellant seeks to avoid the application of the rule adopted in the Reachi decision by pointing out that there the defendant in the original action was a nonresident, so that the attachment which formed the basis of the subsequent action was used to obtain "quasi in rem" jurisdiction over the defendant in accordance with section 537, subdivision 3, of the Code of Civil Procedure. (Reachi v. National Auto. & Cas. Co., supra, p. 810.) From this, appellant argues that, notwithstanding the absence from the opinion of any suggestion that such fact was of any significance to its determination, nevertheless the ruling therein made should be limited only to such factual situations and should not be extended to cases where, in addition to the attachment, in personam jurisdiction is obtained over the defendant in the original action by personal service within the state.
The reasoning by which appellant seeks to distinguish Reachi and to avoid its rule is not persuasive. It urges that even if the result reached in Reachi was correct, a proposition on which appellant appears to entertain the gravest doubts, it could only be because the nonresident defendant therein would not have been required to defend the original action at all were it not for the effect of the substituted service accompanying the attachment. Therefore, it argues, the attorney's fees resulting from such defense might possibly be considered as included within the broad language of section 539, which provides that the sureties on the undertaking on attachment shall insure "that if the defendant recovers judgment, the plaintiff will pay all costs that may be awarded to the defendant and all damages which he may sustain by reason of the attachment, not exceeding the sum specified in the undertaking. ..." (Italics added.)
However, appellant continues, where the defendant has been personally served, he is required to defend in any event, and the fact that his property remains bound by the attachment until such time as the lack of merit in plaintiff's *625 action becomes established is wholly inconsequential and immaterial.
We cannot dismiss so lightly the consequences which necessarily result from a plaintiff's ex parte decision to subject a defendant's property and credit reputation to a long-term cloud in support of a claim which ultimately is proven to be unmeritorious. Appellant, of course, is unable to suggest any method by which a resident (as distinguished from a nonresident) defendant may free his property from an attachment that is valid and regular on its face except by defending the action upon its merits. If he fails to do so, the resident loses his property as surely as the nonresident, and, pending a determination on the merits, his property is equally burdened.
In point of fact, if there are any equities to be considered in the two situations, the more favorable in most instances would appear to lie with the party attaching the property of the nonresident, since this may be the only available means by which to achieve a judicial determination of the asserted claim. In the instance of the resident defendant, no such considerations are present. Therefore, when the party asserting the claim deliberately determines to impose hardships upon another prior to any judicial resolution of a question on which he has any doubt, he reasonably may be said to have volunteered to assume the risks involved, including the costs which the other necessarily will incur, in the event that his judgment ultimately is proven to have been faulty.
[3] Appellant, however, argues further that, in the instant case respondents testified that they would have defended upon the merits in any event, and hence to award them attorney's fees for such defense would be inconsistent with their own admissions. That is to say, it would be equivalent to a ruling that absent the attachment they would have defaulted in the action. But appellant is in no favorable position to urge speculation upon what respondents might in fact have done if it had not chosen to attach their residences. It is unreasonable for a party who actually has availed himself of the attachment process to insist that the trial court in each case must attempt to postulate what expenses the defendant might have incurred in the hypothetical situation which by his own actions he has prevented from attaining reality.
[4] Lastly, appellant asserts that to apply the rule of the Reachi case in this instance will "severely penalize a plaintiff who in good faith believes that he has a valid, provable cause *626 of action but nonetheless loses his lawsuit." Manifestly such is not the case. Appellant is not being penalized for bringing an action which it cannot establish. As noted in 5 California Jurisprudence 2d, Attachment and Garnishment, section 3, page 597:
"In many of the states the process of attachment was originally adopted as a means of compelling the appearance of nonresident and other debtors, upon whom the ordinary process of the courts could not be served. Upon the appearance and posting of bail in the manner required by the practice then in force with respect to other process, the attachment was dissolved. In many instances the remedy was extended to cases where debtors were fraudulently concealing, removing, or otherwise disposing of the property with an intent to defraud their creditors. In California, the remedy is extended over a wider field, and seems to proceed upon a theory different from the attachment laws of any other state. The design of our law seems to be not merely to reach nonresident and absconding debtors, or to circumvent fraud, but to afford the creditor security for every demand not otherwise secured, arising upon a contract for the direct payment of money made in the state, in which there may be default of payment. Subsequent to the date of the case thus stating the purposes of attachment, the remedy has been further extended by various amendments to the statute defining the cases in which the writ may issue, so that it is now available in actions to recover damages for injury to property arising as a consequence of negligence, fraud, or other wrongful act in the case of nonresident defendants, or those departing from the state and those concealing themselves therein so as to elude discovery after diligent search; in actions for unlawful detainer, and for the collection of taxes or moneys due on any obligation or penalty imposed by law."
The ultimate resolution of all actions, including the purest contract right calling for the payment of a sum certain, is an unknown factor prior to final judicial determination. Therefore it appears entirely reasonable to require one who contemplates availing himself of this "predetermination" right to weigh carefully the probabilities, the risks, the advantages and disadvantages thereof. It must be assumed that he is fully informed as to the merits of his cause and his ability to establish it, and, if he entertains serious doubts on either point, he need only restrict himself to the position of the usual plaintiff who must await trial on the merits before seizing *627 upon the assets of the defendant. Certainly this appears preferable to an arbitrary refusal fairly to compensate an alleged debtor for the monies he has expended in freeing his property of the encumbrance placed upon it by invoking the only procedure available to him.
Appellant also acknowledges that, if we were to accept his arguments, this court would have to deviate from the holdings in several cases in which the rule of the Reachi case has been applied in instances where in personam jurisdiction was not lacking, although this point does not appear to have been specifically passed upon therein. (See Clark v. Andrews, 109 Cal.App.2d 193, 195 [240 P.2d 330]; Barlin v. Barlin, 156 Cal.App.2d 143, 147 [319 P.2d 87]; Schneider v. Zoeller, 175 Cal.App.2d 354, 363 [346 P.2d 515].)
Since the Supreme Court denied hearings in Clark v. Andrews, supra, and in Schneider v. Zoeller, supra, we do not feel that it is within the province of this court to adopt appellant's suggestion that we now refuse to apply the rules enunciated in Reachi.
[5] Although denial of a hearing is not the equivalent of express approval by the Supreme Court, it has been said that "The order of [the Supreme Court] denying a petition for a transfer ... after ... decision of the district court of appeal may be taken as an approval of the conclusion there reached, but not necessarily of all of the reasoning contained in that opinion." (Eisenberg v. Superior Court, 193 Cal. 575, 578 [226 P. 617]; see also Cole v. Rush, 45 Cal.2d 345, 351 [289 P.2d 450, 54 A.L.R.2d 1137].) Any deviation from the apparently general holding of the Reachi decision and the other decisions above cited applying the rule therein set forth, must come from the Supreme Court itself.
The judgment is affirmed.
Fox, P. J., and Smith, J. pro tem., [fn. *] concurred.
NOTES
[fn. *] *. Assigned by Chairman of Judicial Council.
| {
"pile_set_name": "FreeLaw"
} |
701 F.2d 170
Wentworthv.Middleton
81-6986
UNITED STATES COURT OF APPEALS Fourth Circuit
2/15/83
1
D.Md.
REVERSED AND REMANDED
| {
"pile_set_name": "FreeLaw"
} |
NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 15a0425n.06
Nos. 13-1892/2199
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, )
FILED
) Jun 08, 2015
Plaintiff-Appellee, ) DEBORAH S. HUNT, Clerk
)
v. ) ON APPEAL FROM THE
) UNITED STATES DISTRICT
RAYNARD V. CROWE (13-1892); ALFRED R. ) COURT FOR THE EASTERN
WINGATE, JR. (13-2199), ) DISTRICT OF MICHIGAN
)
Defendants-Appellants. )
)
BEFORE: MOORE, GIBBONS, and GRIFFIN, Circuit Judges.
JULIA SMITH GIBBONS, Circuit Judge. A federal jury convicted Raynard Crowe and
Alfred Wingate of several robbery and firearm-related counts stemming from the robberies of
two pharmacies and a bank, and the defendants received 535-month and 684-month prison
sentences respectively. The defendants make a total of five arguments on appeal. First, Crowe
argues that his Sixth Amendment Confrontation Clause rights were violated by the closing
argument of Wingate’s counsel. Second, Crowe contends that Congress exceeded its authority
under the Commerce Clause when criminalizing pharmacy robbery. Third, Wingate argues that
his trial counsel was constitutionally ineffective. Fourth, Wingate seeks relief on the basis that
the trial court failed to submit to the jury the “brandishing” element that increased his sentence
under the relevant firearms statute. Finally, both defendants argue that a Sixth Amendment
violation arose when the district court imposed consecutive, enhanced sentences for “second or
Nos. 13-1892, 13-2199
United States v. Crowe/Wingate
subsequent” convictions based on offenses charged in the same indictment.1 For the reasons that
follow, we affirm both defendants’ convictions and sentences.
I.
Crowe and Wingate were tried for offenses arising from three separate robberies, the first
of which occurred at the Citizens Bank in Grosse Pointe Woods, Michigan in May 2011. Six
days before the robbery, Crowe opened an account, listing a false address on the application. He
recruited Wingate and four others to assist, providing two of them with guns.
On May 18, Crowe, Wingate, and one of their co-perpetrators arrived at Citizens Bank in
a minivan belonging to Wingate’s fiancée. Crowe entered the bank and withdrew $10 from his
account. Crowe then relayed information about the situation inside the bank to Wingate and
another co-perpetrator who were waiting outside. A short time later, Wingate and the co-
perpetrator entered the bank and pulled masks over their faces. Surveillance cameras captured
their unmasked faces before they entered. Each pulled out a handgun. The co-perpetrator held a
gun to the head of one of the two bank tellers and Wingate—pointing his gun—jumped over the
counter to retrieve the money. A customer entered the bank during the robbery and the co-
perpetrator, pointing the gun at the customer, forced him onto the ground. The two men left the
bank with $45,350 in cash. Crowe later divided the money among all those who had helped with
the robbery. The next day, a police officer discovered $1,543 in cash in Crowe’s possession.
Days later, Wingate’s fiancée deposited $3,000 in cash that she had received from Wingate.
The second robbery occurred at Medicap Pharmacy in Warren, Michigan, on June 18,
2011.2 Crowe again provided firearms to Wingate and another member of the group. They
1
We grant Crowe’s motion to join and adopt this argument after Wingate raised it in his briefs. Crowe also
moved to adopt Wingate’s brandishing argument. For the reasons stated below, we deny Crowe’s motion to adopt
this argument.
-2-
Nos. 13-1892, 13-2199
United States v. Crowe/Wingate
planned to steal money and controlled substances that could be sold on the street. Wingate and a
co-perpetrator entered the pharmacy, wielding guns, and demanded drugs and cash. The co-
perpetrator wore a mask during the Medicap robbery but Wingate did not. One of the pharmacy
workers, Heather Cavitt, identified Wingate at trial. Both assailants pointed guns at pharmacy
workers during the course of the robbery. A video surveillance camera captured the incident.
The two men left the pharmacy carrying a large duffel bag containing money, drugs, and their
handguns. Wingate gave the bag to the other man and then fled. The police later recovered the
bag and its contents in a nearby residential neighborhood and then arrested the co-perpetrator.
Wingate remained at large.
Crowe and Wingate reassembled the group with some new members and planned the
third robbery: that of the Ferndale Pharmacy on July 11, 2011. Their main objective was to steal
prescription drugs. Crowe gave a firearm to at least one of the group members for use in the
robbery. Shortly before closing time, Wingate entered the pharmacy with one of the new co-
perpetrators, both carrying guns. Crowe remained across the street. Wingate went around the
counter to obtain the drugs. At gunpoint, he ordered an employee to put prescription drugs into
Wingate’s bag. The employee dialed 911 and kept the call connected, with the cell phone in her
pocket, while the robbery took place. Meanwhile, the other assailant placed the employees on
the ground and tied their hands with zip ties. Carrying the bag filled with drugs, Wingate and the
other man went toward the back door. Police officers arrived as they were exiting and, though
the two men tried to run, they were soon arrested. Crowe escaped and fled the state but was later
arrested in Arizona.
2
Crowe was ultimately acquitted of the Medicap robbery.
-3-
Nos. 13-1892, 13-2199
United States v. Crowe/Wingate
A federal grand jury indicted Crowe and Wingate each for one count of bank robbery in
violation of 18 U.S.C. § 2113(a), two counts of pharmacy robbery in violation of 18 U.S.C.
§ 2118(a), three counts of using or carrying a firearm during a federal crime of violence under
18 U.S.C. § 924(c), several counts of being a felon in possession of a firearm in violation of
18 U.S.C. § 922(g) (four counts for Crowe, two counts for Wingate), and conspiracy to commit
each of these crimes. The district court denied Crowe’s pre-trial motion to dismiss the pharmacy
counts as extending beyond Congress’s authority under the Commerce Clause.
A joint jury trial took place in the Eastern District of Michigan in March 2013. The jury
convicted Wingate of all counts. Crowe was acquitted of one of the two counts of pharmacy
robbery, one of the two counts of using or carrying a firearm during a federal crime of violence,
and two of the four counts of being a felon in possession of a firearm. He was found guilty of all
other counts. Both defendants appeal.
II.
Crowe first argues that his Sixth Amendment rights were violated pursuant to Bruton v.
United States, 391 U.S. 123 (1968), when Wingate’s counsel admitted during closing arguments
that Wingate had committed the Ferndale robbery. The relevant portion of the closing argument
was as follows:
As regards to the Ferndale robbery, Mr. Wingate takes responsibility. As you
know, through trial, we didn’t cross-examine any witnesses [as to the Ferndale
robbery]. We didn’t challenge any witnesses. . . . [U]nderstand[] [that] for
Ferndale, yes, he takes responsibility. And not only does he take responsibility –
and I believe I can say this on behalf of my client. Ferndale, as you know, dealt
with his son.
The parties dispute whether Crowe properly preserved this argument. We review a
preserved Confrontation Clause claim de novo, United States v. Vasilakos, 508 F.3d 401, 406
(6th Cir. 2007), but review an unpreserved claim for plain error, United States v. Martinez,
-4-
Nos. 13-1892, 13-2199
United States v. Crowe/Wingate
588 F.3d 301, 313 (6th Cir. 2009). The standard of review for this particular issue is ultimately
immaterial because Crowe’s argument would fail even under a de novo standard.
Bruton established that “[a]n accused is deprived of his rights under the Confrontation
Clause when the confession of a nontestifying codefendant that implicates the accused is
introduced into evidence at their joint trial[,] . . . even if the jury is instructed to consider the
confession only as evidence against the codefendant.” United States v. Cope, 312 F.3d 757, 780
(6th Cir. 2002) (citing Bruton, 391 U.S. at 137). We have since “extended the Bruton principle
by holding that a defendant’s Sixth Amendment right to confront witnesses is violated not only
when the court admits the confession of a nontestifying codefendant, but also any statement
made by a codefendant that implicates the accused.” Id. (citing United States v. Bartle, 835 F.2d
646, 651 (6th Cir. 1987)). Because the Bruton principle is premised upon the Confrontation
Clause, the principle applies only to testimonial statements. United States v. Johnson, 581 F.3d
320, 326 (6th Cir. 2009); see generally Davis v. Washington, 547 U.S. 813 (2006) (discussing
the meaning of “testimonial”).
Crowe’s claim does not fall within the scope of the Bruton principle for at least two
distinct reasons. First, the statement at issue is not testimonial evidence because it was made by
counsel. See Coe v. Bell, 161 F.3d 320, 343 (6th Cir. 1998) (“[S]tatements by counsel are not
‘testimony.’”). Indeed, it was not evidence of any kind, as the district court instructed the jury.3
See United States v. Lopez, 649 F.3d 1222, 1237 (11th Cir. 2011); United States v. Wilson, 605
F.3d 985, 1017 (D.C. Cir. 2010) (declining to apply the Bruton principle, partly because “[t]he
opening statement and closing argument made by [counsel] neither were admitted into evidence
nor were they testimony”).
3
The district court gave the following instruction: “The lawyers’ statements and arguments are not
evidence. Their questions and objections are not evidence. . . . These things are not evidence and you are bound by
your oath not to let them influence your decision in any way.”
-5-
Nos. 13-1892, 13-2199
United States v. Crowe/Wingate
Second, even if Wingate’s lawyer’s statement had been testimony, it would not trigger
Bruton because the statement did not implicate Crowe either explicitly or implicitly. It conceded
Wingate’s involvement but did not refer to Crowe at all. We have previously held that Bruton
does not bar a co-defendant’s statement that does not refer to the accused, even if that statement
“becomes incriminating when linked with other evidence adduced at trial.” United States v.
Ford, 761 F.3d 641, 654 (6th Cir. 2014) (internal quotation marks omitted). Crowe therefore
falls far short of establishing a Confrontation Clause violation.
III.
Crowe’s second argument is that his conviction for Count Six in the indictment is invalid
because the criminalization of intrastate robberies of controlled substances in 18 U.S.C.
§ 2118(a)(1) exceeds the bounds of congressional authority under the Commerce Clause. See
U.S. Const. art. I, § 8, cl. 3. We review the constitutionality of the statute de novo. United States
v. Rose, 522 F.3d 710, 716 (6th Cir. 2008).
The Commerce Clause authorizes three general categories of congressional activity.
First, Congress may regulate the channels of interstate commerce. Gonzales v. Raich, 545 U.S.
1, 16 (2005). Next, Congress may “regulate and protect the instrumentalities of interstate
commerce, and persons or things in interstate commerce.” Id. at 16–17. Under the third
category, the only one at issue in this case, “Congress has the power to regulate activities that
substantially affect interstate commerce.” Id. at 17. Regulation of intrastate, “purely local”
conduct is permitted under this third category when the conduct is “part of an economic class of
activities that have a substantial effect on interstate commerce.” Id. (internal quotation marks
omitted); see also Wickard v. Filburn, 317 U.S. 111, 125, 128–29 (1942). Economic activities
-6-
Nos. 13-1892, 13-2199
United States v. Crowe/Wingate
include the production, distribution, and consumption of commodities. Raich, 545 U.S. at 25–
26.
Under this framework, the Supreme Court has upheld statutes that are “one of many
essential parts of a larger regulation of economic activity in which the regulatory scheme could
be undercut unless the intrastate activity were regulated.” Raich, 545 U.S. at 24–25 (internal
quotation marks and alterations omitted). Moreover, a statute’s effect on interstate commerce
must be viewed not in isolation but in the aggregate: “[W]hen ‘a general regulatory statute bears
a substantial relation to commerce, the de minimis character of individual instances arising under
that statute is of no consequence.’” Id. at 17 (quoting United States v. Lopez, 514 U.S. 549, 558
(1995)). And, crucially, the issue is not whether the regulated economic activity—when taken in
the aggregate—in fact has a substantial effect on interstate commerce, “but only whether a
‘rational basis’ exists for so concluding.” Id. at 22 (quoting Lopez, 514 U.S. at 557).
Applying these principles, the Supreme Court distinguished the permissible regulation in
Raich—the regulation of the growing of medicinal marijuana—from statutes the Court had
previously invalidated: a statute criminalizing the possession of guns in school zones, see United
States v. Lopez, 514 U.S. 549 (1995), and a statute providing a federal civil remedy for victims of
gender-motivated violence, see United States v. Morrison, 529 U.S. 598 (2000). The Raich
Court explained that the cultivation of medical marijuana is “quintessentially economic,” unlike
the statutes at issue in Lopez and Morrison. Raich, 545 U.S. at 25–26. The possibility that
medical marijuana could be grown and distributed on a purely local level did not make the
overall regulatory scheme constitutionally deficient. Id. at 26. The Court expressed its
reluctance to invalidate individual portions of a comprehensive regulatory scheme and thus
explained: “[t]hat the regulation ensnares some purely intrastate activity is of no moment.” Id. at
-7-
Nos. 13-1892, 13-2199
United States v. Crowe/Wingate
22; see also id. at 23 (“Where the class of activities is regulated and that class is within the reach
of federal power, the courts have no power to excise, as trivial, individual instances of the class.”
(internal quotation marks and alterations omitted)); id. at 28 (“The congressional judgment that
an exemption for such a significant segment of the total market would undermine the orderly
enforcement of the entire regulatory scheme is entitled to a strong presumption of validity.”).
Consistent with those Supreme Court precedents, we have upheld—under rational-basis
review—a federal statute criminalizing carjacking, United States v. McHenry, 97 F.3d 125, 129
(6th Cir. 1996), and another criminalizing possession of child pornography, United States v.
Chambers, 441 F.3d 448, 454–55 (6th Cir. 2006), even though the defendants’ activities in those
cases were wholly intrastate. The McHenry court reasoned that “carjacking is itself an economic
transaction, albeit a coercive one” because “[w]hen a criminal points a gun at a victim and takes
his or her car, the criminal has made an economic gain and the victim has suffered an undeniable
and substantial loss.” 97 F.3d at 127 (quoting United States v. Bishop, 66 F.3d 569, 581 (3d Cir.
1995)). It further explained that the carjacking statute “addresses ‘economic evils of an interstate
nature,’ even though each instance of the evil activity may not necessarily cross state lines.” Id.
(quoting United States v. Oliver, 60 F.3d 547, 550 (9th Cir. 1995)). The court held that Congress
had a rational basis to believe that, considered in the aggregate, carjacking has a substantial
effect on interstate commerce. Id. at 127. Applying a similar line of analysis in Chambers, we
viewed the criminalization of child-pornography possession as “part of comprehensive
legislation to regulate the interstate market in a fungible commodity.” 441 F.3d at 455 (internal
quotation marks omitted). Regardless of the purely local nature of the criminal conduct before
the court in Chambers, Congress still had a rational basis to believe that regulation would
substantially affect interstate commerce. See id.; see also United States v. Bowers, 594 F.3d 522,
-8-
Nos. 13-1892, 13-2199
United States v. Crowe/Wingate
528 (6th Cir. 2010) (“[T]here is no question that Congress has a legitimate basis for attempting
to regulate the interstate market in child pornography and that the statutes that [the defendant]
challenges are part of a larger comprehensive scheme to regulate that illicit interstate market.”).
Crowe’s conviction of Count Six was premised on 18 U.S.C. § 2118(a)(1), which
criminalizes taking or attempting to take
from the person or presence of another by force or violence or by intimidation any
material or compound containing any quantity of a controlled substance belonging
to or in the care, custody, control, or possession of a person registered with the
Drug Enforcement Administration under section 302 of the Controlled Substances
Act (21 U.S.C. 822) . . . if . . . the replacement cost of the material or compound
to the registrant was not less than $500 . . . .
The parties agree that this statute on its face covers robberies that—like the Ferndale Pharmacy
robbery—are intrastate, or “purely local” activities.
The inclusion of intrastate robberies of controlled substances in section 2118(a)(1) was
within Congress’s authority under the Commerce Clause. The theft of controlled substances is
an economic activity for the same reason that the McHenry court recognized that carjacking is an
economic activity: the thief makes an economic gain and the victim sustains an economic loss.
See McHenry, 97 F.3d at 127. And Congress had a rational basis to believe that the theft of
controlled substances, considered in the aggregate, would have a substantial effect on interstate
commerce. This rational basis is particularly evident because section 2118 is part of a
comprehensive federal regulatory scheme addressing the manufacture, distribution, dispensing,
or possession of controlled substances. The Supreme Court recognized in Raich that Congress
had set up a scheme to regulate the “established, . . . lucrative, interstate market” in controlled
substances. 545 U.S. at 26. The statute at issue was the Comprehensive Drug Abuse Prevention
and Control Act of 1970. Section 2118 originates from a later statute, the Controlled Substance
Registrant Protection Act of 1984, but it is no less part of Congress’s comprehensive regulatory
-9-
Nos. 13-1892, 13-2199
United States v. Crowe/Wingate
scheme over controlled substances. The statute criminalizes the taking of “controlled
substances,” defined as in the 1970 Act, from those who are registered with the DEA under the
1970 Act. See 18 U.S.C § 2118(a), (e)(1). The congressional record for the 1984 Act explains:
The effective regulation of the commerce in controlled substances has resulted in
very high prices for the drugs on the black market. As a consequence, theft of
controlled substances from registrants has become a common yet serious problem.
Although burglary and robbery of controlled substance registrants declined in
1982, it has been extremely serious, with between 5,000 and 6,000 such crimes
annually between 1977 and 1981. The frequency of these crimes has terrorized
the community of dispensing pharmacists. Some pharmacists have ceased to
carry drugs that are highly desired on the black market, although this interferes
with their patients’ ability to obtain necessary medicine. This has a serious
potential to impede the delivery of health care in many communities around the
nation.
H.R. Rep. No. 98-644, at 2–3 (1984).
This demonstrates that section 2118 is undoubtedly part of the comprehensive scheme
that Congress established to regulate the interstate flow of controlled substances. See also
United States v. Workman, 990 F. Supp. 473, 473–75 (S.D. W.Va. 1998) (quoting the same text
from the congressional record and concluding that section 2118 “was seen as an important
adjunct in congressional attempts to regulate controlled substances”).4 In essence, the scheme
could be undercut absent the protection of registrants from intrastate burglaries, robberies, and
the resulting trauma. There is clearly, therefore, a rational basis for concluding that these
prohibited activities would have a substantial effect, when aggregated, on interstate commerce.
4
Workman rejected a Commerce Clause challenge to section 2118, as did United States v. Potter, No. 3:09-
CR-138, 2010 WL 2813356 (E.D. Tenn. July 14, 2010). The government also cites another case that upheld section
2118 in light of a Commerce Clause challenge, United States v. Sours, No. 98-5072, 1999 WL 241839 (10th Cir.
Apr. 23, 1999) . But, as Crowe correctly notes, the Sours court’s inquiry was meaningfully different from the
question here because an alternative jurisdictional portion of the statute was satisfied: “the person who engaged in
[the taking of controlled substances] traveled in interstate or foreign commerce or used any facility in interstate or
foreign commerce to facilitate such taking or attempt.” See 18 U.S.C. § 2118(a)(2). That provision is not at issue
here. Instead, jurisdiction here is premised on the fact that “the replacement cost of the [stolen drugs] was not less
than $500.” Id. § 2118(a)(1). The Sours court explicitly avoided “address[ing] whether the Commerce Clause
permits Congress to criminalize robbery of a controlled substance when only the monetary element is satisfied.”
Sours, 1999 WL 241839, at *3 n.8.
-10-
Nos. 13-1892, 13-2199
United States v. Crowe/Wingate
Acts of violence and theft could rationally be seen to inhibit the flow and provision of federally
regulated controlled substances. Congress had the authority to pass section 2118 under the
Commerce Clause, and Crowe’s as-applied constitutional challenge fails.
IV.
The first of Wingate’s three claims on appeal is that his trial counsel’s ineffectiveness
violated Wingate’s Sixth Amendment rights under Strickland v. Washington, 466 U.S. 668
(1984). Wingate alleges that two specific aspects of his lawyer’s performance rendered the
performance ineffective and prejudiced Wingate’s defense. First, he focuses on his lawyer’s
failure to move to suppress a witness’s identification of Wingate in a photographic lineup
Second, he claims that his lawyer failed to subject the government’s case to meaningful
adversarial testing because he did not cross-examine many of the prosecution’s witnesses
testifying against Wingate.
To prevail on a Sixth Amendment ineffectiveness claim, a convicted defendant must
satisfy two elements. First, he must show that his counsel’s conduct fell below “an objective
standard of reasonableness” under “prevailing professional norms.” Strickland, 466 U.S. at 688.
Second, the defendant must demonstrate prejudice by showing that “the decision reached would
reasonably likely have been different absent the errors.” Id. at 688, 696.
We do not generally review ineffective-assistance claims on direct appeal because, in
most cases, such claims are better suited to adjudication in post-conviction proceedings.
Massaro v. United States, 538 U.S. 500, 504 (2003) (“[I]n most cases a motion brought under
§ 2255 is preferable to direct appeal for deciding claims of ineffective assistance.”); United
States v. Ferguson, 669 F.3d 756, 762 (6th Cir. 2012); United States v. Bradley, 400 F.3d 459,
461–62 (6th Cir. 2005). “‘[W]hen an ineffective-assistance claim is brought on direct appeal,
-11-
Nos. 13-1892, 13-2199
United States v. Crowe/Wingate
appellate counsel and the court must proceed on a trial record not developed precisely for the
object of litigating or preserving the claim and thus [the record is] often incomplete or
inadequate for this purpose.’” Ferguson, 669 F.3d at 762 (alterations omitted) (quoting
Massaro, 538 U.S. at 504–05). We make an exception only in the rare case in which the record
is adequate to review the claim on direct appeal. See United States v. Pruitt, 156 F.3d 638, 646
(6th Cir. 1998).
Finding the record inadequate in the present case, we decline to resolve the issue at this
stage. In particular, the record is not sufficiently developed to enable us to determine whether
trial counsel’s failure to cross-examine certain witnesses was an instance of deficient
performance or the exercise of legitimate trial strategy. See Massaro, 538 U.S. at 505 (noting the
need to develop a record to determine whether a lawyer’s action “had a sound strategic motive or
was taken because the counsel’s alternatives were even worse”); Strickland, 466 U.S. at 689–90
(discussing the need for a criminal defendant to overcome the presumption that a challenged
action reflected sound strategy). The record is also insufficient for us to determine whether the
limited cross-examination and the failure to move for suppression of the identification testimony
would likely have been different if counsel had proceeded differently. See Massaro, 538 U.S. at
505 (“Without additional factual development, moreover, an appellate court may not be able to
ascertain whether the alleged error was prejudicial.”). We therefore refrain from reviewing
Wingate’s ineffective-assistance claim and leave the claim to be resolved in post-conviction
proceedings.
V.
Both defendants argue that we should reverse the district court’s imposition of a seven-
year sentence on Count Three (the conviction for using or carrying a firearm during the robbery
-12-
Nos. 13-1892, 13-2199
United States v. Crowe/Wingate
of Citizens Bank). Under 18 U.S.C. § 924(c)(1)(A), that offense carries a minimum seven-year
sentence “if the firearm is brandished,” but otherwise only a five-year minimum. The Sixth
Amendment “permits only the jury, not the district judge, to make a finding on brandishing.”
United States v. Mack, 729 F.3d 594, 607 (6th Cir. 2013) (citing Alleyne v. United States, 133 S.
Ct. 2151 (2013)). Here, the district court did not submit the brandishing element to the jury.
But because neither party objected, plain-error review applies. See Fed. R. Crim. P.
52(b); Mack, 729 F.3d at 607. We reverse based on plain error only if (1) the district court
committed an error, (2) that is “plain,” and (3) that affects the defendant’s substantial rights.
United States v. Olano, 507 U.S. 725, 732 (1993). Here, the Government concedes that the
district court’s failure to submit the brandishing element to the jury “was error and that the error
is plain,” thus establishing the first two elements of plain-error review. Thus, the only remaining
question is whether the error affected the defendants’ substantial rights.
In general, this court applies an inquiry akin to ordinary harmless-error review to
determine whether an error affected a defendant’s substantial rights. Mack, 729 F.3d at 607.5
Automatic reversal takes place only if the error falls within a narrow category of structural
errors: “basic protections [without which] a criminal trial cannot reliably serve its function as a
vehicle for determination of guilt or innocence, and no criminal punishment may be regarded as
fundamentally fair.” Arizona v. Fulminante, 499 U.S. 279, 310 (1991). But an error in
instructing the jury on a crime’s essential elements or issues that will increase his minimum
sentence, such as the brandishing element here, is not a structural error requiring automatic
5
Wingate argues that the court should reverse without considering whether the error was harmless. He
points to a circuit split as to whether errors of this specific nature should be reviewed for harmlessness. See United
States v. Lara-Ruiz, 721 F.3d 554, 558–60 (8th Cir. 2013) (reversing and remanding for resentencing without
discussing harmless error); United States v. Lake, 530 F. App’x 831, 831–32 (10th Cir. 2013) (same). But in making
this argument, Wingate implicitly concedes that the Sixth Circuit has noted the circuit split and decided to review for
harmlessness. See Mack, 729 F.3d at 609.
-13-
Nos. 13-1892, 13-2199
United States v. Crowe/Wingate
reversal. See Mack, 729 F.3d at 608. The court must therefore ask “whether it appears ‘beyond
a reasonable doubt that the error complained of did not contribute to the verdict obtained.’” Id.
at 607–08 (quoting Neder v. United States, 527 U.S. 1, 15 (1999)). Applying this test in Mack,
the court explained that the error would be harmless—and would not affect the defendant’s
substantial rights—“[i]f it is clear to us beyond a reasonable doubt that the outcome would not
have been different even if the district court had instructed the jury on the element of brandishing
and required the jury to make a finding on that element . . . .” 729 F.3d at 608. Based on the
undisputed evidence in that case, the court was convinced that the outcome would not have been
different: “if properly instructed, the jury would have found beyond a reasonable doubt . . . that
the defendant brandished a firearm . . . .” Id. at 609.
In this case, Wingate is not entitled to relief because a properly instructed jury would
have found beyond a reasonable doubt that both brandished a firearm during the robbery. The
evidence overwhelmingly shows that the two perpetrators of the Citizens Bank robbery both
brandished firearms. According to both the uncontroverted testimony and the bank surveillance
video, the person identified as Wingate—the one seen jumping the counter—was pointing a gun.
The same situation arose in Mack: the defendant disputed his involvement but not the issue of
brandishing, the jury convicted him of the underlying robbery, and the undisputed evidence
showed that the perpetrators brandished firearms. Id. at 608–09. The failure to submit the
brandishing issue to the jury did not prejudice the defendant.
Wingate next argues that the court should also consider the possibility that a properly
instructed jury would not have found brandishing beyond a reasonable doubt on the other two
section 924(c) counts (Counts Five and Seven). Wingate notes that the rule of lenity applies to
the district court’s ordering of counts for sentencing purposes, requiring the district court to
-14-
Nos. 13-1892, 13-2199
United States v. Crowe/Wingate
consider the counts in the order that favors the defendant. See United States v. Washington,
714 F.3d 962, 971 (6th Cir. 2013). Here, regardless of the issue of brandishing, two of the
section 924(c) convictions give rise to a mandatory twenty-five-year term of imprisonment. The
brandishing issue therefore affected whether Wingate received a five-year or seven-year
minimum sentence on his third section 924(c) conviction. Thus, ordering the convictions in
Wingate’s favor means that his minimum sentence on the remaining section 924(c) count would
have been only five years if a properly instructed jury had failed to find brandishing on any of
the three counts.
Although Wingate correctly analyzes the impact of the rule of lenity, he is not entitled to
relief. The issues already discussed in relation to the Citizens Bank robbery apply with equal
force to both the Medicap and the Ferndale robberies. There was significant and uncontroverted
evidence that Wingate brandished a firearm in committing each robbery. One of the victims of
the Medicap robbery testified that both robbers were pointing their weapons, a fact that the store
surveillance video corroborates. One of the Ferndale victims testified that an assailant held her
at gunpoint while demanding prescription drugs, and Wingate’s fiancée identified Wingate as
that assailant from the recording of the victim’s 911 call during the encounter. As we noted
above, Wingate’s counsel also admitted to Wingate’s role in the armed robbery of the Ferndale
Pharmacy. As a result, it appears beyond a reasonable doubt that a properly instructed jury
would have found that Wingate brandished a firearm in all three robberies. The district court’s
error was harmless.
Although Crowe did not develop this argument in his brief on appeal or at oral argument,
he did submit a motion after oral argument, pursuant to Federal Rule of Appellate Procedure
28(i), to adopt the arguments that Wingate made on this point. We decline to grant Crowe’s
-15-
Nos. 13-1892, 13-2199
United States v. Crowe/Wingate
motion. With respect to those counts, Crowe, who did not personally brandish a gun, was
convicted under an aiding-and-abetting theory of liability. Wingate, on the other hand, was
convicted as a principal. These theories of liability are substantially different from one another,
and would require us to undertake a different form of legal analysis. We think that it is
inappropriate for us to analyze an issue that has not been briefed by the parties and that was not
discussed at oral argument. If Crowe wanted us to undertake an aiding-and-abetting harmless-
error analysis with respect to his section 924(c) convictions, he should have properly raised the
issue. Hormel v. Helvering, 312 U.S. 552, 556 (1941).
Although the district court committed an error that was plain in failing to submit the issue
of brandishing, the error did not affect Wingate’s substantial rights. We affirm.
VI.
The defendants’ final argument is that the district court should not have imposed
consecutive, enhanced sentences under 18 U.S.C. § 924(c) on Counts Three, Five, and Seven,
each of which resulted in each defendant’s conviction of using or carrying a firearm during a
federal crime of violence.6 The defendants argue that the imposition of these sentences—which
totaled 535 months for Crowe and 684 months for Wingate—violated their Sixth Amendment
rights to trial by jury pursuant to Alleyne, 133 S. Ct. 2151.
Section 924(c) provides: “[i]n the case of a second or subsequent conviction under this
subsection, the person shall . . . be sentenced to a term of imprisonment of not less than 25
years,” § 924(c)(1)(C)(i), and further mandates that “no term of imprisonment imposed on a
person under this subsection shall run concurrently with any other term of imprisonment
imposed on the person, including any term of imprisonment imposed for the crime of violence or
6
Crowe’s argument refers only to the sentences for Counts Three and Seven because he was acquitted of
Count Five.
-16-
Nos. 13-1892, 13-2199
United States v. Crowe/Wingate
drug trafficking crime during which the firearm was used, carried, or possessed.” Id.
§ 924(c)(1)(D)(ii).
The defendants concede that this court, in accordance with Supreme Court precedent, has
previously upheld consecutive sentences when the “second or subsequent” convictions under
section 924(c) derived from the same indictment. See Deal v. United States, 508 U.S. 129, 136
(1993); Washington, 714 F.3d at 970. The defendants argue, however, that these cases predate
Alleyne, which held that if “a statute prescribes a particular punishment to be inflicted on those
who commit it under special circumstances which it mentions, or with particular aggravations,
then those special circumstances must be specified in the indictment.” 133 S. Ct. at 2160
(internal quotation marks omitted).
But Alleyne explicitly reserved—based on the Court’s prior decision in Almendarez-
Torres v. United States, 523 U.S. 224 (1998)—an exception “for the fact of a prior conviction.”
Alleyne, 133 S. Ct. at 2160 n.1. Thus, in the post-Alleyne case of Mack, we reiterated that “the
Sixth Amendment does not require the government to set forth in the indictment and prove
beyond a reasonable doubt the fact of a prior conviction.” 729 F.3d at 609. This court therefore
upheld consecutive twenty-five year sentences under section 924(c) for offenses charged in the
same indictment. Precedent compels the same outcome here. The district court’s imposition of
consecutive, enhanced sentences under section 924(c) did not violate either defendant’s Sixth
Amendment rights.
VII.
For the above reasons, we affirm both defendants’ convictions and sentences.
-17-
| {
"pile_set_name": "FreeLaw"
} |
951 A.2d 257 (2008)
James ANDERSON, Petitioner
v.
Lynne A. ABRAHAM, District Attorney of Philadelphia County, Penna., Respondent.
Supreme Court of Pennsylvania.
June 11, 2008.
ORDER
PER CURIAM.
AND NOW, this 11th day of June, 2008, Application for Leave to File Original Process is GRANTED. The Petition for Writ of Mandamus and/or Extraordinary Relief and the Motion to Seek Leave of the Court to Supplement the Record are DENIED.
| {
"pile_set_name": "FreeLaw"
} |
295 F.2d 288
5 A.L.R.3d 726
NATIONAL LABOR RELATIONS BOARD, Petitioner,v.WINCHESTER ELECTRONICS, INCORPORATED; and Pyne MoldingIncorporated, Respondents.
No. 16, Docket 26776.
United States Court of Appeals Second Circuit.
Argued Sept. 29, 1961.Decided Oct. 24, 1961.
Vivian Asplund National Labor Relations Board, Washington, D.C. (Stuart Rothman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, and Melvin J. Welles, National Labor Relations Board, Washington, D.C., on the brief), for petitioner.
W. H. F. Millar, Waynesville, N.C. (William I. Millar, Waynesville, N.C., and Morgan P. Ames, Stamford, Conn., on the brief), for respondents.
Before LUMBARD, Chief Judge, and FRIENDLY and SMITH, Circuit Judges.
LUMBARD, Chief Judge.
1
Respondent Winchester Electronics, Inc. (Winchester), manufactures and distributes electrical connectors and related products. Two of its plants are located at New Milford and Danielson, Connecticut. Respondent Pyne Molding, Inc. (Pyne), manufactures and distributes moldings and related products, shipping a great deal of them to Winchester. Pyne and Winchester, which share the same plant facilities in New Milford and have the same president and vice president, have stipulated that they constitute a single employer.
2
Early in 1959 the International Brotherhood of Electrical Workers, AFL-CIO (the Union) attempted to organize the plants of both respondents. Although the Board found that Winchester and Pyne threatened their employees with reprisals for union activities in violation of 8(a)(1) of the National Labor Relations Act, 61 Stat. 136, 140, 29 U.S.C.A. 158(a)(1) the Union won the three elections on May 21 at Winchester's New Milford and Danielson plants and Pyne's New Milford plant.
3
During the bargaining over a contract the Union was represented by Richard Rogers and the respondents by C. S. Connor and W. H. F. Millar. Rogers complained because he had to bargain with two people both of whom needed approval from H. H. Burtt, the president of both respondents, who was in Europe. Consequently, on July 13 and July 15 the employees of both respondents struck. At a meeting on July 16, Connor informed Rogers that he had heard from President Burtt, that Millar was 'out of the pricture,' and in response to Rogers' query whether Connor was authorized to 'give us some answers' Connor replied that he was and exhibited a photostat of Burtt's cablegram authorizing Vice President Detar to sign an agreement. Connor and Rogers then came to an agreement on all matters in dispute except wages. There is a conflict over whether Connor told Rogers that he would have to get approval from his principals on only the wage question or on all the issues discussed. The trial examiner who had an opportunity to observe both Connor and Rogers accepted the version that only wages were subject to approval. The next day Connor told Rogers that Burtt, who was still in Europe, had approved the wage settlement and that everything else was as it had been settled the previous night. On Monday, July 20, the strikers returned to work. The provisions of the agreement between Rogers and Connor relating to wage increase, insurance, and shift differentials were immediately put into effect, and with the approval of respondents' supervisory employees a notice containing the agreed upon union-security provisions which began 'The contract between the Company and Union provides * * *' was posted on the bulletin board.
4
But the contract was never signed. Upon his return from Europe Burtt insisted on various changes. Meanwhile, without consulting the Union, Winchester laid off 84 employees and transferred part of the New Milford operations to a new unorganized plant in Oakville, Connecticut. On September 9 the employees at all three plants struck again. However, on November 16, 1959, Rogers notified respondents that all employees were unconditionally available for work. Few strikers have been reinstated.
5
The trial examiner found that Connor had actual, or at least apparent, authority to negotiate a binding contract, subject to approval on wages. Since this approval was obtained, the trial examiner found that the contract was binding and thus Winchester had violated 8(a)(1) and (5) of the Act by its repudiation of the contract. The trial examiner viewed the complaint as not alleging that Pyne had refused to bargain but the Board granted the General Counsel's motion to amend the complaints to include Pyne. Consequently, the Board ordered both Winchester and Pyne to sign the contract if requested by the Union. Furthermore, the trial examiner and the Board found that the layoffs and transfer of operations were motivated by discrimination against union members in violation of 8(a)(3) of the Act. Therefore, since the strike of September 9 had been caused by respondents' unfair labor practices in repudiating the contract and making discriminatory layoffs, the trial examiner and the Board ordered respondents to reinstate their employees with back pay.
6
The respondents argue that the trial examiner's finding that Connor had either actual or apparent authority is not supported by the evidence. However, after Connor had communicated with Burtt and received the latter's approval on a settlement of the wage issue, Connor told Rogers that, conditioned on the men going back to work Monday, everything else was still as they had agreed to it. When the men returned to work, the respondents acted as if a binding contract existed by putting into effect the wage increase, insurance provisions, and shift differentials and by allowing the posting of the agreed upon union-security notice which began with 'The contract between the Company and the Union provides * * *' Certainly, in light of the fact that Connor had shown Rogers a photostat of Burtt's cablegram authorizing a company official in the United States to make a binding agreement, the Board's finding that a contract existed was supported by substantial evidence. N.L.R.B. v. Local 815, 2 Cir., 1961, 290 F.2d 99, 104.
7
Respondents further contend that the Supreme Court's holding in N.L.R.B. v. Wooster Division of Borg-Warner Corp., 1958, 356 U.S. 342, 78 S.Ct. 718, 2 L.Ed.2d 823, prohibits this court from enforcing the contract. Although the International Union is the certified bargaining representative of the respondents' employees, the only party to the contract which the Board ordered the respondents to sign is the uncertified local. The Borg-Warner case held it an unfair labor practice for one party to insist that the uncertified local rather than the certified International be made a party to a contract where the other side refused to accept such a provision. The Supreme Court reasoned that since the duty to bargain was limited to certain subjects, not including a clause recognizing an uncertified local, insisting that the other party accept such a clause constitutes a refusal to bargain in violation of 8(a)(5) of the Act. However, as the Supreme Court recognized in Borg-Warner, a clause voluntarily agreed upon by the employer and union recognizing the uncertified local as the bargaining representative would be lawful and enforceable. 356 U.S. at page 349, 78 S.Ct. at page 722. In the present case, respondents and the Union agreed upon the recognition clause. Consequently, it poses no bar to requiring respondents to sign the contract.
8
In fact, the respondents never urged at the hearing or even before the Board, that the International rather than the local should have been the party to the contract. Therefore, not having made timely objection as required by 10(e) of the Act, 29 U.S.C.A. 160(e), the question is not even open on review.
9
Since the original complaint alleged that Winchester refused to bargain, but did not mention Pyne in this respect, the trial examiner did not recommend that Pyne execute the contract. The Board, after granting the General Counsel's motion to amend the complaint to include Pyne, ordered Pyne to execute the contract. Rogers testified that he was negotiating for an agreement covering both Winchester and Pyne, and Connor testified that he represented both. Furthermore, in a letter which bears the heading 'Re: Winchester Electronics, Inc., and Pyne Molding Corporation' Mr. Millar discussed the dispute over the contracts. Therefore, there was sufficient evidence to support the Board's finding that Connor acted as an agent of both Winchester and Pyne. And since the respondents stipulated that they constitute a single employer, Pyne was not prejudiced by the amendment.
10
Winchester objects to the trial examiner's finding, adopted by the Board, that layoffs at the Danielson and New Milford plant and the opening of the Oakville plant were motivated by a desire to eliminate the union. Winchester claims that a labor shortage and transportation problems account for the Danielson layoffs. However, since the assembly work performed at Danielson requires no particular skill or physical ability and Danielson was at that time Connecticut's area of greatest labor surplus, the Board seems clearly justified in rejecting the labor shortage excuse. The only evidence of a transportation problem is that Danielson is 100 miles from New Milford. However, Winchester was well aware of that fact when the Danielson plant was opened in 1957, when additional space was leased in 1958, and when expansion of the plant was contemplated in early 1959. In fact, Winchester intended to expand their Danielson operation right up to the time of the election of the Union as the representative of the Danielson employees. Since then Winchester has been contracting its Danielson operation. Actually, the Danielson as well as the New Milford layoffs coincided with the opening of an unorganized Oakville plant. Although Winchester claims that the New Milford layoff was intended to permit the installation of new equipment, after four months no order for such equipment had been placed. In light of Winchester's earlier threats to shut down the plants if the Union won the election and a supervisory employee's statement that there was going to be a big layoff soon because the employees had been 'very disloyal to Mr. Burtt by getting the Union in there,' the Board was justified in finding that the layoffs and opening of the new plant were primarily motivated by opposition to the Union and thus violated 8(a)(3) and (1) of the Act.
11
The respondents' final objection relates to the Board's reinstatement order. It is unnecessary for the complaint to spell out the details of the relief to be requested if it is found that the Act has been violated. Section 10(c) of the Act specifically empowers the Board to grant these remedies. Therefore, if the complaint alleges unfair labor practices that could result in the Board's use of such a remedy, the respondents have been sufficiently informed. See Republic Steel Corp. v. N.L.R.B., 3 Cir., 1939, 107 F.2d 472, 474, 478-479, modified as to another point 1940, 311 U.S. 7, 61 S.Ct. 77, 85 L.Ed. 6; N.L.R.B. v. Midwest Transfer Co. of Illinois, 3 Cir., 1961, 287 F.2d 443, 446. However, the Board's order that respondents reinstate with back pay all employees who were laid off or who had struck was too broad. The respondents should not be required to offer reinstatement to those employees who previously refused reinstatement to substantially equivalent employment. And back pay as to such employees should be awarded only until the time of such prior offer of reinstatement.
12
The order is enforced as modified.
| {
"pile_set_name": "FreeLaw"
} |
USCA1 Opinion
UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT ____________________ No. 92-2057 UNITED STATES OF AMERICA, Appellee, v. JOHN E. BURKE, Defendant, Appellant. ____________________ APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE [Hon. Morton A. Brody, U.S. District Judge] ___________________ ____________________ Before Boudin, Circuit Judge, _____________ Coffin and Oakes*, Senior Circuit Judges. _____________________ ____________________ Mark L. Randall with whom Mary A. Davis was on brief for ________________ _______________ appellant. Margaret D. McGaughey, Assistant United States Attorney, with ______________________ whom Richard S. Cohen, United States Attorney, and Timothy D. Wing, ________________ _______________ Assistant United States Attorney, were on brief for appellee. ____________________ August 2, 1993 ____________________ ____________________ *Of the Second Circuit, sitting by designation. COFFIN, Senior Circuit Judge. After the district court _____________________ denied his suppression motion, appellant John Burke entered a conditional guilty plea to a charge that he knowingly manufactured marijuana in violation of 21 U.S.C. 841(a)(1) and 18 U.S.C. 2. On appeal, he renews his claim that the search warrant affidavit failed to show probable cause and that, consequently, evidence seized from his home must be suppressed. He also claims that the district court erred in calculating his sentence based on 50 marijuana plants and an equivalency of one kilogram per plant. We affirm. I. Probable Cause ______________ In July 1991, Bangor Police Officer Roy McKinney applied for a warrant to search the home occupied by appellant Burke and his wife Susan at 330 Fern Street in Bangor, Maine. The affidavit filed by McKinney in support of the warrant application described two conversations in which an unidentified individual had reported to a confidential informant about an indoor marijuana growing operation. The informant, who had proven reliable in the past, had passed on the information to a Detective Gastia, who then passed it on to McKinney. As reported in the affidavit, the unidentified person made the following assertions: (1) A person named "John" was growing 40 marijuana plants in his house; (2) The unidentified person had been to John's house, which was on Fern Street in Bangor, and it "reeked" of marijuana; (3) The house had a new addition; (4) A search warrant previously had been executed at John's house, resulting in the seizure of marijuana plants from an indoor growing operation; -2- (5) John had "beat the charge". The affidavit also contained the following additional information from McKinney:1 (6) In 1989, McKinney had executed a warrant at the home of John Burke, at 330 Fern Street, and uncovered an elaborate indoor marijuana growing operation; (7) John Burke had not been prosecuted in connection with the 1989 seizure; (8) 330 Fern Street had a new addition; (9) Two cars parked at 330 Fern Street on June 19, 1991, were identified through Department of Motor Vehicle records as belonging to Susan and John Burke, of 330 Fern Street; (10) Power consumption records for 330 Fern Street revealed a pattern of usage consistent with indoor marijuana cultivation, with a dramatic drop in usage following the 1989 search and substantial increases beginning again in the fall of 1990. Burke contends that this affidavit was deficient and that the warrant therefore was invalid. His primary complaint is that the central information in the affidavit comes from an unidentified person whose reliability and credibility are untested and unknown. The issuing judge, he argues, had no basis upon which to credit this individual's assertions, which had passed through two other persons before reaching the affiant McKinney. Our limited role in evaluating a judge's decision to issue a search warrant is well established: We review the issuance of a search warrant with "great deference," United States v. Ciampa, 793 F.2d _____________ ______ 19, 22 (1st Cir. 1986), to verify that there existed a ____________________ 1 Defendant makes much of the fact that the affidavit reports the informant's conversations with Gastia "in substance" rather than verbatim. Unlike Burke, we do not believe that this phrase suggests that the information provided to the magistrate was unreliable. In our view, McKinney used the phrase to inform the magistrate fully that he was providing what he believed to be a substantively accurate, though not word-for-word, report of the conversations between Gastia and the informant. -3- "substantial basis" for the judicial officer's common- sense determination that, "given all the circumstances set forth in the affidavit . . . , including the `veracity' and `basis of knowledge' of persons supplying hearsay information, there [was] a fair probability that contraband or evidence of a crime [would] be found in a particular place." United States v. Scalia, No. 93-1018, slip op. at 4 (1st Cir. May _____________ ______ 21, 1993) (quoting United States v. Caggiano, 899 F.2d 99, 102 _____________ ________ (1st Cir. 1990) (quoting Illinois v. Gates, 462 U.S. 213, 238-39 ________ _____ (1983))). Having conducted such a "totality of the circumstances" scrutiny of the affidavit here, we are satisfied that the issuing judge had substantial support for his finding that "there existed a fair probability that marijuana and related paraphernalia would be found in appellant's residence," Scalia, ______ slip op. at 8-9. Although the original source of the information leading to the search was anonymous, several factors vouched for the reliability of this person's assertions. Most significant was McKinney's experience and knowledge as a result of his involvement in the 1989 search of Burke's home. The source's information that an individual on Fern Street named John was growing marijuana dovetailed with McKinney's knowledge that marijuana plants had been seized two years earlier from the home of John Burke at 330 Fern Street. The source's further report that "John" had "beat the charge" coincided with McKinney's knowledge that Burke had not been prosecuted as a result of the 1989 seizure. This coincidence of McKinney's knowledge with the source's information served to corroborate that information. See ___ United States v. Taylor, 985 F.2d 3, 6 (1st Cir. 1993) ("An _____________ ______ -4- affiant's knowledge of the target's prior criminal activity or record clearly is material to the probable cause determination.") It also is significant that the source's information was based on personal observation. See Scalia, slip op. at 7. This ___ ______ individual had been to Burke's home and reported that it "reeked" of marijuana. But see United States v. DeLeon, 979 F.2d 761, 765 ___ ___ _____________ ______ (9th Cir. 1992) (warrant cannot be based on untrained or inexperienced person's claim to have smelled growing plants that have no commonly recognized odor). The source also noted that the house had a new addition, a fact corroborated by McKinney based on both his 1989 search and a drive-by after he received the 1991 tip. Some weight also attaches to the established record of the confidential informant, through whom the unidentified source communicated to the police officers. According to the affidavit, that informant ("CI#102") had provided information in the past that led to three felony drug arrests and the seizure of several pounds of marijuana. In addition, McKinney stated that the informant recently had provided information to him and Detective Gastia that was used to secure another search warrant that resulted indiscovery ofan indoor marijuanacultivating operation.2 ____________________ 2 If we were to assign no weight to the reliability of the informant in this context, we would be in the peculiar position of inviting informants to be less forthcoming about their sources. For example, to avoid questions about the unidentified person, the informant could have relayed the information about the Fern Street marijuana operation as if it were the informant's direct knowledge. The issuing judge then would have considered only the informant's veracity and reliability in evaluating the warrant application. In any event, we think that the past -5- McKinney's own investigation further corroborated the likelihood that Burke once again was growing marijuana at 330 Fern Street. The power source records he obtained showed that the residents of 330 Fern Street resumed an unusually high consumption of electricity after a lapse in time that coincided with the period immediately following the 1989 search and seizure, when Burke predictably would have been inclined to lie low. McKinney confirmed that the Burkes still lived at 330 Fern Street by checking motor vehicle records for the cars parked there. This confluence of factors was more than ample to establish probable cause. Although the multi-link chain of information began with an unidentified individual, the reliability of that information was reinforced by the proven history of the confidential informant, McKinney's personal knowledge, and the documentary evidence developed through investigation. The standard of probable cause requires a probability, not a prima facie showing, of criminal activity. See United States v. ___ ______________ Ciampa, 793 F.2d 19, 22 (1st Cir. 1986). Unquestionably, the ______ issuing judge here was given a sufficient basis for concluding that a new crop of marijuana probably was being cultivated at 330 Fern Street. ____________________ history of the informant is relevant and does strengthen the case for the warrant: it suggests not only that the information from the original source is being accurately reported but, as a matter of fact, that the informant has reliable sources. -6- We take a moment to discuss briefly Burke's allegation that the warrant was defective because of a material omission from the affidavit. He claims that McKinney was at least reckless in failing to notify the magistrate that the unidentified source had reported that "John" had "beat the [1989] charge due to search _____________ and seizure problems." The affidavit did not give a reason for _____________________ the lack of prosecution. The district court held an evidentiary hearing into Burke's claim that material information had been excluded from the affidavit, concluding that there was "no indication of any kind of deliberate falsehood or reckless disregard of the truth." See ___ Tr. of July 16, 1992, at 28. We are satisfied that that court fully explored this issue, and that no basis for invalidating the warrant exists. Any discrepancy between the actual reason for the lack of prosecution in 1989 and the source's explanation is of marginal significance, if any, to the existence of probable cause. In our view, the crucial fact was the lack of prosecution, and on that point, the source and affiant were fully in accord. II. Number of Plants ________________ Under the Sentencing Guidelines, when an offense involves fifty or more marijuana plants, the court is required to equate each plant with one kilogram of marijuana in determining the defendant's base offense level. See U.S.S.G. 2D1.1. When ___ -7- fewer than fifty plants are at issue, the equivalency is 100 grams for each plant.3 The district court found that the offense here involved fifty plants, and Burke consequently was sentenced under the harsher one-kilogram-per-plant standard. The court's computation included 32 plants ranging in size from one- to three-and-one- half feet that were found in a large basement room in the new addition and two plants of similar size found in an adjoining smaller room. The court also included 16 one-to-three-inch cuttings, each growing in a separate pot, that were found in the small room.4 Burke disputes the district court's calculation. He argues that at least some, and perhaps all, of the 16 small replanted cuttings lacked sufficient root development to be deemed plants. And he emphasizes that an error on just one plant would have a ____________________ 3 The relevant portion of the provision is as follows: In the case of an offense involving marihuana plants, if the offense involved (A) 50 or more marihuana plants, treat each plant as equivalent to 1 KG of marihuana; (B) fewer than 50 marihuana plants, treat each plant as equivalent to 100 G of marihuana. Provided, however, that if the actual weight of the marihuana is greater, use the actual weight of the marihuana. 4 A total of 36 one-to-three-inch cuttings was found in the small room. Although the court believed that all of these were likely to be plants within the meaning of the Guidelines, the experts who testified at the sentencing hearing had examined only 16 of them. The court therefore decided to give the defendant "the benefit of the doubt" and to exclude the other 20 from his calculation. See Tr. of Aug. 12, 1992, at 86. ___ -8- dramatic impact on his sentence because of the 50-plant threshold for the one-kilogram equivalency. The district court's determination that the 16 cuttings should be classified as plants rests both on a legal determination -- what constitutes a "plant" under the guidelines? -- and a factual determination -- did the cuttings at issue fulfill those requirements? After a careful review of the record and caselaw, we find no reversible error in either respect. The court defined a plant for sentencing purposes as "a cutting with a root formation," Tr. of August 12, at 85. This is consistent with the definition previously accepted by this court, see United States v. McMahon, 935 F.2d 397, 401 (1st Cir. 1991) ___ _____________ _______ (defining plants as "cuttings with roots"), as well as other courts, see, e.g., United States v. Edge, 989 F.2d 871, 879 (6th ___ ____ _____________ ____ Cir. 1993) (a marijuana cutting is a "plant" for federal sentencing purposes "if there is readily observable evidence of root formation"); United States v. Bechtol, 939 F.2d 603, 604 _____________ _______ (8th Cir. 1991) (a cutting with "root hairs" -- "fine projections coming from the stem" -- is a plant); United States v. Eves, 932 _____________ ____ F.2d 856, 859 (10th Cir. 1991) (endorsing holding in United ______ States v. Fitol, 733 F. Supp. 1312, 1315 (D. Minn. 1990), that ______ _____ there must be evidence of "`individual growth after the severance, such as growing of roots'"); United States v. Speltz, ______________ ______ 733 F. Supp. 1311, 1312 (D. Minn. 1990) ("cuttings with roots" are marijuana plants). We see no reason to depart from this relatively straightforward, widely utilized standard. -9- Indeed, even Burke agrees that the presence of roots is a determinative factor in identifying a plant. He suggests, however, a more functional approach than is reflected by precedent. Based on the testimony presented by his expert at trial, Burke argues that new growth on a cutting may be termed roots -- and the cutting identified as a "plant" -- only when the growth "physiologically functions as a root." See Brief at 21. ___ We decline to embrace this functional refinement to the "cuttings with roots" definition. If a cutting has growth extending from its base that is differentiated from its stem or stalk, a court must be permitted to use its eyesight and commonsense to conclude that it has before it a plant with roots. To require a court to determine whether the growth is performing all of the technical functions of roots is to complicate a matter that Congress intended to simplify: As Judge Devitt noted in [United States v.] Fitol, [733 _____________ _____ F. Supp. 1312 (D. Minn. 1990)], the legislative purpose was to remedy the problems associated with determining the weight of marijuana -- specifically, whether seeds and stems should be weighed in the mix -- and to supplant this test with a more simple method; a method providing that the number of "plants regardless of weight" would trigger the mandatory minimum sentence. 733 F. Supp. at 1315. We perceive that the congressional intent was to simplify, not to complicate, the method of determining the high end or low end mandatory sentences. To accept the appellant's formulation would be to turn our face on the legislative purpose. Eves, 932 F.2d at 860 (quoted in Edge, 989 F.2d at 878). In our ____ ____ view, plant status is sufficiently established when there is "some readily observable evidence of root formation," Edge, 989 ____ F.2d at 877. In other words, at the first sign of roots, a plant -10- exists for sentencing purposes. Cf. Bechtol, 939 F.2d at 605 ___ _______ (rejecting viability as the standard for whether a cutting is a plant); Eves, 932 F.2d at 857 (same). ____ It is the government's burden to prove, by a preponderance of the evidence, that each of the 16 contested specimens was a plant. See United States v. Wright, 873 F.2d 437, 441-42 (1st ___ _____________ ______ Cir. 1989) (preponderance of the evidence standard applies to sentencing issues). The district court's finding that each had sufficient root development to be classified as a plant may be reversed only for clear error. See Eves, 932 F.2d at 859; United ___ ____ ______ States v. Carlisle, 907 F.2d 94, 96 (9th Cir. 1990) (per curiam). ______ ________ We find no such error. The district court heard extensive testimony from two experts, viewed a videotape of the cuttings taken at the time of the seizure, and examined photographs taken by the defendant's expert after the cuttings had been pulled from their pots and dried. Both experts agreed that the cuttings as viewed in the videotape were healthy and thriving. Both agreed that at least some of the cuttings when examined displayed growth from the base, and that the videotape showed that all 36 specimens in the small room (20 of which the court discounted, see supra at n.4) were of similar height and condition. ___ _____ With this consensus as a foundation, the district court had ample support for finding that the cuttings all were sufficiently developed to be classified as plants. The government's expert, Dr. Lydon, explicitly testified that the growth on the six to ten cuttings that he personally examined was a form of roots, and he -11- found the remnants of roots in the growing medium from which the cuttings had been removed. He identified roots on 12 of the 16 cuttings shown in the photographs. He further testified that the leaves on the cuttings in the videotape could be as large and healthy as they were only if there existed a root system to sustain them. This was particularly so, he said, because the cuttings were placed under intense light to spur their growth. Although the defense expert, Professor Colby, contradicted certain of Lydon's testimony, it was within the district court's province to evaluate what it heard and make judgments about the weight to attribute to each expert's views. Colby stated that he saw no plant matter in the rock wool that had contained the cuttings. The court, however, reasonably could credit Lydon's contrary testimony in light of its own ability to see roots on most of the 16 cuttings in Colby's photographs. Similarly, Colby testified that the growth at the base of the cuttings was not roots but simply "primordia," or the precursor of roots to come. In our view, the court properly could reject this characterization of the growth because Colby's testimony primarily focused on when plants have "functional root systems," see Tr. of August 6, at 37, rather than on when the first stage ___ of the system manifests.5 ____________________ 5 Colby testified that the "newly emerging growth" at the base of some of the cuttings was not "roots" because it was not performing the function of roots. Tr. of August 6, at 38. He explained that one of the critical functions of roots -- absorbing water -- requires root hairs. The root hairs develop on secondary roots, which in turn are formed off of primary roots. Id. He further testified: ___ -12- Burke makes much of the fact that both Lydon and the district court acknowledged that several of the cuttings in the photographs showed no visible signs of roots. See Tr. of August ___ 12, at 47, 52, 67. The testimony, however, clearly permitted the district court to conclude that each of the similarly healthy plants in the videotape must have had the same level of root growth as the six to ten examined by Lydon, and that the inability to see them in the photographs was the result of fuzziness in the pictures or loss of the roots when the cuttings were pulled from the pots and dried. Two other points highlighted by Burke similarly fail to undermine the district court's finding. Detective McKinney testified that the cuttings continued to grow for several days following their seizure, and Burke suggests that it was only during this time -- if at all -- that the cuttings developed enough to be termed plants. The district court, however, was free to credit Lydon's contrary testimony that the root ____________________ What we're looking for is a root system. And in order for a plant to be classified as a fully functional living organism . . . it's got to have functional root systems, leaf systems and stem systems." Id. at 38-39. ___ In his testimony on the process by which cuttings develop roots, Lydon stated that callus tissue first develops in the spot where roots later will emerge. Tr. of August 12, at 34. In his view, when sufficient tissue develops at that location to be differentiated from the stem, the root system has begun and the specimen may be defined as a "cutting with roots." This description is consistent with the approach for recognizing roots adopted by the court in Edge (callus tissue is not a root, but ____ small "hair-like projections" are the beginning of a root system). See 989 F.2d at 878-79 & nn.9, 10. ___ -13- development he saw could not have been achieved in just several days. See Tr. of August 12, at 16. ___ Burke also challenges Lydon's reliance on the size and health of the leaves to support his conclusion that the cuttings must have had roots. He notes that the government expert was unable to say unequivocally that Burke had removed all the previously grown large leaves from the cuttings before planting them -- the technique typically used by experienced growers. Burke's theory is that, if the leaves as viewed in the videotape were on the plants before the replanting, their size would not be evidence of functioning roots. But Lydon's testimony was not premised solely on the size of the leaves. He saw significant root formation, and primarily relied on the size of the leaves only for his conclusion that the plants he did not personally observe must have had the same root development. Finally, Burke contends that, at the least, the district court should have reduced the number of plants by 10 percent to reflect the typical failure rate of marijuana cuttings. This theory, adopted by the court in United States v. Angell, 794 F. _____________ ______ Supp. 874, 876 (D. Minn. 1992), was never presented to the district court, and we decline to consider it for the first time on appeal. See McMahon, 935 F.2d at 399-400. Defendant had ___ _______ ample opportunity to develop support for this theory through either of the two experts who testified. On this record, we have no basis for disturbing the district court's calculation. III. Due Process ___________ -14- Burke argues that the equivalency of one plant to one kilogram of marijuana in the Sentencing Guidelines lacks a rational basis and therefore constitutes a violation of due process. This court recently rejected this argument, see Taylor, ___ ______ 985 F.2d at 9. Although Burke attempts to distinguish his case because it involves a different and allegedly less productive variety of the marijuana plant, the rationale of Taylor is fully ______ applicable. See id. ("Congress reasonably may opt for a punitive ___ ___ deterrent against large-scale marijuana manufacturing operations which pose a greater threat than small-scale operations, and warrant exponentially enhanced punishment.") This claim therefore also fails. Affirmed. ________ Concurrence follows. -15- OAKES, Senior Circuit Judge, concurring. While I concur in ____________________ the majority's carefully reasoned opinion, I do so only because as a visiting judge in this circuit I consider myself bound by this court's prior decisions. These include United States v. _____________ Taylor, 985 F.2d 3, 9 (1st Cir. 1993) (equation of young ______ marijuana plants to kilograms of marijuana rational) and United ______ States v. McMahon, 935 F.2d 397, 401 (1st Cir. 1991) (same). ______ _______ Were I sitting where I would be free to consider the question solely on its merits, I would conclude that the equation for sentencing purposes of three-inch marijuana plants with at best marginal root structures to kilograms of marijuana is arbitrary, irrational and a violation of due process. -16-
| {
"pile_set_name": "FreeLaw"
} |
340 Mich. 242 (1954)
65 N.W.2d 777
SOLTAR
v.
ANDERSON.
Docket No. 56, Calendar No. 46,017.
Supreme Court of Michigan.
Decided September 8, 1954.
Harold Goodman, for plaintiff.
Stanley Berriman, for defendant.
DETHMERS, J.
Plaintiff appeals from judgment for defendant on a jury verdict of no cause for action returned in his suit for damages resulting from an automobile collision. Assignments of error go solely to the court's instructions to the jury and refusal to charge as requested.
The court instructed the jury that, "Negligence must be proven as an established fact and cannot be inferred." This was error. Alpern v. Churchill, 53 Mich 607; Mirabile v. Simon J. Murphy Co., 169 Mich 522; Dyer v. People's Ice Co., 188 Mich 203; Brown v. Arnold, 303 Mich 616; Winchester v. Chabut, 321 Mich 114; Lepley v. Bryant, 336 Mich 224. Defendant urges the correctness of the instruction on the authority of King v. Nicholson Transit Co., 329 Mich 586. We did not hold there that negligence may not be inferred from facts proved, but only that a verdict must not rest upon conjecture or guess. The distinction was recognized in Hewitt *244 v. Flint & Pere Marquette R. Co., 67 Mich 61, where we said (p 72):
"Negligence, when relied upon, must be proved. It may be inferred from facts proved, but never from mere conjecture."
The rule was also well stated in Porter Machinery Co. v. Coleman, 329 Mich 8, as follows:
"It has been repeatedly held that negligence may be established by circumstantial evidence, and that if the proofs are such as to take a case out of the realm of conjecture into the field of legitimate inference from established facts a prima facie case is made. Alpern v. Churchill, 53 Mich 607; Barnowsky v. Helson, 89 Mich 523 (15 LRA 33); Bacon v. Snashall, 238 Mich 457; Eaton v. Consumers Power Co., 256 Mich 549."
It is defendant's further position that if there was error in the instruction it should not result in reversal under the provision of CL 1948, § 650.28 (Stat Ann 1943 Rev § 27.2618) that, "No judgment or verdict shall be set aside or reversed, or a new trial be granted * * * on the ground of misdirection of the jury unless * * * it shall affirmatively appear that the error complained of has resulted in a miscarriage of justice," defendant contending that an examination of the entire cause discloses the verdict to be in accord with justice. The statute is ineffective to change the rule always in effect in Michigan, both before and after the enactment, that the question of reversal is controlled by determination of whether the error was prejudicial. For cases so holding despite the existence of the statute at the time, see Kemp v. Aldrich, 286 Mich 715, and Germiquet v. Hubbard, 327 Mich 225.
Was the error prejudicial, requiring reversal? The essence of plaintiff's charge of negligence on the part of defendant's driver was that he failed to *245 make and maintain a reasonable and proper lookout for plaintiff's approaching automobile, to observe it, and, on the basis of such observation, to form and act upon judgments as an ordinary, reasonable, prudent and careful person would have done under the same or similar circumstances. Defendant and his driver testified that the latter did make such observation and judgment. As is so frequently true in these cases, the plaintiff could not, short of an admission by defendant or his driver, and did not produce direct eyewitness testimony that defendant's driver failed to make proper observation or give heed to what was there plainly to be seen. Whether he did or not, and, accordingly, whether he was guilty of negligence, presented a question of fact for the jury. Its determination thereof needed to rest on the inferences to be drawn by it from what it first found to be the established facts as to what defendant's driver actually did or failed to do in the operation of his motor vehicle. To deprive plaintiff of the benefit of such inferences was to deny him the only available proofs of negligence. Accordingly, the error complained of was prejudicial to plaintiff and requires reversal.
In view of this determination, we deem it unnecessary to pass on plaintiff's claims of error in instructions concerning plaintiff's speed, as to which we think the instructions taken as a whole properly stated the law, or in failure to instruct adequately concerning defendant's gross or subsequent negligence, which we do not think was shown to exist in this case, or other claims of error, which are without merit or relate to matters unlikely to occur again on retrial.
Reversed with new trial and costs to plaintiff.
BUTZEL, C.J., and CARR, BUSHNELL, SHARPE, BOYLES, REID, and KELLY, JJ., concurred.
| {
"pile_set_name": "FreeLaw"
} |
823 F.2d 1123
23 Fed. R. Evid. Serv. 918
UNITED STATES of America, Plaintiff-Appellee,v.Robert A. HOAG, Jr., Defendant-Appellant.
No. 86-2347.
United States Court of Appeals,Seventh Circuit.
Argued Feb. 19, 1987.Decided July 8, 1987.As Amended on Denial of Rehearing and Rehearing En Banc Aug. 14, 1987.
Dennis P. Coffey, Coffey, Coffey & Geraghty, Milwaukee, Wis., for defendant-appellant.
Jan E. Kearney, Asst. U.S. Atty., and Joseph P. Stadtmueller, U.S. Atty., Milwaukee, Wis., for plaintiff-appellee.
Before COFFEY, RIPPLE and MANION, Circuit Judges.
COFFEY, Circuit Judge.
1
Robert A. Hoag, Jr. appeals from his conviction on three counts of knowingly making false statements for the purpose of obtaining mortgages insured by the Department of Housing and Urban Development (HUD) in violation of 18 U.S.C. Sec. 1010. Hoag is a real estate investor whose allegedly false statements involved the amount of earnest money received from each of three buyers in connection with a HUD insured residential loan. After being found guilty by a jury, he was subsequently fined $100 for each violation.
2
On appeal, Hoag contends first that because "materiality" is an element of 18 U.S.C. Sec. 1010, the trial court erred both in denying his pre-trial motion to dismiss for failure to include an allegation of materiality in the superseding indictment and in refusing to instruct the jury that the false statements he made must be as to a material fact. Second, Hoag insists that because "specific intent" is an element of section 1010, the trial court should have granted his motion to dismiss for failing to include "specific intent" in the indictment. Finally, he claims that the trial court committed error in receiving in evidence documentary exhibits without requiring that the Government establish a proper evidentiary foundation. Finding no merit in these assertions, we affirm his conviction.
I.
3
Hoag, Jr. is a manager and broker for the Robert Hoag Company, a real estate company which sells residential properties requiring rehabilitation. Hoag is the son of the owner of the company, Robert W. Hoag, whom we shall refer to as "Hoag, Sr." Hoag, Sr. was also named as a co-defendant in the superseding indictment. From 1980 to 1984, ninety percent of these homes were financed with mortgages insured by HUD and the Fair Housing Administration (FHA). The FHA is a division of HUD. FHA has a loan guarantee program well known to the public whereby it grants mortgage insurance to a lender-mortgagee who is thereby insured against loss if the mortgagor fails to pay off the loan. The mortgage insurance guarantee referred to here was obtained in a two-step procedure. Initially the mortgagor-buyer was required to apply to the FHA for an appraisal of the property; this step is called the conditional commitment process and relates to the value of the property. The second step was the mortgagee's application for approval of the mortgagor's credit--the firm commitment process. Here, the mortgagee was required to provide the necessary financial information to the lender on a "Form 2900" including a verification of employment, a credit report, and the like. FHA relies on the lender for truth and accuracy as to the information contained in the application. Upon review and subsequent approval, the FHA endorses the insurance.
4
To be eligible for an insured loan, the borrower must have sufficient assets to be able to make a minimum downpayment of three percent of the acquisition costs of the first $25,000 and five percent of all amounts above $25,000. The FHA also requires that a settlement statement issued at the closing include full disclosure of all earnest money deposited with the broker. The borrower must list all amounts paid by or on behalf of the borrower including any money given or loaned from persons other than the buyer. This money may not come from anyone with an interest in the sale of the property, e.g., the broker. If it is discovered that a borrower knowingly made a false statement concerning the downpayment (the required minimum investment), the application for insurance must be rejected by HUD.
5
Evidence was introduced at trial establishing that Hoag's employees knew about the FHA minimum downpayment requirement. Salesperson Millie Thompson stated that the company occasionally would assist buyers who had less than the required downpayment by paying the remainder by company check. The company did not require repayment at closing time. The owner, Hoag, Sr., told his salespersons that this practice was legitimate.
6
The realty company would subsequently send letters regarding the amount of downpayment to the lenders. These letters, however, did not reflect that when necessary because of the buyer's inability to make the downpayment, the required deposit was advanced from the company's general fund. Hoag challenges the admission on hearsay grounds of three letters to the Grootemaat Corporation, a lender, wherein the company had made a partial payment of the required downpayment. These letters comprised the exhibits used to convict Hoag of the three counts of violating section 1010. At trial, each buyer testified as to the falsity of the statements appearing in the settlement statements. Rosie Cooper indicated that the statement contained in her letter--that the company had received $700.00 in earnest money from her--was false since she had only made a $370.00 downpayment. Laverne Kubsack reviewed her challenged letter and testified that its statement that she had paid $1,700.00 in earnest money was false; she had only paid $300.00 before closing. Finally, Rita Rolaff stated that the statement in her letter that the company had received $1,000.00 in earnest money from her and her husband was not true.
II.
A. Materiality under Section 1010
7
Hoag asserts that both the indictment and jury instructions in this case were defective for failing to include materiality as an element of an offense under section 1010. Materiality, however, appears nowhere in the text of section 1010. See United States v. Hermon, 817 F.2d 1300, 1301 (7th Cir.1987) (construing section 1010). This is in contrast to the required materiality element of section 1001, which this Circuit has consistently emphasized as being a requirement for a conviction when one is found guilty of violating this section. See, e.g., United States v. Kwiat, 817 F.2d 440, 445 (7th Cir.1987); United States v. Brantley, 786 F.2d 1322, 1326 (7th Cir.1986); United States v. Malsom, 779 F.2d 1228, 1235 (7th Cir.1985); United States v. Brack, 747 F.2d 1142, 1147 (7th Cir.1984); United States v. Dick, 744 F.2d 546, 553 (7th Cir.1984). Hoag fails to cite any caselaw establishing that materiality is a requirement for conviction under section 1010. The most analogous case to bolster Hoag's argument is Gevinson v. United States, 358 F.2d 761 (5th Cir.1966), cert. denied, 385 U.S. 823, 87 S.Ct. 51, 17 L.Ed.2d 60 (1967), which while not holding that materiality was an element in a section 1010 case, held that an indictment under the statute would be sufficient if materiality were alleged in substance; the particular word "material" need not be included in the indictment.
8
In analyzing the sufficiency of the indictment, we need to consider what is alleged in the indictment when read in its entirety. United States v. Esposito, 771 F.2d 283 (7th Cir.1985), cert. denied, --- U.S. ----, 106 S.Ct. 1187, 89 L.Ed.2d 302 (1986). In the context of a section 1001 case, we held that the test for materiality was "whether the false statement has a tendency to influence or is capable of influencing a federal agency." Brack, 747 F.2d at 1147; see also Kwiat, 817 F.2d 440, 445. The indictment in Brack was upheld because it adequately informed the defendant of the charges against him. In this case, the indictment alleged that Hoag as sales manager for the company caused false statements to be made to obtain HUD insured loans. The word "material" was not used in the indictment. Yet, even if materiality was an element of a section 1010 offense and not specifically recited in the indictment, the indictment was sufficient because as in Gevinson, materiality was alleged in substance. Clearly, in order for his clients to obtain a loan, Hoag would have to know that the Government would eventually rely on his statements, even though a false statement may be deemed material without such reliance. Dick, 744 F.2d at 553.
9
We also reject Hoag's assertion that the jury instructions needed to contain a materiality element. In those false statement statutes that require materiality as an essential element, the "question of materiality is one of law to be decided by a judge." United States v. Brantley, 786 F.2d at 1327. Because materiality is not a requirement for a conviction under section 1010, an instruction on materiality need not be submitted to the jury.
B. Specific Intent under Section 1010
10
Hoag next in a rather superficial manner contends that because the indictment against him failed to allege that he acted with "specific intent," the indictment should have been dismissed. Arguing that because every essential element of a crime must be alleged in an indictment, United States v. Gironda, 758 F.2d 1201, 1209 (7th Cir.1985), and that specific intent is an element of section 1010, Gevinson v. United States, 358 F.2d at 765, Hoag claims that the Government's failure to include the magic words "specific intent" in its indictment is sufficient ground for dismissal of the indictment. We do not agree with Hoag's contention, and the case law he cites fails to support his claim.
11
We read section 1010 as requiring that the prosecution establish that a defendant intended that HUD rely on his false representations. To comport with the statute, the indictment need only allege that Hoag knowingly made a false statement for the purpose of obtaining a loan to influence HUD. The government was required and did establish that Hoag also intended that the loan be offered to and accepted for insurance by HUD. A reading of the superseding indictment reveals that the mental state required by section 1010 was sufficiently alleged. The indictment clearly stated that Hoag, Jr. "caused the making, passing, uttering, and publication of a statement, knowing that statement to be false, for the purpose of obtaining a loan from the lending institutions and with the intent that such loan be offered to and accepted by HUD for insurance and for the purpose of influencing the actions of HUD." We do not accept Hoag's assertion that "specific intent" is an element of section 1010.
C. Admission of Letters
12
Hoag's final claim is that the letters admitted at trial as exhibits were not properly admitted as business records. Fed.R.Evid. 803(6). Each of the letters were transcribed on paper bearing the company letterhead, each one had the signature of Robert Hoag, Jr. inscribed thereon, and each contained the false statements made to the lending companies regarding the amounts of money held by the Hoag company for the purchase of each property. Over objection by Hoag, the district court admitted the letters, finding that "if it's in FHA files, it's in the business records of the FHA." Although we agree with Hoag's contention that the letters were not business records, because the letters were not hearsay, we affirm the trial court's ruling for admission of the evidence, United States v. Moore, 748 F.2d 246, 248 (5th Cir.1984), without discussing whether the foundations for admission under the business records exception were all met. See, e.g., United States v. Keplinger, 776 F.2d 678, 692 (7th Cir.1985).
13
"We exclude as hearsay out-of-court statements offered to prove the truth of the matter asserted." United States v. Verrusio, 803 F.2d 885, 893 (7th Cir.1986); United States v. Norwood, 798 F.2d 1094, 1097-98 n. 4 (7th Cir.1986). In this case, the letters were not offered for proof of their contents, but rather were introduced for the limited purpose of establishing the falsity of the matter asserted: that the buyers each did not pay the amount reflected on the individual statements regarding the adequate earnest money deposited with the company. Statements introduced solely for the purpose of proving that they were made as a predicate for other proof they were false are not hearsay. Anderson v. United States, 417 U.S. 211, 219, 94 S.Ct. 2253, 2260, 41 L.Ed.2d 20 (1974). These letters were not hearsay.
14
Yet, our inquiry must continue, for the letters had to be properly authenticated for admission at trial. Fed. Rule Evid. 901. The evidence introduced at trial fulfilled the requirements of Rule 901(b)(4), Fed. Rule Evid., which mandates that we consider the surrounding circumstances and distinctive characteristics of the exhibits introduced.1 All of the letters were written on the Hoag company letterhead, and each pertained to one of the specific real estate transactions in question and occurred on or about the date referred to in the letter. Furthermore, there was testimony that it was the company's policy to transmit these letters to the lending institutions for inclusion in the package of documents the lenders were required to submit to HUD. Robert Hoag, Jr., was the sales agent involved in selling each of the properties referred to in the three letters. An employee of Hoag Incorporated testified that the verification letters were routinely approved by either Robert W. Hoag or Robert A. Hoag (Jr.). An employee of HUD testified as to the procedure and manner in which these letters were handled by HUD. Finally, the initials of Rhonda Orth, the company's executive secretary, appeared on each letter taken from the corresponding HUD file. Accordingly, we hold that the distinctive characteristics of the letters, the facts and surrounding circumstances of the transactions referred to in the letters, and the testimony of the buyers establishing the falsity of the letters' contents and Hoag company employees concerning the transactions and office procedures, which was subject to cross-examination by the defendants, constitute "evidence sufficient to support a finding that the matter in question is what its proponent claims," Fed. Rule Evid. 901(a), and thus the letters were properly authenticated. United States v. Bagaric, 706 F.2d 42, 67 (7th Cir.1983), cert.denied, 464 U.S. 840, 104 S.Ct. 134, 78 L.Ed.2d 128 (1984).
III.
15
Hoag has failed to persuade us that the district court's error in admitting the letters as business records merits reversal. He also fails to convince us that either materiality or specific intent are elements of section 1010. The decision of the district court is, therefore,
16
AFFIRMED.
1
Rule 901 provides:
(b) Illustrations. By way of illustration only, and not by way of limitation, the following are examples of authentication or identification conforming with the requirements of this rule: *
(4) Distinctive characteristics and the like. Appearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances.
| {
"pile_set_name": "FreeLaw"
} |
205 Cal.App.2d 409 (1962)
LAWRENCE V. BEACH et al., Plaintiffs and Respondents,
v.
UNITED STATES FIDELITY AND GUARANTY COMPANY, Defendant and Appellant.
Civ. No. 25632.
California Court of Appeals. Second Dist., Div. One.
July 3, 1962.
Hunter & Liljestrom, Richard M. Gilliland and Henry F. Walker for Defendant and Appellant.
Dryden, Harrington, Horgan & Swartz and Vernon G. Foster for Plaintiffs and Respondents.
LILLIE, J.
United States Fidelity and Guaranty Company (hereinafter referred to as defendant) issued a comprehensive liability insurance policy to Russell and Mary Erbes. During its term, their son Thomas, then 22 years old, while operating a 1955 Chevrolet registered to him, became involved in an accident in which plaintiffs herein were injured. They sued Russell and Thomas. Until Russell was dismissed from the action, defendant represented him, but it denied coverage of Thomas and refused to defend him. Thomas defaulted and judgment was entered against him in favor of plaintiffs. Thereafter, Thomas assigned all of his rights against defendant to plaintiffs, whereupon, they filed this action against defendant and James Bacon and William Knight, individually, and doing business as Bacon and Knight, agents of defendant transacting the insurance business herein. The cause was heard without a jury. The trial court, finding that defendant is estopped to deny coverage of Thomas under its insurance contract with Russell, and that plaintiffs are entitled to have the same reformed to provide coverage for Thomas as a named insured, concluded that defendant breached its contract, and awarded damages to plaintiffs; and finding that, while Bacon and Knight failed and neglected to care for Thomas' insurance needs, no damage was suffered by plaintiffs in view of their right to full recovery against defendant, ordered judgment in favor of Bacon and Knight. Only defendant appeals.
Keeping in mind the rules on appeal, we briefly summarize the evidence. Bacon and Knight, the agent of defendant, had binding authority to accept insurance risks and countersign and deliver policies; since 1953 Knight handled the insurance business of Russell Erbes. On May 3, 1953, Knight procured from defendant for Russell a policy of comprehensive general automobile liability insurance covering all of his vehicles, which policy was renewed every year thereafter through the date of the accident (September 29, 1956); they were audit *411 type policies. In March 1954, Thomas then 19, purchased a 1941 Chevrolet, but because of his age title thereto was registered to Russell. Russell so advised Knight and told him he wanted Thomas covered. Thereafter, at Knight's request, by letter to the underwriting department setting out the fact that Thomas was 19 and was the "principal operator" of the 1941 Chevrolet, Russell's policy was endorsed by defendant to list the 1941 Chevrolet and declare Thomas a Class 2C risk (pertaining to a driver under 25). A specific premium was charged for this vehicle and because of the increase Russell asked Knight to compute the amount referable to Thomas' vehicle so that Thomas could reimburse him. Knight did so and Thomas repaid Russell accordingly.
On May 3, 1954, the policy was renewed; the coverage remained the same. In June, 1954, Thomas, still under 21, traded the 1941 for a 1949 Chevrolet which was registered in the name of both Thomas and Russell. Russell so advised Knight and asked him for a policy to be issued to both of them, but Knight told him it was unnecessary because Thomas was covered under his (Russell's) policy.
This policy was renewed on May 3, 1955. It listed the 1949 Chevrolet and included a premium assessment based upon a Class 2 rating; all other vehicles listed therein bore premium charges for a Class 1 rating. Russell again asked Knight to compute Thomas' share of the premium so that Thomas could repay him; Knight did so and wrote "Tommy--$64.10" on a slip of paper and gave it to Russell. Thomas reimbursed Russell in this amount. Thereafter, on August 15, 1955, Thomas, then over 21, traded in the 1949 model on a 1955 Chevrolet; he purchased it under a conditional sales contract. Thomas took title to the vehicle as the registered owner. Under his conditional sales contract the material damage coverage was to be obtained from the lending agency; thus several days before August 15, Thomas telephoned Knight and told him to cancel the material damage coverage because it would be included in his conditional sales contract on the new car. After trying without success to obtain liability insurance from other companies at a lower rate, Thomas went to Knight's office and told him he was trading in his 1949 and buying the 1955 Chevrolet and wanted insurance covering the 1955 model; he asked Knight "if we could transfer the policy from the '49 to the '55 and receive about the same coverage; in other words, if I would be covered and it would be covered properly"; Knight answered, "Yes, it would be," and that he *412 could and would transfer the insurance. Thomas testified it was his impression that he told Knight the 1955 Chevrolet would be, or was, registered in his name. Shortly thereafter, Russell went to Knight's office "to be sure that the insurance could be transferred and would cover the vehicle"; he asked Knight to transfer coverage and Knight said he could and would--that "it would be taken care of." Three or four weeks later Russell was in Knight's office and again asked Knight about coverage for Thomas; Knight told him "to quit worrying about it, that it was all taken care of, that he (Thomas) was covered." About two weeks after August 15, 1955, Thomas was involved in a minor accident with the 1955 Chevrolet for which he was not at fault; he reported it to Bacon and Knight; there was no indication at that time, or thereafter, that he was not covered. In fact, Knight testified relative to the existence of a claim filed in connection therewith which was not paid because of questionable liability.
On May 3, 1956, the policy was renewed; it gave credit for the material damage coverage deletion as of August 15, 1955, but continued to list the 1949 model and bore a premium charge for a Class 2 driver. Russell went to Knight's office and inquired about this; he told Knight it was his intention that Thomas be covered under his policy for the 1955 Chevrolet. Knight assured Russell that Thomas was covered with respect to the 1955 vehicle, and told him the listing of the 1949 vehicle was an oversight, the policy would be retyped, and Thomas would still be insured thereunder. Russell again asked Knight for a breakdown of the premium to compute Thomas' share; accordingly, Knight gave Russell the figure of $69.80, as referable to Thomas' vehicle; this amount Thomas repaid to Russell.
After Thomas' accident (September 29, 1956), defendant notified him he had no coverage under any policy of insurance issued by it, and refused to defend him; liability was denied on the ground that Thomas was operating a vehicle registered to himself. It refunded to Thomas the premium referable to the 1955 Chevrolet back to May 3, 1956 (it made no refund for the period from August 15, 1955, to May 3, 1956). No policy in fact was issued, either to Thomas or to Russell, which by its terms covered Thomas in the operation of his 1955 Chevrolet on September 29, 1956; Thomas was not a named insured in Russell's 1956-57 policy.
Knight testified that he knew the 1949 model was being traded by Thomas for the 1955 Chevrolet; and, while he could *413 not recall any specific conversation with Thomas relating to liability coverage, he admitted in his testimony that he understood it was the Erbes' desire to have the coverage transferred from the 1949 to the 1955 vehicle. He further testified that it was his intention to effect such transfer and he thought he had done so until informed to the contrary by defendant after the accident.
Appellant contends that inasmuch as Thomas was not a named insured in Russell's insurance policy, the judgment must be reversed, for unsupported by the evidence are the lower court's findings that it was estopped to deny it had contracted to and did insure Thomas (Finding of Fact XIII), and that due to mutual mistake of the parties, plaintiffs are entitled to have the policy reformed to extend coverage to Thomas. (Finding of Fact XV.) It suggests that the only basis of estoppel was its agent's knowledge that Thomas owned the successive vehicles and was the principal user thereof; and argues that since there was no understanding that Thomas would be covered after May 1956, and Knight did not know Russell was not the registered owner of the 1955 Chevrolet and Thomas was married and living apart from Russell, that Knight lacked full knowledge of the true facts, precluding estoppel. (Martin v. Alcoholic Beverage Control Appeals Board, 52 Cal.2d 238 [340 P.2d 1].)
[1] It is conceded that the policy delivered to Russell does not by its terms extend coverage to Thomas; and if plaintiffs are to recover it must be on the basis of estoppel and reformation of the contract. However, in the record before us there is a clear showing of a factual basis for the application of the doctrine of estoppel, and a mutual mistake of the parties entitling plaintiffs to reformation of the policy to supply the coverage Russell and Thomas had requested, and Knight, defendant's agent, had promised and represented he had obtained for Thomas. The evidence, necessarily viewed in a light most favorable to the challenged finding (XXIII) (Bancroft- Whitney Co. v. McHugh, 166 Cal. 140 [134 P. 1157]), clearly establishes:
that Bacon and Knight was the agent of defendant and, at all times herein, was acting within the scope of its authority;
that on each occasion Thomas acquired a car, Knight knew he was the owner thereof; that in particular Knight knew Thomas traded in the 1949 on the 1955 Chevrolet, which he was buying under a conditional sales contract; *414
that Knight knew Thomas was the principal operator of each car;
that on each occasion Knight knew Thomas' age and the registered owner of each car; in particular, that the 1955 Chevrolet was registered to Thomas;
that in connection with each of Russell's policies, Knight knew that Thomas reimbursed Russell for that portion of the premium referable to his car; he not only computed the difference on each occasion, but testified he knew Russell was collecting the premium from Thomas--"he always did that"; Russell "would come in and get a breakdown on the fee"; while there is no evidence that defendant was ever told this, the knowledge of its agent, obtained while negotiating insurance transactions within the scope of his authority, is imputed to it. (Mercer Cas. Co. v. Lewis, 41 Cal.App.2d 918 [108 P.2d 65]; Truck Ins. Exchange v. Industrial Acc. Com., 36 Cal.2d 646 [226 P.2d 583]; Eagle Indem. Co. v. Industrial Acc. Com., 92 Cal.App.2d 222 [206 P.2d 877]);
that in connection with Russell's 1955 policy, both Thomas and Russell repeatedly requested coverage of the 1955 Chevrolet; Knight promised each he would insure Thomas, thereafter represented that Thomas was covered in Russell's policy, and computed Thomas' share of the premium due thereunder; and when Thomas had a minor accident in 1955 and it was reported by him to Bacon and Knight, neither it nor defendant ever indicated that he was not covered; and,
that with reference to Russell's 1956 policy (renewed May 3, 1956), all parties (Knight, Russell and Thomas) intended coverage for Thomas, in fact, they all thought Russell's policy so provided; after Russell again told Knight it was his intention that Thomas be covered under his policy for operation of the 1955 model, Knight assured him that Thomas was covered thereunder; defendant assessed a premium for coverage on Thomas' car under Russell's policy knowing that it was in turn paid by Thomas, and Knight computed the same so that Russell could be reimbursed by Thomas; this amount was in fact refunded to Thomas after the accident; and Knight understood it was the desire of Russell and Thomas to have the liability coverage transferred from the 1949 to the 1955 Chevrolet, it was Knight's intention "to do that," and he thought he had done so until advised to the contrary by the company after the accident.
Appellant's argument that Knight did not know the 1955 Chevrolet was registered to Thomas and that Thomas had *415 married and moved from the farm (from which, appellant claims, it might be inferred that Thomas was still living with Russell who was buying the car for him), is not borne out by the evidence. From the clear proof of Knight's direct knowledge of the history, ownership, registration, acquisition and coverage of Thomas' various vehicles, and the care with which Russell informed Knight of the facts pertaining to each vehicle on each occasion, there can hardly be any other reasonable inference than that Thomas himself was buying the 1955 Chevrolet, just as he had done twice before, and that, being over 21, the car was registered to him. In addition to this inference is the direct testimony of Thomas that just before he purchased the 1955 vehicle he told Knight he was trading in his 1949 and buying the 1955 model; that in talking to Knight about cancellation of the material damage coverage, he referred specifically to the conditional sales contract; and that it was his impression that he told Knight the 1955 would be, or was, registered to him. In any event, in consideration of the conceded importance of an agent's knowledge of the name in which a vehicle he intends to cover is registered, and in view of the Erbes' right to rely upon him and that he would be properly informed on all matters relating to their insurance requests before acting thereon, the facts they brought to Knight's attention certainly cast upon him the duty to inquire into all matters pertinent to the transaction. (Golden Gate Motor Transport Co. v. Great American Indem. Co., 6 Cal.2d 439 [58 P.2d 374].) The evidence shows, and the trial court found, that Knight failed and neglected to take care of the matter for Thomas; the loss should not be borne by him. The claimed inference (that Russell was buying the 1955 Chevrolet for Thomas) from Knight's lack of knowledge that Thomas had married and moved away from home, even if reasonable, no more than created a factual conflict in the evidence which was resolved by the trial court in plaintiffs' favor. Nor is there anything in the record to show that either Russell or Thomas misrepresented Thomas' marital status or abode, or was asked about it, or had any reason to think it material; further, Knight's testimony shows that even had he such information, there would have been no difference in the premium rate, and if so, or if errors in classification resulted therefrom, such premium charge or error could be corrected by an endorsement or at the time of audit when the policy was renewed. The testimony of defendant's witness, Sanders, established *416 that in any event such discrepancies would not "void coverage."
[2] Under the principles laid down in American Surety Co. v. Heise, 136 Cal.App.2d 689 [289 P.2d 103]; Mercer Cas. Co. v. Lewis, 41 Cal.App.2d 918 [108 P.2d 65]; Bass v. Farmers Mutual Protective Fire Ins. Co., 21 Cal.App.2d 21 [68 P.2d 302]; and Golden Gate Motor Transport Co. v. American Indem. Co., 6 Cal.2d 439 [58 P.2d 374], we conclude--where, as here, one, while negotiating for coverage with the insurer's agent, properly brought all of the material facts relative to the transaction to his attention and specifically requested insurance coverage based thereon, was assured by the agent that such coverage could be, would be, and had been effected, and relied upon the agent's representation with the latter's knowledge, but through the agent's failure and neglect actually was not covered--that the insurer, chargeable with the knowledge and acts of its agent, may be estopped thereafter to rely upon the existence of those facts to deny or defeat coverage.
Appellant also says that the evidence fails to support any intention that Thomas be a named insured on Russell's policy, thus there was no basis for reformation and the lower court in effect made a new contract for the parties. (Lemoge Electric v. County of San Mateo, 46 Cal.2d 659 [297 P.2d 638]; Bailard v. Marden, 36 Cal.2d 703 [227 P.2d 10].) The trial court found that due to mutual mistake, Russell's policy did not conform to the agreement of the parties and to the coverage which had been represented to be in effect, and that the mistake consisted of the belief that no material change in circumstances had occurred which would prevent Thomas from continuing to enjoy insurance protection under the policy issued to Russell. (Finding of Fact XV.)
[3] We deem it unnecessary to recount in detail the abundant evidence in support of this finding, but even Knight's testimony reveals that it was the intention of all of the parties to effect liability insurance coverage for Thomas with respect to the 1955 Chevrolet in both of Russell's policies (1955, 1956). He testified that he understood it was the desire and intention of the Erbes to have the coverage transferred from the 1949 to the 1955 model, that it was his intention to effect such a transfer and that he thought he had done so until informed to the contrary after the accident. The testimony of Russell and Thomas is replete with requests to Knight that Thomas be covered and Knight's promises to effect such coverage *417 and representations that he had done so. Even defendant must have believed it insured Thomas in Russell's policy for it accepted the increased premium referable to Thomas' car, its agent apportioned the amount for Russell for reimbursement purposes, and after the accident, defendant company refunded the same to Thomas. Further, Knight testified that had he known the true facts relative to the ownership of the 1955 vehicle "he would have gone ahead and taken care of his (Thomas') insurance needs on that car," and would "have taken an application and written a policy for Tommy Erbes in his own name" for defendant. The testimony of Russell and Thomas shows that both advised Knight of the facts relating to the ownership and registration of the 1955 Chevrolet and that neither was aware of any circumstance which would prevent Thomas from continuing to enjoy insurance protection under Russell's policy; they were never told anything to the contrary and they relied entirely upon Knight's assurances and representations. If, as claimed by appellant, Knight believed the 1955 Chevrolet was registered to Russell, had Knight exercised due care in the transaction, Thomas would have been covered by an endorsement to Russell's policy; had he in fact known the vehicle was registered to Thomas he was still negligent, for defendant took his premium and gave him coverage under no policy--his own or Russell's. And contrary to appellant's suggestion, the trial judge did find Bacon and Knight negligent, and properly so, but released them from liability only on the theory that the plaintiffs suffered no damage by it in view of their right of recovery against defendant. The omission of Knight to cover the interests of Thomas under the instant circumstances is sufficient ground for reformation of the insurance contract to conform to the true intent of the parties. (National Auto & Cas. Co. v. Industrial Acc. Com., 34 Cal.2d 20, 24 [206 P.2d 841]; Gillanders v. Da Silva, 212 Cal. 626 [299 P. 722]; American Surety Co. v. Heise, 136 Cal.App.2d 689 [289 P.2d 103]; Cantlay v. Olds & Stoller Inter-Exchange, 119 Cal.App. 605 [7 P.2d 395].)
The evidence is clear that after May 3, 1956, Knight again represented that Thomas was covered in Russell's policy. But even if this had not been established, the negotiations Russell and Thomas carried on with Knight during the term of Russell's 1955 policy relative to coverage of Thomas' car would, according to the normal practice followed by the agent under the audit type policy, not become a part of the written *418 policy until its renewal on May 3, 1956. Thus, in any event, plaintiffs were entitled to have the 1956 policy reformed inasmuch as that was the one in effect at the time of the accident and the one executed as the result of the oral agreement of the parties in August 1955.
Appellant's contention that the judgment is defective--in that while it declares plaintiffs are entitled to reformation of the insurance contract, it does not order a reformation before awarding damages--has no merit. [4] Where the same court administers both law and equity, recovery may be had without a decree of reformation first obtained, if the facts are adequately pleaded for the reformation of the contract relied upon for recovery, and proved. (Logue v. Duchene, 185 Minn. 337 [241 N.W. 51].) Herein the trial judge made proper findings relative to reformation (Findings of Fact XIV, XV, XXII), amply supported by evidence offered under adequate pleadings, and concluded: "Plaintiffs are entitled to have Policy CLP 32345 (1956 contract) reformed so as to provide coverage to Thomas Erbes as a named insured covering the operation, maintenance or use of the 1955 Chevrolet pick-up truck owned by him to limits of $25,000 for one person and $50,000 for more than one person injured in said accident." (Conclusions of Law 1.) Under these circumstances we deem it unnecessary to have the contract reformed before judgment can be rendered thereon.
The judgment is affirmed.
Wood, P. J., and Fourt, J., concurred.
| {
"pile_set_name": "FreeLaw"
} |
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
______________________________
)
JEFFREY JENNINGS, )
)
Plaintiff, )
)
v. ) Civil Action No. 11-1708 (RWR)
)
DAVID EXELROD, )
)
Defendant. )
______________________________)
MEMORANDUM OPINION
Pro se plaintiff Jeffrey Jennings has filed a civil
complaint against David Exelrod.1 Plaintiff alleges that he
“sent David a bill” that was “use[d] to save 68 billion for the
federal government.” (Compl. at 1.) Jennings seeks relief in
the form of “100.5 million 500,000 for a house like it state[s]
in my agreement.” (Id. at 2.)2 Jennings attached to his
complaint eight exhibits, including a copy of defendant’s
business card and seven handwritten pages. One of the exhibits
1
Based on the address that Jennings ascribes to Exelrod
(“1600 Pennsylvania Ave, Washington, D.C. 20001” (Compl. at 1)),
the defendant is presumably David Axelrod, a former senior
advisor to President Barack Obama.
2
Jennings filed his complaint on September 22, 2011 and has
not filed proof that Exelrod has been served within the 120-day
period allowed by Federal Rule of Civil Procedure 4(m). Fed. R.
Civ. P. 4(m). A summons was issued as to the defendant the same
day Jennings filed his complaint. Summonses were reissued on
March 15, 2012 as to Exelrod and the United States Attorney and
United States Attorney General. Jennings, however, never moved
for or was granted an extension of the Rule 4(m) deadline, and
has provided no explanation for his failure timely to serve the
defendant.
-2-
is entitled “agreement” and, as best as can be discerned,
represents a proposal Jennings allegedly sent to Exelrod
requesting Exelrod’s feedback on Jennings’ “bill.” (See Compl.,
Ex. B (“You should not give 15 billion to the bank. You should
go with my bill to create jobs[.] . . . Write me back and tell
me what you think of my proposal and a contract from the lawyer
telling me that you would pay me if you use my bill [sic]”)
(emphasis in original).)
Courts hold complaints filed by pro se litigants to less
stringent standards than those applied to pleadings drafted by
lawyers. See Redwood v. Council of the District of Columbia, 679
F.2d 931, 933 (D.C. Cir. 1982). Nevertheless, pro se litigants
must comply with the Federal Rules of Civil Procedure. See
Jarrell v. Tisch, 656 F. Supp. 237, 239 (D.D.C. 1987). Federal
Rule of Civil Procedure 8(a) requires that a complaint “contain
(1) a short and plain statement of the grounds for the court’s
jurisdiction . . .;(2) a short and plain statement of the claim
showing that the pleader is entitled to relief; and (3) a demand
for the relief sought.” Fed. R. Civ. P. 8(a). “This minimal
standard serves to give fair notice to defendants of the claim or
claims being asserted such that defendants are able to file a
responsive answer, prepare an adequate defense, and determine
whether the doctrine of res judicata applies.” Poblete v.
Goldberg, 680 F. Supp. 2d 18, 19 (D.D.C. 2009). Jennings’
-3-
complaint does not include a short and plain statement of a claim
showing plaintiff’s entitlement to relief. It is unclear what
claims Jennings asserts and what factual allegations underlie
those claims. Because the complaint fails to comply with Rule
8(a), dismissal is warranted.3
Alternately, dismissal for failure to state a claim is
appropriate under Rule 12(b)(6). A district court may sua sponte
dismiss a complaint for failure to state a claim where “it is
patently obvious that [the plaintiff] could not have prevailed on
the facts alleged in his complaint.” Baker v. Director, U.S.
Parole Comm’n, 916 F.2d 725, 727 (D.C. Cir. 1990) (per curiam);
see also Jaeger v. United States, Civil Action No. 06-625 (JDB),
2006 WL 1518938, at *1 (D.D.C. May 26, 2006) (“Where, as here,
the failure to state a claim is patent, ‘it is practical and
fully consistent with plaintiffs’ rights and the efficient use of
judicial resources’ for the Court to dismiss the action sua
sponte.”) (quoting Baker, 916 F.2d at 726). Although the
complaint and attached exhibits are incoherent in substantial
part, the complaint arguably could be read to assert that Exelrod
breached an agreement with Jennings to pay Jennings for Exelrod’s
3
The civil cover sheet that Jennings completed when he
filed his complaint reflects that Jennings brings his case under
42 U.S.C. § 1983, the federal statute permitting suits to redress
violations of constitutional rights committed by individuals
acting under color of state law. The complaint does not recite
any grounds showing that Jennings is entitled to relief from
Exelrod under § 1983.
-4-
“us[ing] [Jennings’] bill” (Compl., Ex. B). The complaint,
however, fails to allege facts that would “allow[] the court to
draw the reasonable inference that the defendant is liable,”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), for a breach of
contract. Jennings does not plead any factual content describing
the existence of a valid contract between the parties, an
obligation or duty arising out of the contract, a breach of that
duty, and damages caused by breach. See Tsintolas Realty Co. v.
Mendez, 984 A.2d 181, 187 (D.C. 2009) (setting forth elements of
breach of contract claim). In particular, to the extent that
Jennings asserts, without supporting factual allegations, the
existence of a contract for use of his bill entitling him to
“100.5 million 500,000 for a house like it state[s] in [the]
agreement” (Compl. at 2), the complaint is not plausible on its
face and could not survive a motion to dismiss. Iqbal, 556 U.S.
at 678. Thus, dismissal is also warranted because Jennings’
failure to state a claim is clear. Accordingly, the complaint
will be dismissed. An appropriate order accompanies this
memorandum opinion.
SIGNED this 19th day of April, 2012.
/s/
RICHARD W. ROBERTS
United States District Judge
| {
"pile_set_name": "FreeLaw"
} |
50 F.Supp. 634 (1943)
CROCKER et al.
v.
GENERAL DRAFTING CO., Inc.
District Court, S. D. New York.
April 15, 1943.
Mattuck & Mattuck, of New York City, for plaintiffs.
Ray T. Ernst, of New York City, for defendant.
COXE, District Judge.
This is a suit for alleged infringment of four copyrights covering different editions of an automobile road map prepared by the plaintiffs for use in advertising Howe Caverns, a popular resort in New York State, located about 37 miles west of Albany. The territory shown comprises all of New York, Vermont, New Hampshire, Massachusetts, Rhode Island and Connecticut, and portions of Pennsylvania, New Jersey, Maine and Canada.
The map, with annual revisions and changes, was published as part of an advertising folder put out each year from 1933 to and including 1939 by Howe Caverns Inc. and entitled "Howe Caverns Interstate Road Map". The plaintiffs obtained separate copyright registration for each of these annual editions of the map. The alleged infringing map was prepared by the defendant, and appears in the annual Howe Caverns folder for 1940.
The complaint in separate causes of action alleges infringement by the defendant of the 1933, 1937, 1938, and 1939 maps. The answer is in substance a denial both of the validity and of the infringement of the copyrights; it also alleges specifically that the copyrights are void because of a "plurality of registrations". The defendant has, however, conceded that the 1933 and 1937 maps were copyrightable.
The plaintiffs are map makers and publishers doing business at Chester, Vermont, under the names of National Survey Company. Their specialty is the production of road maps designed to advertise various hotels, scenic attractions and places of interest catering to the tourist trade. Examples of such maps are the Consolidated Tours maps published regularly each year by the plaintiffs, and widely distributed throughout the territory covered.
Prior to the engagement of the plaintiffs to make the 1933 map, Howe Caverns Inc. had employed other map makers to prepare its annual road maps. The first of these maps (of which there were two editions) was put out in 1929, and was made by United States Survey Co. Inc. The same company also made the 1930 map. In 1931, the present defendant was given the contract, but in the following year, namely, 1932, United States Survey Co. Inc. was again employed, and made the map for that year. All of these different maps covered much the same general area as that of the plaintiffs' maps.
In the fall of 1932 the plaintiffs opened negotiations with Mr. Clymer, the treasurer *635 of Howe Caverns Inc., for the contract for the 1933 folder, and at the outset Mr. Clymer insisted that the copyright should be taken out by Howe Caverns Inc. This was objected to by Mr. Lawton V. Crocker, one of the plaintiffs who pointed out in the correspondence which followed that the map would be constructed from "copyrighted base maps prepared at great expense", and that the material could not be adequately protected unless the plaintiffs had the copyright. This view was finally accepted by Mr. Clymer, but it was agreed that Howe Caverns Inc. would have a non-transferable "copyright release" as to limited "sections of any map" made by the plaintiffs for Howe Caverns Inc. when used on letterheads, souvenir folders, or in connection with display advertising.
The contract for the 1933 folder was entered into on December 14, 1932, and incorporated by reference the agreement with respect to the qualified "copyright release" as to limited sections of the map. It called for the production and delivery by the plaintiffs of 250,000 folders for 1933, and referred to a "dummy" which had theretofore been supplied by Mr. Clymer. In the correspondence preceding the letting of the contract, Mr. Clymer had furnished the plaintiffs with copies of the 1931 and 1932 folders, and had given detailed specifications with respect to some changes he wished made in the 1932 folder, and in the manner in which a number of the roads were there portrayed.
The plaintiffs used in the preparation of the 1933 map two of their Consolidated Tours maps; from these maps a bromide print was made which served as a base for the Howe Caverns map. The Consolidated Tours maps had been built up over a considerable period, and were kept up to date by constant checking and revision. Mr. Lawton V. Crocker described how the data appearing on these maps was obtained: visits were made to state capitals; detailed maps and cuttings were sent to county superintendents and engineers, and to local highway departments, for corrections, changes and omissions; personal investigations were made by travelling investigators and field representatives; and the data was carefully checked and analyzed before it was used in the maps.
Starting with the bromide print made from the Consolidated Tours maps, the plaintiffs prepared an original drawing on which they placed the different roads, towns and places to be shown. Mr. Clymer had established a policy of eliminating many of the secondary roads, and wanted only important towns and junction points to appear. This determined to some extent the selection of the roads, towns, and places, but it still left to the plaintiffs the arrangement and presentation of the material, and the selection of a considerable number of other towns and places which the plaintiffs had found from their long experience with the Consolidated Tours maps would be helpful in securing a wide distribution of the folders and in bringing business to Howe Caverns.
The 1933 map in its completed form had an angular border, and showed Howe Caverns near the center of the area with a large red arrow pointing to the location. The important roads in the immediate vicinity appeared in red and the remaining roads in black. At the top of the map was a diagrammatic floor plan of the caverns with a pink background. The side and bottom margins contained a long list of places of interest with accompanying data, together with a schedule showing the distances of various towns from Howe Caverns. The map carried a copyright notice reading "Copyright, National Survey Co., Chester, Vt. Any portion of this map or folder may be used by newspapers or magazines if our copyright notice appears."
The maps for 1934, 1935 and 1936 were substantially the same as the 1933 map, except that in each of these three years new matter was added and changes were made, largely in the interest of keeping the map up to date. In the negotiations for the 1936 map, Mr. Clymer again adverted to the question of the copyright, and suggested that the copyright notices be changed to state "that the map only is copyrighted", because "some people think that the whole folder is copyrighted". This suggestion was accepted by the plaintiffs, and resulted in a new notice ,which appeared for the first time on the 1936 map, and was continued in the 1937, 1938 and 1939 editions, reading as follows: "Copyright, National Survey Co., Chester, Vt. This copyright applies to the map only and permission is given to reproduce any portion of it in newspapers and magazines if the above copyright notice appears."
The map was completely redesigned by the plaintiffs in 1937, and presented an entirely different appearance from that of the previous maps; the border of the map was *636 circular instead of angular as in the earlier editions; Howe Caverns was shown at the exact center of the circle, and was marked by a red pennant supported by a long tapering staff; the area was in some places reduced and in others expanded to accomodate itself to the circle; the main through roads leading to Howe Caverns were shown in red throughout the territory; and two scrolls were introduced to carry a portion of the textual matter and the schedule of distances. The idea of the circular border came from one of the directors of Howe Caverns Inc., but the manner of execution devolved entirely on the plaintiffs. The problem was not merely to draw a circle around the desired area but to make the necessary adjustments in the territory so as not to impair the accuracy or the character of the map. The plaintiffs did this work with considerable skill, particularly in the way they distorted the territory between Buffalo and Rochester in order to bring it within the circle. They originated and designed the pennant and staff. They also designed the scrolls and placed them in balanced positions on the map to add to its general appearance.
The 1938 and 1939 maps contained changes and additions of a type similar to those made in the 1934, 1935 and 1936 maps; in other respects they were practically the same as the 1937 map. The 1939 map showed a total of 547 towns, and these towns were substantially the same as those appearing on the plaintiffs' earlier maps.
The order for the 1940 folder was given to the defendant by Howe Caverns Inc. on October 14, 1939. The instructions from Mr. Clymer were that "the map should cover the same territory and put in a circle like the present folder", that no secondary roads should be shown "that are not on our present map", that there should be "no additional roads, except to bring the map to date on principal roads, and no additional towns * * * except those shown on our map". It was also stated that the "pennant, staff and star with the black center are the best we have had so far".
With these instructions, the defendant proceeded to construct the 1940 map. The drafting was done by Van Ess, a draftsman in the employ of the defendant. Van Ess testified that he was instructed to use the 1931 Howe Caverns map, which had previously been made by the defendant, and to modify and bring it up to date to show only those matters appearing in the 1939 map. To accomplish this, he took a fresh sheet of drawing paper, and drew a circle, using as a radius the distance between Howe Caverns and Niagara Falls. He next cut out the area of the 1931 map which fell within the circle, and pasted it on the new sheet of paper within the circle. Then he proceeded to modify the drawing to show only those matters appearing on the 1939 map. He said that what he added to the drawing was taken from the defendant's source materials as appearing in the defendant's regular oil company road maps. He also said that the roads were drawn in from the base maps, and that the towns which were added were shown as they appeared in those maps.
After Van Ess had completed his work, a blueline print of the drawing was prepared and turned over to Bacon, another employe of the defendant, by whom it was examined and checked. A photostat print was then made and forwarded to Mr. Clymer for approval. Mr. Clymer was not satisfied with the map as shown in this print because it covered a larger area than the 1939 map, and the roads had too many curves. To meet these criticisms, the defendant reduced the diameter of the circular border to cover the same area as the 1939 map, and straightened out the roads. In cutting down the area of the map, it was found necessary to distort the territory between Buffalo and Rochester, and this was done in the same way that the plaintiffs had distorted the 1937 map.
The defendant's 1940 map in its final form is identical in design, arrangement and general appearance with the plaintiffs' 1939 map. It has the same circular border; covers the same territory; has the same pennant and staff at the center of the circle; has the same scrolls and general setting; and shows the same roads, and all but one of the 547 towns appearing on the plaintiffs' map. Even a careful observer would have difficulty in finding any substantial differences between the two maps.
First, as to the validity of the copyrights. With the concession of the defendant that the plaintiffs' 1933 and 1937 maps were copyrightable, there is little left to consider on this branch of the case other than the question of "plurality of registration" raised by the defendant's answer. As I understand the contention, it is merely that some of the annual revisions of the *637 map do not contain sufficient new matter to warrant separate registration. The suit involves only two of the annual revisions, namely, the ones for 1938 and 1939, and as to those the evidence is clear that various changes and additions were made to bring the earlier map up to date. These annual revisions were proper subjects of copyright, and the copyright attached only to the new matter appearing on each, respectively. Adventures in Good Eating v. Best Places to Eat, 7 Cir., 131 F.2d 809; Freedman v. Milnag Leasing Corporation, D.C., 20 F. Supp. 802; Sauer v. Detroit Times Co., D. C., 247 F. 687, 689.
The plaintiffs make no claim to the textual material appearing in the folder outside the limits of the map itself. This is fully in keeping with the language of the disclaimer notice on the 1936 and subsequent maps, stating that the copyright "applies to the map only". The issue is thus reduced to the selection and arrangement of the material on the map itself, together with the manner of presentation or portrayal of the component parts in the map as a whole. General Drafting Co. v. Andrews, 2 Cir., 37 F.2d 54; Deutsch v. Arnold, 2 Cir., 98 F.2d 686. The design and setting of the map are part of the presentation or portrayal, and are protected by the copyright.
Second, as to infringement. The position of the defendant on this branch of the case is that it built up the 1940 map from its own base materials, and used the plaintiffs' map only as an "index of matters to be shown". I do not think though that it can be seriously disputed that the defendant's 1940 map is almost an exact replica of the plaintiffs' 1939 map, which, in turn, closely follows the plaintiffs' 1937 map. Indeed, counsel for the defendant concedes in his brief that the two maps are "superficially similar". Every important feature of the plaintiffs' 1939 map has been reproduced, and almost every road and town taken. Even Van Ess, the draftsman of the defendant's map, admitted, when questioned about the towns and roads, that his instructions were to put on the map "such items as appear on the 1939 map". The similarities between the two maps are so striking and so complete that they point unmistakeably to copying. It is no answer that the defendant was acting on instructions from Howe Caverns Inc., for the plaintiffs alone held the copyrights under their agreement with Howe Caverns Inc., and the correspondence shows that it was the clear intent of the agreement that the plaintiffs should have the sole right to copyright. This is decisive on any question of proprietorship. W. H. Anderson Co. v. Baldwin Law Pub. Co., 6 Cir., 27 F.2d 82.
There is some internal evidence of copying in the defendant's 1940 map. The plaintiffs' 1939 map shows five arbitrarily abrupt road endings at points short of the actual highway endings. These five peculiarities of the 1939 map appear at Mineola, N. Y., Picton, Ont., Eaglesmere, Pa., Woonsocket, R. I., and Fairlee, Vt. All five have been reproduced on the defendant's 1940 map, and are the only abrupt road endings shown in that map. The defendant's own base maps did not have these abrupt road endings, and Van Ess could give no satisfactory explanation as to why they appeared on the map. The plaintiffs' 1939 map also shows the town of Old Fort, Pa., which appeared on none of the defendant's base maps. Van Ess testified that he had difficulty in locating this town but finally found it on a Pennsylvania county map.
There is evidence, too, that the defendant copied the plaintiffs' distortion of the territory between Buffalo and Rochester. In the plaintiffs' 1937 map this distortion was brought about by foreshortening the area in that vicinity, which threw the distorted portion of the territory out of scale. The spillover beyond the circle was, however, left unaffected. The defendant's 1940 map shows the same distortion of the territory and the same spillover beyond the circle. It is quite true that the defendant performed the work of foreshortening the area independently, but I do not believe it could have reached the result it did without working back from the plaintiffs' map. This is fairly evident from the fact that the defendant did not resort to the distortion at all until after Mr. Clymer had indicated his dissatisfaction with the first draft of the map submitted by the defendant. The roads and towns in the area covered by the distortion are not in complete registration on the two maps, but they are so close as to amount to substantial identity.
It will be seen from what has already been said that the defendant in its preparation of the 1940 map went far beyond any legitimate use of the plaintiffs' maps. W. H. Anderson Co. v. Baldwin Law Pub. Co., 6 Cir., 27 F.2d 82. I conclude, *638 therefore, that the plaintiffs' copyrights of the 1933, 1937, 1938 and 1939 maps are valid and have been infringed by the defendant's 1940 map.
There may be a decree in favor of the plaintiffs, holding the plaintiffs' copyrights of the 1933, 1937, 1938 and 1939 Howe Caverns maps valid and infringed by the defendant's 1940 Howe Caverns map, and awarding costs to the plaintiffs. It should not be necessary to have a reference, and if there is to be any evidence on damages this evidence should be submitted to the court. The allowance to the attorneys for the plaintiffs will be determined on the settlement of the decree.
| {
"pile_set_name": "FreeLaw"
} |
214 F.2d 113
BEECHERv.LEAVENWORTH STATE BANK et al.
No. 14167.
United States Court of Appeals, Ninth Circuit.
June 16, 1954.
Rehearing Denied July 15, 1954.
S. P. Beecher, in pro. per.
C. D. Randall, Randall & Danskin & Lundin, Henry R. Newton, John J. Ripple, Spokane, Wash., Fred M. Crollard, Sr., Wenatchee, Wash., for appellees.
Before DENMAN, Chief Judge, and ORR and POPE, Circuit Judges.
PER CURIAM.
1
Appellees move to dismiss this appeal on the ground that Beecher has failed to take the proper steps necessary to perfect it. The motion is well made. The attorney for the Bank states he never received a copy of Beecher's statement of points on appeal and there is no affidavit sworn before a notary or otherwise in the record of a service by mail upon the Bank.
2
The statement of points reveals that Beecher is relying upon the contention that there are moneys in the registry of the court which are available for the purposes of redeeming the property. This contention has been rejected by this court. Beecher v. Leavenworth State Bank, 9 Cir., 211 F.2d 158, certiorari denied, 347 U.S. 949, 74 S.Ct. 649, see also Beecher v. Leavenworth State Bank, 9 Cir., 209 F.2d 20, 22, certiorari denied, 347 U.S. 949, 74 S.Ct. 649.
3
The motion to dismiss is ordered granted.
| {
"pile_set_name": "FreeLaw"
} |
591 F.2d 101
U. S.v.Parada*
No. 78-5369
United States Court of Appeals, Fifth Circuit
2/20/79
1
W.D.Tex.
2
AFFIRMED***
*
Summary Calendar case; Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York et al., 5 Cir., 1970, 431 F.2d 409
***
Opinion contains citation(s) or special notations
| {
"pile_set_name": "FreeLaw"
} |
647 F.Supp.2d 1208 (2008)
Geraldine I. KAJITANI, individually and as a trustee of the Geraldine I. Kajitani Revocable Trust, and Arnold K. Kajitani, individually as trustee of the Arnold K. Kajitani Revocable Trust, Plaintiffs,
v.
DOWNEY SAVINGS AND LOAN ASSOCIATION, F.A., Defendant.
Downey Savings and Loan Association, F.A., Third-Party Plaintiff,
v.
Dana Capital Group, Inc., Matthew Green, and Mark Atalla, Third-Party Defendants.
Civil No. 07-00398 SOM/LEK.
United States District Court, D. Hawai`i.
May 22, 2008.
*1210 Bruce H. Wakuzawa, Law Office of Bruce H. Wakuzawa, John Harris Paer, Honolulu, HI, for Plaintiffs.
Nicholas C. Dreher, Theodore D.C. Young, Teri-Ann Emiko Shiroma Nagata, Cades Schutte, Honolulu, HI, for Defendant/Third-Party Plaintiff.
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
SUSAN OKI MOLLWAY, District Judge.
I. INTRODUCTION.
In 2006, Plaintiffs Geraldine and Arnold Kajitani (the "Kajitanis") refinanced their fixed-rate mortgage, obtaining an adjustable-rate mortgage with Defendant Downey Savings and Loan Association, F.A. ("Downey"). The Kajitanis now sue Downey, alleging violations of the Truth in Lending Act, 15 U.S.C. § 1601 et seq. ("TILA"), chapter 480 of the Hawaii Revised Statutes, and common law fraud. The Kajitanis seek both damages and injunctive relief.
*1211 Downey moves for summary judgment, arguing that the Kajitanis have failed to produce sufficient evidence to survive summary judgment on their TILA claims. This court disagrees with Downey on this point. Downey also argues that the state law claims are preempted by federal law. The court agrees that state law claims based on actions governed by TILA or Regulation Z are preempted. The Kajitanis' other state law claims are not preempted.
II. LEGAL STANDARD.
The court reviews the motions under the Federal Rules of Civil Procedure as amended effective December 1, 2007. As the amendments to the rules in issue here were stylistic only, the court relies on authorities construing the previous version of the applicable rules.
Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment shall be granted when "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R.Civ.P. 56(c); see also Addisu v. Fred Meyer, Inc., 198 F.3d 1130, 1134 (9th Cir. 2000). Summary judgment must be granted against a party that fails to demonstrate facts to establish an essential element at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The burden initially falls upon the moving party to identify for the court those "portions of the materials on file that it believes demonstrate the absence of any genuine issue of material fact." T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir.1987) (citing Celotex Corp., 477 U.S. at 323, 106 S.Ct. 2548).
"When the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is 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, 89 L.Ed.2d 538 (1986) (footnote omitted). The nonmoving party may not rely on the mere allegations in the pleadings and instead must "set forth specific facts showing that there is a genuine issue for trial." Porter v. Cal. Dep't of Corr., 419 F.3d 885, 891 (9th Cir.2005) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)).
"A genuine dispute arises if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." California v. Campbell, 319 F.3d 1161, 1166 (9th Cir.2003); accord Addisu, 198 F.3d at 1134 ("There must be enough doubt for a `reasonable trier of fact' to find for plaintiffs in order to defeat the summary judgment motion."). "A scintilla of evidence or evidence that is merely colorable or not significantly probative [does not] present a genuine issue of material fact." Addisu, 198 F.3d at 1134 (citation omitted). "[I]f the factual context makes the non-moving party's claim implausible, that party must come forward with more persuasive evidence than would otherwise be necessary to show that there is a genuine issue for trial." Cal. Arch'l Bldg. Prods., Inc. v. Franciscan Ceramics, Inc., 818 F.2d 1466, 1468 (9th Cir.1987) (citing Matsushita Elec. Indus. Co., 475 U.S. at 587, 106 S.Ct. 1348).
III. FACTUAL BACKGROUND.
Downey is a federally chartered savings and loan association with its principal place of business in California. Order Granting Defendant's Motion for Relief From the Entry of Default (Oct. 25, 2007) ("Default Order") at 2 n. 1.
*1212 In 2006, the Kajitanis had a 5.25% fixed-rate mortgage loan from First Hawaiian Bank. Declaration of Geraldine I. Kajitani (April 24, 2008) ("Geraldine Decl.") ¶ 2. The Kajitanis claim that Mark Atalla, acting on behalf of Downey, contacted them about refinancing their mortgage. Id. ¶¶ 2, 4. According to the Kajitanis, Atalla promised them a 1.0% interest rate for five years. Downey also allegedly promised the Kajitanis that there would be no prepayment penalty on the loan. Id. ¶ 6.
On or about September 15, 2006,[1] the Kajitanis met with Atalla at the Outrigger Resort Hotel in Waikiki to sign the documents and to close the loan. Id. ¶¶ 9-11; see also Declaration of Lowana E. Richardson (April 25, 2008) ("Richardson Decl.") ¶ 4. Lowana Richardson, a notary public commissioned by the State of Hawaii, had been contacted by the Kajitanis to notarize the documents for the closing. Richardson Decl. ¶¶ 2, 4.
Richardson says that it was usually the lender, title company, or escrow company that contacted her to notarize signatures on loan documents. According to Richardson, to ensure that there were two sets of documents at a closing, lenders or others normally instructed her to print out two sets of the loan documents beforehand or physically provided her with two sets of loan documents at the closing. Id. ¶ 3. At the Kajitani closing, however, Richardson did not have any of the loan documents. Richardson says that Atalla had only one set of loan documents at the closing. Id. ¶ 5.
At the closing, the Kajitanis signed a TILA Disclosure Statement ("Disclosure Statement"), which stated that the annual percentage rate was 8.083%. Ex. B (attached to Plaintiff's Memorandum in Response to Defendant's Motion for Summary Judgment (April 20, 2008) ("Opp'n")). The Disclosure Statement contained a clause that read, "The undersigned acknowledge receiving and reading a completed copy of the disclosure." The Kajitanis dated their signatures as of September 15, 2006.
The Kajitanis also signed an Adjustable Rate Mortgage Loan Program Disclosure ("ARM Disclosure"), which explained the difference between an adjustable-rate mortgage ("ARM") and a fixed-rate mortgage. Ex. C (attached to Defendant's Concise Statement of Material Facts (April 16, 2008)). The ARM Disclosure contained an acknowledgment of receipt that stated, "You hereby acknowledge receipt of a copy of this disclosure and the Consumer Handbook on Adjustable Rate Mortgages. Date 09/14/2006." Following their signatures, the Kajitanis handwrote the date of September 15, 2006.
Lastly, the Notice of Right to Cancel ("Notice") was signed by the Kajitanis on the date of closing. Ex. C (attached to Opp'n). The Notice similarly contained an acknowledgment of receipt: "I/We each acknowledge the receipt of two completely filled in copies of this NOTICE OF RIGHT TO CANCEL, and one copy of the Federal Truth-In-Lending Act Disclosure Statement." The Kajitanis' signatures were dated September 15, 2006.
The Kajitanis say that, after signing all the papers, they left the hotel without any of the closing documents. Atalla allegedly took all the papers and told the Kajitanis that they would receive copies in the mail. Geraldine Decl. ¶¶ 11-12. Richardson says, "To the best of my recollection, the Kajitanis did not receive a set of the documents to take with them; Mr. Atalla kept the documents with him and told the Kajitanis *1213 that he would send them a copy." Richardson Decl. ¶ 6.
The Kajitanis say that they had received "several other notices of right to cancel" and a TILA Disclosure Statement before the closing, but that those were different from what they received in the mail a week or two after the closing. Geraldine Decl. ¶¶ 12, 13. One of the earlier notices of right to cancel had a signing date of August 11, 2006, and stated that the cancellation deadline was August 15, 2006. See Ex. H (attached to Opp'n). In addition, the earlier TILA Disclosure Statement represented the annual percentage rate as 7.985%. See id. The Kajitanis say these documents confused them. Geraldine Decl. ¶ 13.
The closing documents that came later in the mail conflicted with what the Kajitanis say Atalla promised them. According to the closing documents, their loan had an interest rate higher than 1.0%, they had been charged a notary fee of $300.00, there was a yield-spread premium of $14,787.50, and their loan had a prepayment penalty. Id. ¶ 15. The 1.0% interest rate was a one-month teaser rate, and the mortgage was an ARM, with rates ranging from 7.98% to 10.95% and an 8.083% average rate. Default Order at 2.
On July 2, 2007, the Kajitanis sent a letter to Downey, requesting rescission of their loan based on Downey's alleged violations of TILA and Haw.Rev.Stat. § 480-2. Ex. I (attached to Opp'n). On July 23, 2007, Downey sent the Kajitanis a letter requesting further evidence that Downey had violated TILA. Ex. G (attached to Opp'n).
On July 26, 2007, the Kajitanis filed the Complaint in this action, alleging violations of TILA as well as Hawaii statutory and common law. Downey moves for summary judgment on all claims against it, arguing that the Kajitanis fail to present sufficient evidence to sustain a TILA claim and that the state claims are preempted. The court grants in part and denies in part Downey's motion.
IV. ANALYSIS.
A. TILA Claims.
Downey moves for summary judgment on all of the Kajitanis' claims, arguing that each of the claims rests on the allegation that the Kajitanis "received no documents at all" at the closing of the loan, and that the Kajitanis have failed to rebut the presumption of delivery created by their signed acknowledgments of receipt. Motion at 9. Claiming that his declaration is both procedurally and substantively improper, Downey also moves to exclude the declaration of the Kajitanis' "purported expert," Charles Wheeler. Defendant Downey Savings and Loan Association, F.A.'s Reply Memorandum in Support of Its Motion for Summary Judgment (May 8, 2008) ("Reply") at 7.
Because the court concludes that there is a genuine issue of material fact regarding the receipt of documents at the closing, the court denies Downey's motion for summary judgment as to Count One.
1. The Complaint Does Not Rest Entirely on the Alleged Nonreceipt of Documents At Closing.
As an initial matter, the court disagrees with Downey's characterization of the Kajitanis' claims as resting entirely on the allegation that they received no documents at all. Count One of the Complaint alleges violations of TILA based on a failure to properly disclose, or on a misleading and confusing disclosure of: (1) the annual percentage rate, (2) the finance charge, (3) the amount financed, (4) the total payments and the payment schedule, (5) the security interest, and (6) the notice of right to rescind. Complaint ¶ 27. Thus, the Kajitanis appear to be alleging both the *1214 nonreceipt of required disclosures, as well as misrepresentations about certain terms of their refinancing. As Magistrate Judge Leslie Kobayashi recognized in prior proceedings, the Kajitanis are alleging not just nonreceipt of documents, but also misstatements about the interest rate, as well as a dual agency by certain mortgage brokers and a lack of licensing by some of the mortgage brokers. Default Order at 2. At the hearing on the present motion, the Kajitanis confirmed that a claim of dual agency is indeed among their claims. The Kajitanis say that "Defendant incorrectly states that the TILA claims herein are limited to the failure to give the Notice of Right to Cancel." Opp'n at 8.
Because the Complaint does not rest entirely on the allegation that the Kajitanis failed to receive documents, Downey could not obtain summary judgment on all claims against it even if the court found that the Kajitanis had received their loan documents at closing.
Nor is Downey entitled to a favorable ruling on any claim under TILA that the notary fee was unreasonable. See Reply at 13. It is not clear that such a claim is actually raised in the Complaint. The Complaint does not expressly refer to the notary fee, although the Kajitanis could still refer to the notary fee as evidence of fraud, rather than as a separate TILA violation. If not a claim, the notary fee issue requires no ruling at this time. Even if a notary fee claim could be said to have been properly asserted in the Complaint, the record before the court is insufficient to allow a decision on this issue, as the parties have not submitted briefing or evidence on what a reasonable notary fee would have been.
2. There Is A Genuine Issue of Fact as To Whether the Kajitanis Received The Required Documents at Closing.
TILA was passed "to assure a meaningful disclosure of credit terms so that the consumer will be able to compare more readily the various credit terms available to him and avoid the uninformed use of credit, and to protect the consumer against inaccurate and unfair credit billing and credit card practices." 15 U.S.C. § 1601(a). Accordingly, TILA requires creditors to disclose in a clear and conspicuous manner certain key terms and costs in credit transactions. See id. §§ 1631, 1632, 1635, 1638.
In keeping with TILA's purpose of protecting consumers, the Ninth Circuit has held that "[e]ven technical or minor violations . . . impose liability on the creditor." Jackson v. Grant, 890 F.2d 118, 120 (9th Cir.1989) (citations omitted); Semar v. Platte Valley Federal Savings & Loan Association, 791 F.2d 699, 704 (9th Cir. 1986) (same); Riopta v. Amresco Residential Mortgage Corporation, 101 F.Supp.2d 1326, 1333 (D.Haw.1999) ("TILA requires exact adherence and minor or technical violations, no matter how inadvertent, automatically allow obligors to invoke various remedies."). Thus, for example, a creditor's failure to deliver the required disclosure notices in a timely manner or in the proper form extends the borrower's rescission period from three days to three years. See 15 U.S.C. § 1635; 12 C.F.R. § 226.23.
TILA provides that a borrower's acknowledgment of receipt of the required disclosures only creates a rebuttable presumption of delivery: "Notwithstanding any rule of evidence, written acknowledgment of receipt of any disclosures required under this subchapter by a person to whom information, forms, and a statement is required to be given pursuant to this section does no more than create a rebuttable presumption of delivery thereof." 15 U.S.C. § 1635(c).
The court has not found, and the parties do not point to, any controlling cases that set forth how a borrower rebuts the presumption *1215 of delivery. Instead, Downey, citing to cases from other jurisdictions, argues that the Kajitanis' "mere denial of receipt is insufficient to rebut the presumption of delivery under TILA." Motion at 13.
Even if this court were to agree that mere denial is insufficient, the Kajitanis have clearly presented more than their denials of receipt to rebut the presumption here. In addition to their own declarations, the Kajitanis have submitted the declaration of a third-party witness who corroborates the Kajitanis' assertions. See Richardson Decl. ¶ 6. Not only does Richardson have no recollection of the Kajitanis' receipt of any of the closing documents, she states that Atalla had only one set of documents, which he kept with him. Id. ¶¶ 5-6. Richardson further describes the steps that creditors usually take to ensure that there will be two sets of loan documents at the closing, and she notes that Downey did not follow these steps for the Kajitani closing. Id. ¶¶ 3-4.
In arguing that the Kajitanis do not rebut the presumption of delivery, Downey relies on cases in which only the borrowers, and not a third-party witness, did not remember receiving the notices. Reply at 12. The case before this court is clearly distinguishable from such cases. Richardson's statement corroborates the Kajitanis' affirmative statements that they did not receive the required disclosures, and Richardson's comparison of the Kajitani closing with other closings casts further doubt on Downey's claim that the Kajitanis received the required disclosures.
Similarly distinguishable are Sibby v. Ownit Mortgage Solutions, Inc., 240 Fed. Appx. 713 (6th Cir.2007), and Oscar v. Bank One, N.A., 2006 WL 401853 (E.D.Pa. Feb. 17, 2006), on which Downey relies. In those cases, the courts upheld the presumption of delivery based on evidence of delivery that went beyond signed acknowledgments of receipt.
In Sibby, the district court granted summary judgment for the defendants after concluding that the borrower had failed to rebut the presumption of delivery created by the borrower's acknowledgment of receipt. In granting summary judgment to the defendants, the district court relied not only on the borrower's signed acknowledgment, but also on an affidavit of a closing agent and on what the court deemed to be the borrower's admission that she had received the two required copies of the notice of right to cancel. Sibby, 240 Fed. Appx. at 716. The Sixth Circuit affirmed the district court's grant of summary judgment, concluding that the borrower's deposition testimony that she received only one copy of the notice of right to cancel was insufficient to rebut the presumption of delivery.
In Oscar, the United States District Court for the Eastern District of Pennsylvania granted summary judgment for the defendant on the borrowers' claim that they had not received the required disclosures. In addition to the borrowers' signed acknowledgments that they had indeed received the required disclosures on the date of closing, there was also evidence that the defendants had sent them a letter with the required disclosures prior to the closing date. 2006 WL 401853 at *3. The court concluded that one borrower's affidavit, claiming that he had never received the disclosures, was insufficient to rebut the presumption that the borrowers had indeed received the required disclosures.
Downey's reliance on other cases is also misplaced. In McCarthy v. Option One Mortgage Corporation, 362 F.3d 1008 (7th Cir.2004), the court considered a claim under the Parity Act, 12 U.S.C. §§ 3801 et seq., which contains a requirement that a housing creditor provide certain disclosures *1216 to its borrowers. Id. at 1011. Under the Parity Act, the housing creditor is only required to "substantially comply" with the disclosure requirements and need not prove that the borrower actually received the disclosures. In contrast, "TILA embodies a strict liability approach that ignores intent and focuses solely on whether any statutory requirement was violated." Riopta, 101 F.Supp.2d at 1333. The McCarthy court concluded that "evidence of regular office procedures and customary practices of a sender gives rise to a presumption of delivery" under the Parity Act, and that a mere denial of receipt by the plaintiff is insufficient to rebut the presumption. McCarthy, 362 F.3d at 1012. Even if this standard applied to TILA cases, this court has more than a mere denial by the Kajitanis.
Nor is this court persuaded by Williams v. First Government Mortgage & Investors Corporation, 225 F.3d 738 (D.C.Cir.2000), also cited by Downey. The borrower in Williams had gone to trial in the district court and was found not to have been credible, given prior inconsistent testimony. Id. at 751. The D.C. Circuit affirmed the district court's ruling that the borrower had failed to rebut the presumption of delivery. No equivalent credibility finding is in issue on the present motion.
Thus, none of the cases Downey relies on actually holds that documents must be presumed to have been delivered in circumstances such as those before this court. The Ninth Circuit has certainly not so held. This court concludes that the Kajitanis' declarations, coupled with Richardson's declaration, create a genuine issue of fact as to whether the Kajitanis received their closing documents. Accordingly, summary judgment is denied on this claim.
The court does not rely on Wheeler's declaration in reaching its conclusion. The Kajitanis failed to comply with the court's Scheduling Order, which required disclosure of expert witnesses by March 17, 2008. Rule 16 Scheduling Order (Oct. 17, 2007) ¶ 11. If the Kajitanis had good cause to have that deadline extended, they should have presented that to the Magistrate Judge in a motion to amend the Scheduling Order. They were not allowed to ignore deadlines based on their unilateral determination that an amendment was justified. Wheeler's declaration therefore plays no part in the present ruling. Whether Wheeler may testify at trial is a subject the court leaves for further consideration on future motions.
The court denies Downey's motion for summary judgment as to Count One of the Complaint.
B. Federal Preemption.
Count Two of the Complaint alleges that Downey violated chapter 480 of the Hawaii Revised Statutes by (1) violating TILA; (2) making promises as to the interest rate, the charges, and the terms of the refinancing and disclosing loan charges; (3) giving the Kajitanis an improper Notice of Right to Cancel; and (4) refusing to honor the Kajitanis' rescission request. Complaint ¶¶ 31-34. Count Three alleges common law fraud in the form of Downey's alleged false representations, both oral and in writing, regarding the terms of the Kajitanis' refinancing. Downey moves for summary judgment on these claims, arguing that they are preempted by federal law.
There are three circumstances in which state law is preempted under the Supremacy Clause, U.S. Const. art. VI, cl. 2:(1) express preemption, when Congress explicitly defines the extent to which its enactments preempt state law; (2) field preemption, when state law attempts to regulate conduct in a field that Congress intended the federal law to occupy exclusively; and (3) conflict preemption, when it *1217 is impossible to comply with both state and federal requirements, or when state law stands as an obstacle to the accomplishment and execution of the full purpose and objectives of Congress. Bank of America v. City & County of San Francisco, 309 F.3d 551, 558 (9th Cir.2002); Industrial Truck Ass'n, Inc. v. Henry, 125 F.3d 1305, 1309 (9th Cir.1997).
The Ninth Circuit has applied field preemption analysis to state claims related to alleged TILA violations. In Silvas v. E*Trade Mortgage Corp., 514 F.3d 1001, 1004 (9th Cir.2008), the court recognized that Congress has occupied the field of banking since the days of McCulloch v. Maryland, 17 U.S. 316, 4 Wheat. 316, 4 L.Ed. 579 (1819). Id. The Ninth Circuit noted:
Congress enacted the Home Owners' Loan Act of 1933 ("HOLA") to charter savings associations under federal law, at a time when record numbers of home loans were in default and a staggering number of state-chartered savings associations were insolvent. HOLA was designed to restore public confidence by creating a nationwide system of federal savings and loan associations to be centrally regulated according to nationwide "best practices."
Id. (citing Bank of America, 309 F.3d at 558-59).
Under HOLA, Congress delegated "broad authority" to the Office of Thrift Supervision ("OTS") to issue regulations governing savings and loan associations. 12 U.S.C. § 1464; see also Silvas, 514 F.3d at 1005; Bank of America, 309 F.3d at 559. Pursuant to its authority, OTS has promulgated a preemption regulation:
OTS hereby occupies the entire field of lending regulation for federal savings associations. OTS intends to give federal savings associations maximum flexibility to exercise their lending powers in accordance with a uniform federal scheme of regulation. Accordingly, federal savings associations may extend credit as authorized under federal law, including this part, without regard to state laws purporting to regulate or otherwise affect their credit activities, except to the extent provided in paragraph (c). . . .
12 C.F.R. § 560.2(a).
In paragraph (b), OTS provides a list of examples of preempted state laws. The list includes "state laws purporting to impose requirements regarding":
(4) The terms of credit, including amortization of loans and the deferral and capitalization of interest and adjustments to the interest rate, balance, payments due, or term to maturity of the loan, including the circumstances under which a loan may be called due and payable upon the passage of time or a specified event external to the loan;
. . . .
(5) Loan-related fees, including without limitation, initial charges, late charges, prepayment penalties, servicing fees, and overlimit fees;
. . . .
(9) Disclosure and advertising, including laws requiring specific statements, information, or other content to be included in credit applications forms, credit solicitations, billing statements, credit contracts, or other credit-related documents and laws requiring creditors to supply copies of credit reports to borrowers or applicants[.]"
Id. §§ 560.2(b)(4), (5), (9).
Paragraph (c) describes state laws that are not preempted, clarifying that state laws that "only incidentally affect the lending operations of Federal savings associations" are not preempted and listing as examples contract, commercial, and tort law. Id. § 560.2(c).
*1218 In addition to promulgating regulations, OTS has described a process for determining when a state law is preempted:
When analyzing the status of state laws under § 560.2, the first step will be to determine whether the type of law in question is listed in paragraph (b). If so, the analysis will end there; the law is preempted. If the law is not covered by paragraph (b), the next question is whether the law affects lending. If it does, then, in accordance with paragraph (a), the presumption arises that the law is preempted. This presumption can be reversed only if the law can clearly be shown to fit within the confines of paragraph (c). For these purposes, paragraph (c) is intended to be interpreted narrowly. Any doubt should be resolved in favor of preemption.
OTS, Final Rule, 61 Fed.Reg. 50951, 50966-67 (Sept. 30, 1996).
Although commentators urged deletion of paragraph (c), OTS opted to retain it because "it does not intend to preempt basic state laws such as state uniform commercial codes and state laws governing real property, contracts, torts, and crimes." Thus, state laws covered in paragraph (c) "are not preempted to the extent that they either: (i) Have only an incidental impact on lending; or (ii) are otherwise not contrary to the purposes expressed in paragraph (a) of the regulation." Id. at 50966.
Against this backdrop, the Ninth Circuit in Silvas concluded that the plaintiffs' state claims were preempted because the subject matter of the claims was specifically listed in paragraph (b) of section 560.2. The plaintiffs were borrowers who filed a class action suit claiming that the lender had violated TILA by refusing to refund lock-in fees after the borrowers had exercised their rights of rescission. Silvas v. E*Trade Mortgage Corp., 421 F.Supp.2d 1315, 1317 (S.D.Cal.2006). Instead of bringing their claims under TILA, the borrowers asserted two causes of action under California's Unfair Competition Law ("UCL"), presumably because the statute of limitations for their TILA claims had already run. Id. at 1320. The borrowers alleged that (1) the lender's advertisement on its website stating that the lender did not refund lock-in fees violated the UCL's prohibition against false advertising; and (2) the lender's misrepresentation of consumers' legal rights on its advertising and disclosure documents was an unlawful practice under the UCL. Id. at 1317.
The district court noted that "alleged TILA violations serve as the predicate acts supporting . . . Plaintiffs' UCL causes of action." Id. The district court concluded that the plaintiffs' claims were preempted because the UCL claims "attack Defendant's lending practices in two categories where OTS has explicitly indicated federal law occupies the field: (1) disclosure and advertising and (2) loan-related fees." Id. at 1319 (citing 12 C.F.R. § 560.2(b)(5), (9)).
The Ninth Circuit affirmed, agreeing that the UCL claims were based entirely on "disclosure and advertising" and unlawful fees, which OTS explicitly preempted in section 560.2(b). Silvas, 514 F.3d at 1006; see also id. ("Because [the first] claim is entirely based on E*TRADE's disclosures and advertising, it falls within the specific type of law listed in § 560.2(b)(9). . . . [The second] claim . . . fits within § 560.2(b)(9) because the alleged misrepresentaion is contained in advertising and disclosure documents.)" (second emphasis added). Because the claims fell under section 560.2(b), the Ninth Circuit did not address whether the claims were based on state laws of general applicability.
The Ninth Circuit has not spoken on the subject of preemption with regard to TILA claims since Silvas. This court finds guidance on the subject by the District Court *1219 of the Central District of California. In Reyes v. Downey Savings & Loan Ass'n, F.A., 541 F.Supp.2d 1108 (C.D.Cal.2008), the district court identified certain "guiding principles" concerning when OTS regulations preempt state laws. Id. at 1112-13. "First, when plaintiffs rely upon state laws of specific application to savings and loans activity, their claims are preempted." Id. (citing Fidelity Federal Savings & Loan Association v. de la Cuesta, 458 U.S. 141, 102 S.Ct. 3014, 73 L.Ed.2d 664 (1982); Bank of America, 309 F.3d 551). "Second, when plaintiffs rely on state laws of general application, but their claims are based on federal laws, federal law preempts." Id. at 1113 (citing Silvas, 421 F.Supp.2d at 1317, aff'd, 514 F.3d 1001). Third, when plaintiffs rely on state laws of general application that directly address the subject matters set forth in 12 C.F.R. § 560.2(b), their claims are preempted. See id. (citing Boursiquot v. Citibank F.S.B., 323 F.Supp.2d 350, 355-56 (D.Conn.2004)); see also Silvas, 514 F.3d at 1006. "Finally, when plaintiffs rely on a state law of general application, and the application of the law does not purport to specifically regulate lending activity, the state law is not preempted." Id.; see also 61 Fed.Reg. at 50966; cf. In re Ocwen Loan Servicing, LLC Mortgage Servicing Litigation, 491 F.3d 638, 643 (7th Cir.2007) (Judge Posner) ("Against this background of limited [OTS] remedial authority, we read subsection (c) to mean that OTS's assertion of plenary regulatory authority does not deprive persons harmed by the wrongful acts of savings and loan associations of their basic state common-law-type remedies.").
The district court in Reyes concluded that some of the plaintiffs' claims were preempted, while others were not. The court determined that the plaintiffs' claims that the defendant had promised a lower interest rate than was delivered and that the defendants had misrepresented the contract terms were based on the "principles of breach of contract and fraud in the inducement [that] are not specific to lending activities." Reyes, 541 F.Supp.2d at 1115. Because the plaintiffs' claims were based on "general principles of contract law," there was no preemption. Id. The court noted, however, that if the plaintiffs had sought to apply state law "to require certain disclosures in loan-related advertising, federal law would preempt." The court also concluded that the plaintiffs' state law claims predicated on violations of TILA were preempted. Id. at 1115.
This court similarly concludes that some of the Kajitanis' claims are preempted, while others are not. As set forth by OTS, the first step in the preemption analysis is to determine whether the state laws purport to impose requirements regarding one of the subject matters listed in 12 C.F.R. § 560.2(b). In relevant part, Haw. Rev.Stat. § 480-2 provides that "[u]nfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce are unlawful." Haw.Rev.Stat. § 480-2(a). A claim of common law fraud under Hawaii law requires "(1) a representation of a material fact, (2) made for the purpose of inducing the other party to act, (3) known to be false but reasonably believed true by the other party, and (4) upon which the other party relies to [his or her] damage." Hawaii Cmty. Fed. Credit Union v. Keka, 94 Hawai`i 213, 230, 11 P.3d 1, 18. Thus, both the state statute and Hawaii common law pass the first step of the preemption analysis because neither purports to regulate any of the subject matters listed in 12 C.F.R. § 560.2(b).
By contrast, the plaintiffs' first claim in Silvas was brought under section 17500 of UCL, which specifically addresses false or misleading statements in advertising. See Cal. Bus. & Prof.Code *1220 § 17500. The plaintiffs in Silvas also alleged misrepresentation in the defendant's disclosure documents, as well as an unlawful fee, subject matters listed in 12 C.F.R. § 560.2(b). Silvas, 514 F.3d at 1006. The Kajitanis' state claims are distinguishable as partly premised on oral misrepresentations regarding certain credit terms, which they allege was a "bait and switch" tactic. The Silvas court specifically noted that the plaintiffs in that case alleged claims of misrepresentation in advertising and disclosure documents. TILA addresses the disclosure of certain credit terms in document form and does not cover oral disclosures. See e.g., 15 U.S.C. § 1604. Further, OTS regulations describe the "disclosure and advertising" category as referring to information that is to be disclosed on documents. 12 C.F.R. § 560.2(b)(9). Federal preemption does not appear to apply to oral misrepresentations by lenders. As Judge Posner has pointed out, "Enforcement of state law [under these circumstances] would complement rather than substitute for the federal regulatory scheme." Ocwen, 491 F.3d at 644.
Proceeding to step two of the analysis set forth by OTS, this court concludes that the state laws at issue in the Complaint are laws of general applicability that have only an incidental effect on lending. Comparing TILA and section 480-2, the Hawaii Supreme Court has noted:
TILA and HRS § 480-2 have differing "scope and application." TILA was intended to ensure informed credit decisions by consumers, whereas HRS § 480-2 was designed to prevent fraudulent business practices directed against consumers. Thus, although the ultimate objective of both statutes is consumer protection, they effect their common purposes by non-coextensive means.
Keka, 94 Hawai`i at 229 n. 15, 11 P.3d at 17 n. 15 (quoting Riopta, 101 F.Supp.2d at 1333); see also Riopta, 101 F.Supp.2d at 1333 (noting that TILA and section 480-2 have differing scopes, applications, and standards). Similarly, a claim of common law fraud involves a generally applicable law that only incidentally affects lending. See e.g., Reyes, 541 F.Supp.2d at 1114-15. The court therefore concludes that neither section 480-2 of the Hawaii Revised Statutes nor Hawaii common law fraud is preempted by federal law.
However, to the extent the Kajitanis' state law claims rest on TILA violations or concern subject matters explicitly preempted in 12 C.F.R. § 560.2(b), those claims are clearly preempted. Thus, the claims in paragraphs 31, 33, and 34 of the Complaint are preempted because they are premised on alleged TILA violations. Paragraph 32, which concerns Downey's alleged promises regarding interest rates, charges, and the terms of financing, is not preempted if the Kajitanis are alleging that Downey orally misled them about these terms. But if the Kajitanis are alleging that these terms were not properly disclosed in the disclosure documents required under TILA, then that matter is preempted as concerning "disclosure and advertising," which falls under 12 C.F.R. § 560.2(b). Similarly, the Kajitanis' common law fraud claim is preempted to the extent it alleges misrepresentations in the disclosure documents required under TILA, but not to the extent it alleges oral misrepresentations related to an alleged "bait and switch" tactic.
Accordingly, the court grants in part and denies in part Downey's motion for summary judgment on the Kajitanis' state law claims. To the extent the state claims are premised on TILA or Regulation Z violations, including Downey's alleged failure to properly disclose certain terms in its documents as required by TILA, those claims are preempted. The remaining *1221 state law claims, however, are not preempted.
V. CONCLUSION.
For the foregoing reasons, the court grants in part and denies in part Downey's motion for summary judgment. This order leaves for further adjudication Count One and the portions of Counts Two and Three that are not based on TILA and its regulations.
IT IS SO ORDERED.
NOTES
[1] The declaration of Geraldine Kajitani incorrectly notes the date of closing as September 15, 2008.
| {
"pile_set_name": "FreeLaw"
} |
330 F.3d 194
Ann ALTMAN; Robert Altman; Kimberly Larsen; Wendy Frye; Gilbert Wallace,Plaintiffs-Appellees,v.CITY OF HIGH POINT, NORTH CAROLINA; Bobby Ray Perdue, in his individual and official capacities; Nelson Moxley, in his individual and official capacities, Defendants-Appellants, andJoni Chastain, in her individual and official capacities, Defendant.
No. 02-1178.
United States Court of Appeals, Fourth Circuit.
Argued: January 21, 2003.
Decided: May 20, 2003.
COPYRIGHT MATERIAL OMITTED ARGUED: James Redfern Morgan, Jr., Womble, Carlyle, Sandridge & Rice, P.L.L.C., Winston-Salem, North Carolina, for Appellants. Brandon Claus Fernald, La Mesa, California, for Appellees. ON BRIEF: Robert D. Mason, Jr., Womble, Carlyle, Sandridge & Rice, P.L.L.C., Winston-Salem, North Carolina, for Appellants. David Q. Burgess, Charlotte, North Carolina, for Appellees.
Before LUTTIG, WILLIAMS, and GREGORY, Circuit Judges.
Reversed by published opinion. Judge LUTTIG wrote the opinion, in which Judge WILLIAMS joined. Judge GREGORY wrote an opinion concurring in part and dissenting in part.
OPINION
LUTTIG, Circuit Judge:
1
This case arises out of several shooting incidents in the City of High Point, North Carolina (the "City" or "High Point"). In each incident, a High Point animal control officer shot and killed one or more dogs that were running at large in the city. Plaintiffs, the owners of the animals, brought suit under 42 U.S.C. § 1983, alleging that the officers' actions violated their Fourth Amendment rights. The district court denied the officers' qualified immunity defense, and the officers have appealed that ruling. Their appeal presents a question of first impression in this circuit, namely, whether a privately owned dog falls within one of the classes of property protected by the Fourth Amendment against unreasonable search and seizure. This issue, while ostensibly peripheral as a constitutional matter, is nevertheless of significant importance, and we consider it in depth. As we explain more fully below, we conclude that the dogs at issue in this case do qualify as property protected by the Fourth Amendment and that the officers seized that property. However, because in each instance the seizure involved was reasonable, we conclude that the officers did not violate the plaintiffs' Fourth Amendment rights. Accordingly, we reverse the district court's decision denying summary judgment to the officers and the City of High Point.
I.
2
Because this case comes before us on appeal from the denial of summary judgment, except where otherwise noted, the following facts are recounted in the light most favorable to the plaintiffs, as they are the nonmovants in this action. Defendants Nelson Moxley and Bobby Ray Perdue are and were at all times relevant to this opinion employed by High Point as animal control officers. As animal control officers, Moxley and Perdue were charged with enforcing the various High Point ordinances governing dogs. High Point Ordinance § 12-2-1(a) makes it unlawful for the owner of a dog to allow the animal to "run at large" in the city. The ordinance defines "at large" to mean "a dog that is not in an enclosure or otherwise confined, or is not under the control of the owner or other person by means of a leash, cord or chain." H.P. Ordinance § 12-2-1(b). Animal control officers are tasked with impounding any animal found "at large." Id. § 12-2-6 ("It shall be the duty of the animal control specialist to capture and impound in the county animal shelter each and every unlicensed dog or any dog found unlawfully at large in the city as provided in this chapter."). Finally, city ordinance provides that "[i]t shall be lawful for the animal control specialist or police officers of the city to tranquilize or kill any dog at large within the city which cannot safely be taken up and impounded." Id. § 12-2-16(b) (emphasis added).1
3
It was Moxley and Perdue's efforts to enforce these ordinances that generated the four separate incidents which form the basis of this case. Each incident involves the shooting of one or more of the plaintiffs' dogs by either Moxley or Perdue. It is undisputed that in each incident, the dog or dogs were running at large within the meaning of High Point Ordinance § 12-2-16(b). We describe the incidents in chronological order.
4
The Larsen Incident. Plaintiff Kimberly Larsen was the owner of "Heidi," a purebred Rottweiler. Larsen testified that Heidi always wore a collar and tags. On January 10, 1997, Larsen left Heidi in her fenced yard while she and a family member left to run some errands. That same day, Officer Perdue responded to a call about a large, vicious Rottweiler that was loose and had chased and attacked, or attempted to attack, a citizen. When Officer Perdue arrived on the scene, he spoke with Willie Sturdivant, the citizen who had reported the incident. Sturdivant told Perdue that he had been chased by the dog and had only been able to escape the attack by beating the dog off with a stick. Sturdivant was scared to walk back down the street, so Officer Perdue gave him a ride.
5
After dropping off Sturdivant, Officer Perdue began searching for the loose dog. A local woman told Perdue to be careful of the dog because it was dangerous and aggressive and had been in the streets chasing cars and people. She also told him where the owners of the dog lived, although she noted that they were not home. Perdue next came upon Charles Elkins, a neighbor of the Larsens, walking on the street, and he stopped to warn Elkins about the loose dog. Elkins reported that the dog lived at the Larsens' and directed Perdue to the house. Officer Perdue pulled into the Larsens' driveway, exited his vehicle with his shotgun, and began to walk toward the home.
6
Elkins observed what happened next from a distance of about 150 feet. He said that as Perdue walked toward the home, Heidi came walking around the corner of the house. Heidi slowly approached Perdue and jumped or lunged from the driveway up into the yard. At this point, Heidi was ten to twelve feet from Perdue. Heidi then stopped, turned around, and began walking away from Perdue toward the street. Perdue then fired, striking Heidi in the hindquarters. He fired again to end the animal's suffering. Perdue dragged Heidi's remains to the end of the driveway and called sanitation to dispose of the body. He then left the scene.2
7
The Frye Incident. Wendy Frye owned four dogs — "Tut-Tut," "Bandit," "Boo Boo," and "Sadie" — that were approximately seven months old and weighed 15-20 pounds each. The dogs' mother was a Siberian Husky mixed-breed dog; it is unclear what breed their father was. The dogs wore collars but did not wear tags. They were kept in a pen in Frye's backyard but had a tendency to dig under the pen and escape.
8
On the morning of February 8, 1997, Officer Berman of the High Point Police Department responded to a call about a pack of dogs chasing people. According to him, when he arrived on the scene, the dogs charged his car, growling and showing their teeth. In the pack were three of Frye's dogs and two larger strays. Officer Berman remained in his car and called for Officer Perdue. While Berman waited for Perdue to arrive, the dogs ran across the street and began harassing a woman who was trying to exit her vehicle. Berman drove over and blew an air horn to disperse the dogs. The dogs ran, and the woman was able to leave her car and get to her residence. A man then came out of the residence. One of the dogs tried to bite him, but Berman again dispersed the dogs with his horn.
9
Shortly thereafter, Perdue arrived on the scene. The dogs aggressively rushed his truck as soon as he pulled up. One of the dogs jumped into the window of his truck and Perdue had to beat if off with his nightstick. When he exited the vehicle, the pack attacked him and Perdue fired into it with his shotgun, killing two of the dogs (Bandit and Tut-Tut). The rest of the pack disbursed.
10
The Wallace Incident. Plaintiff Gilbert Wallace owned a Golden Retriever/Labrador mixed-breed dog named "Sundance." Wallace asserts that Sundance was a well-behaved, passive dog, but that he had a habit of escaping from his fenced-in yard by digging under the fence. Wallace had several other dogs, which he also kept in a fenced area. Wallace had been cited on six previous occasions for allowing his dogs to run loose, and he had been warned about the poor condition of his fence. In addition, Officer Moxley had previously told Wallace that his dogs were becoming more aggressive.
11
On January 25, 1999, High Point Police Officer Blue responded to a call that a dog had bitten someone. When he arrived at the scene, a dog that Officer Blue described as a "black chow-lab mix," Sundance, charged him. Blue racked his shotgun, and the animal stopped, but continued to growl. Blue radioed for animal control to respond.
12
Blue then interviewed the bite victim, Lonnie Baldwin. Baldwin told Blue that the dog had chased his child to the bus stop. Baldwin chased the dog to protect his child, and the dog bit him on the hand. As Baldwin and Blue were talking, Officer Moxley arrived on the scene along with Officer Perdue. At this point, Sundance had retreated to Wallace's yard and was sitting outside the fence. Moxley informed Baldwin and Blue that this dog had given him problems in the past. He then got back in his truck and drove the short distance to the Wallace house.
13
Moxley exited his vehicle with his shotgun and proceeded toward the rear of the truck. At this point, Sundance charged at full speed, growling and showing his teeth. Moxley raised his shotgun and fired when Sundance was about five yards away, killing the dog. He then loaded the remains into his truck so the dog could be tested for rabies. Sundance was wearing no collar or tags.
14
The Altman Incident. The most recent of the four incidents involves plaintiffs Robert and Ann Altman, and their dog "Hot Rod," whose actual lineage was unknown but who the Altmans thought was at least part pit bull. According to the Altmans, Hot Rod was a non-aggressive, obedient dog, who always wore his collar and tags as required by law.
15
On the morning of March 24, 2000, Hot Rod was wandering the streets alone. Terry Evans, who owned a local business, saw Hot Rod following a meter reader, Roger Hendricks. Evans was familiar with Hot Rod, having seen him on the street before and having seen him behave aggressively. Fearing for Hendricks' safety, Evans called 911. When Officer Moxley arrived, Hot Rod "took off" toward the residential houses located further down the street. Moxley exited his vehicle with his shotgun and gave chase. Moxley fired between two of the houses in the direction of Hot Rod, who was about 75 yards away. Hot Rod was running behind the houses, and Moxley was running in front of the houses. He fired again between two houses in the direction of Hot Rod, who was approximately 50 to 60 yards away. Moxley fired a third shot, and Evans heard Hot Rod "hollar." Hot Rod emerged from behind the houses bleeding and dragging his hind leg, but was still running. Moxley had Hendricks retrieve more shells from his truck, and then pursued the dog. A short time later, a fourth shot was heard and Moxley emerged dragging the remains of Hot Rod.3
16
The plaintiffs brought suit under section 1983 against High Point, and Officers Moxley and Perdue, alleging that the officers' actions in shooting the plaintiffs' dogs constituted unreasonable seizures in violation of the Fourth Amendment.4 The plaintiffs also asserted state law tort claims. All defendants moved for summary judgment, and the officers asserted qualified immunity. The district court rejected the officers' qualified immunity defense, and the defendants, both the officers and the City, timely appealed.
II.
17
Because this appeal involves the denial of qualified immunity, we consider first whether the facts, viewed in the light most favorable to the plaintiffs, state a violation of the Fourth Amendment. See Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001).5 If so, we proceed to consider whether the right was clearly established; that is, whether it would have been apparent to a reasonable officer in the respective defendants' positions that his actions violated the Fourth Amendment. Id. at 201-02, 121 S.Ct. 2151. We review the district court's denial of qualified immunity de novo. See Rogers v. Pendleton, 249 F.3d 279, 285 (4th Cir. 2001).
A.
18
The first issue then is whether the plaintiffs' Fourth Amendment rights have been violated. To resolve this issue, we must determine whether their dogs fell within the ambit of the Fourth Amendment. The Fourth Amendment, made applicable to the states through the Fourteenth Amendment, provides that
19
[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated....
20
U.S. Const. amend. IV. Plainly, a dog is not a "person," "house," or "paper." Thus, in order for a dog to be protected by the Fourth Amendment, it must fall within the category of "effects."
21
Neither the Supreme Court nor the Fourth Circuit has ever addressed the issue whether dogs are "effects." Three other circuits, the Third, Eighth, and Ninth, have considered whether dogs are protected by the Fourth Amendment. Those circuits have uniformly concluded, although based only on conclusory assertions, that dogs are indeed so protected. See Brown v. Muhlenberg Township, 269 F.3d 205, 209-10 (3d Cir.2001) (holding that dogs are "effects"); Fuller v. Vines, 36 F.3d 65, 68 (9th Cir.1994) (same); Lesher v. Reed, 12 F.3d 148, 150-51 (8th Cir.1994) (dogs are property subject to Fourth Amendment seizure requirements).6 The complete absence of reasoning employed by those circuits, however, renders their dispositions of only the most minimal persuasive value.
22
Proceeding to analyze this issue that has been assumed away by the other circuits that have considered it, our inquiry begins with the text of the Constitution. James Madison drafted what would ultimately become the Fourth Amendment. In his final draft, which he submitted to the Committee of Eleven of the House of Representatives, Madison proposed an amendment which would read: "The rights of the people to be secured in their persons, their houses, their papers, and their other property, from all unreasonable searches and seizures, shall not be violated...." Annals of Cong., 1st Cong., 1st Sess., p. 452 (emphasis added); see also Nelson B. Lasson, The History and Development of the Fourth Amendment to the United States Constitution 310 & n.77 (1937). The Committee of Eleven altered Madison's draft by replacing "other property" with "effects," and it was that revised language that ultimately became part of the Constitution. Because there are no records of the Committee's deliberations, it is unclear precisely why that change was made.
23
The effect of that change is clear however; it narrowed the scope of the amendment. "Other property" would potentially have applied to all privately owned property, both personal and real. By contrast, "effects" referred only to personal property, and particularly to goods or moveables. See Dictionarium Britannicum (Nathan Baily ed., 1730) (defining "effects" as "the goods of a merchant, tradesman, & c"); Samuel Johnson, A Dictionary of the English Language (1755) (defining the plural of "effect" as "Goods; moveables"); 1 Noah Webster, First Edition of an American Dictionary of the English Language (1828) (defining "effect" as "[i]n the plural, effects are goods; moveables; personal estate"). The Supreme Court has since confirmed that "[t]he Framers would have understood the term `effects' to be limited to personal, rather than real, property." Oliver v. United States, 466 U.S. 170, 177 n. 7, 104 S.Ct. 1735, 80 L.Ed.2d 214 (1984); see also id. at 177, 104 S.Ct. 1735 (noting that "the term `effects' is less inclusive than `property'"). Thus, it appears reasonably clear that, in 1791 when the Fourth Amendment was ratified, the term "effects" meant goods and moveables.
24
Under the common law as it existed in 1791, see Wyoming v. Houghton, 526 U.S. 295, 299, 119 S.Ct. 1297, 143 L.Ed.2d 408 (1999) ("In determining whether a particular governmental action violates [the Fourth Amendment], we inquire first whether the action was regarded as an unlawful search or seizure under the common law when the Amendment was framed."), dogs were not treated as property for most purposes. See, e.g., Citizens' Rapid-Transit Co. v. Dew, 100 Tenn. 317, 45 S.W. 790, 791 (Tenn.1898) ("It is true that at common law a dog was not considered as property...."); Harold W. Hannah, Animals as Property Changing Concepts, 25 S. Ill. U. L.J. 571, 575 (2001) (noting that "at common law dogs were not regarded as property"). For example, there was no commonlaw crime of larceny for taking and carrying away a dog. See Mullaly v. New York, 86 N.Y. 365, 366 (1881). This treatment of dogs under the common law at the time appears to have been a reflection of the sentiment that dogs "were base in their nature and kept merely for whims and pleasures" and thus possessed no intrinsic value. Dew, 45 S.W. at 791; see Mullaly, 86 N.Y. at 366-67. At the same time that dogs enjoyed only a limited property status, however, an owner of a dog could bring an action of trover for conversion of a dog, and dogs would pass as assets to the executor or administrator of a deceased owner. See Mullaly, 86 N.Y. at 366; see also 4 William Blackstone, Commentaries *236 (stating that a dog owner possessed "a base property" in his dogs that was sufficient to "maintain a civil action for the loss of them").
25
Thus, at least at the federal level, the prevailing understanding through much of the nineteenth century was that dogs were "property," even if only qualifiedly so. See Nicchia v. People of State of New York, 254 U.S. 228, 230, 41 S.Ct. 103, 65 L.Ed. 235 (1920) ("Property in dogs is of an imperfect or qualified nature and they may be subjected to peculiar and drastic police regulations by the state without depriving their owners of any federal right."); Sentell v. New Orleans & C.R. Co., 166 U.S. 698, 701, 17 S.Ct. 693, 41 L.Ed. 1169 (1897) ("[P]roperty in dogs is of an imperfect or qualified nature, and [ ] they stand, as it were, between animals ferae naturae, in which until killed or subdued, there is no property, and domestic animals, in which the right of property is perfect and complete."). As a result, at the time of the Founding, and for a period thereafter, it is unclear whether a dog would have been considered to be an "effect," i.e., a good or moveable. For, although the dog was treated as property for some purposes, it was generally valueless in the eyes of the law.
26
However, while dogs may not have been considered goods or moveables in every respect, their qualified status as property did render unto their owners interests similar to those asserted by the plaintiffs today. As discussed, at common law a dog owner could bring an action of trover for conversion of a dog. See Jones v. Craddock, 210 N.C. 429, 187 S.E. 558, 559 (1936) ("Even in the days of Blackstone, while it was declared that property in a dog was `base property,' it was nevertheless asserted that such property was sufficient to maintain a civil action for its loss."). The present action by the plaintiffs, though brought under a federal statute pursuant to a constitutional amendment, is not in nature unlike a common-law action for trover based on the officers' conversion of their dogs. In this way, the plaintiffs clearly assert a right with an analog at common law, a fact which strongly suggests that, at least to this extent, dogs would have been protected as "effects" within the meaning of the Fourth Amendment at common law.
27
This presumptive conclusion that dogs would have been protected as "effects" as that term was used at the time of the Framing, and therefore should be considered effects within the meaning of the Fourth Amendment, is reinforced by the Supreme Court precedent by which we are bound. Reviewing the cases in which the Court has addressed the meaning of "effects," it becomes apparent that the Court has treated the term "effects" as being synonymous with personal property. In United States v. Place, 462 U.S. 696, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983), the Supreme Court concluded that personal luggage was an "effect" within the meaning of the Fourth Amendment. See also Bond v. United States, 529 U.S. 334, 336-37, 120 S.Ct. 1462, 146 L.Ed.2d 365 (2000). While Place obviously does not hold that the term "effects" is coterminous with the universe of personal property, the Court's discussion does suggest that all seizures of personal property are subject to the Fourth Amendment's requirements. See Place, 462 U.S. at 701, 103 S.Ct. 2637 (stating that "the Court has viewed a seizure of personal property as per se unreasonable within the meaning of the Fourth Amendment unless it is accomplished pursuant to a judicial warrant issued upon probable cause and particularly describing the items to be seized"). In United States v. Jacobsen, 466 U.S. 109, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984), the Court considered whether a wrapped parcel containing cocaine, which was intercepted during shipment, was an "effect." The Court held that "[w]hen the wrapped parcel ... was delivered to the private freight carrier, it was unquestionably an `effect' within the meaning of the Fourth Amendment. Letters and other sealed packages are in the general class of effects in which the public at large has a legitimate expectation of privacy...." Id. at 114, 104 S.Ct. 1652. As in Place, the Court's discussion in Jacobsen implies that it considers the term "property" to be coextensive with the term "effects." See id. at 113, 104 S.Ct. 1652 (explaining that "[a] `seizure' of property occurs when there is some meaningful interference with an individual's possessory interests in that property").
28
Jacobsen, and the cases which preceded it, could be read to protect certain personal property only insofar as the possessor had a legitimate privacy expectation in that property, but in Soldal v. Cook County, Ill., 506 U.S. 56, 113 S.Ct. 538, 121 L.Ed.2d 450 (1992), the Court clarified that the Fourth Amendment's protections extend to property in which there is no particular privacy or liberty interest. "We thus are unconvinced that any of the Court's prior cases supports the view that the Fourth Amendment protects against unreasonable seizures of property only where privacy or liberty is also implicated." Id. at 65, 113 S.Ct. 538; see also id. at 62, 113 S.Ct. 538 (noting that "our cases unmistakably hold that the [Fourth] Amendment protects property as well as privacy").7 Soldal thereby removed a potentially significant restriction on the types of property which the Fourth Amendment protects. The Court did state that "the [Fourth] Amendment does not protect possessory interests in all kinds of property," id. at 62 n. 7, 113 S.Ct. 538, but the only example the Court gave of a case involving an unprotected possessory interest was its decision in Oliver v. United States. In Oliver, the Court held only that open fields are not "effects" within the meaning of the Fourth Amendment, reaffirming Justice Holmes' opinion in Hester v. United States, 265 U.S. 57, 44 S.Ct. 445, 68 L.Ed. 898 (1924). See Oliver, 466 U.S. at 176, 104 S.Ct. 1735. As discussed above, the Court also stated that the Framers would have understood the term "effects" to reference personal, as opposed to real, property. Id. at 177 n. 7, 104 S.Ct. 1735. Thus, the Supreme Court's cases appear to treat the scope of "effects" as congruent with the scope of personal property, and, after Soldal, it is clear that there need be no nexus between a privacy or liberty interest and the possessory interest for Fourth Amendment protection to attach.
29
These cases confirm, we believe, the conclusion that dogs merit protection under the Fourth Amendment. The common law personal property rights that attached to dogs were at least as strong as those that have been held sufficient by the Court to qualify other objects as "effects" entitled to Fourth Amendment protection. For example, the common law property interest in dogs was certainly as great as the possessory interest a person has been held by the Court to enjoy today in illegal narcotics. See Jacobsen, 466 U.S. at 124-25, 104 S.Ct. 1652 (concluding that destruction by officer of trace amount of cocaine for testing purposes "affect[ed] respondents' possessory interest protected by the [Fourth] Amendment" and thereby constituted a seizure). And, of course, that there may be no privacy interest in dogs is no bar to their treatment as effects, since Soldal explains that such an interest is not an eligibility requirement for Fourth Amendment protection.8
30
Accordingly, on the strength of the Constitution's text, of history, and of precedent, we hold that the plaintiffs' privately owned dogs were "effects" subject to the protections of the Fourth Amendment.
31
That dogs are, for Fourth Amendment purposes, "effects" under the analysis employed in the Supreme Court cases surveyed above is consistent with the fact that, as the common and statutory law in the states has developed, dogs have come to be recognized as property even under state law. While not recognized at the federal level for some time, early in the nineteenth century dogs began to gain status under state property laws, often by virtue of statutory enactment but also through the evolution of the common law. So it was that in New York, the Court of Appeals held in the 1881 case of Mullaly v. New York that the old common-law rule that there could be no larceny of a dog had been changed by legislation. See Mullaly, 86 N.Y. at 368. The Court of Appeals reasoned that "[t]he artificial reasoning upon which these [old common-law] rules were based are wholly inapplicable to modern society.... Large amounts of money are now invested in dogs and they are largely the subject of trade and traffic. In many ways they are put to useful service, and so far as pertains to their ownership as personal property, they possess all the attributes of other personal property." Id. at 367-68. Of particular note, the Court of Appeals in Mullaly concluded that dogs were "personal property," which was defined in New York as "`goods, chattels, effects, evidences of rights of action,' and certain written instruments." Id. at 368 (emphasis added). By 1898, the Supreme Court of Tennessee could confidently state that the old common-law rules denying treatment as property to dogs had been abandoned and that "dogs have now a distinct and well-established status in the eyes of the law." Dew, 45 S.W. at 791.
32
North Carolina is no stray when it comes to the trend in favor of treating dogs as personal property; indeed, North Carolina appears to have been at the forefront of that trend. In the case of Dodson v. Mock, 20 N.C. 282 (1838), the Supreme Court of North Carolina considered a civil action by a plaintiff to recover damages for the killing of his dog. The defendant contended that the dog was not property because it had no value, and therefore no action would lie for an injury to it. The Supreme Court of North Carolina rejected that argument and held that "[d]ogs belong to that class of domiciled animals which the law recognises as objects of property, and whatever it recognises as property, it will protect from invasion by a civil action on the part of the owners." Id.; see also, e.g., State v. Smith, 156 N.C. 628, 72 S.E. 321, 322 (1911) (referring to dogs as "personal property"); Jones, 187 S.E. at 559 ("While from the earliest times dogs have been the companions of man, for a long period their legal status was of low degree, and it was formerly held they were not property, and hence not the subjects of larceny. But in more recent times this ancient doctrine has given place to the modern view that ordinarily dogs constitute species of property, subject to all the incidents of chattels and valuable domestic animals."). Today, dogs are also treated as personal property by the statutes of North Carolina. See, e.g., N.C. Gen.Stat. § 14-81 (treating larceny of dogs as a property offense); id. § 67-4.1(a)(3) (defining "owner" as "any person or legal entity that has a possessory property right in a dog").
B.
33
Given our holding that the dogs at issue in this case were "effects" within the meaning of the Fourth Amendment, we must next consider whether the officers' actions in the case at bar constituted "seizures" of the dogs and, if so, whether those seizures were constitutionally permissible. Turning to the former question, we think it clear that the officers' actions constituted a seizure of the dogs. A Fourth Amendment "seizure" of personal property occurs when "there is some meaningful interference with an individual's possessory interests in that property." Jacobsen, 466 U.S. at 113, 104 S.Ct. 1652. Destroying property meaningfully interferes with an individual's possessory interest in that property by changing a temporary deprivation into a permanent deprivation. See id. at 124-25, 104 S.Ct. 1652. Thus, when the officers destroyed the dogs, they "seized" the plaintiffs' "effects." See Brown, 269 F.3d at 210; Fuller, 36 F.3d at 68.
34
In order for the officers' warrantless seizures of the plaintiffs' dogs to be constitutional, the seizures must have been "reasonable." A seizure of personal property conducted without a warrant is presumptively unreasonable. See Place, 462 U.S. at 701, 103 S.Ct. 2637. Under the basic reasonableness calculus, a court must "balance the nature and quality of the intrusion on the individual's Fourth Amendment interest against the importance of the governmental interests alleged to justify the intrusion." Id. at 703, 103 S.Ct. 2637. The reasonableness calculus is objective in nature; it does not turn upon the subjective intent of the officer. Cf. Graham v. Connor, 490 U.S. 386, 397, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989) (stating, in the context of a Fourth Amendment excessive force claim, that "the question is whether the officers' actions are `objectively reasonable' in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation"). The Supreme Court has admonished that "[t]he calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments — in circumstances that are tense, uncertain, and rapidly evolving — about the amount of force that is necessary in a particular situation." Id. at 396-97, 109 S.Ct. 1865. Finally, in judging the reasonableness of the officers' actions, we assess only the reasonableness of their actions vis-a-vis the dogs; we do not consider potential harm to third parties. Cf. Howerton v. Fletcher, 213 F.3d 171, 175 (4th Cir.2000) (holding that the "risk posed to third parties by the official use of force is not to be considered" in determining whether an official used excessive force as against a particular plaintiff). The task of this court is to put itself into the shoes of the officers at the time the actions took place and to ask whether the actions taken by the officers were objectively unreasonable.
35
Engaging in that exercise in the instant case can render only the conclusion that, in every incident, the actions of Officers Moxley and Perdue were objectively reasonable. Before delving into the peculiar facts of each incident, we note the overarching interests involved. On the one hand, the public interests in this case are significant. The state of North Carolina and the City of High Point have a substantial interest in protecting their citizens from all the dangers and nuisances associated with dogs. Dogs may harass or attack people, livestock, or other pets. Dogs can maim or even kill. Dogs may also spread disease or cause property damage. On the other hand, the private Fourth Amendment interests involved are appreciable. Dogs have aptly been labeled "Man's Best Friend," and certainly the bond between a dog owner and his pet can be strong and enduring. Many consider dogs to be their most prized personal possessions, and still others think of dogs solely in terms of an emotional relationship, rather than a property relationship.
36
The case before us does not present both interests at their zenith, however. When a dog leaves the control of his owner and runs at large in a public space, the government interest in controlling the animal and preventing the evils mentioned above waxes dramatically, while the private interest correspondingly wanes. Put simply, while we do not denigrate the possessory interest a dog owner has in his pet, we do conclude that dog owners forfeit many of these possessory interests when they allow their dogs to run at large, unleashed, uncontrolled, and unsupervised, for at that point the dog ceases to become simply a personal effect and takes on the nature of a public nuisance. This understanding is reflected in High Point Ordinance § 12-2-16, which provides that when a dog is running at large it may be tranquilized or even killed if it cannot be safely taken up and impounded.
37
With that understanding, we turn to the particular facts before us. Again, it is undisputed that in each incident, the dog or dogs involved were running at large. In the Larsen Incident, Officer Perdue was confronted with a Rottweiler, a large and dangerous breed of dog, that was loose and had been roaming the neighborhood. The dog had already attacked one person in the neighborhood, and Perdue would have understood from his conversations with people in the neighborhood that the dog was aggressive and dangerous. While the dog did not actually attack Officer Perdue, it did move back toward the road where it would once again pose a danger to the neighborhood. Perdue acted to stop the dog from escaping by the one means available to him at that instant — a shotgun. While, in hindsight, it may appear that Perdue had other options available, we are not prepared to dispute his judgment at the moment, confronted as he was by a large, dangerous Rottweiler that had already attacked one person in the neighborhood.
38
Officer Perdue's actions in the Frye Incident were likewise reasonable. He was confronted not simply by a single dog, but by a pack of five dogs that had attacked persons in the neighborhood and another officer. Indeed, one of the dogs had attacked Perdue himself, attempting to jump into his truck window. When he exited his vehicle, the pack charged him. Perdue was entitled to shoot the dogs in self-defense. The only fact that weighs against the reasonableness of Perdue's actions is that three of the dogs were young and not particularly large. While that fact may be significant when an officer confronts a smaller dog one-on-one, it is of less moment when the officer is attacked by a pack of dogs. Obviously, the danger presented by a dog increases significantly when that dog joins others in a pack.
39
Officer Moxley's actions in the Wallace Incident were also clearly reasonable. There, the officer was confronted with a dog that had already attacked and wounded one person in the neighborhood. Moments after Moxley exited his truck, the animal attacked him. Moxley acted reasonably in defending himself using the shotgun he was carrying at the time.
40
The Altman Incident presents a somewhat closer case since Hot Rod had not actually attacked a person. We nevertheless conclude that Officer Moxley's actions were reasonable. Hot Rod was part pit bull, and pit bulls, like Rottweilers, are a dangerous breed of dog. While Hot Rod had not attacked anyone, his behavior toward the meter reader was sufficiently aggressive to cause Evans to call the police. Responding to that call, Officer Moxley was immediately confronted with a fleeing dog. It was not unreasonable for him to conclude, in that split second as Hot Rod sped away, that he could not safely capture the animal. Thus, as High Point Ordinance § 12-2-16(b) instructs him to do, Officer Moxley attempted to and succeeded in killing the animal, thereby removing, for all Moxley knew, a potentially dangerous pit bull from the public streets.
41
Because none of the incidents involved objectively unreasonable action by the officers, we therefore hold that the officers committed no unreasonable seizure in violation of the Fourth Amendment. It is important to note that we are not saying the officers' responses in these cases were the best possible responses. We are only saying that, under the circumstances existing at the time the officers took the actions and in light of the facts known by the officers, their actions were objectively reasonable. In retrospect, it may have been preferable if the officers attempted first to use nonlethal force in every instance. Such nonlethal force may have been successful, but, tellingly, it may not have been. Even dog owners can find their pets to be unpredictable at times. How much more so a person who is not intimately familiar with the behavior of the particular animal (as neither Officers Perdue nor Moxley were in any of these cases) and who is forced to confront the dog for the first time in an unsupervised, unenclosed environment.9
42
We are also not passing on the results reached by the other circuits that concluded, on the facts before them, that the destruction of pet dogs was unreasonable. The fact that all the dogs in the instant case were running at large, uncontrolled and with no owner looking on, renders this case distinguishable from the Third Circuit's decision in Brown and the Ninth Circuit's decision in Fuller. In Brown, the owner of the dog was looking on and willing to assert control over the animal. See Brown, 269 F.3d at 211 (concluding that a state may not "consistent with the Fourth Amendment, destroy a pet when it poses no immediate danger and the owner is looking on, obviously desirous of retaining custody"). In Fuller, the owners of the dog were standing in their front yard with the dog when it was shot. See Fuller, 36 F.3d at 66. The private Fourth Amendment possessory interests are obviously stronger when, although the dog is unleashed, the owner is nearby and attempting to assert control over the dog. And the public interest in control of the dog is correspondingly lessened when a private owner is available to assert control.10
43
Given our conclusion that the officers' actions did not violate the plaintiffs' Fourth Amendment rights, we need not reach the second step of the qualified immunity analysis and determine whether the right was clearly established.
III.
44
Our colleague, Judge Gregory, concurs with our conclusions that dogs are "effects" for purposes of the Fourth Amendment and that the dogs at issue in this case were the objects of warrantless seizures. Post at 214. He dissents from our resolution of the question of whether a constitutional violation occurred. Judge Gregory criticizes us for "improper[ly] focus[ing] on `the particular facts' of each, specific incident." Id. at 214. Instead, he prefers to view the case "as a general matter" and concludes that "viewing the evidence in the light most favorable to the plaintiffs, it is apparent that `the facts alleged show the officer[s'] conduct violated a constitutional right.'" Id. at 220. The dissent then proceeds to consider whether Officers Moxley and Perdue are entitled to qualified immunity. Such immunity would be inappropriate here, reasons the dissent, because an officer violates clearly established federal law "when he shoots and kills an individual's family pet when that pet presented no danger and when nonlethal methods of capture would have been successful." Id. at 220.
45
It is the dissent's analysis that is contrary to clearly established precedent, though. For fear that that flawed analysis will further erode the clarity of qualified immunity law, we feel that we must address some of the dissent's errors.
A.
46
First, the dissent's only apparent authority for its conclusion that the seizures at issue in this case were unreasonable is its own assertion that Officers Moxley and Perdue failed to comply with some High Point City ordinances and with certain High Point Police Department regulations. The dissent is replete with citations to these sources, see post at 218, 219, 220, 222, 223, to the near complete exclusion of all other forms of authority. In short, the dissent appears to reason that the officers were acting unconstitutionally because they violated the standards set by city ordinance and police department regulation.
47
This court, and the Supreme Court, have both rejected such reasoning categorically. Recently, in Robles v. Prince George's County, Maryland, 302 F.3d 262 (4th Cir.2002), the Fourth Circuit considered whether police officers who bound a defenseless man to a pole with flex cuffs at three in the morning in a deserted parking lot and then abandoned him, all with admittedly no legitimate law enforcement purpose, were entitled to qualified immunity. This court found that the officers had committed a constitutional violation under Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979), but, despite the officers' utterly indefensible behavior, we nevertheless awarded them qualified immunity. Said the court,
48
[t]he Constitution is not a "font of tort law" to be "superimposed upon whatever systems may already be administered by the States." The officers' conduct violated police regulations as well as state law and was dealt with under those provisions. But not every instance of inappropriate behavior on the part of police rises to the level of a federal constitutional violation.
49
Id. at 271 (internal citation omitted) (former emphasis added); see also, e.g., Screws v. United States, 325 U.S. 91, 108, 65 S.Ct. 1031, 89 L.Ed. 1495 (1945) ("Violation of local law does not necessarily mean that federal rights have been invaded."). To conclude, as apparently would the dissent, from the mere occurrence of a state law violation, much less a violation of city ordinance or police regulation, that a federal constitutional violation must also have transpired, is to engage in non sequitur. The dissent argues that such is not the case because "[f]lagrant disregard of these [local] laws ... is relevant from an evidentiary perspective to show that a reasonable officer confronting the same situations as the defendants would have acted differently." Post at 219. The logical flaw of that argument lies in its unspoken premise, namely that the standards set by local law in fact coincide with the reasonableness standards set by the Fourth Amendment. That these two independent authorities would happen to be in perfect alignment is not impossible, but it seems unlikely, and the dissent has proffered no reasons to bolster its premise that such is the case.
B.
50
Second, in keeping with what appears to be an emerging interpretive trend in this circuit prompted obviously by discomfort with the court's decision in Robles v. Prince George's County, see Jones v. Buchanan, 325 F.3d 520 (4th Cir.2003); Robles v. Prince George's County, Maryland, 308 F.3d 437 (4th Cir.2002) (opinion concurring in the denial of rehearing en banc), the dissent adopts a revisionist reading of that decision. The dissent describes Robles as "holding that a reasonable officer could not have been expected to anticipate that ten to fifteen minutes of unauthorized detention would amount to a greater than de minimis injury." Post at 214.11 Similarly, the dissent opines that "[i]n Robles, the Court's constitutional calculation of what would be a de minimis injury was an unusually close call." Id. at 215. To support its interpretation of Robles, the dissent relies heavily, not on Robles itself, as one might expect, but rather on two other opinions, this court's decision in Jones v. Buchanan and the opinion concurring in the denial of rehearing en banc in Robles. The former opinion, which mentioned Robles only in the penultimate footnote, certainly did not contain a holding as to the holding of Robles, contrary to the dissent's suggestion. The latter opinion, as I have elsewhere explained, see Jones, 325 F.3d at 538-40 (Luttig, J., dissenting), also sheds no light on the holding of Robles and, indeed, the dissent's reliance on the concurrence in the denial of rehearing is merely another example of the tendency of such opinions to sow confusion as to the law.
51
Turning to the actual language used in the Robles opinion, it is clear that the court did not rest its qualified immunity analysis on the closeness of the question of whether there had been more than de minimis injury. There is no mention of the closeness of the injury in the portion of the court's opinion devoted to determining whether there had been a violation of clearly established federal law. That portion of the opinion simply explains that
52
[t]he cases cited by plaintiff [as putting the defendants on notice] ... are inapposite. They involve instances where detainees were subject to physical abuse or prolonged and inhumane conditions of detention. Although the officers' actions in this instance were foolish and unorthodox, it is also not clear that at the time they acted they should have reasonably known that their conduct violated Robles' constitutional rights.
53
Robles, 302 F.3d at 271 (internal citations omitted). The Robles court clearly relied only on the absence of factually similar legal authority. The dissent chides us for failing to recognize that the legal authority was factually dissimilar only "because Robles' case presented the Court with a closer call on the de minimis inquiry." Post at 216. But a statement that the injuries were different could be read to connote either difference in kind, i.e., physical abuse as opposed to mental anguish, or difference in quantity, i.e., that Robles' injuries were of a lesser magnitude. The former reading provides no support to the dissent and even if Robles can be read to state the latter, such would establish merely that Robles' case was closer than those other cases, not that it was itself a close case with respect to de minimis injury.
54
The court does discuss the quantitative degree of injury in its analysis of whether the plaintiff had established a constitutional violation at all. That discussion, however, does not even hint that the question was close. If anything, it bespeaks the contrary. Said the court,
55
any reasonable person would have been upset by what happened here. Robles was tied up in a dark and deserted location in the middle of the night. He did not know when or if anyone would come to rescue him or who might discover him. The resulting injury was more than de minimis.
56
Id. at 270.
57
Presumably reading this same language from Robles, the dissent divines that the entire Robles opinion turned on the closeness of the injury question. As the dissent would have it, the Robles court's statement that "the resulting injury was more than de minimis" clearly shows that in fact the de minimis injury issue was an "unusually close call," over which the court was torn. Then, exhausted from its struggle with this difficult question — which, incidentally, resulted in only a single paragraph of analysis — the panel decided that rather than explicitly mentioning how pivotal that issue was to its qualified immunity analysis, it would instead incorporate its implicit internal struggle into that analysis sub silentio.
58
We are chary of an interpretive methodology, such as the dissent's, that would allow for hidden reasoning and implicit holdings. Reading the opinion as it was written, one cannot but conclude that the Robles opinion turned only on what the Robles opinion says it turned on — the lack of factually similar legal precedent. This is not to say that the Robles opinion would not make sense if it read as the dissent and others would have it read. It is merely to say that it is not susceptible to such a reading.
C.
59
Third, the dissent's qualified immunity analysis is seemingly premised upon standards foreign to the precedent in this area. It is certainly true that an officer is not entitled to qualified immunity when he violates clearly established federal law. But to argue that the conditions that must obtain in order to establish a clear violation are present in this case is counterfactual.
60
To establish a clear violation of a federal right, "[t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful; but it is to say that in the light of pre-existing law the unlawfulness must be apparent." Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987) (internal citation omitted). A clear violation of federal law may occur when precedent, either from the Supreme Court, the circuit in which the case arises, or a consensus of cases from other circuits, puts the officer on notice that his conduct is unconstitutional. See Wilson v. Layne, 526 U.S. 603, 617, 119 S.Ct. 1692, 143 L.Ed.2d 818 (1999).
61
The dissent's effort to adduce relevant legal authority is ineffective. At the time Officers Moxley and Perdue acted, neither the Supreme Court nor the Fourth Circuit had held that dogs were "effects" within the meaning of the Fourth Amendment. Nor had either court issued any opinion as to the Fourth Amendment reasonableness standards governing seizure of dogs. Indeed, a review of the Supreme Court's cases would have revealed that "dogs ... may be subjected to peculiar and drastic police regulations by the state without depriving their owners of any federal right," Nicchia, 254 U.S. at 230, 41 S.Ct. 103, a statement that hardly would have put Officers Moxley and Perdue on notice that their actions violated federal law.
62
Perhaps sensing this weakness, the dissent seeks to marshal a consensus of cases from other circuits, but no such consensus existed at the time of the actions at issue here. The only circuit cases of any relevance were Lesher v. Reed, 12 F.3d 148 (8th Cir.1994), and Fuller v. Vines, 36 F.3d 65 (9th Cir.1994). The dissent asserts that these cases held "that an officer commits an unreasonable, warrantless seizure of property ... when he shoots and kills an individual's family pet when that pet presented no danger and when nonlethal methods of capture would have been successful." Post at 220. According to the dissent, these cases also held that such a right was clearly established. See id. at 224.
63
The dissent's ascription of such a holding to Lesher is baffling. The claim at issue in Lesher was whether officers violated the Fourth Amendment by taking a dog from the plaintiffs' home. See Lesher, 12 F.3d at 150 ("The Leshers complain that [the] officers ... removed their dog from their home without their consent."). The opinion says nothing about a shooting. While Lesher did hold that such police action could constitute a Fourth Amendment seizure, it remanded to determine whether the seizure was unreasonable. Id. at 151. Moreover, no qualified immunity defense was mentioned in Lesher, so naturally there was no holding as to whether the Fourth Amendment right asserted was clearly established. Thus, every fact or holding the dissent attributes to Lesher was either expressly disclaimed by the opinion itself or not mentioned because it did not exist.
64
The dissent is left with Fuller v. Vines, which, as explained above, is distinguishable and thus of little relevance. Indeed, the iteration of that case on which the dissent relies to establish the proposition that the right was clearly established has, by its own terms, no precedential value. See post at 224 (citing Fuller v. Vines, 1997 WL 377162 (9th Cir.) (unpublished)).
65
There is one remaining avenue open to the dissent. Qualified immunity is also inappropriate when the action at issue was so obviously unconstitutional that, even though no precedent was factually similar, any reasonable officer would have known from the general contours of the law that his action was in violation thereof. See United States v. Lanier, 520 U.S. 259, 271, 117 S.Ct. 1219, 137 L.Ed.2d 432 (1997) ("But general statements of the law are not inherently incapable of giving fair and clear warning, and in other instances a general constitutional rule already identified in the decisional law may apply with obvious clarity to the specific conduct in question, even though `the very action in question has [not] previously been held unlawful[.]'" (quoting Anderson v. Creighton, 483 U.S. at 640, 107 S.Ct. 3034)). This is a difficult standard to satisfy, see Lanier, 520 U.S. at 271, 117 S.Ct. 1219 (suggesting that a section 1983 case accusing welfare officials of selling foster children into slavery would satisfy the standard), and it has been rendered even more so in this circuit by the Robles decision. For, if binding a man to a pole in the middle of a deserted parking lot at three in the morning and abandoning him all for no legitimate law enforcement purpose was not clearly unconstitutional, then few things will be. Indeed, it follows a fortiori from the fact that it was far from obvious, even to a court of law, that dogs are "effects" protected by the Fourth Amendment, that the officer on the beat could not reasonably be expected to know that his seizure of a dog might violate the Fourth Amendment.
66
Despite the difficulty of the issue of whether dogs are even protected by the Fourth Amendment, the dissent seemingly believes that, unlike lashing a defenseless man to a pole in the middle of the night and leaving him, shooting dogs that are running at large does present one of those rare instances of a clear constitutional violation, notwithstanding the absence of relevant precedent. Says the dissent,
67
Moxley and Perdue insisted on disregarding local law by firing buckshot throughout the City's neighborhoods, and as a result, they killed several nondangerous and nonthreatening dogs owned by the plaintiffs as family pets. Viewing the facts in the light most favorable to the plaintiffs, it is clear that the officers carried out these warrantless seizures without any concern for the public's safety. As a result, Moxley and Perdue must be expected to know that their shooting spree was unconstitutionally unreasonable.
68
Post at 225.
69
This observation is at least arguably accurate if the dissent intends to use the term "unreasonable" colloquially, although such would be irrelevant to the Fourth Amendment analysis at issue in this case. To supply the "unconstitutionally" modifier, however, gives rise to the expectation that the standards used to assess reasonableness are those supplied by the Constitution itself. Reasonableness alone is nothing but a standard after all. One cannot assess the reasonableness of an action without taking into account certain factors. For legal purposes, those factors are provided by the substantive area of the law that governs the case and they form the parameters of the reasonableness judgment. So it is that Fourth Amendment excessive force reasonableness involves the assessment of different factors than, say, the question of whether an agency's interpretation of an ambiguous statute that it administers is reasonable. See Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984).
70
When we speak of Fourth Amendment reasonableness, we are taking many factors into consideration, but not all. We are not, for example, considering the potential harm to third persons or animals. Cf. Howerton v. Fletcher, 213 F.3d at 175. Yet the dissent seems to be taking such harms into account in its analysis. See, e.g., post at 218 ("If anything, it is clear that the decision to shoot was made in spite of the fact that it would dramatically increase the danger to the public." (emphasis added)); id. at 224. Nor do we treat as dispositive possible violations of state or local law, or police regulation. Yet the dissent's analysis relies almost exclusively on purported violations of city law and police practice to establish a constitutional violation and to deny immunity. See, e.g., post at 220, 222, 223, 224, 225. We think it clear that the dissent has not actually engaged in Fourth Amendment reasonableness analysis at all, but rather has simply given its personal opinion as to the appropriateness of the officers' actions. So understood, we reiterate that we do not necessarily disagree with the dissent's opinion, but only with its conclusion that the Constitution imposes or permits imposition of such personal standards upon the officers in this case. Since, under the factors provided for consideration by the Fourth Amendment, the officers' conduct was not violative of the Constitution and a fortiori not so clearly so as to deprive them of qualified immunity, the dissent's willingness to allow this case to proceed finds no basis in the law of qualified immunity.
71
What really seems to be driving the dissent is a concern that Officers Moxley and Perdue are out to get the animals of High Point. The dissent describes the unfortunate encounters these officers have had with various animals on occasions predating the incidents at issue here, and concludes that "Moxley and Perdue adopted a ... cavalier and reckless attitude towards animal control." Id. at 219. Time and again, the dissent implies that Officers Moxley and Perdue were unreasonable because of their history of animal shootings and because of the officers' personal views regarding the most efficacious methods of animal control. See, e.g., id. at 223-24 (quoting Officer Moxley on the use of deadly force); id. at 225.
72
Such subjective considerations, however, are irrelevant as a matter of law. Both the analysis regarding the merits of the constitutional violation and the qualified immunity analysis focus on whether the officer acted in an objectively reasonable manner in this particular case, without regard to the officer's actual subjective intent or malice and without regard to possibly inappropriate actions the officer took on other occasions. See Graham, 490 U.S. at 397, 109 S.Ct. 1865 ("An officer's evil intentions will not make a Fourth Amendment violation out of an objectively reasonable use of force."); Crawford-El v. Britton, 523 U.S. 574, 588, 118 S.Ct. 1584, 140 L.Ed.2d 759 (1998) ("[A] defense of qualified immunity may not be rebutted by evidence that the defendant's conduct was malicious or otherwise improperly motivated. Evidence concerning the defendant's subjective intent is simply irrelevant to that defense."). Thus, the dissent's proffer of what amounts to little more than character evidence with respect to Officers Moxley and Perdue is simply not germane. Certainly if Officers Moxley and Perdue have engaged in a practice of malicious and unnecessary killing of animals, such conduct is worthy of censure. Yet we would incur greater censure, and deservedly so, were we to allow our own personal views of the appropriateness of particular actions to color our interpretation of what the Constitution requires.
CONCLUSION
73
The judgment of the district court is reversed and the case is remanded with instructions to enter judgment for the defendants — Officers Moxley and Perdue, and the City of High Point.
74
REVERSED.
Notes:
1
Dogs must also wear tags issued by the city. H.P. Ordinance § 12-2-14
2
Perdue remembers things happening differently. According to Perdue, he saw the Rottweiler standing in the middle of the street. The Rottweiler was big and acting in a crazed, aggressive manner by growling and moving back and forth. The animal suddenly charged him and he used deadly force in self-defense
3
Moxley recalls a different version of the events. According to him, when he arrived at the scene, Hot Rod was growling at Hendricks from under some bushes. Moxley got out of his truck with his shotgun and proceeded toward the back of the truck to get his catchpole. Hot Rod charged, but stopped and retreated when Moxley raised his gun. Moxley continued toward the rear of his truck when Hot Rod charged again. This time, Moxley fired, wounding but not killing the dog. Hot Rod ran, and Moxley pursued, firing twice more. Finally, after retrieving more shells, Moxley ended Hot Rod's suffering
4
Plaintiffs also brought suit against Officer Chastain, the supervisor of Moxley and Perdue, on a supervisory liability theory. The district court granted summary judgment to Chastain, and the plaintiffs have not appealed that ruling
5
The plaintiffs' complaint also claimed that the officers' actions violated the Fifth and Fourteenth Amendments insofar as they deprived the plaintiffs of property without due process of law. The plaintiffs, however, did not argue that claim below, J.A. 531 n.5, and they have not raised it on appeal. Thus, the plaintiffs have abandoned their Fifth and Fourteenth Amendment claim, and we do not consider whether any of these incidents involved a deprivation of property without due process of law
6
Defendants argue that the circuit authority is not uniform, pointing to the Seventh Circuit's decision inPfeil v. Rogers, 757 F.2d 850 (7th Cir.1985). In Pfeil, the plaintiff claimed that officers violated his son's Fourth Amendment rights by entering his property and shooting his dogs. It is true that the Pfeil court did conclude that the officers' conduct in shooting the dogs did not support a section 1983 action "because it did not violate a right guaranteed under the United States Constitution." Id. at 866. But we think that the defendants read too much into this blanket statement. It does not appear from the Seventh Circuit's opinion in Pfeil that the court was considering whether the officers' conduct constituted a Fourth Amendment seizure of the dogs. Indeed, the Seventh Circuit characterized the plaintiff's Fourth Amendment claim as one for warrantless entry and had dismissed that claim earlier in the opinion. See id. at 865. Because the Seventh Circuit did not consider whether the actions constituted a Fourth Amendment seizure of the dogs, it can hardly be said that its opinion included a holding with respect to that issue.
7
The Court also explained that the Fourth Amendment's protections do not change based on the nature of the legal context,i.e., it applies in the civil as well as a criminal context, Soldal, 506 U.S. at 67, 113 S.Ct. 538, or on the motive of the government actor engaging in the search or seizure, id. at 69, 113 S.Ct. 538.
8
For that matter, the police officers' purpose in shooting the dogs is also irrelevant to their status under the Fourth AmendmentSee Soldal, 506 U.S. at 69, 113 S.Ct. 538.
9
In one incident — the Wallace Incident — Officer Moxley had encountered the dog, Sundance, before. However, Moxley's prior encounters with Sundance had given him the impression that the dog was aggressive. As a result, that prior experience only supports the reasonableness of Moxley's response when Sundance attacked him
10
High Point has also appealed the denial of summary judgment. Normally, High Point's appeal would be improper because the denial of summary judgment is not a final order subject to interlocutory appeal and High Point cannot defend on the basis of qualified immunity. However, our resolution of the claims against Officers Moxley and Perdue fully resolves the claims against High Point as well, since a municipality cannot be liable in the absence of a constitutional violation by one of its agentsSee City of Los Angeles v. Heller, 475 U.S. 796, 799, 106 S.Ct. 1571, 89 L.Ed.2d 806 (1986). For that reason, we find that the issues raised by High Point on appeal are "inextricably intertwined" with those raised by the officers. Accordingly, we will exercise pendent appellate jurisdiction over High Point's appeal and reverse the district court's denial of summary judgment as to the City. See Moore v. City of Wynnewood, 57 F.3d 924, 929 (10th Cir.1995) (concluding that pendant appellate jurisdiction was appropriate because resolution of claims against officer fully resolved the claims against the municipality).
11
A necessary element of the plaintiff's case inRobles was proof that he had suffered more than de minimis injury. See Robles, 302 F.3d at 269.
75
GREGORY, Circuit Judge, concurring in part and dissenting in part:
I.
76
I concur with the majority's conclusion that an individual's dog is an "effect" for purposes of the Fourth Amendment, and with the Court's finding that the dogs at issue in this case were the objects of warrantless seizures. I respectfully dissent, however, from the majority's consideration of the qualified immunity issue in Part II.B. In particular, I am disturbed by the majority's finding that the officers' actions in each instance were reasonable, based as it is on the majority's dogged refusal to consider the facts in the light most favorable to the nonmovants. Additionally, I am troubled by the majority's confusion of the qualified immunity test announced by the Supreme Court in Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). Rather than recognizing the two, distinct steps outlined by the Saucier Court, the majority errs by effectively conflating the two prongs and creating a one-step test.
77
As explained below, I conclude that the plaintiffs, as a general matter, have demonstrated a violation of their constitutional rights to be free from unreasonable seizures. See Saucier, 533 U.S. at 201, 121 S.Ct. 2151. Additionally, I find that in the specific context of each incident, viewing the incidents in the light most favorable to the plaintiffs, the plaintiffs' constitutional rights were clearly established. Accordingly, I would affirm the district court's ruling that Officers Moxley and Perdue are not entitled to qualified immunity, and that the City of High Point is not entitled to summary judgment.
II.
A.
78
Officers performing discretionary duties are entitled to qualified immunity if "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, 102 S.Ct. 2727, 73 L.Ed.2d 396. 818 (1982). Officers Moxley and Perdue are entitled to qualified immunity unless: (1) "[t]aken in the light most favorable to the party asserting the injury, ... the facts alleged show the officer[s]' conduct violated a constitutional right"; and (2) the right was "clearly established ... in the specific context of the case." Saucier, 533 U.S. at 201, 121 S.Ct. 2151. See also Mansoor v. Trank, 319 F.3d 133, 137 (4th Cir.2003).
79
The majority's finding that the plaintiffs have failed at the first step of the qualified immunity test is rooted primarily in the Court's improper focus on "the particular facts" of each, specific incident. Ante, at 206. At the first stage of our analysis, we are merely to consider the "threshold question" of whether any "constitutional right would have been violated were the [plaintiffs'] allegations established." Saucier, 533 U.S. at 201, 121 S.Ct. 2151. "[I]f, taking the allegations or evidence (depending on the procedural posture of the case) in the best light for the plaintiff, the plaintiff has stated a violation of a constitutional right, we proceed to the second step." Jones v. Buchanan, 325 F.3d 520, 526 (4th Cir. 2003). In conducting this initial inquiry, the Supreme Court has "assume[d] a constitutional violation could have occurred under the facts alleged based simply on the general rule prohibiting excessive force, [and] then proceed[ed] to the question whether this general prohibition against excessive force was the source for clearly established law that was contravened in the circumstances this officer faced." Saucier, 533 U.S. at 207-08, 121 S.Ct. 2151.
80
Similarly, this Court in Robles v. Prince George's County, 302 F.3d 262 (4th Cir.2002), found that a pretrial detainee satisfied the first prong of the qualified immunity inquiry with his allegation that he suffered a deprivation of a due process right when Prince George's County police officers tied him to a metal pole in a deserted shopping center and abandoned him there at 3:30 a.m., only reporting the incident to the neighboring Montgomery County Police Department. Id. at 267-70. Ten to fifteen minutes later, Montgomery County officers arrived to untie Robles and take him into custody. Id. at 267. To make his constitutional showing, Robles had to show, in part, "that the injury resulting from [the officers'] actions was more than de minimis." Id. at 269. Even though Robles suffered no physical injury, and even though his detention lasted as little as ten minutes, we found that the resulting mental and emotional distress suffered by Robles was "more than de minimis." Id. at 270. As such, he successfully alleged a violation of a constitutional right. In Robles, the Court's constitutional calculation of what would be a de minimis injury was an unusually close call, and for this reason, it could not be said, at the second stage of the qualified immunity analysis, that the constitutional violation was "clearly established" at the time of Robles' unlawful detention.
81
Peculiarly, the majority expresses concern with this straightforward reading of Robles, and is instead bent on adopting an interpretation of the decision that has already been rejected by this Circuit. In Jones v. Buchanan, we noted, "Rather than simply proving that the police acted unreasonably in violation of the Fourth Amendment, Robles had to prove that the police had violated the Due Process Clause," which required the application of "a far more rigorous standard than at issue" in a Fourth Amendment consideration. 325 F.3d at 535 n. 8. We further explained that the due process burden "is a difficult burden for any plaintiff, but particularly so for Robles since he conceded that no one bothered him during the 10-minute ordeal, admitted that he suffered no physical injury, and offered no objective evidence (e.g., lost wages or medical testimony) to support his claim of psychological injury." Id. at 535 n. 8. The Jones Court found these distinctions to be dispositive, and accordingly held, notwithstanding our decision in Robles, that officers are not entitled to qualified immunity when they knock an intoxicated individual to the floor, "jump[ ] on him, crushing his nose and lips, and bruising his ribs," when that individual is "unarmed, locked in a room by himself, and handcuffed with his wrists behind his back." Id. at 531.
82
Judge Luttig authored a dissent in Jones, which the majority of that panel found to be "as puzzling as it is unpersuasive." Id. at 535 n. 8. In the face of what is now Circuit precedent, Judge Luttig continues to press this same, discarded understanding of Robles, positing, "The Robles court clearly relied only on the absence of factually similar legal authority" in ruling that the due process violation at issue in that case was not clearly established. Ante, at 210. Essentially, the majority reads Robles as standing for the proposition that, unless a plaintiff can point to a case directly on point, the officers in question will be entitled to qualified immunity. The majority's interpretation of Robles, however, was rejected not only by the Jones Court, but also by the Robles Court itself. While an officer must be given notice that his unlawful actions may also be unconstitutional, "notice does not require that the `very action in question has previously been held unlawful....'" Robles, 302 F.3d at 270 (quoting Wilson v. Layne, 526 U.S. 603, 615, 119 S.Ct. 1692, 143 L.Ed.2d 818 (1999)).
83
Even more, the Supreme Court has clarified that "officials can still be on notice that their conduct violates established law even in novel factual circumstances. Indeed, in [United States v.] Lanier, [520 U.S. 259, 117 S.Ct. 1219, 137 L.Ed.2d 432 (1997)], [the Supreme Court] expressly rejected a requirement that previous cases be `fundamentally similar.'" Hope v. Pelzer, 536 U.S. 730, 741, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002). See also Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987) (holding, "For a constitutional right to be clearly established, its contours `must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful....'") (internal citations omitted).
84
As the majority would have it, because the officers in Robles were found to be entitled to qualified immunity after "binding a man to a pole in the middle of a deserted parking lot at three in the morning and abandoning him all for no legitimate law enforcement purpose," ante, at 212, then every officer in this Circuit will always be entitled to qualified immunity, regardless of the factual circumstances of his or her individual case, and regardless of differing constitutional standards (Fourth Amendment seizure versus Fourteenth Amendment due process violation). This unduly harsh and untempered standard is contradicted by the actual text of the Robles opinion. Much to the majority's apparent dissatisfaction, the Robles Court emphasized the importance of the de minimis calculation to its holding, noting that "for Robles' [due process] rights to have been violated by this arbitrary and purposeless act, he needs to have suffered more than a de minimis injury." Robles, 302 F.3d at 270. Although Robles met this burden in proving that the injury he suffered was more than de minimis, he failed to convince the Court that the resulting constitutional violation was clearly established.
85
The majority's insistence that the Robles Court "clearly relied only on the absence of factually similar legal authority" misses the point, ante, at 210, as that authority is factually dissimilar only because the substantial injuries suffered by the complainants in those cases were clearly more than de minimis. To establish a constitutional violation, Robles had to show: (1) that "the officers' actions amounted to punishment and were not merely `an incident of some other legitimate governmental purpose,'" and (2) that "the injury resulting from their actions was more than de minimis." Robles, 302 F.3d at 269 (internal citations omitted). In concluding that the constitutional violation was not clearly established, the Court observed that the cases cited by Robles were "inapposite" because "[t]hey involve[d] instances where detainees were subject to physical abuse or prolonged and inhumane conditions of detention." Id. at 271 (emphasis added). These distinguishing features relate solely to the second prong of the pretrial detainee/due process test: whether the injury suffered was more than de minimis. Thus, it necessarily follows that these cases were distinguishable because Robles' case presented the Court with a closer call on the de minimis inquiry. How else could the Court conclude that cases involving "physical abuse" were "inapposite"? As Judge Wilkinson, who authored the initial Robles opinion, later explained in a thoughtful and well-reasoned concurrence to the denial of rehearing en banc, "The panel ... concluded that Robles had offered sufficient evidence that he suffered more than de minimis injury, but that issue was close. After all, Robles was left alone for only 10 minutes, during which time no one bothered him. He concedes that he suffered no physical injury and that the officers told him that someone would pick him up there later." Robles v. Prince George's County, 308 F.3d 437, 438 (4th Cir.2002) (internal citations omitted).
86
Like the majority, I sympathize with Robles' plight. Yet regardless of how I might have decided the case, I cannot deny that the Robles Court placed strong emphasis on the lack of severe abuse. Had Robles been left handcuffed for twelve hours as opposed to ten minutes, there is no doubt that the case would have been resolved differently. See Robles, 302 F.3d at 271 (citing Putman v. Gerloff, 639 F.2d 415 (8th Cir.1981)). Frustrated by this fact, the majority ignores it. In so doing, the majority, not this dissent, adopts an interpretation of Robles that is revisionist. See ante, at 212.
87
Returning to the present case and the first step of the qualified immunity analysis, the plaintiffs have alleged that Officers Moxley and Perdue violated their Fourth Amendment rights to be free from unreasonable seizures by shooting and killing their family pets, when those pets presented no immediate danger and when nonlethal methods of capture would have been successful. The majority gives the plaintiffs' allegations (and the facts supporting them) little, if any, weight, and inexplicably concludes that "in every incident, the actions of Officers Moxley and Perdue were objectively reasonable." Ante, at 205. It is, of course, well established that we must take the facts in the light most favorable to the party asserting the injury. See Saucier, 533 U.S. at 201, 121 S.Ct. 2151. In Jones, for example, the defendant officer disputed Jones' assertion that his wrists were handcuffed behind his back, and instead suggested that "Jones may not be able to prove he was handcuffed." Jones, 325 F.3d at 529. This Court acknowledged that Jones might fail at trial to convince a jury of this fact, but held that, "in determining whether [the officer] is entitled to summary judgment, we must accept the facts in the light most favorable to Jones, and if Jones was handcuffed behind his back in a locked room, we find it hard to see how he would pose an immediate threat to anyone." Id.
88
Contrary to Jones and the relevant constitutional standard, the majority insists on viewing the facts in the light most favorable to the officers. For example, in the Wallace incident, the majority bases its finding of reasonableness on its assumption that "Moments after Moxley exited his truck, the animal attacked him." Ante, at 206. Viewing the evidence in the light most favorable to the plaintiffs, however, there is absolutely no way to conclude that Wallace's dog ever attacked Moxley. Moxley admitted that, upon arriving at the scene, he immediately drew his shotgun instead of considering less drastic options, such as using a catch pole. Moxley then walked toward the back of his truck, at which point he claims, "Before I reached the back of the truck, the dog comes around ... growling and showing teeth and charges right at me. I raised my shotgun up, and I shot him at the back of the truck." (J.A. at 403.)
89
While Moxley was the only eyewitness to this account, this Court is not required to accept, much less embellish upon, his version of events. As explained below, the physical evidence included a trail of blood running from a hole in the fence around Wallace's yard to the road where Moxley's truck was parked. If Moxley's account were accurate, the only possible explanation for the trail of blood would be that Moxley decided to parade the dog's body around the neighborhood by first dragging the carcass from the point "at the back of his truck" where the dog was shot over to the hole in Wallace's fence, and then back from the fence to the road and into the truck. The more logical and likely conclusion, of course, is that the dog was cowering in the hole in the fence, presenting no immediate threat to Moxley (or anyone else for that matter) at the time the dog was shot. Taking the factual evidence in the light most favorable to the plaintiffs, we must view Moxley's account with great suspicion, particularly when, as discussed below, Moxley has a documented history of fabricating reports to justify his actions.
90
Similarly, as regards the Altman incident, the majority finds Moxley's actions to be reasonable because Moxley made a "split second" decision to remove a potential danger "from the public streets." Ante, at 206. Again, this conclusion is contradicted by the evidence before this Court. According to Terry Evans, a witness on the scene, Officer Moxley fired at the dog while the dog was "probably fifty to seventy-five yards from him, at least," running away from Moxley down a narrow alley way, in between two houses. (J.A. at 293.) Moxley fired three times, wounding the dog with the third shot. At this point, Moxley called to a bystander on the street to go into Moxley's truck to grab a few extra shotgun shells. Approximately six minutes transpired from the time that Moxley asked for the shells to the time that the bystander retrieved the ammunition and delivered it to Moxley. Moxley then reloaded and killed the dog. By asking unknown civilians to go into his truck and search for ammunition, and by discharging his shotgun in an urban area while standing more than 150 feet from his target, Moxley made it clear that removing a potential danger from the public streets was the last thing on his mind. If anything, it is clear that the decision to shoot was made in spite of the fact that it would dramatically increase the danger to the public. Thus, for these reasons, as well as for the reasons stated below, I respectfully dissent from the majority's finding of reasonableness.
91
According to the City of High Point Police Department's rules, "Non-sworn personnel shall not carry firearms in the performance of their duties." H.P. Police Department, General Order No. 3.13 (emphasis in the original). Animal control officers ("ACOs") were not sworn police officers at the time of these shootings, and thus were not generally permitted to carry firearms.1 For officers who are permitted to carry firearms, the regulations state, "Officers are not to discharge a firearm... when acting negligently or with wanton disregard for public safety ... or through carelessness or recklessness." Id.
92
Despite the fact that ACOs are not sworn officers, the Police Department's regulations do anticipate the potential use of deadly force by ACOs. The regulations outline the following procedures for the "Capture of [a] dangerous animal" by an ACO:
93
a) Owner to be contacted and assume responsibility for the control of the animal;
94
b) Traps may be set, or
95
c) Use of catch poles, or
96
d) Stun baton, or
97
e) Tranquilizer gun.
98
f) Firearm only as a last resort (in the event of immediate danger to the officer, another person, or animal).
99
H.P. Police Department, General Order No. 3.3. When firearm use is necessary, the regulations state that an ACO should first "[e]nsure the safety of all citizens, property, and other animals and out of public view if possible." Id. Furthermore, the ACO should only "[s]hoot the animal from close range (5 to 15 feet, if possible)." Id. Lastly, "Dangerous dog" is defined in § 12-2-17 of the High Point City Code as:
100
A dog that: 1. Without provocation has killed or inflicted severe injury on a person; or 2. Is determined pursuant to this section to be potentially dangerous because the dog has engaged in one (1) or more of the listed behaviors in subdivision (2) of this subsection.
101
Subdivision (2) states, in part, that a "potentially dangerous dog" is a dog that has been determined to have "[i]nflicted a bite on a person that resulted in broken bones or disfiguring lacerations or required cosmetic surgery or hospitalization" or a dog that has "approached a person when not on the owner's property in a vicious or terrorizing manner in an apparent attitude of attack...." H.P. Ordinance § 12-2-17.
102
As the majority recognizes, mere violation of these ordinances and regulations is not necessarily sufficient to prove the existence of a constitutional injury. See ante, at 209. As we stated in Robles, "not every instance of inappropriate behavior on the part of police rises to the level of a federal constitutional violation." 302 F.3d at 271 (emphasis in original). Flagrant disregard of these laws, however, is relevant from an evidentiary perspective to show that a reasonable officer confronting the same situations as the defendants would have acted differently. That is, in light of the above-cited regulations, one might expect the use of deadly force by an ACO to be an unusually rare occurrence.
103
Scott L. Allen, an experienced ACO, testified that after fifteen years in animal control, he was only aware of two instances in which deadly force was used. Officer Allen further explained that "deadly force should not be used in animal control activities unless absolutely necessary to save the life of the animal control officer or a bystander. There are many nonlethal tools at the disposal of the modern animal control officer including Chemical Capture devices such as tranquilizer guns, animal traps, as well as the catch-pole to name a few." (J.A. at 71.) Even more, Officer Marc LaRue Cutrell, who served as Moxley's and Perdue's supervisor, testified that both Moxley and Perdue should have been aware that the destruction of someone's dog could create a potential Fourth Amendment problem. (See J.A. at 237-38.)
104
In contrast to the reasonable approach outlined by Officer Allen, Moxley and Perdue adopted a more cavalier and reckless attitude towards animal control. Police Department statistics document, "From 1997 to 2000 ... Officers Moxley and Perdue discharged their departmentally issued tranquilizer guns or shotguns 101 times during the course of their duties." (J.A. at 94 (emphasis added).) That is, Moxley and Perdue were responsible for the discharge of a firearm approximately once every two weeks. Of course, dogs were not the only animals at which the defendants took aim. As the district court noted, "Their victims include[d] a racoon in a tree, a `vicious rooster,' and a `vicious cat.'" (J.A. at 510.)
105
Based on these statistics, one might begin to doubt the credibility of Moxley and Perdue when they assert that, in each of the specific incidents before this Court, deadly force was warranted. Our reluctance to accept the defendants' version of events would be augmented by the fact that not one of the dogs destroyed by the defendants in the present case would have been defined as a "dangerous dog" under the City of High Point's ordinances. H.P. Ordinance § 12-2-17(a). Moreover, none of the dogs would have been classified as a "potentially dangerous dog." H.P. Ordinance § 12-2-17(b). As such, it is hard to say how a reasonable officer would find it necessary to use deadly force to capture these dogs.
106
The officers' actions appear even more unreasonable when one remembers that, in each instance, they failed to contemplate the multitude of nonlethal methods available to them, despite the fact that the Police Department's regulations require an ACO to first consider five nonlethal measures for the "Capture of [a] dangerous animal." H.P. Police Department, General Order No. 3.3. The regulations further provided that if these five options are untenable, a firearm should be used "only as a last resort (in event of immediate danger to the officer, another person, or animal)." Id. (emphasis added).
107
In sum, viewing the evidence in the light most favorable to the plaintiffs, it is apparent that "the facts alleged show the officer[s'] conduct violated a constitutional right": to wit, the Fourth Amendment right to be free from unreasonable seizures. Saucier, 533 U.S. at 201, 121 S.Ct. 2151. Accordingly, I would join the Third, Eighth, and Ninth Circuits in holding that an officer commits an unreasonable, warrantless seizure of property, in violation of the U.S. Constitution, when he shoots and kills an individual's family pet when that pet presented no danger and when nonlethal methods of capture would have been successful. See Brown v. Muhlenberg Township, 269 F.3d 205, 210-11 (3rd Cir.2001); Lesher v. Reed, 12 F.3d 148, 150-51 (8th Cir.1994); Fuller v. Vines, 36 F.3d 65, 68 (9th Cir.1994).
B.
108
Having resolved this threshold issue, the question becomes whether the right was clearly established. Saucier, 533 U.S. at 201, 121 S.Ct. 2151. To answer this question, a court must engage in "a more particularized, and hence more relevant" inquiry. Id. at 202, 121 S.Ct. 2151 (quoting Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987)). "The relevant, dispositive inquiry is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted." Saucier, 533 U.S. at 202, 121 S.Ct. 2151. "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." Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987) (internal citations omitted). See also Robles, 302 F.3d at 271 (holding that a reasonable officer could not have been expected to anticipate that ten to fifteen minutes of unauthorized detention would amount to a greater than de minimis injury). Lastly, the qualified immunity analysis is not dependent "on the subjective beliefs of the particular officers at the scene, but instead on what a hypothetical, reasonable officer would have understood under those circumstances." Figg v. Schroeder, 312 F.3d 625, 635-36 (4th Cir.2002).
109
Although the majority does not reach the second step of the qualified immunity test, its review of the facts suggests it would not find any constitutional violation to be clearly established. The Court, however, fails to view those facts in the light most favorable to the plaintiffs. In particular, the majority relies on the accounts proffered by Moxley and Perdue, who were less than credible to say the least. Indeed, Officer Moxley often modified his official reports so as to ensure a finding of compliance by the City of High Point Police Department. According to an internal department report on an unrelated incident, "[I]nconsistencies... indicate a reasonable probability of untruthfulness regarding ACO Moxley's oral interview." (Br. of Appellee, at 5.) Similar problems characterize some of ACO Perdue's accounts.2 Skepticism of Moxley's and Perdue's accounts is particularly warranted in the specific incidents before this Court, because, as explained below, it seems unlikely that the officers were motivated out of an earnest desire to safeguard the public. The majority correctly notes that the qualified immunity test is an objective one, and that "[a]n officer's evil intentions will not make a Fourth Amendment violation out of an objectively reasonable use of force." Ante, at 213 (quoting Graham v. Connor, 490 U.S. 386, 397, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989)). In this case, however, the officers' evil intents are relevant, not from a constitutional perspective, but for a credibility determination. Knowing the officers' history of deceit and ill-motive, we should be less willing to blindly accept their assertions that, in each of the cases, the dogs were dangerous and that the threats were imminent. Rather, viewing the facts in the light most favorable to the plaintiffs, we might conclude that, the officers' assertions notwithstanding, the dogs were nonthreatening. See, e.g., Jones, 325 F.3d at 528 (noting that although the officer "maintains that he did perceive such a threat ... Jones can point to evidence which suggests either that [the officer] is not credible on this point or that the deputy's perception of a threat was not objectively reasonable"). Therefore, upon engaging in the second stage of the qualified immunity analysis, it will be necessary to review some of the factual details overlooked by the majority.
110
The Larsen Incident. The first event involved the shooting of Heidi, a purebred Rottweiler owned by Kimberly Larsen. The plaintiffs allege that Heidi had been professionally trained by Visha K-9 Specialists, who "opined that Heidi sought anyone's affection, showed no signs of aggressive or anti-social behavior, and was very humble and somewhat shy." (J.A. at 22.) The plaintiffs support this allegation by noting that Heidi was certified as both a therapy dog and as a "Canine Good Citizen" by the American Kennel Club.
111
In responding to the call on January 10, 1997, Officer Perdue did not make any attempt to contact Heidi's owners. Instead, he pulled into the Larsens' driveway and exited the vehicle with his shotgun. According to an eyewitness, Charles Elkins, Heidi jumped up from the driveway to a slightly elevated yard, but was not behaving aggressively. (J.A. at 257-58.) Elkins explained that "[t]he dog was standing nearly still at the moment that it was shot. The dog appeared to be just undecided about what was happening and what to do about it." (J.A. at 256-57.) As the dog was walking away from him, Perdue fired, striking Heidi in her hindquarters.
112
Perdue explained his decision to shoot by stating, "I would get out the shotgun. I have done this numerous times. If the dog shows me he's not aggressive and he's not going to attack me, that's fine. I can always put the shotgun up and go get the catch pole." (J.A. at 428.) Perdue's standard operating procedure, however, directly contradicts the City's regulations, which require an officer to first: (1) contact an owner; (2) set a trap; (3) use a catch pole; (4) use a stun baton; or (5) use a tranquilizer gun. H.P. Police Department, General Order No. 3.3. These options must be considered before an ACO shoulders a shotgun. Id. In sum, considering the evidence in the light most favorable to the plaintiffs, I would conclude that Perdue did not shoot Heidi because of any real or perceived danger.
113
The Frye Incident. The second incident occurred on February 7, 1997, and involved four, seven-month old Siberian Husky puppies owned by Wendy Frye: Sadie, Tut-Tut, Bandit, and Boo-Boo. Upon arriving at the scene, Officer Perdue immediately reached for his shotgun, as was his custom. When asked why he needed to use deadly force against Frye's dogs, Perdue responded, "If you hit one of [the dogs with a tranquilizer dart] you're just wasting your time. He's going to run off, and he's going to come back, and you're going to have the same scenario all over again. And you're dealing with five dogs, so it would have been a waste of time." (J.A. at 421.) Similarly, Frye's fiance, Joe Scroggs, was told by Police Department officials that the puppies were shot, not because they posed any danger to anyone, but because "we weren't going to spend all day chasing them." (J.A. at 121.) Needless to say, effecting a warrantless seizure is not defensible on the grounds that it was faster and easier than following established, less intrusive procedures.
114
The majority concludes, "In retrospect, it may have been preferable if the officers attempted first to use nonlethal force in every instance. Such nonlethal force may have been successful, but, tellingly, it may not have been." Ante, at 207. As to the Frye shooting, however, we know conclusively that nonlethal force would have been successful. As mentioned above, the dogs were so small that Frye was able to "grab[ ] [Boo-Boo] up and pick[ ] him up," just as Perdue was preparing to fire at him. (J.A. at 423.) Furthermore, even if Perdue perceived the dogs to be a threat, no reasonable officer, and certainly no reasonable animal control officer who handles loose and at-large dogs on a daily basis, could view Frye's fifteen pound puppies as dangerous.
115
The Wallace Incident. The third incident involved a Golden Retriever/Labrador mixed-breed named Sundance, owned by Gilbert Wallace. While there were no other eyewitness other than Officer Moxley, physical evidence included a trail of blood leading from a hole in the fence to the road and several empty shotgun casings. The only logical inference to be drawn from this evidence is that Sundance was in the hole at the time he was shot, and was attempting either to crawl into or out of Wallace's yard. In either case, it would have been impossible for Sundance to charge Moxley at the time of the shooting.
116
Moreover, Moxley concedes that he ignored Police Department policy in deciding when to use a firearm. For example, when asked why he shot Wallace's dog, Officer Moxley explained, "I could not allow the dog to escape since the [human] victim would have to start rabies shots in three days." (J.A. at 406.) When asked if there was "any written rule anywhere" that would support this policy, Officer Moxley responded, "No. That's my rule, I guess. I'm not going to allow a dog to escape that's bitten someone and we don't have an owner for." (J.A. at 406.)
117
The Altman Incident. The final incident involved Hot Rod, a pit-bull mix owned by Robert and Ann Altman. On March 24, 2000, Officer Moxley responded to a 911 call about a loose dog. When Moxley arrived at the scene, Hot Rod "took off" down the alley. Moxley exited his truck with his shotgun. Without pausing to interview Evans or Hendricks, or to inquire as to who the owner of the dog might be, Moxley immediately gave chase. Moxley made no attempt to capture Hot Rod through any of the nonlethal means that were readily available to him. Although Police Department regulations state that officers should only discharge their firearm when they are within close range of an animal (5 to 15 feet), Moxley began firing from a distance of approximately 150 to 225 feet. After three shots, Moxley hit Hot Rod. According to Terry Evans, the individual who placed the 911 call, Hot Rod was running away from Moxley at the time of the shooting. Evans explained, "The dog never lunged towards him, I can tell you that. I mean, the guy got out of his truck and the dog was running. I never seen the dog come at the officer at all." (J.A. at 300.) Again, without considering any of the nonlethal options available to him, Moxley chose to shoot a dog that presented no immediate danger.
118
With the facts of each incident fully summarized, it is now necessary to determine whether the unconstitutionality of each of these unreasonable, warrantless seizures was "clearly established" at the time of the incidents. See Figg v. Schroeder, 312 F.3d at 635-36. The Supreme Court made it clear more than a decade ago that an individual's personal property is an "effect" for purposes of Fourth Amendment analysis. See Soldal v. Cook County, 506 U.S. 56, 62, 113 S.Ct. 538, 121 L.Ed.2d 450 (1992) (holding that "our cases unmistakably hold that the [Fourth] Amendment protects property as well as privacy"). As the majority observes, the State of North Carolina has recognized an individual's property interest in his dog at least since 1838. See Dodson v. Mock, 20 N.C. 282. In short, the majority's extensive and thorough analysis demonstrates that it has long been "clearly established" that dogs are "effects" for the purposes of Fourth Amendment analysis, and an individual has the right to be free from the unconstitutional seizure of his dog. See ante, at 200-204.
119
"A `seizure' of property occurs where there is some meaningful interference with an individual's possessory interests in that property." Soldal, 506 U.S. at 63, 113 S.Ct. 538 (quoting United States v. Jacobsen, 466 U.S. 109, 113, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984)). Plainly, it would be a waste of words to inquire into whether the complete and irremediable destruction of an individual's property affects a "meaningful interference" with a person's right to the use, possession, and enjoyment of that property. When officers kill a dog, they have undoubtedly "seized" it from its owner.
120
The only unresolved question, therefore, is whether the unreasonableness of the seizures in the present case would have been sufficiently apparent to the officers to put them on notice that their actions were unconstitutional. "In determining whether a right is clearly established, we may rely upon cases of controlling authority in the jurisdiction in question, or a `consensus of cases of persuasive authority such that a reasonable officer could not have believed that his actions were lawful.'" Rogers v. Pendleton, 249 F.3d 279, 287 (4th Cir.2001) (quoting Wilson v. Layne, 526 U.S. 603, 617, 119 S.Ct. 1692, 143 L.Ed.2d 818 (1999)).
121
While there is no Supreme Court or Fourth Circuit case directly on point, each of the three circuits to have considered whether an individual has a constitutional right to be free from the unreasonable destruction of his or her dog has found that right to be clearly established. See Brown v. Muhlenberg Township, 269 F.3d 205, 211 (3rd Cir.2001); Lesher v. Reed, 12 F.3d 148, 151 (8th Cir.1994) (holding that a dog that was destroyed by the police department was "obviously ... `seized' within the meaning of the Fourth Amendment"); Fuller v. Vines (Fuller I), 36 F.3d 65, 68 (9th Cir.1994) (noting that "[t]he killing of the [plaintiff's] dog is a destruction recognized as a seizure under the Fourth Amendment"); Fuller v. Vines (Fuller II), No. 96-15842, 1997 WL 377162, at * 1 (9th Cir. July 7, 1997) (unpublished) (finding that "it was apparent in light of preexisting law that shooting and killing a dog constituted a seizure within the meaning of the Fourth Amendment," and was thus a clearly established constitutional right).
122
In particular, the Third Circuit has had occasion to delve into the "unreasonableness" aspect of this inquiry. Although Brown v. Muhlenberg Township had not been decided at the time of the four events at issue here, "a right can be deemed clearly established even if there is no prior decision addressing the precise conduct at issue, so long as its illegality would have been evident to a reasonable officer based on existing caselaw." Rogers, 249 F.3d at 285-86. I find the reasoning of the Third Circuit persuasive on this point, and would conclude, as that circuit has, that the constitutional right at issue was clearly established.
123
In Brown, the court considered the case of "Immi," an unregistered three-year old Rottweiler running at large and unrestrained. 269 F.3d at 208-09. After surveying the scene, an officer slowly approached Immi and drew his gun. At this point, Immi's owner ran outside, and from a distance of approximately fifty feet, called for the officer not to shoot. The owner was too late, however, and the officer fired several times, killing the dog. Id. The court concluded that while "the state's interest in protecting life and property may be implicated when there is reason to believe that the pet [to be killed] poses an imminent danger, ... [t]his does not mean... that the state may, consistent with the Fourth Amendment, destroy a pet when it poses no immediate danger and the owner is looking on...." Id. at 210-11.
124
While the facts of the present case are not directly on point with Brown, several similarities are noteworthy. For example, like the Larsen incident, which involved a Rottweiler, and the Altman incident, involving a pit bull mix, the Brown case regarded a breed of dog generally considered to be dangerous. Despite the inherent dangerousness of the breed, however, the Third Circuit found the unconstitutionality of the officer's actions to be clearly established. (The seizure of Wendy Frye's Siberian Husky puppies, and the seizure of Gilbert Wallace's Golden Retriever/Labrador Retriever mix appear even more unreasonable, considering the generally accepted friendliness of these breeds.)
125
While the Third Circuit noted that the owner of Immi was present and "obviously desirous of retaining custody," Brown, 269 F.3d at 211, there are facts in each of the instances before this Court that accentuate the unreasonableness of the seizures. In attempting to kill Altman's dog, for example, Officer Moxley discharged his shotgun in a densely-developed urban neighborhood from a distance of 225 feet, while the dog was running away from him and clearly presenting no imminent or immediate danger to anyone. Similarly, the evidence in both the Larsen and Wallace incidents strongly suggests that the dogs were not threatening anyone, and in fact, may have been cowering submissively. As for the puppies in the Frye incident, they were so small that Wendy Frye was able to rush out of her house and pick up the last surviving dog in her arms. Rather than firing because of any perceived danger, Officer Perdue apparently acted because "we weren't going to spend all day chasing" the Frye puppies. (J.A. at 421.) Each of these facts take on additional importance when it is remembered that, according to their supervisor, both Officers Moxley and Perdue should have been aware that the destruction of an individual's dog in the absence of any imminent threat of harm might raise the possibility of a Fourth Amendment violation. (J.A. at 237-38.)
126
Although the Third Circuit did place some emphasis on the presence of the owner, there are other facts in the instant cases that make it apparent that the constitutional rights at issue were clearly established. Moxley and Perdue insisted on disregarding local law by firing buckshot throughout the City's neighborhoods, and as a result, they killed several nondangerous and nonthreatening dogs owned by the plaintiffs as family pets. Viewing the facts in the light most favorable to the plaintiffs, it is clear that the officers carried out these warrantless seizures without any concern for the public's safety. As a result, Moxley and Perdue must be expected to know that their shooting spree was unconstitutionally unreasonable.
III.
127
In sum, I would find that: (1) Officers Moxley and Perdue violated the Plaintiffs' constitutional rights by effecting several unreasonable, warrantless seizures; and (2) those constitutional rights were clearly established. I am most concerned, however, with the majority's conclusion that the actions of Moxley and Perdue were somehow constitutionally reasonable. The majority is able to reach this finding only by ignoring some evidence (such as the trail of blood beginning at the fence around Wallace's yard) and refusing to consider the remaining facts in the light most favorable to the nonmovants. In taking this view of the Plaintiffs' evidence, the majority has obfuscated this Circuit's qualified immunity analysis by effectively replacing the Supreme Court's well-defined, two-part test, see Saucier, 533 U.S. at 201, 121 S.Ct. 2151, with an unsupportable single-step approach.
128
For the foregoing reasons, I respectfully concur in part and dissent in part from the judgment of the majority.
Notes:
1
The City of High Point Police Department has since amended its regulations and now permits ACOs to carry firearms
2
As to the Frye shooting, for example, Perdue testified that each of Frye's animals were large dogs, weighing forty-five to fifty pounds each, and that together they formed a menacing and dangerous pack. In actuality, the puppies weighed only fifteen to twenty pounds apiece. Furthermore, Perdue effectively conceded that he exaggerated the severity of the threat when he testified that, as he was taking deadly aim at Boo-Boo, Frye stepped out of her home and scooped the dog up in her arms
| {
"pile_set_name": "FreeLaw"
} |
764 P.2d 887 (1988)
Buddy Junior BRISTOL, Appellant,
v.
STATE of Oklahoma, Appellee.
No. F-87-295.
Court of Criminal Appeals of Oklahoma.
October 24, 1988.
Gloyd McCoy, Asst. Appellate Public Defender, Norman, for appellant.
Robert H. Henry, Atty. Gen., Sandra D. Howard, Asst. Atty. Gen., Oklahoma City, for appellee.
*889 OPINION
PARKS, Judge:
Buddy Junior Bristol, appellant, was tried by jury and convicted of Indecent Exposure (21 O.S.Supp. 1984, § 1021(A)(1)), After Former Conviction of Two or More Felonies (21 O.S.Supp. 1985, § 51(B)), in Case No. CRF-86-74, in the District Court of Mayes County, the Honorable William J. Whistler, District Judge, presiding. The jury assessed punishment at imprisonment for twenty five (25) years. Judgment and sentence was imposed in accordance with the jury's verdict. We affirm.
On Sunday, July 23, 1986, at about 3:30 p.m., D.B. took her daughter, three sons, and a niece swimming at Snake Creek near Locust Grove, Oklahoma. These children range in age from thirteen to two years old.
As D.B. and the children were preparing to leave in their car two hours later, S.P., D.B.'s thirteen-year-old daughter, pointed out a man walking toward them. The man was about fifteen feet away when D.B. first saw him and he wore only cutoff jeans, which were unbuttoned and unzipped. The man masturbated as he walked toward the car, stopped about ten feet away, thrust his pelvis forward, and grinned.
In its case-in-chief, the State presented two witnesses, D.B. and S.P.S.P. was not permitted to make an in-court identification of appellant because the preliminary hearing magistrate determined her identification of appellant had been tainted by an impermissibly suggestive pre-trial photographic lineup, but she did testify as to her personal knowledge of the events at Snake Creek.
Appellant did not take the stand during the guilt or innocence phase of trial as a tactical decision to prevent being impeached by his previous convictions, one of which was for sodomy. (Tr. at 287). Appellant's brother appeared as an alibi witness and testified appellant was home with him that Sunday and could not have been the man who exposed himself at Snake Creek. Appellant also presented an expert witness, the gist of whose testimony was "eyewitness identification under virtually all circumstances is quite suspect and generally quite flawed." (Tr. at 198). The expert witness testified that only about 25% of eyewitness identifications are reliable.
On rebuttal, the State presented four witnesses who testified they saw appellant and his brother at Snake Creek on the day of the crime before and after the indecent exposure. Three of the witnesses knew appellant by sight and one talked to him earlier in the day before the indecent exposure.
For his first assignment of error, appellant asserts the trial court erred by refusing to give his requested cautionary instruction on eyewitness identification.
Where the opportunity for positive identification is good and the witness is positive in [her] identification and [her] identification is not weakened by prior failure to identify, but remains, even after cross-examination, positive and unqualified, the testimony as to identification need not be received with caution indeed, the cases say that `[her] [positive] testimony as to identity may be treated as the statement of a fact.' For example, a positive, unqualified identification of defendant by one witness is sufficient for conviction even though half a dozen witnesses testify as to an alibi.
McDoulett v. State, 685 P.2d 978, 980 (Okla. Crim. App. 1984), quoting from Commonwealth v. Kloiber, 378 Pa. 412, 106 A.2d 820, 826 (1954).
Here, D.B. made an in-court identification of appellant as the man who exposed his genitalia to her and the children. Her *890 opportunity to see appellant at the time of the crime was unobstructed, the light was good, and she accurately described appellant and positively identified him from a photographic lineup. Her in-court identification of appellant remained positive and unqualified, even after extensive cross-examination. Moreover, the jury had heard extensive testimony from an expert witness concerning the unreliability of eyewitness identification. We find the trial court did not err in refusing to give appellant's requested cautionary instruction on eyewitness. identification.
For his second assignment of error, appellant asserts thirteen-year-old S.P.'s testimony should have been suppressed. Appellant relies solely on authority concerning suppression of an in-court identification. We find these cases inapplicable, as S.P. did not make an in-court identification of appellant at trial as the man who exposed his genitalia to her. S.P. testified as to her personal knowledge of the events at Snake Creek and was placed under oath; therefore, it was for the jury to decide what credence should be given to her testimony. Gray v. State, 650 P.2d 880, 885 (Okla. Crim. App. 1982). See 12 O.S. 1981, § 2602. We find the trial court did not err in refusing to suppress S.P.'s testimony.
For his third assignment of error, appellant asserts he was denied effective assistance of counsel because his court appointed trial counsel failed to cross-examine S.P. Appellant has the burden of proving counsel's failure to cross-examine the child was not sound trial strategy and that counsel's representation fell below an objective standard of reasonableness. Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). Here, appellant speculates what cross-examination of S.P. might have revealed and what impact the failure to cross-examine might have had on the jury. Mere speculation is not enough to satisfy appellant's burden of proof. Moreover, "[p]resenting an alibi defense instead of rehashing the testimony of the eyewitness and possibly further damaging the appellant's case is a valid strategy." Keller v. State, 738 P.2d 186, 187 (Okla. Crim. App. 1987), cert. denied, ___ U.S. ___, 108 S.Ct. 323, 98 L.Ed.2d 351 (1987). This assignment is meritless.
For his fourth assignment of error, appellant argues D.B.'s testimony should have been suppressed. Inasmuch as appellant only cites authority concerning suppression of an in-court identification, we will confine our inquiry to this issue and will not address whether all of D.B.'s testimony should have been suppressed.
S.P. failed to pick appellant's picture from a five photograph lineup. D.B. viewed the lineup and identified appellant. S.P. then looked at this same lineup again, after she knew her mother had picked appellant's picture, and made a positive identification. For this reason, the preliminary hearing magistrate ruled that S.P.'s identification of appellant had been tainted by an impermissibly suggestive lineup. No such problem was found concerning D.B.'s identification of appellant.
Assuming arguendo the photographic lineup was unduly suggestive, a suggestive pre-trial confrontation will not invalidate a courtroom identification that can be established as independently reliable. Boyd v. State, 743 P.2d 658, 660 (Okla. Crim. App. 1987).
In determining the inherent reliability of an in-court identification, we consider: (1) the opportunity of the witness to view the criminal at the time of the crime; (2) the witness' degree of attention; (3) the accuracy of the witness" prior description of the criminal; (4) the level of certainty demonstrated at the confrontation; and (5) the time between the crime and the confrontation. Id. at 660-61. See also Manson v. Brathwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 2253, 53 L.Ed.2d 140 (1977).
Here, D.B. had an unobstructed view of appellant in good light at the time of the crime, her attention was highly focused on appellant, her description of appellant, with one exception, was highly accurate, her identification of appellant as the criminal at the lineup and at trial was highly certain, and there was no undue *891 lapse of time which would weaken her memory.
Appellant argues D.B.'s failure to mention in her initial handwritten statement that appellant was tattooed, and her testimony at trial that appellant's left arm was tattooed, while the photographs submitted by appellant at trial establish he has tattoos on both arms, both legs, and on his chest, required suppression of her in-court identification.
D.B. accurately described appellant as to his height, weight, beard, color of hair and its length, skinny legs, and the poor condition of his teeth. Although D.B. failed to mention appellant's tattoos in her handwritten report, the officer who took her first oral report testified at the preliminary hearing she said the man who exposed himself had "tattoos all over his body." (Ph.Tr. at 71) Since D.B. had identified appellant by name when she called the police, she did not think it important to mention the tattoos in the written report.
When counsel argued a motion to suppress D.B.'s in-court identification prior to trial because of her failure to mention the tattoos, the court expressed its view that:
I think you have to remember the situation as it existed, when the witness was recalling what she saw. One, she is a mother ... and her daughter is sitting next to her viewing this male. What would be the focus of her attention, obviously the genitals[.] [S]he is looking at this man, and he's standing there and got an erection and her daughter is sitting next to her and she's trying to get the hell out of there.... [I]f you approach the subject from that point of view, I don't know that I find it particularily alarming that she didn't notice that the man, the man's extremities, that his arms and legs were covered with tattoos. The Motion is overruled. [Tr. at 12-13]
We find D.B.'s failure to mention the tattoos went to the weight to be given to her testimony by the jury, and was not sufficient to require suppression of her in-court identification of appellant. This assignment is meritless.
For his fifth assignment of error, appellant argues he was denied a fair trial because of improper comments made by the prosecutor during voir dire and during closing arguments for the first and second stages of trial. We note initially that appellant failed to object to the question asked at voir dire and to all but one of the comments made during closing arguments and has, therefore, waived all but fundamental error for those unobjected to remarks. Lawson v. State, 739 P.2d 1006, 1008 (Okla. Crim. App. 1987). We find no fundamental error. Moreover, the comments made during closing argument were fair comments on, and reasonable inferences from, the evidence. Lewis v. State, 732 P.2d 1, 3 (Okla. Crim. App. 1987). Appellant objected to one comment, which objection was sustained and the jury was admonished to disregard the remark, thereby curing any error. This assignment is meritless.
For his sixth assignment of error, appellant argues his punishment is excessive. Title 21 O.S.Supp. 1985, § 51(B), requires a minimum sentence of imprisonment for twenty years upon conviction of a felony after former conviction of two or more felonies. Appellant has three prior felony convictions. The statute does not provide for a maximum sentence but leaves that determination to the trier of fact. Mornes v. State, 755 P.2d 91, 95 (Okla. Crim. App. 1988). In reviewing the punishment imposed above the minimum sentence of twenty years imprisonment, we do not have the power to modify the punishment unless we can conscientiously say the sentence is so excessive as to shock the conscience of the Court. Id. After studying the facts and circumstances of this case, we cannot say the sentence imposed of twenty five years imprisonment shocks the conscience of the Court. This assignment is meritless.
For his seventh assignment of error, appellant argues his sentence should be modified to exclude payment of court costs. By imposing payment of costs, the court was not unduly punishing appellant but merely following the dictates of the *892 statute. Armstrong v. State, 742 P.2d 565, 567 (Okla. Crim. App. 1987). While appellant is presently an indigent, this Court cannot know his financial status when the costs are due to be paid. This issue is prematurely raised. Id.
For his final assignment of error, appellant argues the cumulative effect of error requires either reversal of his conviction or modification of his sentence. If there is no individual error, there can be no error by accumulation. Mornes, 755 P.2d at 95. This assignment is without merit.
In light of the above, appellant's judgment and sentence should be, and hereby is, AFFIRMED.
BRETT, P.J., and BUSSEY, J., concur.
| {
"pile_set_name": "FreeLaw"
} |
358 F.3d 931
Gilbert M. GRAHAM, Appellant,v.John D. ASHCROFT, in his official capacity as U.S. Attorney General, et al., Appellees.
No. 03-5025.
United States Court of Appeals, District of Columbia Circuit.
Argued January 13, 2004.
Decided February 24, 2004.
Appeal from the United States District Court for the District of Columbia (No. 02cv01231).
Gilbert M. Graham, appearing pro se, argued the cause and filed the briefs for appellant.
Sherri Evans Harris, Assistant U.S. Attorney, argued the cause for appellees. With her on the brief were Roscoe C. Howard, Jr., U.S. Attorney, and R. Craig Lawrence, Assistant U.S. Attorney.
Before: EDWARDS and ROBERTS, Circuit Judges, and WILLIAMS, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge ROBERTS.
ROBERTS, Circuit Judge:
1
Appellant Gilbert Graham, at the time a Special Agent with the Federal Bureau of Investigation, alleges that the Bureau violated its own regulations in the course of censuring him for alleged irregularities in a surveillance operation. We hold that the Civil Service Reform Act of 1978 (CSRA), Pub.L. No. 95-454, 92 Stat. 1111 (codified as amended in scattered sections of 5 U.S.C.), precludes judicial review of Graham's claim, and accordingly affirm the district court's dismissal of his action.
I. Background
2
Graham was a Special Agent in the FBI's Washington Field Office who had responsibility for managing a surveillance operation. In April 1999, another Special Agent reported a potential Intelligence Oversight Board (IOB) violation involving Graham and others to the Inspection Management Unit. The IOB, a standing committee of the President's Foreign Intelligence Advisory Board, investigates and reports on intelligence activities that may be unlawful or contrary to executive order. Exec. Order No. 12,863, 58 Fed.Reg. 48,441, 48,442 (Sept. 13, 1993). The report of a possible IOB violation triggered an inquiry by the FBI's Office of Professional Responsibility (OPR) to determine whether Graham was guilty of investigative dereliction. In the course of that inquiry, Graham was notified of the allegation against him and afforded an opportunity to submit a sworn statement.
3
OPR eventually concluded that Graham had violated IOB requirements, and suspended him without pay for three days. Graham appealed to the Inspection Division, which noted that Graham was "a 24-year veteran of the Bureau with a good service record and no prior disciplinary sanctions" who immediately notified his superiors of the IOB violation, allowing corrective action to be taken to rectify the situation and avoid any detrimental effects. Letter from Thomas Locke, Inspection Division, to Graham (May 22, 2002) at 2. The Inspection Division reduced Graham's suspension to a letter of censure, with no loss of pay or benefits.
4
Graham, however, remained unsatisfied. He sued the Attorney General and the Director of the FBI in their official capacities (collectively the FBI), challenging the FBI's actions during the investigation of the IOB violation and the ensuing disciplinary process. He alleged that the FBI violated the Administrative Procedure Act, failed to abide by its own internal procedures and regulations, denied him procedural due process, and violated his equal protection rights by discriminating against him on grounds of race.
5
The FBI moved to dismiss the claims for lack of subject matter jurisdiction and for failure to state a claim. In his memorandum opposing the motion, Graham asserted, inter alia, that the FBI "must adhere to voluntarily adopted, binding polic[i]es that limit its discretion," citing Vitarelli v. Seaton, 359 U.S. 535, 539, 79 S.Ct. 968, 972, 3 L.Ed.2d 1012 (1959). Pl. Mem. Opp. Mot. Dismiss at 5. In Vitarelli, the Supreme Court held that even agencies with broad discretion must adhere to internally promulgated regulations limiting the exercise of that discretion. 359 U.S. at 539-40, 79 S.Ct. at 972-73; see Padula v. Webster, 822 F.2d 97, 100 (D.C.Cir.1987) ("It is well settled that an agency, even one that enjoys broad discretion, must adhere to voluntarily adopted, binding policies that limit its discretion."). Graham's contention was that the FBI had violated its own internal regulations and procedures governing how to handle alleged IOB transgressions and any resulting disciplinary process. Although Graham was afforded notice and an opportunity to submit a statement prior to being disciplined, he contends that the FBI's internal rules promised him earlier notice and an opportunity to respond, and that, had he been given the procedural protections allegedly required, he would have been able to forestall even the letter of censure.
6
The district court disposed of the entire action. That court found that it lacked subject matter jurisdiction over Graham's APA claims, because the CSRA precludes review under the APA of employment-related decisions. Next, the district court dismissed the due process claims, holding that Graham failed to demonstrate the deprivation of a constitutionally protected interest, and that he received in any event all the process due under the Fifth Amendment. The court also dismissed Graham's equal protection claim, explaining that Title VII is the exclusive remedy for a federal employee claiming racial discrimination.
7
Graham appealed to this court. We summarily affirmed the district court's dismissal of his constitutional and APA claims. Graham v. Ashcroft, No. 03-5025, slip op. at 1, 2003 WL 21939757, at *1 (D.C.Cir. Aug. 5, 2003). This court declined, however, to summarily affirm the dismissal of what was identified as Graham's separate Vitarelli claim — the contention that, quite apart from the Constitution or the APA, the Bureau was required to follow its own internal regulations voluntarily adopted to circumscribe its discretion, but had failed to do so. Id. Only that claim is now at issue.
II. Analysis
8
The FBI contends that the CSRA "provides the exclusive remedy for a federal employee to challenge an agency's disciplinary decision" — thereby precluding any judicial review of alleged procedural violations under Vitarelli. Appellees' Br. at 9. The CSRA provides a comprehensive scheme to administer adverse personnel actions against federal employees. See Lindahl v. OPM, 470 U.S. 768, 773-74, 105 S.Ct. 1620, 1624-25, 84 L.Ed.2d 674 (1985). "It prescribes in great detail the protections and remedies applicable to such action[s], including the availability of judicial review." United States v. Fausto, 484 U.S. 439, 443, 108 S.Ct. 668, 671, 98 L.Ed.2d 830 (1988). Chapter 75 of the CSRA governs adverse personnel actions based on misconduct: Subchapter I, 5 U.S.C. §§ 7501-7504, governs minor adverse personnel actions and Subchapter II, 5 U.S.C. §§ 7511-7514, governs major adverse personnel actions. Subchapter I defines a minor personnel action as suspension for 14 days or less, § 7502, and applies only to employees in the "competitive service," § 7501. Although Section 7503 provides some procedural protections in such cases, there is no right to judicial review for covered employees under Subchapter I.
9
Subchapter II governs major adverse personnel actions, defined as removal, suspension for more than 14 days, reduction in grade or pay, or furlough for 30 days or less. § 7512. Employees covered by Subchapter II are entitled to administrative review by the Merit Systems Protection Board (MSPB), and subsequent judicial review in the Court of Appeals for the Federal Circuit. §§ 7513(d), 7701, 7703. Although FBI employees are generally excluded from CSRA provisions, see §§ 2302(a)(2)(C)(ii), 7511(b)(8), Subchapter II does apply to "preference eligible" FBI employees. § 7511(a)(1)(B). Such "preference eligible" employees are entitled to specified protections under the CSRA because of prior military service. See § 2108(3).
10
The foregoing statutory scheme does not provide Graham a right to judicial review in the present circumstances. Although Graham may claim the protections of Subchapter II because of his status as a "preference eligible" employee,1 the adverse personnel action in this case — a letter of censure — fails to qualify as a major adverse personnel action under Section 7512. (Indeed, it does not even qualify as a minor adverse personnel action under Subchapter I.) Graham accordingly is not entitled to administrative and judicial review of this action under the CSRA. See §§ 7512, 7513(d), 7703(a)(1).
11
The consequences of the lack of availability of relief under the CSRA for government employees seeking to challenge employment actions through other avenues were spelled out by the Supreme Court in Fausto. In that case, a government employee — whose status gave him no right to administrative or judicial review under the CSRA — sought judicial review of his removal from government service under the Back Pay Act, contending that his dismissal had violated regulations issued by his employing agency. See 484 U.S. at 441-43 & n. 2, 108 S.Ct. at 670-72 & n. 2. The Supreme Court held that the comprehensive framework of the CSRA precluded judicial review under the Back Pay Act:
12
The CSRA established a comprehensive system for reviewing personnel action taken against federal employees. Its deliberate exclusion of employees in respondent's service category from the provisions establishing administrative and judicial review for personnel action of the sort at issue here prevents respondent from seeking review ... under the Back Pay Act.
13
Id. at 455, 108 S.Ct. at 677.
14
The Court explained that allowing direct judicial review of employment claims for employees with no rights under the CSRA would provide them a more substantial right to review than was available to personnel granted a right to judicial review under the CSRA; such personnel had to first seek administrative review by the MSPB before gaining judicial review in the Federal Circuit. See id. at 448-50, 108 S.Ct. at 674-75. Direct judicial review would also undermine "the development, through the MSPB, of a unitary and consistent Executive Branch position on matters involving personnel action," and would frustrate congressional intent in the CSRA to "avoid[] an unnecessary layer of judicial review in lower federal courts." Id. at 449, 108 S.Ct. at 674 (internal quotation marks omitted).
15
Fausto is not directly on point. It involved a "type of personnel action covered by [the CSRA]," id. at 448, 108 S.Ct. at 674 — removal — as to which some employees were given judicial review rights and some (like Fausto) were not. The Court reasoned that in not granting review to some employees under the CSRA for actions covered by the CSRA, Congress meant to preclude those employees from securing review under other avenues. The present case involves an employee granted certain judicial review rights under the CSRA, but whose rights do not extend to the personnel action at issue — a letter of censure. The question is whether in granting review with respect to some personnel actions under the CSRA, Congress meant to preclude review of others.
16
The logic of Fausto, if not its holding, provides the answer. The Court rejected Fausto's claim because granting it would have given him greater rights than were available under the CSRA to employees who enjoyed rights under that statute — primarily those in the competitive service. Id. at 449-50, 108 S.Ct. at 674-75. As the Court expressly noted, this reasoning "assumes, of course, that competitive service employees, who are given review rights by Chapter 75, cannot expand those rights by resort to pre-CSRA remedies.... Even respondent has not questioned this assumption." Id. at 450 n. 3, 108 S.Ct. at 675 n. 3.
17
The Court's explicit assumption in Fausto that employees with judicial review rights under the CSRA may not obtain judicial review of personnel actions outside the bounds of the CSRA covered precisely the situation at issue here — a personnel action as to which the CSRA grants no right of review, even for employees who are otherwise granted such rights under the CSRA in other circumstances. The hypothetical in the text of Fausto to which the quoted footnote 3 was appended concerned an employee like Fausto obtaining judicial review for a 10-day suspension, while a competitive service employee favored with rights under the CSRA would not, because judicial review under the CSRA is available only for suspensions of more than 14 days. Id. at 449-50, 108 S.Ct. at 674-75. The Court's assumption that the CSRA-favored employee would have no right to review of a suspension below the CSRA minimum — necessary to its analysis — strongly indicates that the CSRA-favored Graham has no right to review of a letter of censure, similarly below the CSRA minima for both major and minor adverse personnel actions.
18
In addition, Justice Scalia in footnote 3 of Fausto cited his opinion for our court in Carducci v. Regan, 714 F.2d 171, 173-75 (D.C.Cir.1983). That case held that judicial review was not available under the APA with respect to employment claims as to which the CSRA provided no relief to anyone, because the alleged adverse actions were too minor. Allowing judicial review in such a case, our court explained, presented "an even more aggravated form of the problem" posed by allowing employees with claims for which the CSRA provided some relief (but not judicial review) to obtain direct judicial review, when such direct review was not even available under the CSRA for the most serious claims. Id. at 174. The Fausto Court's citation of Carducci strongly suggests that Graham's situation — involving an adverse personnel action as to which not even CSRA-favored employees have any rights of review — presents an even stronger case for CSRA preclusion than Fausto.
19
In light of the foregoing, it is clear that judicial review of Graham's personnel claims under Vitarelli is precluded by the CSRA. Granting Graham a right of direct judicial review for a letter of censure would give him greater rights than the CSRA affords for major adverse actions, for what does not even rise to the level of a minor adverse action under the CSRA. Graham tries to distinguish Fausto by noting that he, unlike Fausto, is a preference eligible employee under the CSRA, see Pl. Mem. Opp. Mot. Dismiss at 8, but that only gives Graham rights with respect to major adverse actions (and even there, lesser rights than Graham claims). For the sort of action at issue here, Graham is in the same boat as Fausto — the CSRA provides no relief and precludes other avenues of relief. Fausto and Carducci together establish that the fact that the CSRA provides no relief for lesser personnel actions cannot be dismissed as an "uninformative consequence of the limited scope of the statute." Fausto, 484 U.S. at 448, 108 S.Ct. at 674. As we explained in Spagnola v. Mathis, 859 F.2d 223, 227 (D.C.Cir.1988) (en banc), "it is the comprehensiveness of the statutory scheme involved, not the `adequacy' of specific remedies thereunder, that counsels judicial abstention."
20
It is no answer to invoke the principle that agencies must follow their own regulations. That was, after all, the assertion in Fausto, and the Court held that it was trumped by the proposition that agencies cannot purport to confer rights undermining a comprehensive congressional scheme. The conclusion that the CSRA precludes employee Vitarelli claims in light of Fausto should come as no surprise; the dissent in Fausto expressly noted that "[i]n important respects [Fausto's] case is similar to Vitarelli." 484 U.S. at 456, 108 S.Ct. at 678 (Stevens, J., dissenting). The majority rejected the dissent's contention that allowing Fausto's claims to proceed would not be disruptive of the comprehensive CSRA scheme, because such claims "will be `limited to those instances when the agency violates its own regulations,'" id. at 451 n. 5, 108 S.Ct. at 676 n. 5 (quoting dissent, id. at 466, 108 S.Ct. at 683) — i.e., claims under Vitarelli. Even those claims were precluded.
21
We hold that the CSRA precludes judicial review of Graham's claim that the FBI violated its own regulations in taking personnel action against him. The district court therefore had no subject matter jurisdiction over his Vitarelli claim. See National Treasury Employees Union v. Egger, 783 F.2d 1114, 1117 (D.C.Cir.1986) (affirming district court's dismissal for lack of subject matter jurisdiction because the CSRA precluded judicial review of minor personnel actions).
22
* * *
23
We affirm the district court's dismissal of Graham's complaint.
Notes:
1
Although Graham failed to allege that he is "preference eligible" in his complaint, he did claim that status in his memorandum opposing the FBI's motion to dismiss. The FBI did not dispute that Graham was "preference eligible" for purposes of the motion to dismiss. Def. Reply to Pl. Opp. Mot. Dismiss at 3 n. 3
| {
"pile_set_name": "FreeLaw"
} |
705 F.Supp. 152 (1989)
SANITOY, INC. and Pilgrim Infants Products, Inc., Plaintiffs,
v.
Richard SHAPIRO, Defendant.
No. 85 Civ. 6473 (MGC).
United States District Court, S.D. New York.
January 30, 1989.
Jacobs Persinger & Parker by William Lasher, New York City, for plaintiffs.
Hofheimer Gartlir & Gross by Sylvia D. Garland, New York City, for defendant.
OPINION AND ORDER
CEDARBAUM, District Judge.
Plaintiffs, Sanitoy, Inc. and Pilgrim Infants Products, Inc., have brought this action seeking damages against defendant Richard Shapiro for his allegedly fraudulent and negligent misrepresentations concerning the quality and manufacture of certain infant plush toys, and for his alleged *153 violation of Consumer Product and Safety Commission ("CPSC") standards regulating those toys. Defendant has moved for summary judgment. After reviewing the undisputed facts and other facts offered by plaintiffs, and drawing all inferences in plaintiffs' favor, the motion for summary judgment is granted in part and denied in part.
THE UNDISPUTED FACTS
Sanitoy, Inc. and its wholly-owned subsidiary Pilgrim Infants Products, Inc. are Delaware corporations with principal places of business in Fitchburg, Massachusetts. Plaintiffs manufacture, import, and distribute infant products, including toys. Richard Shapiro, who resides in New York, is a salesman of toy products and the managing director of Richard Toy Company Ltd., a Hong Kong corporation. Shapiro and his wife are the sole shareholders of Richard Toy Company.
In late 1982, Shapiro contacted Sanitoy concerning the sale of infant plush toys, which Sanitoy would then resell to retailers. Shapiro had never before had business dealings with Sanitoy or Pilgrim or with any of their officers or employees. For their part, Sanitoy and Pilgrim had had only limited experience with plush toys prior to meeting Shapiro.
Shapiro subsequently attended three meetings at Sanitoy's offices with several of Sanitoy's officers and employees, including Arthur Zadek, Sanitoy's president, and J. Daniel Simon, Sanitoy's executive vice-president. Shapiro brought to these meetings samples of the toys, which he said were manufactured in Korea, and left them with Sanitoy for its inspection. For purposes of this motion, Shapiro concedes that he made the following representations at these meetings:
(1) that he would direct and supervise production of high quality infant plush products in the Far East;
(2) that such products would be in full conformity with applicable trade standards and CPSC rules and regulations for resale in the United States; and
(3) that Sanitoy and Pilgrim could rely on his personal expertise and abilities for the delivery of high-quality infant plush products.
In December of 1982, Sanitoy and Pilgrim placed three purchase orders with Shapiro. The purchase orders and corresponding letters of credit were made out to Richard Toy Company, Ltd., which plaintiffs understood to be Shapiro's company. Richard Toy Company in turn contracted with the Song Won Trading Company in Korea to manufacture the toys. The merchandise, shipped F.O.B. Korea, arrived in the United States in May of 1983. Plaintiffs do not claim that they have incurred any damages in connection with the first three purchase orders.
On April 7, 1983, Sanitoy placed its fourth purchase order, P.O. # 77287, for 6,000 dozen style 101-A plush, two-headed, toy dumbells. Sanitoy intended to resell this merchandise to K-Mart, one of its major customers. Like the first three orders, the fourth purchase order did not specify the CPSC standards that the toys would have to meet to be acceptable for introduction into interstate commerce in the United States. However, all of the purchase order forms contained pre-printed "terms and conditions" which included language to the effect that the seller would guarantee compliance with all relevant laws and regulations. In May of 1983, Zadek visited the factories in Korea where the dumbells were being manufactured, but did not undertake a thorough inspection of the facilities or of the merchandise in its various stages of production. The first shipment of merchandise ordered under P.O. # 77287 arrived at Sanitoy's warehouse at the end of June, 1983.
When Sanitoy conducted tests on the dumbells to check for compliance with CPSC standards, it discovered that the eyes on most of the dumbells were not sufficiently securely attached to comply. On July 1, 1983, Sanitoy contacted Shapiro with this information. The parties subsequently decided to return the merchandise to Korea for repair. Richard Toy Company assumed the costs of repair, although Sanitoy *154 paid some of the shipping and surveyor charges. The repaired merchandise arrived at Sanitoy's warehouse in the spring of 1984.
After Sanitoy had placed the fourth purchase order, plaintiffs placed fifteen additional orders with Richard Toy Company. Nine of the fifteen were placed after Sanitoy had received the defective shipment.
Several of the fifteen orders included style 101-A dumbells. The only shipment that plaintiffs refused to accept in its entirety was the shipment of style 101-A dumbells received under the fourth purchase order. However, plaintiffs claim that two of the later orders, P.O. # 77289 and P.O. # 1589, dated April 26, 1984, also contained many defective toys that plaintiffs were unable to sell to retailers.
Plaintiffs filed the complaint in August of 1985. Count One of the complaint alleges common law fraud based on plaintiffs' reliance on Shapiro's representations in deciding to purchase the plush toys. Count Two asserts that Shapiro should be held liable for negligent misrepresentation because of his claimed expertise in plush toys and plaintiffs' relative inexperience. Plaintiffs allege in Count Three that Shapiro is liable to them for violation of CPSC regulations. The original complaint also contained two counts alleging injury to Sanitoy's relationship with K-Mart, but these counts have been withdrawn. After the completion of discovery, Shapiro moved for summary judgment on the three remaining counts. All parties agree that New York law is the substantive law governing the common law claims, Counts One and Two of the complaint.[1]
SUMMARY JUDGMENT
A court will grant summary judgment if it determines "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); see also Knight v. United States Fire Insurance Co., 804 F.2d 9, 11 (2d Cir.1986), cert. denied, 480 U.S. 932, 107 S.Ct. 1570, 94 L.Ed.2d 762 (1987). The test for granting a summary judgment motion is similar to that for directing a verdict, in that if the trier of fact could return a verdict for the nonmoving party, the motion should not be granted. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). On the other hand, a court is not precluded from granting the motion simply because the nonmoving party has established that there is an issue of material fact. The nonmoving party must show that the issue of fact is "genuine," involving more than mere "metaphysical doubt." Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986); Murray v. Xerox Corp., 811 F.2d 118, 121 (2d Cir.1987).
In determining whether a case should proceed to trial, a court must review the record in the light most favorable to the nonmoving party, resolving ambiguities and drawing reasonable inferences in that party's favor. Patrick v. LeFevre, 745 F.2d 153, 158 (2d Cir.1984). But if, after adequate time for discovery has passed, the nonmoving party fails to establish the existence of an essential element of its case, on which it will bear the burden of proof at trial, the court should enter summary judgment against it. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548 at 2552, 91 L.Ed.2d 265 (1986). In that situation, "there can be no `genuine issue of material fact,' since a complete failure of proof ... necessarily renders all other facts immaterial." Id. at 323, 106 S.Ct. at 2553.
DISCUSSION
Negligent Misrepresentation
New York law generally does not recognize liability for words "negligently spoken" during commercial dealings. The exception is "when the parties' relationship suggests a closer degree of trust and reliance than that of the ordinary buyer and *155 seller." American Protein Corp. v. AB Volvo, 844 F.2d 56, 63 (2d Cir.), cert. denied, ___ U.S. ___, 109 S.Ct. 136, 102 L.Ed.2d 109 (1988) (quoting Coolite Corp. v. American Cyanamid Co., 52 A.D.2d 486, 384 N.Y.S.2d 808, 811 (1st Dep't 1976)). Defendant argues that plaintiffs cannot establish the "special relationship" necessary for actionable negligent misrepresentation because plaintiffs' relationship with him was never more than that of ordinary buyer and seller. Plaintiffs argue that defendant's expertise and assurances concerning infant plush toys, and their own relative inexperience in this area, created a special relationship.
In support of their claim of negligent misrepresentation, plaintiffs rely primarily on White v. Guarente, 43 N.Y.2d 356, 401 N.Y.S.2d 474, 372 N.E.2d 315 (1977), Coolite Corp. v. American Cyanamid Co., 52 A.D.2d 486, 384 N.Y.S.2d 808 (1st Dep't 1976), and Mathis v. Yondata, 125 Misc.2d 383, 480 N.Y.S.2d 173 (N.Y.Sup.Ct.1984). In each of these cases, the court found a special relationship which would support a claim of negligent misrepresentation. An analysis of these cases shows that plaintiffs' reliance is misplaced.
The facts of White are not analogous. In White, the New York Court of Appeals found a sufficiently close relationship between the defendant, an accounting firm, and the plaintiff, a limited partner of the partnership which was a client of the accounting firm, to recognize "some relation of duty" beyond the exact terms of the agreement to audit the partnership. Specifically, the accountants knew that the limited partners would receive and rely on the auditor's report. The court did not broadly examine all circumstances "arising out of contract or otherwise," 43 N.Y.2d at 363, 401 N.Y.S.2d at 478, 372 N.E.2d at 320, which might give rise to a duty of care, but instead specifically considered when a third party beneficiary of a service contract may seek damages for fraud.
In Coolite, the court imposed a duty of care on the defendant because the defendant had required the plaintiffs to form a new company with solid capitalization before the parties could enter a distributorship agreement for the sale of "light sticks." The court found that the plaintiffs' investment of $500,000 "attest[ed] the parties' relationship was intrinsically a more intimate relationship association, at least in terms of reliance and trustworthiness, than that of the commonly encountered buyer and seller." 384 N.Y.S.2d at 811 (emphasis added). By contrast, Sanitoy and Pilgrim did not commit themselves to any expenditure which could be considered unusual for a commonly encountered buyer, nor did they commit themselves to the long-term relationship of a distributorship agreement.
Mathis is also distinguishable. In that case, the defendants had contracted to provide the plaintiffs with data processing services. A year later, they attempted to induce the plaintiffs not to cancel the contract by promising to sell them certain computer equipment after developing the software necessary for the plaintiffs' business. Thus, this was not a simple contract for the sale of goods, but an agreement to supply services on an ongoing basis. In denying the defendants' summary judgment motion, the court held that the promises, representations, and warranties made for the purpose of guiding the plaintiffs in their business transactions created a special relationship between the parties.
The relationship between merchants who buy and sell goods, in contrast to a distributorship or service arrangement, is not the special relationship required by New York law as an essential element of a claim of negligent misrepresentation. If, as plaintiffs contend, a salesman's representation that the buyer can rely on his expertise and the buyer's reliance were enough to create the necessary special relationship, the exception would swallow the rule. After all factual inferences are drawn in plaintiffs' favor, plaintiffs' claim of negligent misrepresentation could not withstand a motion for a directed verdict. Therefore, defendant's motion for summary judgment on this claim is granted.
*156 Fraudulent Misrepresentation
Under New York law, in order to succeed on their fraud claim, plaintiffs must prove the following six elements by clear and convincing evidence: (1) that Shapiro made a misrepresentation as to a material fact; (2) that the representation was false and (3) known by Shapiro to be false; (4) that the representation was made for the purpose of inducing the plaintiffs to rely on it; (5) that the plaintiffs, in ignorance of its falsity, rightfully did so rely; and (6) that plaintiffs' reliance on Shapiro's misrepresentations caused them injury. See Murray v. Xerox Corp., 811 F.2d 118, 121 (2d Cir. 1987); Channel Master Corp. v. Aluminum Limited Sales, Inc., 4 N.Y.2d 403, 176 N.Y.S.2d 259, 151 N.E.2d 833 (1958); Brown v. Lockwood, 76 A.D.2d 721, 730, 432 N.Y.S.2d 186 (2d Dep't 1980).
In their 3(g) statement, plaintiffs assert that defendant misrepresented the quality of the toys, including their comparability to another well-known line, misrepresented his ability to supervise the manufacture of the toys, and misrepresented both his knowledge of applicable CPSC regulations and that the toys would conform to those regulations. Plaintiffs also assert that after they discovered the defects in the fourth purchase order, defendant continually reassured them that the defects and the allegedly low quality of those toys and of toys ordered under later purchase orders would be corrected, but that this never happened.
Defendant contends that plaintiffs have waived any cause of action for fraud by their placement of additional orders with Richard Toy Company after having received the defective goods under the fourth purchase order, by returning the defective merchandise for repair, and by selling the repaired toys and the later shipments to retailers. He also argues that the plaintiffs could not justifiably have relied on his representations, that any representations as to quality or conformity with CPSC regulations constituted nonactionable opinion or prediction, and that he did not have the necessary scienter to make any of his statements actionable in fraud.
Many cases have held that if a plaintiff continues to deal with a defendant after discovering the truth of the defendant's misrepresentations, the plaintiff waives any fraud claim for damages arising subsequent to the discovery. See, e.g., Deutsch v. Health Insurance Plan of Greater New York, 573 F.Supp. 1433 (S.D.N.Y.1983); Lumber Industries, Inc. v. Woodlawn Furniture Corp., 26 A.D.2d 924, 274 N.Y. S.2d 813 (1st Dep't 1966); Oleet v. Pennsylvania Exchange Bank, 285 A.D. 411, 137 N.Y.S.2d 779 (1st Dep't 1955). The basis for finding waiver with respect to later business dealings is that a plaintiff's knowledge of the true facts precludes it from being able to satisfy all of the elements of fraud. Specifically, with respect to new transactions after falsity has been revealed, a plaintiff cannot claim justifiable reliance on the earlier misrepresentations. See Deutsch, 573 F.Supp. at 1442; Long Island Lighting Co. v. Imo Delaval, Inc., 668 F.Supp. 237, 240 (S.D.N.Y.1987).
When a plaintiff has incurred damages both before and after learning the truth, a court may grant recovery for damages sustained during the former period and disallow post-discovery damages. For example, in Accusystems. Inc. v. Honeywell Information Systems, 580 F.Supp. 474, 483 (S.D.N.Y.1984), the court concluded that because the defendant had misrepresented the capabilities of its computer operating system, the plaintiffs could recover for fraud. But since the plaintiffs could have discontinued using the system after they realized the truth, the court limited recoverable damages to exclude damages arising after that time. Similarly, in Clearview Concrete Products v. S. Charles Gherardi, Inc., 88 A.D.2d 461, 453 N.Y.S.2d 750 (2d Dep't 1982), the court precluded recovery of sums spent after the plaintiff had accepted the benefits of a contract originally based on the defendants' misrepresentations, although the plaintiff could have recovered "prediscovery expenses" if it had been able to establish any. Id. 453 N.Y. S.2d at 755.
Plaintiffs assert that they have incurred damages both as a direct result of defendant's *157 original misrepresentations and even after they learned the truth, because they have been unable to sell the low quality and defective toys to retailers, and because they incurred charges in returning the fourth purchase order to Korea. While plaintiffs have not completely waived their fraud claim, since some of their damages were incurred before they learned the truth, or are otherwise directly attributable to the consequences of receiving the defective fourth purchase order, they could not justifiably have relied on defendant's original representations when they placed two purchase orders in April of 1984. Thus, they may not use the early representations as a basis for recovery of damages arising from the later orders.
But plaintiffs also base their claim for damages from the later purchase orders on defendant's later assurances that the toys' quality would improve and that the toys ordered later would not be defective. These later representations are insufficient to "revive" the claim for damages that the plaintiffs have waived because plaintiffs had already discovered that they could not believe defendant's representations about the quality of goods. Even if these repeated assurances were actionable misrepresentations and not mere puffery, plaintiffs could not reasonably have relied on them as truthful.
Defendant argues that even if plaintiffs did not waive their fraud claim as to damages incurred before they received the defective toys, his original representations are not actionable in fraud because they involved opinion and prediction, not present fact, and because the plaintiffs could not justifiably have relied on them. However, factual issues preclude summary judgment on the initial alleged misrepresentations.
In general, representations involving opinion, such as the quality of an object or service, are not actionable in fraud because they do not provide a reasonable ground for reliance. See George Backer Management Corp. v. Acme Quilting Corp., 46 N.Y.2d 211, 413 N.Y.S.2d 135, 140, 385 N.E.2d 1062 (1978); Paladino v. Adelphi University, 89 A.D.2d 85, 454 N.Y.S.2d 868, 874 (2d Dep't 1982). But not only did defendant extol the high quality of his products when he first met with plaintiffs, he also represented that they compared favorably to Eden Toy, a specifically identified line of plush toys. Plaintiffs have testified that Eden Toy is one of the industry leaders in infant plush toys and that they relied on defendant's comparison in deciding to place their orders with him. (Zadek Dep. 41, Simon Dep. 46). In Stern v. Satra, 539 F.2d 1305 (2d Cir.1976), the court noted that an opinion may constitute grounds for fraud if it is made in reference "to some commonly accepted measure." 539 F.2d at 1308 (quoting Taylor v. Burr Printing Co., 26 F.2d 331, 334 (2d Cir.) (L. Hand, J.), cert. denied, 278 U.S. 641, 49 S.Ct. 36, 73 L.Ed. 556 (1928)). Eden Toy may provide such a measure here.
In addition, although defendant's representations that he would supervise the toys' manufacture and that they would conform to CPSC regulations were statements of future intent and prediction, they are nevertheless actionable if defendant made them with the present intent to deceive, a question of fact involving state of mind. See Murray v. Xerox Corp., 811 F.2d 118, 122 (2d Cir.1987); Schwartz v. Newsweek, 653 F.Supp. 384, 389 (S.D.N.Y.1986), aff'd, 827 F.2d 879 (2d Cir.1987); Lanzi v. Brooks, 54 A.D.2d 1057, 388 N.Y.S.2d 946, 948 (3d Dep't 1976), aff'd, 43 N.Y.2d 778, 402 N.Y.S.2d 384, 373 N.E.2d 278 (1977).
The Second Circuit has recently observed that "summary judgment is ordinarily inappropriate where an individual's intent and state of mind are implicated." Ramseur v. Chase Manhattan Bank, 865 F.2d 460- (2d Cir.1989) (citations omitted). Here, plaintiffs have offered proof which raises an issue of fact as to defendant's initial intent to deceive.
For example, defendant has conceded that Richard Toy Company did not choose any of the subcontractors who worked for Song Won, and that he did not know all of the subcontractors who worked on the infant plush line. (Shapiro Dep. 15-16). Furthermore, defendant has acknowledged that he did not know all of the applicable *158 CPSC regulations when he met with the plaintiffs, but relied on the plaintiffs to inform him of them. (Shapiro Dep. 84, 97-98).
Finally, whether plaintiffs justifiably relied on defendant's original representations also presents a genuine issue of material fact. Whether a plaintiff may justifiably rely on a representation depends on whether the plaintiff "was placed on guard or practically faced with the facts," Mallis v. Bankers Trust Co., 615 F.2d 68, 81 (2d Cir.1980), cert. denied, 449 U.S. 1123, 101 S.Ct. 938, 67 L.Ed.2d 109 (1981), or whether the facts were "peculiarly within the defendant's knowledge." See Black v. Chittenden, 69 N.Y.2d 665, 511 N.Y.S.2d 833, 835, 503 N.E.2d 1370, 1372 (1986) (citations omitted).
Plaintiffs contend that they reasonably relied on defendant because they considered him an expert in plush toys while they themselves were inexperienced and had no means of obtaining the knowledge to test his representations. Plaintiffs knew defendant by reputation and considered him "a very fine salesman" representing "a very fine company." (Zadek Dep. 45). They had not distributed many plush toys before meeting defendant, and were reluctant to purchase toys from Korea because they had had an unpleasant experience with a different supplier. (Simon Dep. 26-28). Plaintiffs knew that defendant's company was in Hong Kong, even if he lived in New York, so that it would not have been unthinkable for them to believe that he could supervise the production of Korean-made toys. These circumstances raise an issue of fact as to whether plaintiffs should have been placed on guard and examined defendant's representations more closely.
In sum, defendant is not entitled to summary judgment on plaintiffs' fraud claim in its entirety, but only to the extent that it includes damages relating to the later purchase orders. Summary judgment is denied with respect to the claim arising from the fourth purchase order.
CPSC Violations
In Count Three of the complaint, plaintiffs allege that because the defective merchandise failed to comply with CPSC rules and regulations, plaintiffs suffered economic injury in that the merchandise was either unsaleable or required repair before it became saleable. Plaintiffs base their claim on 15 U.S.C. § 2072, § 23(a) of the Consumer Product Safety Act, which provides that:
Any person who shall sustain injury by reason of any knowing (including willful) violation of a consumer product safety rule, or any other rule or order issued by the Commission may sue any person who knowingly (including willfully) violated any such rule or order in any district court of the United States in the district in which the defendant resides or is found or has an agent....
15 U.S.C. § 2072(a) (1982).
Defendant contends that plaintiffs have no standing to sue under 15 U.S.C. § 2072 for two reasons. First, he argues that the governing regulation, 16 C.F.R. § 1500.18(a)(9), which bans infant toys which present a "choking, aspiration, or ingestion hazard because of small parts ... and which [are] introduced into interstate commerce after January 1, 1980," does not apply to him. Under the regulation, "a toy or children's article manufactured outside the United States is introduced into interstate commerce when it is first brought within a U.S. port of entry." Id. Defendant argues that since the toys were shipped F.O.B. Korea, title had passed to plaintiffs before the toys were introduced into interstate commerce. Second, defendant contends that § 2072 is limited to suits for personal injury and does not authorize a private action for economic harm.
The Consumer Product Safety Act, Pub. L. No. 92-573, 15 U.S.C. § 2051 et seq., was enacted in 1972. Its first stated purpose is to "protect the public against unreasonable risks of injury associated with consumer products." 15 U.S.C. § 2051(b)(1) (1982). Although the words of 15 U.S.C. § 2072, § 23(a) of the Act, do not expressly define the type of injury for which a private *159 right of action is provided, or explicitly identify the "persons" whom Congress intended to include, the legislative history shows that Congress believed that it was creating a private federal remedy for injured consumers.
The language of § 2072, which refers to "any person," is arguably broad enough to include plaintiffs' claim. But the scope of the provision is ambiguous because of the absence of an express definition of "injury." A review of the legislative history is appropriate because "a thing may be within the letter of the statute and yet not within its spirit, nor within the intention of its makers." Church of The Holy Trinity v. United States, 143 U.S. 457, 459, 12 S.Ct. 511, 512, 36 L.Ed. 226 (1892).
The floor debates in the House of Representatives focused on whether the provision would overburden the federal courts by allowing any consumer who had suffered a personal injury to sue in a federal forum. See 118 Cong.Rec. 31,383-87. For example, despite Representative Eckhardt's reassurances that "the burden would be on the plaintiff first to show that the victim died or sustained personal injury ... or became ill," Representative Jonas predicted that "you will have the Federal courts filled up with a multitude of suits involving very small sums of money against retailers all over the United States." Id. at 31,384.
Plaintiffs cite one case in which it was held that an insulation supplier and installer could sue an insulation manufacturer and its distributor for economic injury under § 2072, Griswold Insulation Co. v. Lula Cotton Processing Co., 540 F.Supp. 1334 (M.D.Tenn.1982). In that case the court relied upon 15 U.S.C. § 2082, a provision added to the statute six years after the adoption of § 2072. Section 2082 is directed exclusively to cellulose insulation, and has no apparent connection with the private remedy created by § 2072.
The Griswold case is not persuasive on the critical issue what was Congress' intention in enacting § 2072. The legislative history provides no basis for concluding that Congress intended that § 2072 would provide a federal right of action for wholesale distributors against manufacturers, or for purely economic injury. Compare 15 U.S.C. § 2073 (1982) (allowing "any interested person" to seek injunctive relief to enforce product safety rule). On the contrary, the floor debates show that Congress was aware that § 2072 would burden the federal courts, but nevertheless wished to create a federal remedy only for injured consumers.
Since plaintiffs are not injured consumers, they do not have a right to sue under § 2072. In view of that conclusion, I do not reach defendant's contention about the significance of title to the toys or the question of whether defendant, as distinguished from Richard Toy Company or Song Won, can be said to have "violated" a rule of the CPSC.
Defendant's motion for summary judgment on Count Three of the complaint is granted.
CONCLUSION
For the reasons discussed above, defendant's motion for summary judgment is granted in part and denied in part. Settle order on notice by February 3, 1989.
SO ORDERED.
NOTES
[1] Cf. Colgate Palmolive Co. v. S/S Dart Canada, 724 F.2d 313, 317 (2d Cir.1983), cert. denied, 466 U.S. 963, 104 S.Ct. 2181, 80 L.Ed.2d 562 (1984) (in absence of proof to contrary, New York court will assume that another state's common law is the same as its own.)
| {
"pile_set_name": "FreeLaw"
} |
ILLINOIS OFFICIAL REPORTS
Appellate Court
Perez v. Sunbelt Rentals, Inc., 2012 IL App (2d) 110382
Appellate Court GERONIMO PEREZ, Plaintiff and Counterdefendant-Appellant, v.
Caption SUNBELT RENTALS, INC., CJ LEBRECK, LLC, and OSHKOSH
TRUCK CORPORATION, Defendants (Mikols Construction, Inc., and
KBS Electric, Inc., Defendants and Third-Party Plaintiffs and
Counterplaintiffs and Counterdefendants; JLG Industries, Inc., Defendant
and Third-Party Plaintiff and Counterdefendant-Appellee; Daniel J. Loy,
Dan’s Painting and Decorating, Inc., and Victor Cardenas, Third-Party
Defendants).
District & No. Second District
Docket Nos. 2-11-0382, 2-11-0486 cons.
Rule 23 Order filed February 27, 2012
Rule 23 Order
withdrawn April 9, 2012
Opinion filed April 9, 2012
Held In an action for the injuries plaintiff suffered when he fell from a scissor
(Note: This syllabus lift alleged to be unreasonably dangerous because the guard gate could be
constitutes no part of removed easily, the trial court erred in entering summary judgment for
the opinion of the court defendant manufacturer on the ground that the removal of the gate was
but has been prepared not reasonably foreseeable and was therefore an intervening cause that
by the Reporter of protected defendant from liability, since a genuine issue of material fact
Decisions for the existed as to whether the removal of the guard gate was reasonably
convenience of the foreseeable, regardless of the fact that tools were required to remove the
reader.)
gate, especially when the removal only required the removal of a single
bolt and two pins.
Decision Under Appeal from the Circuit Court of Du Page County, No. 09-L-194; the
Review Hon. Patrick J. Leston, Judge, presiding.
Judgment Reversed and remanded.
Counsel on Thomas J. Fedick and Lyndsay A. Markley, both of Harman & Fedick,
Appeal Ltd., and Michael W. Rathsack, of Law Offices of Michael W. Rathsack,
both of Chicago, for appellant.
P. Scott Ritchie, of Clausen Miller, P.C., of Chicago, and Anthony J.
Colucci III and Marybeth Priore, both of Colucci & Gallaher, P.C., of
Buffalo, New York, for appellee JLG Industries, Inc.
Panel JUSTICE SCHOSTOK delivered the judgment of the court, with opinion.
Justices Bowman and Burke concurred in the judgment and opinion.
OPINION
¶1 Plaintiff, Geronimo Perez, appeals from the trial court’s grant of summary judgment in
favor of defendant, JLG Industries, Inc. (JLG). On appeal, plaintiff contends that the trial
court erred in granting JLG’s motion for summary judgment, because a genuine issue of
material fact exists regarding whether the removal of the guard gate of the scissor lift from
which plaintiff fell was reasonably foreseeable. For the reasons that follow, we reverse and
remand.
¶2 BACKGROUND
¶3 While working as a painter on a construction site, plaintiff fell off of a scissor lift and
sustained serious injuries. The guard gate, designed to allow access to the lift but prevent the
user from falling from the lift, had been removed prior to plaintiff’s use. Plaintiff brought
suit against multiple defendants, including JLG, the manufacturer of the lift. Plaintiff sought
recovery from JLG on strict-liability and negligence theories. Plaintiff alleged in his first
amended complaint that the lift was unreasonably dangerous because the guard gate at the
back of the lift could be easily removed, allowing a user of the lift to fall as plaintiff did.
¶4 JLG moved for summary judgment, arguing that, as a matter of law, the removal of the
guard gate from the scissor lift was not reasonably foreseeable and, thus, acted as an
-2-
intervening cause insulating JLG from liability. After arguments by the parties, the trial court
agreed with JLG and granted it summary judgment. This timely appeal followed.
¶5 ANALYSIS
¶6 On appeal, plaintiff contends that the trial court erred in granting JLG’s motion for
summary judgment on his strict-liability count, because a genuine issue of material fact exists
regarding whether the removal of the guard gate was reasonably foreseeable. We agree.
¶7 Summary judgment is appropriate where the pleadings, depositions, admissions, and
affidavits on file, when viewed in the light most favorable to the nonmoving party, show that
there is no genuine issue of material fact and that the moving party is entitled to judgment
as a matter of law. 735 ILCS 5/2-1005(c) (West 2008). We review de novo a grant of
summary judgment. Shannon v. Boise Cascade Corp., 208 Ill. 2d 517, 524 (2004). We may
affirm a grant of summary judgment on any basis appearing in the record, regardless of
whether the trial court relied upon that ground. Northern Illinois Emergency Physicians v.
Landau, Omahana & Kopka, Ltd., 216 Ill. 2d 294, 305 (2005).
¶8 “To recover against a manufacturer under strict liability, a plaintiff must prove that his
injury resulted from an unreasonably dangerous condition of the product and that the
condition existed at the time the product left the manufacturer’s control.” Augenstine v. Dico
Co., 135 Ill. App. 3d 273, 275 (1985). A design defect can cause the product to be
unreasonably dangerous. DeArmond v. Hoover Ball & Bearing, Uniloy Division, 86 Ill. App.
3d 1066, 1070 (1980). “It is the rule that where other causes combine to produce injury, the
causal connection between the defective product and the injury will be broken only if the acts
or omissions of others were improbable or unforeseeable.” Doran v. Pullman Standard Car
Manufacturing Co., 45 Ill. App. 3d 981, 987 (1977). In other words, a manufacturer of a
product is not liable for injuries resulting from unforeseeable alterations to its product. Foster
v. Devilbiss Co., 174 Ill. App. 3d 359, 363 (1988). “Foreseeability means that which it is
objectively reasonable to expect, not merely what might conceivably occur.” (Emphasis in
original.) Winnett v. Winnett, 57 Ill. 2d 7, 12-13 (1974). “If a product is capable of easily
being modified by its operator, and if the operator has a known incentive to effect the
modification, then it is objectively reasonable for a manufacturer to anticipate the
modification. [Citations.] Conversely, if the alteration of the product requires special
expertise, or otherwise is not accomplished easily, then it is not objectively reasonable for
a defendant to foresee the modification.” Davis v. Pak-Mor Manufacturing Co., 284 Ill. App.
3d 214, 220 (1996). Although questions of foreseeability are typically for the jury to resolve,
they may be decided as a matter of law where the facts establish that the plaintiff would
never be entitled to recovery. DeArmond, 86 Ill. App. 3d at 1071.
¶9 Plaintiff contends that, because the guard gate was easily removed and hindered the use
of the lift, the trial court erred in concluding that, as a matter of law, the removal of the guard
gate was not reasonably foreseeable. We agree. The evidence presented by JLG in support
of the motion for summary judgment established that the top of the lift was surrounded on
three sides by a guard railing. The guard gate was at the back of the lift and consisted of an
upside down U-shaped piece of metal. The legs of the guard gate slid into two channels
-3-
attached to the permanent guard railing. When the scissor lift left JLG’s control, the guard
gate was affixed to the guard railing with a bolt and a Nyloc nut. The Nyloc nut was a nylon
insert lock nut that contained a nylon collar insert. The collar insert was slightly smaller in
diameter than the bolt, thus allowing the collar to “deform[ ] elastically over the threads of
the bolt.” This locked the bolt in two ways: it increased the friction between the nut and the
bolt and it applied a compressive force against the bolt. The guard gate was also held in place
by two locking pins. According to JLG’s evidence, removal of the guard gate required that
the nut and bolt be removed with a wrench and a screwdriver, the locking pins pulled out of
position, and the gate itself pulled out of its channels.
¶ 10 Plaintiff contends that there is a genuine issue of material fact as to whether tools were
needed to remove the guard gate, because Victor Cardenas, plaintiff’s coworker, testified in
his deposition that when he first used the scissor lift it appeared that the guard gate could be
removed without the use of tools by simply lifting it out of its channels. While tools might
not have been needed to remove the guard gate when Cardenas used the lift, because the nut
and bolt might have been removed by that point, the relevant question is whether, when it
left JLG’s control, the lift was unreasonably dangerous. Augenstine, 135 Ill. App. 3d at 275
(“To recover against a manufacturer under strict liability, a plaintiff must prove that his
injury resulted from an unreasonably dangerous condition of the product and that the
condition existed at the time the product left the manufacturer’s control.” (Emphasis
added.)). Plaintiff presented no evidence countering JLG’s evidence that, when the lift left
JLG’s control, it required the use of a screwdriver and a wrench to remove the nut and bolt
and thus the guard gate. Nor did plaintiff present evidence that the guard gate was not affixed
as alleged by JLG. In fact, in his response to JLG’s motion for summary judgment, plaintiff
acknowledged that the guard gate was originally affixed to the lift by a nut and bolt and two
locking pins.
¶ 11 In any case, whether tools were needed to remove the guard gate does not necessarily
answer the question of whether, as a matter of law, the removal of the guard gate was
foreseeable. In Davis, 284 Ill. App. 3d at 216, the plaintiff’s husband was run over and killed
by a garbage truck after the wiring of the safety switch had been altered to allow garbage to
be packed while the truck was in gear. The plaintiff sued, among others, the manufacturer
of the packing device and the company that sold the packing device to the husband’s
employer and that installed the packing device onto the truck. Davis, 284 Ill. App. 3d at 216.
The First District reversed the trial court’s grant of summary judgment, concluding that a
genuine issue of material fact existed as to whether the manufacturer and the seller of the
packing device could have reasonably foreseen the alteration to the safety switch’s wiring.
Davis, 284 Ill. App. 3d at 221. In doing so, the First District noted that the evidence
presented did not indicate that the rewiring of the switch was a complex procedure or that
the average garbage truck operator would not have the necessary knowledge to make the
alteration. Davis, 284 Ill. App. 3d at 221. In fact, the court noted that the evidence presented
implied that the rewiring could be done quickly with only pliers and a screwdriver. Davis,
284 Ill. App. 3d at 221.
¶ 12 We find Davis persuasive and believe that it belies JLG’s contention that an alteration
of a product is, as matter of law, unforeseeable when it requires the use of tools. As discussed
-4-
above, the Davis court concluded that a genuine issue of material fact existed as to the
foreseeability of the modification despite the fact that the use of pliers and a screwdriver was
required. While the use of tools might be a factor in determining whether a modification is
accomplished easily, we do not believe that it is the determining factor, especially where the
tools themselves are common tools such as pliers, wrenches, or screwdrivers. Rather, we
believe, as the Davis court did, that where there is no evidence that special expertise is
needed to make the modification or that the modification is especially complex or time-
consuming, a genuine issue of material fact exists as to the foreseeability of the modification,
and the question is best presented to a jury.
¶ 13 JLG relies heavily on DeArmond for the proposition that, where tools are needed to make
the modification, the modification is, as a matter of law, unforeseeable. In DeArmond, 86 Ill.
App. 3d at 1071, however, the removal of the safety doors required the removal of eight
quarter-inch bolts and a rod. In contrast, the removal of the guard gate from the scissor lift
required only the removal of a nut and bolt and two pins. While the DeArmond court
concluded that the removal of eight bolts and a rod could never be foreseeable, we cannot
say the same about the removal of a single bolt and two pins.
¶ 14 Accordingly, we conclude that a genuine issue of material fact remains regarding whether
the removal of the guard gate was reasonably foreseeable. Therefore, we reverse the
judgment of the trial court and remand the matter.
¶ 15 CONCLUSION
¶ 16 For the reasons stated, the judgment of the circuit court of Du Page County is reversed
and the matter remanded.
¶ 17 Reversed and remanded.
-5-
| {
"pile_set_name": "FreeLaw"
} |
16-1071-cv
Balu v. City of New York
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE
NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY
OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated Term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York on the
9th day of March, two thousand seventeen.
Present: ROSEMARY S. POOLER,
BARRINGTON D. PARKER,
DEBRA ANN LIVINGSTON,
Circuit Judges.
_____________________________________________________
AUGUSTINA BALU,
Plaintiff-Appellant,
v. 16-1071-cv
CITY OF NEW YORK, DENIS McAULIFFE, individually
and in his official capacity as an employee of the New York
City of Department of Police,
Defendants-Appellees.1
_____________________________________________________
Appearing for Appellant: Nicholas M. Wooldridge, Las Vegas, NV.
Appearing for Appellee: MacKenzie Fillow, of counsel (Jane L. Gordon, of counsel, on the
brief), for Zachary W. Carter, Corporation Counsel for the City of
New York, New York, NY.
1
The Clerk of the Court is directed to amend the caption as above.
Appeal from the United States District Court for the Southern District of New York
(Failla, J.).
ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the (judgment/order) of said District Court be and it hereby is
AFFIRMED.
Augustina Balu appeals from the March 8, 2016 judgment of the United States District
Court for the Southern District of New York (Failla, J.) incorporating the district court’s prior
decisions denying her motions to retry her Title VII retaliation claim, to amend the joint pretrial
order, and to admit medical evidence. We assume the parties’ familiarity with the underlying
facts, procedural history, and specification of issues for review.
We review the district court's denial of a motion for mistrial for abuse of discretion.
United States v. Canova, 412 F.3d 331, 348 (2d Cir. 2005). On appeal, Balu argues that defense
counsel’s statement during opening argument improperly referenced the results of an internal
investigation by the New York Police Department’s Office of Equal Employment Opportunity
that concluded Balu’s claims of sexual harassment were unsubstantiated. Balu argues this
reference was highly prejudicial, such that the district court erred in not ordering a mistrial.The
district court acted well within its discretion in declining to declare a mistrial. It was a single
statement made during opening and the district court immediately issued a curative instruction
reminding the jury that statements by attorneys were not evidence. Balu’s counsel declined the
district court’s offer to issue a second curative instruction before the jury began deliberating,
acknowledging the issue was likely not fresh in the jurors’ minds by the end of trial.2
We also find no error in the district court’s jury instructions regarding Balu’s retaliation
claim. We review de novo challenges to jury instructions in civil cases, “and will grant a new
trial if we find an error that is not harmless.” Rasanen v. Doe, 723 F.3d 325, 331 (2d Cir. 2013)
(citation omitted). However, if the challenging party failed to object to the charge at trial, we
review for “plain error.” Id. at 332 & n. 2. Balu failed to object to the charge at trial. Balu now
argues that the district court failed to instruct the jury as to the burden shifting and rebuttable
presumptions on her retaliation claims. However, in Gordon v. New York City Board of
Education, our Court noted that including such language in jury instructions is unwise, “because
such language—developed by appellate courts for use by judges—is at best irrelevant, and at
worst misleading to a jury.” 232 F.3d 111, 118 (2d Cir. 2000) (internal quotations, brackets and
ellipses omitted). “In an employment discrimination or retaliation case, the job of the jury is
simply to decide whether an impermissible factor was a motivating factor in the adverse
employment action. The jury therefore does not need to be lectured on the concepts that guide a
2
Balu’s appellate counsel misconstrues a number of the facts in his brief. For example, he argues
that the district court elected to issue curative instructions “[o]ver Plaintiff’s counsel’s objection”
when the record shows that Balu’s trial counsel in fact asked the court not to issue a curative
instructions. See Appellant’s Br. at 5, but cf App’x at 556. Counsel also argues that the district
court failed to allow in findings by the Pension Board regarding Balu’s disability. See
Appellant’s Br. at 21-23. However, the record show s that Balu’s trial counsel specifically asked
for the contrary—that the district court require her pension proceedings not be mentioned at trial.
See App’x at 83.
2
judge in determining whether a case should go to the jury.” Id. The district court did not err by
not explicitly referencing the burden shifting or rebuttable presumptions in its jury instructions.
We have considered the remainder of Balu’s arguments and find them to be without
merit. Accordingly, the order of the district court hereby is AFFIRMED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
3
| {
"pile_set_name": "FreeLaw"
} |
2014 VT 130
Langlois v. Town of Proctor (2013-229)
2014 VT 130
[Filed 05-Dec-2014]
NOTICE: This opinion is subject
to motions for reargument under V.R.A.P. 40 as well as formal revision before
publication in the Vermont Reports. Readers are requested to notify the
Reporter of Decisions by email at: [email protected] or by mail at: Vermont
Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801, of any errors
in order that corrections may be made before this opinion goes to press.
2014 VT 130
No. 2013-229
Kathleen Langlois
Supreme Court
On Appeal from
v.
Superior Court, Rutland Unit,
Civil Division
Town of Proctor
January Term, 2014
William
D. Cohen, J.
John Paul Faignant of Miller Faignant & Robbason, P.C.,
Rutland, for Plaintiff-Appellee/
Cross-Appellant.
Philip C. Woodward of Woodward & Kelley, PLLC, South
Burlington, for Defendant-Appellant/
Cross-Appellee.
PRESENT: Reiber, C.J., Dooley, Skoglund, Robinson and
Crawford, JJ.[1]
¶ 1.
DOOLEY, J. This is an unusual dispute that arose from the
failure of plaintiff Kathleen Langlois, owner of a building with commercial
space on the first floor and an apartment on the second floor, to pay her water
bill for the property to defendant Town of Proctor, and from the Town’s alleged
failure to turn the water off pursuant to the parties’ agreement. Plaintiff
alleged, in pertinent part, that she arranged with a representative of the Town
that it would disconnect the water service so she would not incur further water
expenses, but that the Town failed to do so. She further alleged that in
reliance on the Town’s promised undertaking she discontinued heating the
building, causing the pipes containing water to freeze and split under the
first floor of the building, which, in turn, flooded the first floor and
basement, causing extensive damage to the building. The jury found the Town negligent
and awarded plaintiff damages of $64,918.44. We reverse and remand because of
the trial court’s failure to instruct on comparative negligence, but affirm in
all other respects.
I.
Procedural History
¶ 2.
Plaintiff brought this action with four counts: negligence, breach of
contract, consumer fraud, and negligent misrepresentation. The main count
involved in this appeal alleged that the Town was negligent for failure to turn
off the water and that its negligence was the proximate cause of plaintiff’s
damages. Another count alleged that the parties had a contract with respect to
the supply of water and that the Town breached the contract by sending a false
notice that it had disconnected the water and by failing to remediate its inaction
once it was discovered. In the breach-of-contract count, plaintiff also
claimed that the Town had breached its obligation of good faith and fair
dealing.
¶ 3.
The Town moved for summary judgment. With respect to the negligence
count, the Town argued that it had no duty to disconnect the water service or
to disconnect the service with reasonable care or, alternatively, that any duty
was based on its contractual obligations and could not give rise to tort
liability. With respect to the contract claim, the Town argued that it had no
contractual obligation to disconnect the water service and that it was
exercising its right under a statutory delinquency collection procedure. It
further argued that the contractual relationship between plaintiff and the Town
was terminated when plaintiff failed to pay her water bill.
¶ 4.
The superior court eventually dismissed the consumer fraud and negligent
misrepresentation counts, but denied the Town’s motion for summary judgment on
the tort and contract claims. The court found that there was a material issue
of fact with respect to whether the Town employee actually turned off the water
at the time he said he did. Moreover the court concluded:
Plaintiff’s claims
are rooted in the Town’s ordinance governing the relationship between the Town
as water supplier and Plaintiff as ratepayer. The ordinance describes itself
as “a contract between each ratepayer and the Town.” This contractual
relationship contained in the ordinance, coupled with Town’s alleged negligence
in failing to actually disconnect Plaintiff’s water and alleged
misrepresentations in informing Plaintiff that her water had in fact been
disconnected when it had not, provides a sufficient legal basis for Plaintiff’s
claims. Defendant is not entitled to judgment as a matter of law.
¶ 5.
The case was then tried before a jury, which rendered a verdict for
plaintiff. In answering the special interrogatories, the jury found that there
was a contract between plaintiff and the Town “regarding the turning off of her
water service,” but that the Town had not breached that contract. It found
that the Town was negligent, that its negligence was a proximate cause of harm
to plaintiff, and that plaintiff’s damages were $64,918.44.
¶ 6.
On appeal, the Town argues that it had no tort duty to properly turn off
plaintiff’s water service, that the court should have instructed the jury to
apply comparative negligence, and that the instructions on damages were
erroneous because the proper measure of damages is the diminution in value of
the building and, in any event, there was no evidence of that diminution.
Plaintiff cross-appeals, arguing that the jury instructions improperly failed
to allow the jury to find that the Town breached its duty of good faith and
fair dealing.
II.
Duty
¶ 7.
We begin with the question of duty. As we held recently in Buxton v.
Springfield Lodge No. 679, Loyal Order of Moose, Inc., an action for
negligence fails in the absence of a duty of care. 2014 VT 52, ¶ 7, ___ Vt.
___, 99 A.3d 171. Whether a duty was present, as well as the scope of any
duty, is primarily a question of law. Id. The Town argues that it had
no duty to turn off the water, or to turn the service off in a particular way,
for nonpayment of water charges. It further argues that the tort duty
plaintiff asserted arose out of the contractual relationship between plaintiff
and the Town, but that plaintiff’s assertion is invalid because a tort duty
must arise independent of any contractual obligations.
¶ 8.
In response, plaintiff argues that the Town’s tort duty arose from its
undertaking to disconnect the water service and plaintiff’s reliance upon that undertaking.
She bases this argument on the Restatement (Second) of Torts § 323 (1979).
¶ 9.
In addressing these arguments, we recognize that theories of duty
significantly morphed during the course of this litigation, and those changes
in theories affect the way the issue is framed on appeal. The trial judge made
no mention of duty in the instructions to the jury, saying in essence that
negligent failure to properly disconnect the water service was actionable. Nor
did the summary judgment decision contain a clear specification of the court’s
theory of duty. Rather, it stated simply that “this contractual relationship
contained in the ordinance, coupled with misrepresentations in informing
Plaintiff that her water had in fact been disconnected when it had not,
provides a sufficient legal basis for Plaintiff’s claims.” We note, however,
that the Town did not preserve an objection to the jury instructions, so the
issue on appeal is solely whether plaintiff made out a duty to support her
claim of negligence, not what the scope or nature of that duty was or whether
the trial court properly instructed the jury on duty.
¶ 10.
In considering that issue, we start with the Restatement section relied
upon by plaintiff on appeal. Section 323 provides:
Negligent
Performance of Undertaking to Render Services
One who
undertakes, gratuitously or for consideration, to render services to another
which he should recognize as necessary for the protection of the other’s person
or things, is subject to liability to the other for physical harm resulting
from his failure to exercise reasonable care to perform his undertaking, if
(a) his failure
to exercise such care increases the risk of such harm, or
(b) the harm is
suffered because of the other’s reliance upon the undertaking.
Restatement (Second) of Torts
§ 323 (1979). This Court has applied § 323, and its cousin, § 324A,
which governs harm to a third person, in a number of cases. See Sabia v.
State, 164 Vt. 293, 302-04, 669 A.2d 1187, 1194 (1995); Smyth v. Twin
State Improvement Corp., 116 Vt. 569, 570-71, 80 A.2d 664, 665 (1951); see
also DeRosia v. Liberty Mut. Ins. Co., 155 Vt. 178, 182-83, 583 A.2d
881, 883 (1990) (adopting § 324A). Thus, we have recognized and chosen to
follow this Restatement section.
¶ 11.
Without saying so directly, the Town challenges the application of
§ 323 by claiming that its underlying obligation is contractual. The Town
relies on a sentence from Springfield Hydroelectric Co. v. Copp, in
which this Court stated that a tort duty of care must be “independent of any
contractual obligations.” 172 Vt. 311, 316, 779 A.2d 67, 71-72 (2001)
(emphasis omitted) (quoting Grynberg v. Agri Tech, Inc., 10 P.3d 1267,
1269 (Colo. 2000)). The Town argues that there is no recognizable tort duty
because plaintiff is basing the Town’s duty on the breach of a contract to turn
off the water. The short answer to the Town’s argument is that although the
jury found that the Town had a contractual duty to disconnect the water, it
also found that the Town did not breach that contractual duty. Thus, the
jury’s award was not based on breach of any contractual duty. We do not rely
upon the jury determination alone in rejecting the Town’s argument, however,
because neither the judge nor the jury defined the duty on which the tort
liability was based.
¶ 12.
We conclude that the Town reads too much into Springfield
Hydroelectric. The issue in that case was whether the plaintiff could
obtain a tort recovery for purely economic losses in the absence of physical
damage. Thus, the sentence on which the Town relies was part of the overall
holding that negligence liability, even if based on a contractual duty, could
not give rise to recovery for intangible economic loss in the absence of
accompanying physical harm. Id. at 314-15, 779 A.2d at 70-71. We did
not hold that the duty on which plaintiff relies for a tort action can never be
contractual.
¶ 13.
In fact, many of our duty cases are based on undertakings involving
contractually assumed duties. For example, in Perry v. Green Mountain Mall,
the defendant had a contract with a mall owner to maintain the parking lot and
roads around the mall. 2004 VT 69, 177 Vt. 109, 857 A.2d 793. The plaintiff
was an employee of a mall store who was injured when her car skidded on ice in
the parking lot, and she sued defendant for negligent failure to remove the
ice. We found that the plaintiff’s complaint alleged a duty recognized under
§ 324A of the Restatement. Id. ¶ 10. Neither § 323 nor
§ 324A suggest that the duty stemming from the undertaking cannot be contractually
based. Both apply to an undertaking “for consideration,” which is one way to
describe a contract. Indeed, the only case we have directly on this point
involved a defendant who argued that a § 323 duty had to be
contractual. See Smyth, 116 Vt. at 570-71, 80 A.2d at 665.
¶ 14.
The evidence in this case was sufficient for a factfinder to find that
the elements of § 323 were established. Plaintiff testified that the
agent of the Town responsible for utility disconnections promised to disconnect
the water service to the building. The Town’s witnesses established that a
Town worker went to the site in May 2009 and believed he had turned off the
water at the “curbstop,” a valve in the right of way. Thus, there was adequate
evidence of an undertaking, whether gratuitous or contractual. See Sabia,
164 Vt. at 303, 669 A.2d at 1194 (“[C]ourts generally require very little
action on the part of defendants to find an undertaking.”).
¶ 15.
Further, there was evidence that Town workers were aware of the
consequences if water was not disconnected and went into an unheated building.
In fact, there was testimony that this had happened to another customer about a
year before the events of this case. Thus, there was evidence that Town
workers recognized that turning off the water was necessary to protect
plaintiff’s property. Finally, plaintiff testified that she relied upon the
Town employee’s promise to have the water disconnected when she discontinued
heat to the building, meeting the requirement of § 323(b).
¶ 16.
We recognize that there was conflicting testimony on at least one of the
main elements of the tort and that neither the court nor the jury made findings
resolving the conflict. The person responsible for utility disconnections for
the Town testified that she did not promise to disconnect the water service and
was not authorized to make such a promise in any event. Nevertheless, as we
noted above, the Town has not challenged the findings or the jury
instructions. Thus, the factual disagreement is not before us. In short, we
reject the Town’s argument on appeal that it had no tort duty to properly turn
off plaintiff’s water.
III.
Comparative Negligence
¶ 17.
We turn now to the Town’s claim that the trial court’s refusal to
instruct the jury on comparative negligence constitutes reversible error. The
Town submitted proposed jury instructions that included an instruction on
comparative negligence. The proposed instruction was generic—it did not
describe the negligence the Town alleged. There was, however, a conference on
the instructions. In the conference, plaintiff argued that comparative
negligence did not apply because plaintiff had nothing to do with the failure
to turn off the water—the applicable doctrine was mitigation of damages. The
Town argued that both mitigation of damages and comparative negligence
were involved because plaintiff should have checked immediately whether the
water was off, and if she had, no damage would have occurred. The court declined
to include the comparative negligence instruction, stating that “under the
circumstances, I’m not sure what duty Ms. Langlois would have had to go and
check on the house.” The Town objected to the court’s decision prior to the actual
jury instruction as well as after.
¶ 18.
The instructions did include a section on “Mitigation of Damages,” which
applies to each of plaintiff’s recovery theories. It states that “a person who
has suffered damages has a duty to take protective or preventative measures in
an effort to reduce the harm or prevent its further increase.” The instruction
noted that the burden of proof for mitigation is on defendant and that if the
jury found “plaintiff could reasonably have avoided some of the damages claimed
by taking any reasonable action” the jury must reduce the award by the amount
that could have been avoided.
¶ 19.
The trial court has a duty to instruct the jury on all issues essential
to the case. Barber v. LaFromboise, 2006 VT 77, ¶ 14, 180 Vt. 150,
908 A.2d 436. On appeal, the party alleging that the court erred by omitting
an essential instruction must establish that the omission was “both clearly
erroneous and prejudicial.” Id. The trial court enjoys discretion over
the extent to which it elaborates on each instruction, but the charge as a
whole must not mislead the jury as to the spirit of the law. Malaney v.
Hannaford Bros., 2004 VT 76, ¶ 21, 177 Vt. 123, 861 A.2d 1069.
¶ 20.
The central question is whether, under the evidence, the jury could have
found that: (1) plaintiff was also negligent, such that the jury should have
found the degree of that negligence and compared it to the degree of
defendant’s negligence; (2) plaintiff should have taken actions to mitigate
her damages; (3) or both. Whatever the context, other courts and academics
have struggled to find a consistent answer to the question of when comparative
negligence or mitigation of damages applies.
¶ 21.
In examining the doctrines, we start with comparative negligence, which
is defined and controlled by statute in Vermont. Section 1036 of Title 12,
entitled “Comparative Negligence,” provides as follows:
Contributory
negligence shall not bar recovery in an action by any plaintiff, or his legal
representative, to recover damages for negligence resulting in death, personal
injury or property damage, if the negligence was not greater than the causal
total negligence of the defendant or defendants, but the damage shall be
diminished by general verdict in proportion to the amount of negligence
attributed to the plaintiff. Where recovery is allowed against more than
one defendant, each defendant shall be liable for that proportion of the total
dollar amount awarded as damages in the ratio of the amount of his causal
negligence to the amount of causal negligence attributed to all defendants
against whom recovery is allowed.
As the words
reflect, comparative negligence was adopted as a replacement for the common law
doctrine of contributory negligence, which denied the plaintiff all recovery if
the jury found that the plaintiff was negligent to any extent and that the negligence
was a proximate cause of the damage. See Washburn v. Tracy, 2 D. Chip
128, 136, 1824 WL 1346, at *1 (Vt. 1824) (“[T]he law is, that where the injury
arises from the plaintiff’s own misconduct, or want of ordinary caution,
notwithstanding the defendant’s neglect, . . . the plaintiff cannot recover.”).
The statute establishes a policy of “modified comparative negligence” that
allows a recovery if plaintiff was responsible for fifty percent or less of the
total causal negligence. Under the statute, defendant is responsible for that
percentage of plaintiff’s damages that is equal to the percentage of causal
negligence attributable to the defendant. Comparative negligence thus operates
to reduce a plaintiff’s recovery by comparing the parties’ relative negligence in
causing plaintiff’s injury. Gilman v. Towmotor Corp., 160 Vt. 116, 121,
621 A.2d 1260, 1263 (1992). In the typical case, each party’s fault has
contributed to the whole harm. “Because the plaintiff has suffered but one
harm that cannot be divided into parts, courts in a comparative negligence
system apportion liability between the plaintiff and defendant in proportion to
their fault in causing the loss as a whole.” 1 D. Dobbs et al., The Law of
Torts § 229, at 822 (2d ed. 2011).
¶ 22.
Mitigation of damages also operates to reduce a plaintiff’s recovery,
but derives from damages law generally, with a different justification. Under
the mitigation of damages doctrine—also known as the doctrine of avoidable
consequences—a plaintiff may not recover for any damages that the plaintiff
could have avoided or minimized through reasonable care or expenditure. Id.,
at 820. We have recognized damages mitigation as part of Vermont’s common tort
law for well over a century. In Lloyd v. Lloyd, 60 Vt. 288, 288, 13 A.
638, 639 (1888), this Court held that, where plaintiff could have reasonably
avoided $100 of damages by spending $25, he was entitled to recover only $25,
reasoning:
It is the duty of a person injured by the fault of another to use all
reasonable means to protect himself against injurious consequences. If injured
in his person he must attend to his cure. If injured in his estate he must
attend to its preservation. If he fails in this duty he cannot gather the
fruits of his own negligence.
See also Brown
v. Sutkowski, 117 Vt. 377, 379, 91 A.2d 556, 557 (1952); Restatement
(Second) of Torts § 918 (1979). The rule of avoidable consequences is a
negligence rule, and the negligence analysis for determining whether
consequences could have been avoided is the same as the analysis for
determining whether plaintiff was contributorily negligent. Restatement
(Second) of Torts § 918 cmt. c (1979).
¶ 23.
Generally, the avoidable consequences rule is applied when courts can
identify and isolate two or more distinct items of harm resulting from two or
more distinct acts or causes. When courts deem it just, they can allocate the
entire responsibility for one discrete item of harm to the plaintiff as the
responsible party causing that particular harm. Dobbs, supra, at
822. Damages mitigation thus depends on analyzing the cause of each item of
damages and barring the plaintiff completely from recovering those damages for
which he or she is deemed responsible. This is sometimes referred to as
“causal apportionment,” in contrast with the comparative negligence “fault
apportionment.” Id. at 822-23. Depending on which method is used, a
plaintiff’s damages may come out differently. Id.
¶ 24.
Jurisdictions differ in how the two rules interact. In some cases,
comparative negligence essentially subsumes mitigation, with all reduction in a
plaintiff’s recovery controlled only by relative fault. E.g., Ridley v.
Safety Kleen Corp., 693 So. 2d 934, 943-44 (Fla. 1996) (interpreting Florida
statute to require only comparative fault assessment and not mitigation). This
is also the direction taken by the Third Restatement of Torts. See Restatement
(Third) of Torts: Apportionment of Liab. § 3 cmt. b (2000) (“This Section
applies to a plaintiff’s unreasonable conduct that aggravates the plaintiff’s
injuries. No rule about mitigation of damages or avoidable consequences
categorically forgives a plaintiff of this type of conduct or categorically
excludes recovery.”); id. § 8 (setting forth factors for assigning
responsibility amongst all persons involved in tort, including plaintiff).
¶ 25.
Other jurisdictions apply the damages mitigation doctrine only to a
plaintiff’s post-injury conduct and apply comparative negligence to damages
from all other sources. E.g., Kocher v. Getz, 824 N.E.2d 671, 674 (Ind.
2005) (applying damages mitigation only to post-injury conduct). This is the
historical majority rule, and the rule plaintiff urges us to adopt in this
case. See 3 J. Stein, Personal Injury Damages § 18:2 (3d ed. 2014) (stating
that determination of which doctrine applies “is generally considered to be
dependent on the sequence of events”); Y. Adar, Comparative Negligence and
Mitigation of Damages: Two Sister Doctrines in Search of Reunion, 31
Quinnipiac L. Rev. 783, 799 (2013) (“It is universally accepted that the ‘duty
to mitigate’ arises only after the completion of the legal wrong against the
plaintiff, that is, in the context of a tort action, only once the tort is
complete.”). Still other jurisdictions apply damages mitigation only to
discrete items of harm that are tied to a plaintiff’s conduct and apply comparative
negligence to damages from all other sources. E.g., Halvorson v. Voeller,
336 N.W.2d 118, 121 (N.D. 1983) (adopting minority view that pre-injury conduct,
such as not wearing motorcycle helmet, may be used to mitigate damages in amount
that injury could have been avoided by such use).
¶ 26.
We have never decided this question. See Grazulis v. Curtis, 149
Vt. 371, 372, 543 A.2d 1324, 1326 (1988) (stating that question of which
doctrine applies not reached because of lack of preservation). In the leading
case of Smith v. Goodyear Tire & Rubber Co., 600 F. Supp. 1561 (D.
Vt. 1985), Judge Coffrin addressed whether the plaintiff’s failure to wear a
seatbelt could be comparative negligence or violate the plaintiff’s duty to
mitigate damages where the plaintiff is injured in an automobile accident by a
negligent driver.[2]
The court held that the jury could find the plaintiff negligent for not
wearing a seatbelt, such that the plaintiff’s negligence would be compared
under the statute to that of the defendants for purposes of determining the
extent of liability. Id. at 1565. The court specifically rejected the plaintiff’s
argument that because the plaintiff’s seatbelt nonuse was related only to the
extent of his injuries and not to the accident, it could not be compared under
the statute. It held that the courts that had drawn this distinction did so to
avoid the harsh doctrine of contributory negligence, and stated that “due to
Vermont’s comparative negligence doctrine, we need not resort to such judicial
sleight-of-hand.” Id. at 1566. It also held that the jury could
consider nonuse of a seatbelt as a breach of plaintiff’s duty to mitigate
damages even though the act of failing to engage the seatbelt preceded the
accident.[3]
Id. at 1567. Smith was a diversity-of-citizenship case and was
applying Vermont law, specifically the comparative negligence statute.
¶ 27.
Before we look to the facts of this case, we must address the trial
court’s basis for refusing to instruct on comparative negligence—that plaintiff
had no duty to determine whether the water had been turned off. We reject this
conclusion. In the context of a comparative fault analysis, plaintiff had a general
duty to take due care with respect to her own property. The questions for the
jury were, under the circumstances of this case, whether plaintiff failed to
take due care and, if so, to what extent her conduct caused the claimed
injuries.
¶ 28.
In the case before us, we conclude that comparative negligence applies,
at least in part, regardless of the theory we follow. The relevant sequence of
events was as follows. Plaintiff testified that pipes had frozen and split in
the apartment previously and as recently as the winter of 2008-2009. No
significant damage occurred as a result of this break because it was identified
quickly. Plaintiff testified that she had her plumber friend drain the pipes
in the building shortly thereafter—although accounts differ as to when this
actually happened because the plumber friend later testified that he drained
the pipes in the fall of 2009.[4]
The plumber turned off the water at a turn-off valve on the first floor of
the building.
¶ 29.
No one from the Town attempted to enter the building[5]
and check whether the water was off after the May 2009 attempt to turn it off
at the check valve. The witness for the Town testified that such a check was
not done in case of an involuntary disconnection to avoid a confrontation with
the owner.
¶ 30.
The damage was caused by a frozen and split pipe in an unfinished
basement under the first floor. The pipe from the main line came in through
the foundation and up to the first floor where the turn-off valve had been installed.
The split occurred in that line before it reached the first-floor turn-off
valve. A witness called by the Town testified that all buildings have a cellar
valve where one can and should turn off water coming into the house because the
pipe from the Town line is below the frost depth until it enters the house.
The plumber did not attempt to turn off the water at a cellar valve, leaving
water between that point and the first-floor valve.[6]
¶ 31.
As noted, town employees came to plaintiff’s house to shut the water off
at the curb stop in May 2009. Plaintiff did not heat the building at all
during the winter of 2009-2010, when the pipe presumably burst. Plaintiff used
part of the building periodically in 2010 to temporarily store trash, but did
not enter the part of the first floor where the leak occurred until August 10,
2010, when the leak was discovered. At trial, the only damage assessment was
provided by plaintiff’s expert witness, who estimated the cost of repair to the
building would be $97,523.75 and testified that the damage to personal property
in the building amounted to around $5,521.40.
¶ 32.
The traditional temporal line to determine whether comparative
negligence or mitigation/avoidable consequences applies is when the plaintiff
becomes aware of being harmed by the defendant’s negligence. See Adar, supra,
at 819 (stating that historical temporal borderline between comparative
negligence and failure to mitigate “is the moment in which the [plaintiff] becomes
aware of . . . becoming a victim of a tort”); 3 J. Stein, Personal Injury
Damages § 18:2 (3d ed. 2014) (stating that avoidable consequences applies
“after the plaintiff has been injured by the defendant under circumstances in
which the defendant is liable for the original injury [and] some of the
injuries could have been avoided by the plaintiff’s exercise of reasonable
precautions”). We recognize that the Town is contending that plaintiff was
negligent in not becoming aware of the water damage earlier. Arguably,
plaintiff should have checked the part of the first floor where the water was
running both before and after the temperature fell to the point where the pipe
split, but it is difficult to determine what damage would have been avoided
even if one chose an arbitrary date by which the leak should have been
discovered. This is a question of fact for the jury on remand.
¶ 33.
The modern approach to comparative negligence and avoidable consequences
is based on the recognition that these doctrines address identical policy
judgments but reach different results. See Adar, supra, at 839-40. As
a the Reporters’ Note to the Third Restatement of Torts explains:
Before comparative responsibility, a plaintiff’s negligent post-accident
failure to mitigate damages barred recovery for that portion of the damages.
The jury was instructed not to include such damages in the
verdict. . . . This approach made sense when a plaintiff’s
negligence was an absolute bar to recovery; it barred the plaintiff from
recovering any damages caused by plaintiff’s negligent failure to mitigate. By
instructing the jury to consider a plaintiff’s negligent failure to mitigate
damages in the damages question, courts avoided confusing the jury into
thinking that the plaintiff’s conduct should also bar the plaintiff from
recovering for the original injuries. Under comparative responsibility, it no
longer makes sense to have a plaintiff’s negligence constitute an absolute bar
to recovery, even for the portion of plaintiff’s injuries caused by that
conduct. The underlying premise of comparative responsibility is that a
plaintiff’s negligence should reduce, not bar, the plaintiff’s recovery for any
damages caused both by that conduct and the defendant’s conduct. A plaintiff’s
failure to mitigate damages should no longer constitute a bar to recovering
those damages. Under comparative responsibility, a plaintiff’s negligent
failure to mitigate damages is a factor to consider when assigning percentages
of responsibility. It does not totally exclude recovery of damages caused by
plaintiff’s failure to mitigate.
Restatement (Third) of Torts:
Apportionment of Liab. § 3, Reporters’ Note, cmt. b. (2000).
¶ 34.
Several considerations favor adopting this view. First, while we are
not constrained to follow the Restatements, we have generally done so unless
there is a strong rationale to the contrary. See Provoncha v. Vt.
Motorcross Ass’n, 2009 VT 29, ¶ 12, 185 Vt. 473, 974 A.2d 1261 (following
Restatement (Third) of Torts: Apportionment of Liab. § 2 cmts. d, e. (2000)); Windsor
Sch. Dist. v. State, 2008 VT 27, ¶ 18, 183 Vt. 452, 956 A.2d 528 (following
Restatement (Third) of Torts: Apportionment Liab. § 22(a)(2)(ii) (2000)). We
see no such strong rationale here, but the parties have not briefed the issue.
Second, the Restatement policy to abandon mitigation of damages in negligence
cases is consistent with our comparative negligence statute, which draws no
temporal distinction. 12 V.S.A. § 1036 (stating that “the damage shall be
diminished by general verdict in proportion to the amount of negligence
attributed to the plaintiff”). Finally, applying comparative negligence
irrespective of when a plaintiff’s negligence occurs in relation to the
completion of a defendant’s tort would be less confusing for the jury and
appears to be the best policy in that the timing of plaintiff’s negligence would
not necessarily be determinative of the ability to recover any item of damage.
¶ 35.
On the other hand, the parties have not briefed this issue and there is
limited case law addressing the Restatement’s view on this point. See Adar, supra,
at 784-85 (noting that Third Restatement’s “revolutionary proposition . . . has
barely been mentioned by American courts and has not yet been discussed in the
academic literature”).[7]
Accordingly, we make no determination here whether the Third Restatement
position should be adopted in all cases, even those cases involving multiple
discrete harms, with one or more of the harms attributable solely to the
plaintiff’s actions. See Dobbs, supra, §§ 229-30, at 822 (noting that
avoidable consequences rule most often applies when plaintiff is entirely
responsible for one of multiple discrete harms, and that some courts apportion
responsibility entirely under comparative fault rules when plaintiff and
defendant are both responsible for plaintiff’s injury). In this case, however,
there is no allegation of plaintiff’s negligence after she discovered the
injury, and no discrete damages allegedly attributable solely to plaintiff. Thus,
we agree with the Town that the court should have instructed the jury on comparative
negligence rather than on damages mitigation to respond to its claim of
plaintiff’s negligence.
¶ 36.
In short, the instructions as a whole did not contain the spirit of the
law. If we could determine from the damages award or the interrogatories[8]
that the jury found that plaintiff was not negligent and was not obligated to
mitigate damages, we could find an absence of prejudice. We cannot do so here—the
damages awarded by the jury were less than plaintiff claimed. We therefore
reverse and remand. On remand, the trial court must instruct the jury on
comparative negligence.
IV.
Damages
¶ 37.
Because we reverse and remand on the issue above, it is not required
that we address the next issue. We do so, however, because it is likely to
arise again in a second trial. The Town argues that the trial court erred in
its instruction to the jury on damages, which we review under the same standard
articulated above. Supra, ¶ 22.[9]
Again, we look to the jury instruction as a whole, rather than any particular
sentence, to see whether it “breathes the true spirit and doctrine of the
law.” Callan v. Hackett, 170 Vt. 609, 609, 749 A.2d 626, 628 (2000)
(mem.) (quotation omitted). If the instruction does not mislead the jury as to
the law, we will uphold it. Id.
¶ 38.
The court issued its instructions on damages as follows:
As a jury, it is your obligation to arrive at an amount which is supported by
the evidence and fair to both the parties. The amount of damages, if any, is a
determination for the jury. The plaintiff bears the burden of proving her
damages by a preponderance of the evidence. In this action, . . .
the plaintiff is seeking to recover for damages to her property due to flooding.
For the breach of contract claim, plaintiff seeks as damages the amount that
would place her in a position she would have been in had the defendant not
breached the contract. . . . For property that has been damaged
but can be repaired, the measure of damages is generally the cost [of]
repairing the property. For property that has been destroyed and cannot be
repaired, the difference in the value of the property before and after it was
destroyed is the measure of damages. As to the negligence claim, the measure
of damages is, again, either the cost of repairing the property damaged by the
defendant’s negligence or the decrease in value of the property damaged by the
defendant’s negligence.
¶ 39.
The Town argues that the instruction above is erroneous because it does
not include a statement that diminished-value damages should be used when cost-of-repair
damages are disproportionate to the value of the property. It concedes that
this principle, known as the “doctrine of economic waste,” has never been applied
in Vermont “in this precise factual context.” As the Town has cited only breach-of-contract
cases in support of this point, we assume it is referring to the context of
tort damages to real property.
¶ 40.
The Town argues further, as it must, that plaintiff’s proof of her cost-of-repair
damages was not complete without evidence that those damages were not
disproportionate to the value of the property. It reasons that without such
evidence the jury would be unable to calculate damages with reasonable certainty.
¶ 41.
In the context of a tort action for damage to real property, we have
stated the rule for damages as follows:
If the injury is temporary in the sense that restoration can cure the harm, the
reasonable cost of repair may serve the need and provide adequate and fair
compensation. If the damage is permanent and beyond full repair, the variance
in value of the property before and after the injury often affords the better
guide to a just award. It all depends upon the character of the property and
the nature and extent of the injury.
Bean v. Sears, Roebuck &
Co., 129 Vt. 278, 282, 276 A.2d 613, 616 (1971). This is essentially the
instruction that the trial court gave. The Town’s objection is that the court
did not go on to explain that cost-of-repair damages are inappropriate if they
are out of proportion to the value of the property.
¶ 42.
Most jurisdictions follow some version of our rule from Bean
quoted above. See Dobbs, supra, § 481 at 20. Jurisdictions
differ, however, on how they determine whether an injury is “temporary” or
“permanent” and therefore when and how to award cost-of-repair damages as
opposed to diminished-value damages. Id. § 481, at 20-22. Some
courts have adopted the rule that the Town promotes—that, even if the injury is
temporary, if the cost of repair is greater than the value of the property
prior to injury, damages should be limited to the value of the property or the
diminution in value. Alesko v. Union Pac. R.R. Co., 109 P.2d 874, 877
(Idaho 1941). Other courts state simply that the permanence of an injury is a
question for the jury and, further, that the jury may consider evidence of both
types of damages together in their deliberations on the appropriate amount. E.g.,
Rempfer v. Deerfield Packing Corp., 72 A.2d 204, 209-10 (N.J. 1950)
(citing cases).
¶ 43.
We acknowledge that our explanation in Bean that “[i]t all
depends on the character of the property and the nature and extent of the
injury” is not especially descriptive, but in that opinion we also refer to
“reasonable cost of repair” and a “just award.” 129 Vt. at 282, 276 A.2d at
616. We have held in the contracts context that costs of repair are an
appropriate measure of damages unless they are “so inordinate and excessive as
to be unreasonable and wasteful.” Sheldon v. Ne. Devs., Inc., 127 Vt.
15, 18, 238 A.2d 775, 777 (1968). Our touchstone for determining damages, in tort
as in contract, is reasonableness. Bean, 129 Vt. at 282, 276 A.2d at
616. We now clarify that the proportionality of cost-of-repair damages relative
to the value of the property prior to a tort injury to property is part of the
general inquiry on the reasonableness of damages.
¶ 44.
Our recognition of this rule, however, helps the Town only if plaintiff
had the burden to show that the repair damages were disproportionate to value.
This is true because the Town offered no evidence that the repair costs were
disproportionate, and in the absence of evidence on this point, the trial court
had no reason to instruct the jury on the point. The Town urges us to require
this disproportionality inquiry as part of plaintiff’s prima facie case, citing
our case law requiring sufficient proof of damages generally, such that the
jury may determine damages “with reasonable certainty.” Ferrisburgh Realty
Investors v. Schumacher, 2010 VT 6, ¶ 22, 187 Vt. 309, 992 A.2d 1042
(quotation omitted). We hold instead that the burden of introducing additional
evidence with respect to the proportionality of cost-of-repair evidence more
appropriately falls on the party who wishes to challenge the cost-of-repair
evidence, in this case the Town. See Martin v. Design Constr. Servs., Inc.,
2009 -Ohio- 1, ¶¶ 24-25, 902 N.E.2d 10 (establishing that evidence of
diminution of market value of property bears on reasonableness of cost-of-repair
damages and may be introduced by either party).
¶ 45.
Our standard rule for tort damages is that “plaintiffs must prove, by a
preponderance of the evidence, the extent and nature of their damages.
Plaintiffs must further show that such damages are the direct, necessary, and
probable result of defendant’s negligent act.” Callan
v. Hackett, 170 Vt. 609, 609, 749 A.2d 626, 628 (2000) (mem.) (citation
omitted). We see no reason to alter this rule for plaintiff’s prima facie
case.
¶ 46.
In the case at hand, plaintiff introduced expert evidence as to the
nature and extent of her cost-of-repair damages in the amount of $97,523.75. Plaintiff
testified that she bought the damaged building, her house, and the land on
which both buildings stood for a total of $130,000 in 2005. Plaintiff also
testified that she made significant improvements to the building between 2005
and 2008, including a new oil tank, furnace, panel box, breakers, meter pan,
entry door, entry subfloor, kitchen floor, kitchen sink, toilet, bathroom sink,
bathroom pipes, and bedroom carpeting. She also stated that she refinished
hardwood floors in another three rooms. Plaintiff introduced no evidence of
the total cost of these improvements; the resultant change in the value of the
building due to these improvements; the relative value of the damaged building
as compared to the house and the land; the current value of any of the property
she purchased in 2005; or the value of the building immediately prior to the burst
pipe in this case. The Town introduced no evidence regarding damages at all,
but claimed instead during closing arguments—as it claims on appeal—that
plaintiff had not met her burden of proof because she did not provide evidence
as to the value of the building before or after the damage occurred.
¶ 47.
The Town is mistaken as to the burden of production. Plaintiff met her
prima facie case simply by showing evidence of her cost-of-repair damages,
chiefly through the testimony of her expert witness. Plaintiff’s expert’s
opinion on the matter was uncontradicted and supported by the record. Although
plaintiffs always bear the burden of proof as to the reasonableness of damages,
once plaintiff made a prima facie case, the burden of production was then on
the Town to present evidence that cost-of-repair damages in this case were
unreasonable, for instance in comparison with the value of the building in
2008, or in comparison with the diminution in value of the building before and
after the damage occurred.
¶ 48.
In light of the foregoing analysis of our law on damages, we find that
the jury instruction on finding damages in this case was not an abuse of the
trial court’s discretion, in that it sufficiently reflected the spirit of the
law in light of the evidence presented. Barber, 2006 VT 77, ¶ 14.
Although the instruction might have been clearer had it used the word
“reasonable” in reference to the amount of damages to be awarded, the term was
implied in the choice the court gave the jury between two methods of damages
valuation and also in the instruction that: “As a jury, it is your obligation
to arrive at an amount which is supported by the evidence and fair to both the
parties. The amount of damages, if any, is a determination for the jury.”
Given that no evidence was introduced by either party as to the value of the
building prior to the damage, or as to the diminution in value of the building
before and after the damage, no instruction was necessary on those points.
V.
Implied Covenant of Good Faith and Fair Dealing
¶ 49.
The final issue is raised by cross-appeal.[10]
Plaintiff challenges the failure of the trial judge to instruct the jury, separately
and in detail, on plaintiff’s claim that the Town violated the implied covenant
of good faith and fair dealing. To evaluate this claim, we must examine plaintiff’s
underlying theory that the Town breached a contract between plaintiff and the
Town with respect to the supply of water, a theory that the Town opposed and
the jury rejected on the instructions provided it.
¶ 50.
In her complaint, plaintiff alleged that the parties had a contractual
relationship with respect to the supply of water and the Town breached the
contract “in sending a false notice that the water had been shut off” and in
“failing to remediate the action immediately after it was discovered.” Plaintiff
alleged that this conduct not only breached the contract but also breached the
Town’s “obligation of good faith and fair dealing.”
¶ 51.
From the beginning the Town responded that any contract between it and plaintiff
terminated because of plaintiff’s breach by failing to pay her water bill. It
argued that its actions were part of a delinquency procedure that was not
contractual but rather were regulated by statute and not contract. In response
to the Town’s motion for summary judgment, plaintiff developed the theory that
the ordinance provisions created a contract that the Town breached. Without
explicitly accepting this theory, the court denied the motion for summary
judgment and allowed the jury to consider plaintiff’s count that the Town
breached a contract and specifically breached the covenant of good faith and
fair dealing.
¶ 52.
Plaintiff’s theory became more explicit in her proposed jury
instructions. These proposed instructions described plaintiff’s contract theory
as: “Plaintiff alleges that the Ordinance and policies adopted by the Town
pursuant to the same require that the Defendant properly perform water
disconnections, that the Town provide contemporaneous notice of disconnection,
and that the Town confirm that said water disconnections were done properly.”
She requested an explicit instruction on the covenant of good faith and fair
dealing, with a quote describing the covenant primarily from our decision in Harsch
Props., Inc. v. Nicholas, 2007 VT 70, ¶¶ 14-18, 182 Vt. 196, 932 A.2d 1045.
The proposed instruction then described the jury’s responsibility as to
determining whether the Town represented that the water was shut off, when it
was not, and whether the failure to shut off the water “was unfair and
unreasonable and not made in good faith towards Plaintiff.” It concluded that
the jury had to find a violation of the covenant if the Town’s actions were
unfair and unreasonable and not in good faith and “Plaintiff relied on those
actions.”
¶ 53.
The court rejected the proposed instruction and charged as follows:
Plaintiff asserts two potential sources
for a contract between herself and the [defendant]. First, she contends that
the Town of Proctor’s 2006 water rules constitute a written contract. Second,
she contends that the oral contract was formed when the defendant undertook to
turn off the water service to her property, and she relied on defendant’s
promises to turn off the water service to her own detriment.
. . . .
If you find by a preponderance of the
evidence that a contract between the plaintiff and the defendant existed under
either of these theories, then you should go to consider whether the defendant
breached the contract. If you find that the plaintiff and the defendant had a
contract where the defendant promised to turn off the water service to
plaintiff’s property, you must then decide whether the defendant failed to
perform its obligation under the contract.
Plaintiff claims that defendant
breached the contract by failing to turn off the water service and by acting in
bad faith. All the contracts contain an implied duty that requires the parties
to perform their obligations in good faith. You may conclude that the
defendant acted in bad faith in carrying out its obligations under the
contract. If you find that it is more likely than not true that there was a
contract and the defendant breached the contract, then you should go on to
consider damages. Otherwise, your verdict on this claim should be for the defendant.
The court submitted special
interrogatories to the jury, specifically: “has the plaintiff proven that there
was a contract between herself and defendant regarding the turning off of her
water service?”—to which the jury answered “Yes”—and “has the plaintiff proven
that defendant breached the contract?”—to which the jury answered “No.” The
jury’s negative answer to the second question ended their consideration of the
plaintiff’s breach-of-contract theory. Plaintiff did not object to the failure
of the court to use its proposed instructions on good faith and fair dealing.
¶ 54.
Plaintiff argues here that the charge as given “failed to encompass the
breadth of the covenant, eliminating from the jury’s consideration the catalog
of conduct sufficient to warrant a finding of bad faith.” Plaintiff itemized the
Town’s conduct that she believed violated the covenant: (1) denying any intent
to enter into an agreement to disconnect the water service and characterizing what
occurred as a delinquency procedure rather than a voluntary termination; (2)
denying that plaintiff could rely upon representations from defendant’s
employee; (3) denying the true purpose of an employee’s search for a written
work order; and (4) falsifying the state of plaintiff’s property and the
standpipe above the shut-off valve at the time the water leak was discovered.
¶ 55.
In evaluating these claims, we will assume that the court correctly
decided to submit plaintiff’s breach-of-contract claims to the jury. Although the
Town argued below, and argues here, that there was no contract with respect to
the disconnection of water service, we need not reach that argument because the
jury found there was no breach and, except for the language concerning the
covenant of good faith and fair dealing, plaintiff has not challenged the jury
instructions. Thus, on remand, nothing is left of plaintiff’s breach-of-contract
claims, unless we reverse with respect to the jury instructions on the covenant.
¶ 56.
Before we discuss the merits of plaintiff’s arguments, we note that the
detailed violations of the covenant that plaintiff alleges in her brief are
significantly different from the violations alleged in her proposed jury
instructions. The difference is particularly significant because the appeal
issue is whether the trial court erred in refusing to use plaintiff’s proposed
jury instruction on good faith and fair dealing. While we do not decide on
this basis because it is significantly narrower than the rationale below, we
note that the grounds now asserted were not preserved in the superior court.
¶ 57.
Our main decision on the covenant of good faith and fair dealing is Carmichael
v. Adirondack Bottled Gas Corp., 161 Vt. 200, 635 A.2d 1211 (1993). In
that case, the plaintiff and her husband purchased a petroleum gas
distributorship and signed a supply agreement with the defendant, which according
to a term of the contract, would automatically terminate on the death of the plaintiff’s
husband or other events. The husband died, and the plaintiff took over the
business. Rather than terminating the agreement, the defendant made an offer
to buy the distributorship to turn it into a retail outlet for the defendant,
but the plaintiff rejected the offer. In response to the rejection, the defendant
discontinued supplying the business with petroleum, invoking the “key man”
provision that became applicable on the husband’s death. Litigation resulted.
The plaintiff alleged that the defendant’s action, using the “key man”
provision as a way to induce a sale to it at a favorable price, was a violation
of the covenant of good faith and fair dealing.
¶ 58.
We looked to the Restatement (Second) of Contracts § 205 (1981) to
define the scope of the covenant, its coverage and application. Id. at
208, 635 A.2d at 1216. The covenant implements the “underlying principle
implied in every contract . . . that each party promises
not to do anything to undermine or destroy the other’s rights to receive the
benefit of the agreement.” Id. It exists to ensure that parties to a
contract act with “faithfulness to an agreed common purpose and consistency
with the justified expectations of the other party.” Id. (quoting
Restatement (Second) of Contracts § 205 cmt. a (1981)). We noted the difficulty
in defining a breach of the covenant other than stating the general principles
that an action for breach is no different than a tort action and that the
concept varies with the context. Id. We added that the conduct
involved violates community standards of decency, fairness, or reasonableness.
Id. (quoting Restatement (Second) of Contracts § 205 cmt. a. (1980)).
We quoted from the Restatement comments the type of conduct that violates the
covenant. Id. at 208-09, 635 A.2d at 1216-17.
¶ 59.
We held in Carmichael that the facts presented a jury question
whether defendant had violated the covenant by using the key man provision to
force a sale at an unreasonably low price. This case is far different from Carmichael.
Here, the jury instructions defined the underlying contract as one to turn off
the water, based on either the Town ordinance or the promise of Town staff to
do so. The jury found such a contract, enabling plaintiff to argue that the
implied covenant had been breached. Nevertheless, as in Carmichael,
plaintiff had to identify conduct separate from that which breached the
underlying contract to form the basis for the breach of the implied covenant. In
essence, plaintiff has argued that the conduct that breached the covenant was
the Town’s refusal to admit its liability for plaintiff’s damages.
¶ 60.
All of the events that plaintiff itemized in her brief to this Court
involve testimony of employees of the Town at trial, rather than the actions
they took. A good example is the first of the actions plaintiff claimed
violated the covenant: “[T]he Town did not act in good faith when at trial it
denied any intent to enter into any agreement to disconnect the water service,
stating that it was a delinquency procedure versus voluntary termination, and
that [plaintiff’s] request on May 12, 2009, was somehow deficient to qualify as
a valid request for termination.” The testimony was of an administrative
employee of the Town who was responsible for administering water bills and
their collection. She testified that she never promised to have plaintiff’s
water service disconnected and that she could not make such a promise because
she did not have the power to fulfill it. She further testified that a
voluntary termination, which is what plaintiff requested, is permitted only with
respect to a person who has paid all outstanding water bills, which plaintiff
had not.
¶ 61.
We recognize that the covenant covers not only contract performance, but
also contract enforcement. Restatement (Second) of Contracts § 205 (1980). A
comment to this Restatement provision indicates that enforcement includes
“settlement and litigation of contract claims and defenses,” id. cmt.
e, and that the “obligation is violated by dishonest conduct such as conjuring
up a pretended dispute, asserting an interpretation contrary to one’s own
understanding, or falsification of facts.” Id. We also recognize that the
jury must have disbelieved the testimony of the employee to some extent in
finding a contract, and yet believed the testimony to some extent in finding no
breach of the contract. But disbelieving testimony based on recollection of
past events is not a finding that there was “falsification of facts.” We do
not believe there was sufficient evidence of actual falsification to get to the
jury on that claim.
¶ 62.
Further, plaintiff’s theory is based on its disagreements with the Town’s
interpretation of its obligation under its ordinance and, therefore, under the
theory that plaintiff put forward that the ordinance provisions were the
substance of the contract between the parties. Throughout the litigation,
plaintiff struggled with trying to fit her theory within the regulatory
language that prevented termination of service without adequate grounds, notice,
and process, rather than a direction to terminate service whatever the
circumstances. The Town adopted the view that no provision required it ever to
terminate service and, therefore, that it never breached any contract based on
the statute and ordinance. Whether or not plaintiff’s contract theory was
viable, the jury could evaluate the competing claims, and there is no evidence
that the Town’s position was so unreasonable as to constitute bad faith. As
the Tennessee Court of Appeals observed:
The Court is unwilling to find that a
party may be held liable for a breach of contract for holding out a good faith
but mistaken interpretation of a contract provision. A contrary holding would
open a veritable Pandora’s Box of litigation, rendering every losing party in a
contract dispute potentially liable for a breach of contract based solely on
the fact that the Court did not hold with that party’s interpretation of a
contract provision. The Court finds that this is a box best left closed.
Dick Broad. Co. v. Oak Ridge
FM, Inc., 2011 WL 4954199, at *7 (Tenn. Ct. App. Apr. 11, 2012) (quoting
trial court opinion); see also SCO Grp., Inc. v. Novell, Inc., 2007 WL
2327587, at *37 (D. Utah Aug. 10, 2007) (no breach of implied covenant where
defendant maintained contract interpretation position in litigation that was
not objectively unreasonable and where there was no evidence that it was
contrary to defendant’s own understanding of meaning), reversed in part on
other grounds by SCO Grp., Inc. v. Novell, Inc., 578 F.3d 1201 (10th
Cir. 2009); Dotcom Assocs. I, LLC v. United States, 112 Fed. Cl. 594,
600 (2013) (every breach-of-contract suit involves claim that defendant owes
plaintiff money; even if correct, that alone cannot be grounds for breach of implied
covenant); Bayou Land Co. v. Talley, 924 P.2d 136, 154-55 (Colo. 1996)
(covenant does not extend to bringing suit to settle dispute over meaning of contract).
¶ 63.
All of plaintiff’s grounds have deficiencies similar to those itemized
above for the first ground. We recognize that plaintiff’s position is that the
Town put up a trumped-up defense simply to avoid admitting that it erroneously
failed to terminate plaintiff’s water service and paying her for the damages
she suffered. We cannot conclude, after full review of the evidence, that the jury
could have found the Town’s defense to have been presented in bad faith, and we
hold that plaintiff was not entitled to any instruction on its theory of breach
of the implied covenant of good faith and fair dealing. Because the evidence
did not support this theory we do not need to decide whether the jury
instructions on the theory were adequate. Because plaintiff’s claim regarding
the implied covenant is the only remaining breach-of-contract claim, the remand
ordered in the mandate below involves only the Town’s claim that plaintiff was
negligent and not that the Town breached a contract.
Reversed and remanded for a new trial.
FOR THE COURT:
Associate
Justice
[1]
Justice Crawford was present for conference on the briefs, but did not
participate in this decision.
[2]
Smith also addressed whether comparative negligence applied in strict
liability cases; that part of the decision is not relevant here. We also note
that under current statutory law, noncompliance with provisions requiring use
of seatbelts is not admissible as evidence in any civil proceeding. 23 V.S.A.
§ 1259(c).
[3]
Although we held in Grazulis that defendants had not preserved their
argument, we discussed Smith. We described it as holding that the
comparative negligence statute applied even though plaintiff’s negligence “went
only to the extent of his injury and not to the cause of the accident.” Grazulis,
149 Vt. at 373, 543 A.2d at 1325. It described the mitigation of damages
discussion as holding that “the use of the comparative negligence statute in
such a case is the same as allowing the jury to consider plaintiff’s negligence
in apportioning damages.” Id. at 374, 543 A.2d at 1326.
[4]
Either way, plaintiff had the pipes in the building drained before the damage
occurred in the winter of 2009-2010. If the jury believed the plumber’s
testimony, which was more precise, his actions occurred after plaintiff believed
the water had been turned off. The plumber could have easily checked on
whether the water was, in fact, off.
[5]
There was no way to determine whether the water was off without entering the
building. The evidence does not show whether the building was locked. In any
event, no Town worker requested permission to enter the building.
[6]
The only person who testified as to who had entered the cellar was plaintiff’s
damage expert. Although a photograph he took arguably showed the cellar valve,
he could not identify it as such. Thus, there was no evidence that there was a
cellar valve in this case. The plumber testified that curb stops have weeping
holes that open when the valve is closed. The hole allows water in the line to
the building and from the building to run out.
[7]
We further note that the Third Restatement adopts a pure comparative
responsibility system—at least with respect to indivisible injuries—that bars
recovery for a plaintiff only when the plaintiff’s percentage of responsibility
reaches one hundred percent, Restatement (Third) of Torts: Apportionment Liab.
§ 7, cmt. a (2000); whereas Vermont has a modified comparative
responsibility system that bars a plaintiff’s recovery when the plaintiff’s
percentage of responsibility exceeds that of the total causal negligence of the
defendants—in other words, greater than fifty percent. 12 V.S.A. § 1036.
This creates further uncertainty regarding the viability of adopting the
Restatement’s approach in all situations.
[8]
Although defendant requested an interrogatory on mitigation of damages, the
trial court rejected that request.
[9]
Appellant cites only a standard of review for an appeal from a federal bench
trial on a breach of contract claim, stating that “[w]hether the district court
correctly calculated damages is . . . a question of law
that we review de novo.” Arch Ins. Co. v. Precision Stone, Inc., 584
F.3d 33, 40 (2d Cir. 2009) (quotation omitted). Although it is true that we
review a trial court’s statement of the law de novo, there is an additional
relevant consideration here as to whether the spirit of the law is appropriately
manifested in the jury instruction.
[10]
Although our consideration of this issue is also optional, we address it
because of the possibility that the issue will be raised again in a retrial.
| {
"pile_set_name": "FreeLaw"
} |
463 F.2d 63
Ozel CONLEY et al., Appellants,v.Robert E. DAUER et al., Appellees.
No. 71-1011.
United States Court of Appeals,
Third Circuit.
Argued Dec. 14, 1971.Decided April 17, 1972.As Amended on Denial of Rehearing En Banc June 27, 1972.
R. Stanton Wettick, Neighborhood Legal Services, Pittsburgh, Pa., for appellants.
Eugene B. Strassburger, III, Asst. City Sol., Pittsburgh, Pa., for appellees.
Before VAN DUSEN and HUNTER, Circuit Judges, and LAYTON, Senior District Judge.
OPINION OF THE COURT
HUNTER, Circuit Judge.
1
Appellants are indigents who have been charged with violations of the criminal laws of Pennsylvania and who are unable to afford or otherwise obtain counsel at their preliminary hearings. They brought this Sec. 19831 Civil Rights action on behalf of themselves and others similarly situated2 against appellees, the District Attorney of Allegheny County, Pennsylvania, and five City of Pittsburgh magistrates, claiming that their 6th and 14th Amendment rights as established by Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970), are being systematically violated. Specifically, they challenge the Magistrates' practices of (1) refusing to advise indigents that they are entitled to counsel at preliminary hearings; (2) refusing to appoint counsel where requested; and (3) conducting preliminary hearings in the absence of counsel. In addition, they challenge the District Attorney's practice of presenting indictments, scheduling trials, and conducting criminal prosecutions against indigents who were not represented by counsel at preliminary hearings after June 22, 1970, the effective date of Coleman, supra.3
2
Plaintiffs sought declaratory relief in the nature of a ruling that the stated practices were unconstitutional, as well as a permanent injunction (1) enjoining the District Attorney from proceeding to trial in any case in which an indigent neither was represented by counsel at his preliminary hearing nor knowingly and intelligently waived that right, and (2) restraining the Magistrates from conducting any further preliminary hearings without first fully advising indigent defendants of their right to court-appointed counsel and without appointing counsel where requested.
3
A final hearing was held in the District Court on October 19, 1970. The requested declaratory relief was granted. Injunctive relief was denied, however, and plaintiffs appeal that decision. Conley v. Dauer, 321 F.Supp. 723 (W.D. Pa.1970). There is no cross-appeal from the declaratory ruling of unconstitutionality or from any of the other rulings of the District Court.4
4
The facts are not in dispute and are for the most part drawn from the parties' stipulation. In Allegheny County, which encompasses the City of Pittsburgh, indigent criminal defendants are represented at trial either by the Public Defender or private court-appointed counsel. However, only in capital cases are indigents apprised by the presiding authority of their right to counsel and, in fact, provided free counsel at the preliminary hearing stage. In all other criminal prosecutions, counsel is not provided unless a prima facie case of a defendant's guilt is established at the hearing and the defendant held for further proceedings. See generally Pa.R. Crim.P. 120-123, 19 P.S. Appendix; Public Defender Act Secs. 6, 7, supra n. 4.
5
This situation is apparently the unfortunate result of the organization and structure of Allegheny County's minor judiciary. Pursuant to the Commonwealth's 1968 Constitutional Convention --which revised the Judiciary Article of the State Constitution--there are now several thousand authorities throughout Pennsylvania who are empowered to preside over preliminary hearings.5 Thus in Allegheny County alone there are 64 magisterial districts in which preliminary hearings are conducted at numerous localities by some 246 magistrates, justices of the peace, and aldermen.6
6
Although Coleman did not decide that a preliminary hearing was constitutionally required, it did hold that when a state utilized the preliminary hearing as a stage of its criminal proceedings, the accused was entitled to counsel. 399 U. S. at 9-10, 90 S.Ct. 1999, 26 L.Ed.2d 387.7 Further, Coleman requires that indigents be provided counsel at all preliminary hearings, and not simply in those cases in which a defendant is accused of a capital offense.8 The Court's clear and unequivocal holding cannot be thwarted by the simple--albeit truthful --assertion that the structure of a county's minor judiciary makes compliance difficult. Nor can that holding be ignored by a county administration9 which has apparently failed to make even those appropriations which would promptly insure at least partial compliance.10
7
The District Court sitting only four months after Coleman was decided,11 quite properly concluded that it could not reasonably expect Allegheny County officials to make the necessary procedural changes within the short time period that had elapsed. It therefore refused to grant injunctive relief.
8
It is now more than 20 months since Coleman and County authorities have yet to comply with its mandate. On oral argument, however, counsel for appellees unequivocally stated that changes are imminent.12 In light of this assertion and subsequent supporting documentation,13 we do not deem it appropriate to grant injunctive relief at this time.14 Rather, we remand the case to the District Court for the holding, promptly, of further proceedings to determine whether steps have been taken to insure that the Coleman mandate will be followed in Allegheny County in the immediate future. Included in the District Court's inquiry should be a determination of the bona fides of governmental action as well as a determination of whether the proposed new developments will be instituted and operable forthwith and whether these developments will, in fact, act to remedy the situation. In the event that the District Court finds that necessary steps are not being taken, it shall fashion whatever remedies it deems appropriate, consistent with our holding that Coleman must be followed and unjustifiable delay cannot be tolerated.
9
The case will be remanded to the District Court for further proceedings not inconsistent with this opinion.
10
Before SEITZ, Chief Judge, and VANDUSEN, ALDISERT, ADAMS, GIBBONS, MAX ROSENN, JAMES ROSEN and HUNTER, Circuit Judges, and LAYTON, Senior District Judge.
11
ON PETITION FOR REHEARING BEFORE THE COURT EN BANC
PER CURIAM:
12
The petition for rehearing filed by Robert W. Duggan, individually and as District Attorney of Allegheny County, appellee in the above entitled case, having been submitted to the judges who participated in the decision of this court and to all the other available circuit judges of the circuit in regular active service and no judge who concurred in the decision having asked for rehearing, and a majority of the circuit judges of the circuit in regular active service not having voted for rehearing by the court en banc, the petition for rehearing is denied.
13
Chief Judge SEITZ does not desire rehearing only because the defendants did not appeal the judgment.
14
ALDISERT, Circuit Judge (dissenting opinion Sur Petition for Rehearing).
15
I dissent from the denial of the petition for rehearing.
16
In my view, this court should have remanded the proceedings with a direction to dismiss the complaint because the alleged constitutional deprivation--failure of the state to provide counsel for indigents at preliminary hearings--concerns the assertion by each plaintiff of a federal right which may be vindicated in a defense in a single state criminal proceeding. Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971); Samuels v. Mackell, 401 U.S. 66, 91 S.Ct. 764, 27 L.Ed.2d 688 (1971); Boyle v. Landry, 401 U.S. 77, 91 S.Ct. 758, 27 L.Ed.2d 696 (1971).
17
Younger, Samuels and Boyle, all decided subsequent to the district court order, provide that federal interference in state prosecutions is severely circumscribed; that "exceptional circumstances" permitting federal equity interference presume a showing of irreparable injury, Douglas v. City of Jeannette, 319 U.S. 157, 163, 63 S.Ct. 877, 87 L.Ed. 1324 (1943); that the injury must be "showing in the record," and not merely alleged. Samuels, 401 U.S. at 68, 91 S.Ct. 764, 27 L.Ed.2d 688, that to overcome the "longstanding public policy against federal court interference with state court proceedings," Younger, 401 U.S. at 43, 91 S.Ct. at 750, "even irreparable injury is insufficient unless it is 'both great and immediate'," Ibid., 401 U.S. at 46, 91 S.Ct. at 751, and that "the cost, anxiety, and inconvenience of having to defend against a single criminal prosecution, could not by themselves be considered 'irreparable'." Ibid.
18
Thus, the district court was eminently correct in denying the requested injunction. That portion of its order should be affirmed. Because the declaratory judgment is now controlled by Samuels, holding that the practical effect of both injunctive and declaratory relief ordinarily is "virtually identical," and the propriety of declaratory and injunctive relief should be judged "by essentially the same standards," that portion of the district court's order should be vacated and the complaint dismissed.
19
Underlying the panel's decision is the faulty premise that a federal district court may somehow exercise supervisory or review functions over a state court system: "a decision by the County to move ahead with prosecutions in disregard of that declaratory judgment could not be ignored. Not to allow injunctive relief in this case would place the District Court in the position of having granted declaratory relief, and then being unable to remedy the County's rejection of that judgment. This we cannot accept. Given the unique posture of this case, the District Court on remand should consider the appropriateness of injunctive relief pursuant to 28 U.S.C. Sec. 2202." (at 66, n. 14.)
20
The panel's opinion closes with an instruction to the district court to "fashion whatever remedies it deems appropriate, consistent with our holding that Coleman must be followed and unjustifiable delay cannot be tolerated." Indeed! Tolerated by whom? A federal district court has no supervisory or review power over any state court. The seminal case of Fay v. Noia, 372 U.S. 391, 430, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963), merely gave federal district courts jurisdiction to inquire into "detention simpliciter." When a non-custodial sentence is imposed by the state, a federal district court lacks even habeas corpus jurisdiction. United States ex rel. Dessus v. Commonwealth of Pennsylvania, 452 F.2d 557, 559-560 (3d Cir. 1971). Similarily, a court of appeals has no power to review a state criminal proceeding. We may inquire only whether there has been an unconstitutional imposition of custody by the state.
21
Even more questionable is the notion that under the guise of Sec. 1983, a federal district court may enjoin the state of Pennsylvania from prosecuting in Allegheny County, and the state courts from holding preliminary hearings, unless the panel's concept of Coleman be respected. There is simply no authority and no precedent for this federal intrusion into state criminal processes.
22
Douglas v. City of Jeannette, supra, announced the general rule that a federal court should refuse to "interfere with or embarrass threatened proceedings in state courts save in those exceptional cases which call for the interposition of a court of equity to prevent irreparable injury which is clear and imminent." 319 U.S. at 163, 63 S.Ct. at 881. Later, in Stefanelli v. Minard, 342 U.S. 117, 120, 72 S.Ct. 118, 96 L.Ed. 138 (1951), the Court observed that dictates of federalism demand that the federal judiciary respect state enforcement procedures except, as stated in Douglas, in "exceptional circumstances," because this area represents "perhaps the most sensitive source of friction between States and Nation, namely, the active intrusion of the federal courts in the administration of the criminal law for the prosecution of crimes solely within the power of the States." Severely limiting the concept of irreparable harm, the Younger Court reaffirmed this principle of comity as "a proper respect for state functions, a recognition of the fact that . . . the National Government will fare best if the States and their institutions are left to perform their separate functions in their separate ways." 401 U.S. at 44, 91 S.Ct. at 750.
23
Moreover, I am not convinced that this court lacks jurisdiction to right the wrong of an improperly issued declaratory judgment affecting the delicate area of federal state relations, simply because no appeal was taken. "No appeal was taken, however, and declaratory judgment considerations are not before us." (at 66, n. 14). There are two answers to this. First, the panel stated in one paragraph that declaratory judgment considerations "are not before us," and then proceeded in the very next paragraph to address itself to the "appropriateness of injunctive relief pursuant to 28 U.S.C. Sec. 2202."1 Thus, the very injunctive relief proposed by the panel inexorably brings into appellate purview the declaratory judgment, the substantive underpinning of the relief suggested by the panel.
24
Secondly, I would notice the faulty declaratory judgment on appeal because the absence of true adversity between the parties to these proceedings raises a serious question of justiciability, and therefore jurisdiction. "It is a well settled principle that the question of subject-matter jurisdiction is always open. It cannot be conferred or supplied by consent of both parties or by estoppel, laches, or waiver of either party. Eldridge v. Richfield Oil Corporation [247 F.Supp. 407 (S.D.Cal.1965), aff'd, 364 F.2d 909 (9th Cir. 1966)]; Page v. Wright, 116 F.2d 449 (7th Cir. 1940); Brown v. Fennell, 155 F.Supp. 424 (E.D. Pa. 1957)." Knee v. Chemical Leaman Tank Lines, Inc., 293 F.Supp. 1094, 1095 (E.D.Pa. 1968). Similarly, in Moore v. Sylvania Electric Products, Inc., 454 F.2d 81, 84 (3d Cir. 1972), we noted that "[i]t is proper for this court to inquire into the jurisdictional prerequisites suasponte."
25
The lack of the true adversary nature in the proceedings in the district court fairly leaps from the panel's opinion. The agency charged with supplying public defenders concededly is Allegheny County, Pennsylvania yet it is not a party to the action. Nevertheless, the panel's opinion states, "we expect Allegheny County to fully comply with the District Court's declaratory judgment." (at 66, n. 14.) The defendants are six magistrates of the City of Pittsburgh and the County District Attorney. None of the defendants has authority or jurisdiction to implement the district court's declaratory judgment or the panel's invitation to consider use of mandating an injunction to compel performance. Putting aside the recognized immunity of state judges under actions brought under 42 U.S.C. Sec. 1983, Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967); Bauers v. Heisel, 361 F.2d 581 (3d Cir. 1966), and recognizing that the very function of the district attorney's office is prosecution, not defense, even if relief against the appropriate state government agency charged with the direction of the Public Defender program was not barred by Younger v. Harris, the lack of sufficient adversary parties made the entire proceedings defective under Article III standards. This defect goes to the heart of federal jurisdiction which may be raised by the court sua sponte.2
26
These proceedings, like Swarb v. Lennox, supra, illustrate "the risk that comes from passing on abstract questions rather than limiting decisions to concrete cases in which a question is precisely framed by a clash of genuine adversary argument exploring every aspect of the issue." Wright, Law of Federal Courts, Sec. 12, p 37, citing United States v. Fruehauf, 365 U.S. 146, 81 S.Ct. 547, 5 L.Ed.2d 476 (1961); Golden v. Zwickler, 394 U.S. 103, 89 S.Ct. 956, 22 L.Ed. 2d 113 (1969).
27
Therefore, I respectfully dissent from the denial of the petition for rehearing en banc.
1
42 U.S.C. Sec. 1983
2
The District Court found that appellants adequately represented several classes of individuals charged with state criminal offenses. Included is a class comprised of those indigent defendants who have had preliminary hearings without being afforded counsel and who have been bound over to court; a class comprised of all indigent defendants who await preliminary hearings scheduled in the future and, within each such class, persons who are presently confined in jail in lieu of bond and others who have been released on bond
3
In Adams v. Illinois, 405 U.S. 278, 92 S.Ct. 916, 31 L.Ed.2d 202 (1972), the Supreme Court held that Coleman would not be applied retroactively
4
In addition to arguing that injunctive relief was properly denied, Appellee-Magistrates contend that the District Court should have stayed its hand to afford the Pennsylvania courts an opportunity to decide a potentially dispositive question of state law. Appellees indicate the availability of a possible state statutory remedy in Section 7 of the Public Defender Act, 16 P.S. Sec. 9960.7 (1971 Supp.) and argue that a possible interpretation of that Section by the Pennsylvania courts would obviate the necessity of reaching the Federal constitutional question. See R.R. Comm'n v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941); Reetz v. Bozanich, 397 U.S. 82, 90 S.Ct. 788, 25 L.Ed.2d 68 (1970); Askew v. Hargrave, 401 U.S. 476, 91 S.Ct. 856, 28 L.Ed.2d 196 (1971). Although Section 7 may, in fact, present a question of unclear state law, we agree with the District Court that the resolution of that issue would not obviate the necessity of deciding the federal question. We have in the instant case no question of the susceptibility of Section 7 of a construction by the state court that would "avoid or modify the federal constitutional question." Zwickler v. Koota, 389 U.S. 241, 251, 88 S.Ct. 391, 397, 19 L.Ed.2d 444 (1967); cf. Askew v. Hargrave, supra; Reetz v. Bozanich, supra
5
Pa.Const. Art. 5 Sec. 1 P.S. See also Magisterial Districts Act, 42 P.S. Sec. 1301 et seq. (Supp.1971)
6
Included in this figure are 61 District Justices of the Peace, five Magistrates in the City of Pittsburgh and 180 "grandfather" Aldermen and Justices of the Peace, whose terms of office began before the adoption of the Pennsylvania Constitution on April 23, 1968. All are empowered to conduct preliminary hearings
7
The constitutional necessity and justification for assistance of counsel in criminal cases in general and at the preliminary hearing stage in particular does not require further comment here. See Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963); Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932); Coleman v. Alabama, supra. It is sufficient to note the Supreme Court's cogent statement in Coleman, supra, that the presence of counsel at the preliminary hearing "is essential to protect the indigent accused against an erroneous or improper prosecution." 399 U.S. at 9, 90 S.Ct. at 2003
8
Although the Alabama preliminary hearing at issue in Coleman differs from Pennsylvania's hearing as the latter does not set bail, appellees do not dispute that Coleman requires counsel at hearings in Pennsylvania. See Commonwealth v. James, 440 Pa. 205, 209, 269 A.2d 898, 900 (1970); Commonwealth v. Brown, 217 Pa.Super. 190, 194 n. 2, 269 A.2d 383, 386 n. 2 (1970), holding that Pennsylvania's preliminary hearing is a "critical stage" at which the accused is entitled to counsel. See also Pa.R.Crim. P. 119, 318
On remand, the appellees may wish to argue that certain offenses for which preliminary hearings are in fact held are so petty that counsel is not required. See Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530.
9
Although suit was brought to enjoin appellees, it appears that appropriations for the Public Defender office are controlled by the Allegheny County Commissioners. Appellees, of course, have no control over the Commissioners' inaction
10
Counsel for appellants stated at oral argument, without contradiction from opposing counsel, that to remedy the situation in the City of Pittsburgh Magistrate's Court--which conducts only those preliminary hearings arising out of arrests by City police--it would merely require the retention of one or two additional attorneys since all City preliminary hearings are conducted in a single courtroom. Approximately half of all preliminary hearings conducted in Allegheny County take place in that courtroom
11
The District Court sat October 19, 1970. Coleman was handed down on June 22, 1970
12
On November 22, 1971, (effective December 1, 1971) the Pennsylvania Supreme Court adopted an amendment to Pa.R.Crim.P. 156 which would in effect allow the President Judge of a Pennsylvania Judicial District the discretion to determine what classes of cases necessitate centralized preliminary hearings and would require him to establish such central locations for the holding of those preliminary hearings. The application of the amended rule would, presumably, require the services of fewer attorneys than the current system
13
We have also been notified by counsel for the appellees that the Local Planning Council of the Governor's Justice Commission has approved a request from the Court of Common Pleas of Allegheny County for the necessary funds to hire twelve additional full time public defenders solely for use at preliminary hearings. Approval by the Justice Commission is pending
14
The District Court's opinion was handed down prior to the Supreme Court decisions in Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971); Samuels v. Mackell, 401 U.S. 66, 91 S.Ct. 764, 27 L.Ed.2d 688 (1971); Boyle v. Landry, 401 U.S. 77, 91 S.Ct. 758, 27 L.Ed.2d 696 (1971); Perez v. Ledesma, 401 U.S. 82, 91 S.Ct. 674, 27 L.Ed.2d 701 (1971); Dyson v. Stein, 401 U.S. 200, 91 S.Ct. 769, 27 L.Ed.2d 781 (1971); and Byrne v. Karalexis, 401 U.S. 216, 91 S.Ct. 777, 27 L.Ed.2d 792 (1971). These cases, with the exception of Samuels, deal with the perplexing problem of when a federal court may appropriately enjoin a pending state criminal prosecution. Samuels discussed the circumstances in which a federal court may involve itself in a state criminal proceeding by issuing declaratory relief pursuant to the Declaratory Judgment Act of 1934, 28 U.S.C. Sec. 2201
As the District Court relied heavily on Zwickler v. Koota, 389 U.S. 241, 88 S.Ct. 391, 19 L.Ed.2d 444 (1967), in granting its declaratory judgment, the subsequent decision in Samuels may have called for a different result on appeal had appellees taken a cross appeal from that declaratory judgment. Samuels v. Mackell, supra, 401 U.S. at 66, 91 S.Ct. 764, 27 L.Ed.2d 688 (1971). No appeal was taken, however, and declaratory judgment considerations are not before us. Swarb v. Lennox, 405 U.S. 191, 92 S.Ct. 767, 31 L.Ed.2d 138 (1972); Grove Press Inc. v. City of Philadelphia, 418 F.2d 82, 85 (3d Cir. 1969).
28 U.S.C. Sec. 2202 (1964) authorizes injunctive relief to complement a prior declaratory judgment and is one of the express exceptions to The Federal Anti-Injunction Act, 28 U.S.C. Sec. 2283 (1964). See also Cooper v. Hutchinson, 184 F.2d 119, 124 (3d Cir. 1950) (Sec. 1983 Civil Rights action falls within the "expressly authorized by Congress" exception to Sec. 2283). Section 2202 states:
"Further necessary or proper relief based on a declaratory judgment or decree may be granted, after reasonable notice and hearing, against any adverse party whose rights have been determined by such judgment."
Relying on this statutory authority the Supreme Court stated that: "A declaratory judgment can be used as a predicate to further relief, including an injunction." Powell v. McCormack, 395 U.S. 486, 499, 89 S.Ct. 1944, 1952, 23 L.Ed.2d 491 (1969). See Terry v. Adams, 345 U.S. 461, 73 S.Ct. 809, 97 L.Ed. 1152 (1953); 6A Moore's Federal Practice Sec. 57.10; Samuels v. Mackell, supra, 401 U.S. at 72, 91 S.Ct. 764, 27 L.Ed.2d 688. Although "voluntary compliance with the orders of Federal courts is the norm and desideratum," American Law Institute Study of the Division of Jurisdiction Between State and Federal Courts 323 (1969), and although we expect Allegheny County to fully comply with the District Court's declaratory judgment, a decision by the County to move ahead with prosecutions in disregard of that declaratory judgment could not be ignored. Not to allow injunctive relief in this case would place the District Court in the position of having granted declaratory relief, and then being unable to remedy the County's rejection of that judgment. This we cannot accept. Given the unique posture of this case, the District Court on remand should consider the appropriateness of injunctive relief pursuant to 28 U.S.C. Sec. 2202.
The Court will, of course, also determine whether the developments described above, supra nn. 12 and 13, have rendered the case moot.
1
"Further necessary or proper relief based on a declaratory judgment or decree may be granted, after reasonable notice and hearing, against any adverse party whose rights have been determined by such judgment."
2
I would not put undue emphasis on Swarb v. Lennox, 405 U.S. 191, 92 S.Ct. 767, 31 L.Ed.2d 138 (1972), to avoid righting a district court order now deemed erroneous because of later decisions of the Supreme Court. Indeed, that case dramatically illustrates the practical necessity for true adversity in an Article III case and controversy. There "[t]he plaintiffs purport[ed] to act on behalf of a class consisting of all Pennsylvania residents who . . . signed documents containing cognovit provisions leading, or that could lead, to a confessed judgment in Philadelphia County. The defendants are the county's Prothonotary and Sheriff, the officials responsible, respectively, for the recording of confessed judgments and for executing upon them. . . . A group of finance companies were permitted to intervene." Swarb v. Lennox, 405 U.S. at 196-197, 92 S.Ct. at 770. Although the plaintiffs appealed from the restriction of their purported class, the defendants and intervening finance companies took no appeal. The interesting question presents itself: would a defendant having a direct financial interest in the outcome of the three-judge court's decision have taken an appeal? In the companion case, D. H. Overmyer Co. v. Frick Co., 405 U.S. 174, 92 S.Ct. 775, 31 L.Ed.2d 124 (1972), involving true adverse parties to a cognovit note, the Court refused to accept the argument that a procedure under the cognovit clause was unconstitutional per se. In Swarb the Court observed: "Overmyer necessarily reveals some discomfiture on our part with respect to the present case. However that may be, the impact and effect of Overmyer upon the Pennsylvania system are not to be delineated in the onesided appeal in this case and we make no attempt to do so." Swarb v. Lennox, supra, 405 U.S. at 201-202, 92 S.Ct. at 773
I am not aware that the justiciability issue was raised in Swarb, as I am here, but the case strikes me as a classic example of the danger which inheres when there is an absence of true adversity between the plaintiff and defendant. Swarb has created a jurisprudential vacuum in Pennsylvania. In Recommendation No. 37, the Procedural Rules Committee of the Pennsylvania Supreme Court noted that the Swarb Court said that the problems raised by the three-judge court decision are "peculiarly appropriate grist for the legislative mill." The Committee also noted "the three-judge decree in Swarb remains in full force and effect, with its confusingly limited coverage and the troublesome problems it raises for the prothonotaries and sheriffs throughout the Commonwealth. . . ." The Legal Intelligencer, May 24, 1972.
| {
"pile_set_name": "FreeLaw"
} |
437 S.E.2d 717 (1993)
113 N.C. App. 172
STATE of North Carolina
v.
Wesley Royal HAYES, II.
No. 9318SC299.
Court of Appeals of North Carolina.
December 21, 1993.
*718 Atty. Gen. Michael F. Easley by Asst. Atty. Gen. Floyd M. Lewis, Raleigh, for State.
Harrison, North, Cooke & Landreth by A. Wayland Cooke, Greensboro, for defendant appellant.
ARNOLD, Chief Judge.
The defendant here presents two valid assignments of error. He contends that the trial court erred in failing to consider, or ignoring, his financial resources in ordering restitution. The defendant further contends that the trial court erred in setting restitution greater than he can pay.
N.C.Gen.Stat. § 15A-1343(d) (1988), which governs when restitution is a condition of probation, reads in pertinent part as follows:
(d) Restitution as a Condition of Probation.As a condition of probation, a defendant may be required to make restitution or reparation to an aggrieved party ... for *719 the damage or loss caused by the defendant arising out of the offense or offenses committed by the defendant. When restitution or reparation is a condition imposed, the court shall take into consideration the resources of the defendant, including all real and personal property owned by the defendant and the income derived from such property, his ability to earn, his obligation to support dependents, and such other matters as shall pertain to his ability to make restitution....
Restitution is "compensation for damage or loss as could ordinarily be recovered by an aggrieved party in a civil action." Id. Furthermore, restitution is intended "to promote rehabilitation of the criminal offender," as well as to compensate victims of crime. State v. Burkhead, 85 N.C.App. 535, 536, 355 S.E.2d 175, 176 (1987).
In State v. Smith, the defendant was convicted of misdemeanor death by vehicle, given a two year suspended sentence with five years probation, and ordered to pay $500,000.00 in restitution. State v. Smith, 90 N.C.App. 161, 368 S.E.2d 33 (1988), aff'd, 323 N.C. 703, 374 S.E.2d 866, cert. denied, Smith v. North Carolina, 490 U.S. 1100, 109 S.Ct. 2453, 104 L.Ed.2d 1007 (1989). This Court vacated the restitution order, which would have required the defendant to pay $100,000.00 per year, stating that "[c]ommon sense dictates that only a person of substantial means could comply with such a requirement." Id. 90 N.C.App. at 168, 368 S.E.2d at 38.
In this case, the defendant presented evidence which showed that he (1) earns approximately $800.00 a month bagging groceries and stocking food at Harris Teeter, (2) pays approximately $350.00 per month in child support, (3) lives with his mother and shares a car with her, (4) is deaf in one ear and hard of hearing in the other, (5) has recently completed bankruptcy proceedings, and (6) has substantial medical problems, including a recent brain tumor. The court ordered restitution of approximately $208,899.00, payable over a five year probationary period, necessitating payments of over $3,000.00 a month in order to comply with this condition. As in Smith, common sense dictates that this defendant will be unable to pay this amount. The trial court failed to heed the language of G.S. § 15A-1343(d) which provides that "the court may order partial restitution or reparation when it appears that the damage or loss caused by the offense or offenses is greater than that which the defendant is able to pay." While we applaud efforts to alleviate the harm done to crime victims, we hold that the trial court erred in conditioning probation on an amount of restitution the defendant clearly cannot pay. On remand, the trial court is to reconsider what amount, if any, defendant should be required to pay as restitution.
Accordingly, the judgment is
Vacated in part and remanded.
WELLS and EAGLES, JJ., concur.
| {
"pile_set_name": "FreeLaw"
} |
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
David and Sarah Fask,
:
Appellants :
:
v. : No. 17 C.D. 2019
: Submitted: August 23, 2019
Zoning Hearing Board of :
the Township of Haverford :
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge
HONORABLE P. KEVIN BROBSON, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE WOJCIK FILED: May 12, 2020
David and Sarah Fask (Appellants) appeal from the December 10,
2018 order of the Court of Common Pleas of Delaware County (trial court), which
affirmed the decision of the Zoning Hearing Board (ZHB) of the Township of
Haverford (Township) granting Appellants’ application for a special exception to
operate a professional office within a residential dwelling subject to several
conditions. Appellants challenge Condition 2, restricting the hours and days of Dr.
Fask’s1 psychology practice hours to 9:00 a.m. through 7:00 p.m. Monday through
Friday. Appellants contend that the ZHB abused its discretion by imposing those
limitations without evidentiary support. Upon review, we agree, and we reverse
the trial court’s order.
1
David Fask is a licensed clinical psychologist. Reproduced Record (R.R.) at 16a, 180a.
Facts/Procedural History
In April 2018, Appellants purchased a single-family home at 15
Brennan Drive, Bryn Mawr, Delaware County, Pennsylvania. R.R. at 4a. There
are 39 houses on Brennan Drive, which connects Darby Road and Route 320. Id.
The property is situated within the Township’s R-1 Low-Density Residential
District, where professional offices are permitted by special exception. Township
of Haverford, Pa., General Legislation/Zoning Code (Code) §182-202(B)(3), R.R.
at 23a. A professional office includes “the office of a . . . psychologist . . . who
customarily has offices in the dwelling in which such person resides.” Code
Section 182-106(B), R.R. at 26a.
On March 14, 2018, Appellants filed a special exception application
with the ZHB requesting use of their home office as a professional office.2 R.R. at
2
In relevant part, Section 182-202(B)(3)(c) of the Code sets forth the following nine
requirements necessary for approval of a special exception for a professional office:
(1) Such office shall be located in the dwelling in which the
practitioner resides or within a building accessory thereto.
(2) Not more than one person shall be engaged or employed in
such practice who is not a resident of the dwelling, except that two
members of a recognized profession related by marriage and both
residing within said dwelling shall be permitted to practice
together.
(3) The area used for the practice of a professional shall not exceed
25% of the total floor area of said dwelling.
(4) The profession shall be clearly incidental to the residential use
of the dwelling and shall not change the residential character of a
dwelling.
(5) No external alterations inconsistent with the residential use of
the dwelling shall be permitted.
(Footnote continued on next page…)
2
16a, 19a. In support, Dr. Fask attached a sworn declaration averring that the
proposed use would comply with the Code’s requirements for a special exception.
R.R. at 46a, 47a. The ZHB considered the application at a public hearing on April
19, 2018. R.R. at 157a.
Mrs. Fask testified that Dr. Fask worked with a private practice in
Philadelphia and Lower Merion Township and provided therapy to Haverford
College students at the school’s Counseling and Psychological Services Center.
R.R. at 167a. She stated that Dr. Fask saw clients during the week and on Sunday
nights; she added that he anticipated working no more than 40 hours a week,
including Sunday evenings. R.R. at 172a, 179a, 182a. Mrs. Fask said that Dr.
Fask would schedule one client at a time for appointments lasting 45 to 50 minutes.
R.R. at 171a. She explained that with 10 to 15 minutes between appointments, it
was likely that only one client would be driving through the neighborhood at a
(continued…)
(6) There shall be no displays, goods or materials visible from
outside the building, except for a name or a professional office sign
as permitted in the sign regulations, § 182-701C, and no
professional office shall have any other external evidence of a
secondary use.
(7) Professional office uses shall serve not more than one client at
any given time.
(8) Three off-street parking spaces, located to the side or rear of
the premises, but not in the front yard, shall be required in addition
to the single space required for a single-family dwelling.
(9) Professional offices shall not be permitted within a
nonconforming multifamily structure.
R.R. at 23a-24a.
3
time. R.R. at 170a-71a. She also confirmed that Dr. Fask would not employ
support staff. R.R. at 168a. Additionally, Mrs. Fask presented an appraisal report
reflecting that four parking spaces are available at the property, two in the
driveway and two in the garage. R.R. at 155a, 172a, 177a.
Mrs. Fask described a psychologist’s office as having a confidential
and calm atmosphere. R.R. at 175a. She testified that Dr. Fask’s practice would
operate within a 135-square-foot home office, comprising 3.9 percent of the total
dwelling. R.R. at 168a. She also noted that the residence previously had been
used as a psychiatrist’s office. R.R. at 170a. She stated that Dr. Fask’s practice
would not be apparent from outside the home and would not detract from the
neighbors’ enjoyment of their property; no exterior modifications would be made,
and no signs would be erected. R.R. at 169a-70a, 175a.
Dr. Fask testified that he specializes in treating adults who are
struggling with anxiety, low self-esteem, and inter-personal relationships. R.R. at
180a, 186a. He stated that he did not intend to see clients with severe
psychopathology and noted that he was not authorized to prescribe medications.
R.R. at 186a-87a.
Victoria Sallee, who also lives on Brennan Drive, expressed concern
that Dr. Fask’s clients might mistakenly pull into her driveway. R.R. at 188a-89a.
She pointed out that Dr. Fask’s online professional profile reflects that he treats
clients with post-traumatic stress disorder (PTSD) and anger management issues.
R.R. at 189a. She also noted that through-traffic from the Darby Road intersection
with Brennan Drive is prohibited between 7:00 a.m. and 9:00 a.m. R.R. at 189a-
90a.
4
Dr. Eve Atkinson, who lives at 76 Brennan Drive, opined that some
Brennan Drive residents are unlawfully running businesses from their homes. R.R.
at 196a. She likewise noted that Dr. Fask’s website shows that he provides
treatment to individuals for trauma, depression, anxiety, phobia, low esteem, anger
management concerns, grief, family and relationship issues, and stress. R.R. at
196a. She also cited the prohibition of morning through-traffic at the Darby Road
entrance to Brennan Drive, but she acknowledged that the Route 320 entrance to
Brennan Drive has no such restrictions. R.R. at 199a.
In closing remarks, Mrs. Fask addressed the neighbors’ safety
concerns. R.R. at 208a. She explained that Dr. Fask’s online profile includes all
types of treatment that are provided by the members of his practice. R.R. at 205a.
She added that she and Dr. Fask have two small children, and she said that they
made the decision to operate a psychology practice within their home with great
consideration. R.R. at 208a.
On May 3, 2018, the ZHB voted to approve the application. R.R. at
228a. In its written decision of that same date, the ZHB found and concluded that
the special exception, if granted, would not detract from the neighborhood’s
character, substantially impair the use of adjacent properties, or be detrimental to
the public welfare. Conclusion of Law No. 2, R.R. at 233a. In particular, the ZHB
found: “Mr. and Mrs. Fask stated that Mr. Fask will only see clients during normal
business hours Monday – Friday.” ZHB’s Finding of Fact 5(i), R.R. at 230a. By
order dated May 3, 2018, the ZHB granted the special exception subject to six
conditions.3
3
The conditions imposed on the special exception are:
(Footnote continued on next page…)
5
On June 4, 2018, Appellants appealed to the trial court, requesting the
trial court to strike Condition 2. During oral argument on October 4, 2018,
Appellants acknowledged that the ZHB has authority to impose reasonable
conditions upon granting a special exception. However, Appellants argued that the
condition restricting the days and hours of Dr. Fask’s practice was not supported
by the evidence.
Appellants further noted that in Finding of Fact 5(i), the ZHB
mischaracterized their testimony. Appellants emphasized that in contrast to the
ZHB’s characterization, Mrs. Fask specifically testified that Dr. Fask currently sees
clients on Sunday evenings and would like to continue doing so. R.R. at 182a-85a.
Appellants stressed that the ZHB’s imposition of Condition 2 severely
restricted clients’ access to therapy, explaining that Dr. Fask’s current schedule
(continued…)
1. The applicant will maintain at least 2 parking spots for patients’
motor vehicles to be kept open at all times on the flat portion of the
driveway near the house.
2. Business hours will be no more than 40 hours per week, Monday
through Friday only. No office hours will begin before 9:00 a.m.
and no appointments will start after 7:00 p.m.
3. There will be no employees on site.
4. There will be no signage on site.
5. There will be no advertising for trauma, PTSD or drug addiction
services.
6. The approval is subject to the statements made by applicants as
set forth in the notes of testimony.
R.R. at 235a.
6
accommodates clients who need appointments outside their work hours.
Appellants maintained that no evidence was offered to establish a necessity for
limiting appointment hours. For example, no traffic study was conducted and no
other evidence, such as a school bus route passing through Brennan Drive, was
presented to support the neighbors’ vague safety concerns.
Appellants acknowledged that the traffic sign at the intersection of
Darby Road and Brennan Drive prohibits ingress between 7:00 a.m. and 9:00 a.m.,
but they noted that the alternate entrance to Brennan Drive has no similar
restriction. Appellants also noted that the Code allows construction activities in a
residential area to begin at 8:00 a.m. Relying on Van Sciver v. Zoning Board of
Adjustment of Philadelphia, 152 A.2d 717 (Pa. 1959), and Sabatine v. Zoning
Hearing Board of Washington Township, 651 A.2d 649 (Pa. Cmwlth. 1994),
Appellants argued that the ZHB abused its discretion by imposing restrictions on
the days and hours of Dr. Fask’s practice.
In response, the ZHB conceded that the 9:00 a.m. – 5:00 p.m. time
restriction was based on the Darby Road traffic sign prohibiting through-traffic
before 9:00 a.m.4 R.R. at 282a. The ZHB stated that it imposed the weekend
prohibition because families and children are more often around on weekends. The
ZHB also expressed a desire to preserve the residential character of the
neighborhood. R.R. at 283a.
By order dated December 10, 2018, the trial court affirmed the ZHB’s
decision in its entirety. R.R. at 292a. In doing so, the trial court cited the
4
The trial court observed that the purpose of the sign was to discourage rush hour
through-traffic, whereas here, the use would involve one additional car driving down the street
every hour, if that. R.R. at 282a-83a.
7
residential nature of the neighborhood and the discretion afforded to the ZHB
under the Code. R.R. at 292a.
Discussion
On appeal to this Court,5 Appellants argue that the trial court erred in
affirming the ZHB’s decision insofar as it imposes restrictions on the days and
hours of Dr. Fask’s practice. Relying on Van Sciver and Sabatine, Appellants
assert that the ZHB abused its discretion by imposing a condition that
unreasonably restricts Dr. Fask’s practice in the absence of any evidentiary
support. We agree.
A special exception is a use expressly permitted by the local zoning
code, so long as the proposed use does not have a detrimental effect on the
community. Southdown, Inc. v. Jackson Township Zoning Hearing Board, 809
A.2d 1059, 1063 (Pa. Cmwlth. 2002). When an applicant shows that the proposed
use is compliant with the applicable zoning requirements, the proposed use is
presumed to be consistent with the health, safety, and general welfare of the
community. Manor Healthcare Corp. v. Lower Moreland Township Zoning
Hearing Board, 590 A.2d 65, 70 (Pa. Cmwlth. 1991); Bray v. Zoning Board of
Adjustment, 410 A.2d 909, 911 (Pa. Cmwlth. 1980). The burden then shifts to
objectors to present substantial evidence that the proposed use would have a
detrimental effect on the health safety and general welfare of the community.
Bray, 410 A.2d at 912.
5
Where, as here, the trial court did not take any additional evidence, our scope of review
is limited to determining whether the ZHB committed an error of law or abused its discretion.
W.J. Menkins Holdings, LLC v. Douglass Township, 208 A.3d 190, 194 n.11 (Pa. Cmwlth.
2019). “A zoning hearing board abuses its discretion only if its findings are not supported by
substantial evidence.” Id.
8
Substantial evidence means such evidence that a reasonable person
would view as adequate to support a conclusion. River’s Edge Funeral Chapel &
Crematory, Inc. v. Zoning Hearing Board of Tullytown Borough, 150 A.3d 132,
142 (Pa. Cmwlth. 2016). This Court has consistently held that mere speculation,
inferences, personal opinions, assertions, and conjecture will not suffice as
substantial evidence. See, e.g., Monroe Land Investments v. Zoning Board of
Adjustment, 182 A.3d 1, 9 (Pa. Cmwlth. 2018); Allegheny Tower Associates, LLC
v. City of Scranton Zoning Hearing Board, 152 A.3d 1118, 1121-22 (Pa. Cmwlth.
2017); Manor Healthcare Corp., 590 A.2d at 71.
In granting a special exception, the ZHB has authority to attach
reasonable conditions.6 However, where there is no evidence in the record to
support the imposition of a condition, the condition is considered manifestly
unreasonable and an abuse of discretion. Good v. Zoning Hearing Board of
Heidelberg Township, 967 A.2d 421, 430-31 (Pa. Cmwlth. 2009) (“Conditions
must be reasonable and must find support in the record warranting the imposition
of such conditions; otherwise, the imposition of conditions constitutes an abuse of
discretion.”).
6
Section 182-1004(B) of the Code states, in relevant part,
In granting any variance or special exception, the Board may
attach such reasonable conditions and safeguards, in addition to
those expressed in this chapter, as it may deem necessary to
implement the purposes of the Planning Code and Zoning
Ordinance, which conditions and safeguards may relate to but are
not limited to the harmonious design of buildings, planting and its
maintenance as a sight or sound screen, lighting, noise, safety and
the minimizing of noxious, offensive or hazardous elements.
Code Section 182-1004(B).
9
In Van Sciver, the zoning board reviewed a request to allow an
unattended, 24-hour laundromat as a permitted use in a commercial district. The
zoning board considered the request as a request for a variance, which it granted
subject to conditions restricting operation of the business to the hours between 8:00
a.m. and 8:00 p.m. and requiring that someone be on duty during all hours of
operation. In its decision, the zoning board concluded that the conditions were
necessary to avoid fumes and odors from malfunctioning machines and to prevent
unsavory characters from having a place to gather in the early hours of the
morning. On appeal, our Supreme Court held that there was no evidence submitted
to show that the machines emit fumes and odors or that the proposed use would
attract criminal behavior. “It is thus obvious that these findings of fact by the
board are arbitrary and not supported by the record. They constituted
unsubstantiated prophesies and were based solely on the opinion of the board
itself.” 152 A.2d at 723. The Court described the imposition of the conditions,
unsupported by evidence, as an “unnecessary, unwarranted and unreasonable
intermeddling with the applicant’s ownership of his property.” 152 A.2d at 724.
In Sabatine, the local zoning board granted the appellants a special
exception to operate a flea market on their property, subject to certain conditions.
Relevant here, the zoning board limited the days and hours of operation of the flea
market to three days per week from 7:00 a.m. to 2:30 p.m. On appeal, the trial
court affirmed the imposition of that condition, reasoning that the use would lead
to an increase in traffic, which, in turn, would necessarily have an adverse impact
on the surrounding residents’ quiet enjoyment of their properties.
On further appeal, this Court found that the record was devoid of
evidence reflecting that an increase in traffic flow or noise would be created by
10
allowing the flea market to operate on the property. Relying on Van Sciver, we
explained in Sabatine that any restrictions imposed must be reasonable. 651 A.2d
at 655. Citing the lack of evidence that the proposed flea market use would create
an abnormal amount of traffic or noise affecting the neighboring properties, we
held that the trial court abused its discretion in affirming the restriction and ordered
it stricken. Id.
In this matter, both the ZHB and the trial court determined that
Appellants met their burden to show that the proposed use would comply with the
requirements of Code Section 182-202(B)(3)(c). There is no dispute that the ZHB
had authority to impose conditions on the grant of the special exception. However,
as explained in Van Sciver and Sabatine, the imposition of conditions must be
supported by substantial evidence. We agree with Appellants that the record
before the ZHB includes only speculative concerns expressed by neighboring
residents that do not suffice as substantial evidence. Monroe Land Investments,
182 A.3d at 9. Consequently, the ZHB unreasonably restricted the days and hours
of Dr. Fask’s practice, and the trial court erred in affirming the ZHB’s decision in
that regard. Sabatine, 651 A.2d at 655.
Accordingly, we affirm the order of the trial court, with the exception
of Condition 2, which is stricken.
MICHAEL H. WOJCIK, Judge
11
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
David and Sarah Fask, :
:
Appellants :
:
v. : No. 17 C.D. 2019
:
Zoning Hearing Board of :
the Township of Haverford :
ORDER
AND NOW, this 12th day of May, 2020, the order of the Court of
Common Pleas of Delaware County, dated December 10, 2018, is AFFIRMED
with the exception of Condition 2, which is STRICKEN.
__________________________________
MICHAEL H. WOJCIK, Judge
| {
"pile_set_name": "FreeLaw"
} |
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 00-1677
JAMES E. BEASLEY,
Plaintiff - Appellant,
versus
KENNETH S. APFEL, COMMISSIONER OF SOCIAL SECURITY,
Defendant - Appellee.
Appeal from the United States District Court for the District of
South Carolina, at Charleston. G. Ross Anderson, Jr., District
Judge. (CA-99-1568-2-13AJ)
Submitted: October 17, 2000 Decided: November 1, 2000
Before LUTTIG, MICHAEL, and TRAXLER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
James Beasley, Appellant Pro Se. Michele M. Kelley, SOCIAL SECU-
RITY ADMINISTRATION, Denver, Colorado, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
James Beasley appeals the district court’s order dismissing
his complaint as untimely filed. We have reviewed the record and
the district court’s order adopting the recommendation of the mag-
istrate judge and find no reversible error.1 We therefore affirm
on the reasoning of the district court. See Beasley v. Apfel, No.
CA-99-1568-2-13AJ (D.S.C. Mar. 27, 2000).2 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
1
We note that the complaint in this action was docketed in
the district court on May 18, 1999, rather than on May 26.
2
Although the district court’s judgment is marked as “filed”
on March 24, 2000, the district court’s record shows that it was
entered on the docket sheet on March 27. Pursuant to Rules 58 and
79(a) of the Federal Rules of Civil Procedure, it is the date that
the judgment or order was entered on the docket sheet that we take
as the effective date of the district court’s decision. See Wilson
v. Murray, 806 F.2d 1232, 1234-35 (4th Cir. 1986).
2
| {
"pile_set_name": "FreeLaw"
} |
588 F.3d 1173 (2009)
UNITED STATES of America, Appellee,
v.
Jeffrey Joseph DAVIS, Appellant.
No. 08-3692.
United States Court of Appeals, Eighth Circuit.
Submitted: October 23, 2009.
Filed: December 18, 2009.
*1174 Matthew C. McDermott, William B. Ortman, Des Moines, IA, for appellant.
Janet L. Petersen, AUSA, Sioux City, IA, for appellee.
Before RILEY, SMITH, and GRUENDER, Circuit Judges.
RILEY, Circuit Judge.
Jeffrey Joseph Davis (Davis) appeals his conviction for willful failure to pay his child support obligations, in violation of 18 U.S.C. §§ 228(a)(3) and 228(c)(2). The district court[1] denied Davis's motion for a judgment of acquittal at the close of the government's evidence and his renewed motion at the close of all the evidence. Davis argues the district court erred in denying his motions for judgment of acquittal because the government failed to prove Davis's failure to pay child support was willful. We affirm.
I. BACKGROUND
Davis fathered two daughters with Shanon Janey (Janey), whom he met while *1175 attending high school near Cedar Rapids, Iowa. Davis's and Janey's first daughter was born in 1990. Their second daughter was born in 1992. Davis and Janey were never married, but they lived together with their daughters in a mobile home park until the couple separated in approximately 1996. Janey and her daughters have lived with Janey's parents on a livestock farm in Watkins, Iowa, since 1998.
On January 28, 2000, the Iowa District Court for Benton County (Iowa district court) entered a default order against Davis, establishing paternity and ordering Davis to pay $723.00 per month in child support. Because Davis failed to provide his financial information, the $723.00 monthly support obligation was calculated by using information reported to the Iowa Workforce Development in 1999 by one of Davis's employers. The employer reported Davis earned $1,279.00 from April 19 to May 1, 1999.
In 2000, Davis did not make any support payments, and no money was collected from him. On July 26, 2001, the Iowa district court held a hearing and found Davis in contempt of court for his failure to pay child support. The court ordered Davis to spend thirty days in county jail, unless he paid $2,000.00 in support by July 30, 2001. Davis made the $2,000.00 payment to purge himself of the contempt. In addition to the $2,000.00 payment, the Cedar Rapids, Iowa, Child Support Recovery Unit (CSRU) was able to recover an additional $2,963.28 from Davis in 2001 by sending income withholding orders to Davis's employers. The CSRU reported it experienced difficulty obtaining income withholding payments from Davis because Davis frequently switched employers, and by the time the CSRU had an income withholding order in place with a particular employer, Davis sometimes was no longer employed with that employer.
On January 10, 2002, the Iowa district court again found Davis in contempt because Davis failed to pay child support in November 2001, December 2001, and January 2002, even though he "had the ability to pay some or all of said support." The court further found Davis's "failure to pay child support [wa]s willful." The CSRU collected $1,638.00 through federal and state tax offsets in January and February 2002. Later in 2002, Davis sought an adjustment of his child support obligation, and the CSRU recommended a reduction. On July 26, 2002, the Iowa district court reduced Davis's monthly support obligation to $570.18, after imputing to Davis an earning capacity of $30,000.00 per year.
Davis made no voluntary support payments in 2002, 2003, or 2004. In 2003, the CSRU collected only $1,885.00 from Davis and $845.07 in 2004, all as a result of income withholding.
In August 2004, the CSRU learned Davis was working in Colorado. In January 2005, the CSRU referred Davis's case to Colorado's child support services to act on CSRU's behalf. Davis made no payments, and no support was collected from Davis in 2005, 2006, 2007, and 2008. As of July 2008, Davis owed a total of $52,354.75 in unpaid child support.
On April 23, 2008, a federal grand jury returned a two-count indictment against Davis. Count 1 charged Davis with willful failure to pay a past due child support obligation, in violation of 18 U.S.C. § 228(a)(3), and Count 2 charged Davis with willful failure to pay a past due child support obligation, in violation of 18 U.S.C. § 228(a)(1).[2] Davis pled not guilty to the *1176 charges. A two-day jury trial commenced on July 23, 2008. The district court denied Davis's Fed.R.Crim.P. 29 motion for judgment of acquittal at the close of the government's evidence and denied his renewed motion at the close of all the evidence. The jury found Davis guilty on Count 1. The district court dismissed Count 2, a lesser-included offense. The district court sentenced Davis to 24 months imprisonment and 1 year of supervised release, and ordered him to pay $53,637.83 in restitution.
II. DISCUSSION
"We review de novo a district court's denial of a motion for judgment of acquittal. We view the evidence in the light most favorable to the government, resolving evidentiary conflicts in favor of the government, and accepting all reasonable inferences drawn from the evidence that support the jury's verdict." United States v. Cannon, 475 F.3d 1013, 1020 (8th Cir.2007) (internal citations omitted). "In reviewing the denial of a motion for judgment of acquittal based on insufficiency of the evidence, we consider the evidence in the light most favorable to the verdict and reverse only if no rational fact finder could have found the defendant guilty beyond a reasonable doubt." United States v. Kirkie, 261 F.3d 761, 768 (8th Cir.2001) (citations omitted).
Davis contends the district court erred in denying his motions for a judgment of acquittal because the government failed to prove Davis's failure to pay child support was "willful." The term "willful" as used in 18 U.S.C. § 228 "requires proof of an intentional violation of a known legal duty." United States v. Harrison, 188 F.3d 985, 986 (8th Cir.1999) (quoting H.R.Rep. No. 102-771, at 6 (1992)). To prove Davis willfully failed to pay his past due child support obligations, the government was required to show Davis had the ability to pay. See id. at 986-87.
Davis first argues his failure to pay child support was not willful because the government did not, and could not, prove Davis had the ability to pay the entire amount of child support ordered by the Iowa district court. Davis insists 18 U.S.C. § 228(a)(3) "does not impose liability on those with the ability to pay some, but not all, of a court-ordered child support obligation." Davis suggests the plain language of § 228 supports his position. Section 228(f)(3) states, "[T]he term `support obligation' means any amount determined under a court order or an order of an administrative process pursuant to the law of a State ... to be due from a person for the support and maintenance of a child or of a child and the parent with whom the child is living." 18 U.S.C. § 228(f)(3) (emphasis added).
We have not yet addressed the argument Davis now makes; however, two of our sister circuits have addressed this same argument. See United States v. Mattice, 186 F.3d 219 (2d Cir.1999); United States v. Mathes, 151 F.3d 251 (5th Cir.1998). In Mathes, the defendant argued the government's evidence was insufficient to support a conviction under § 228 because the government had not shown "[Mathes] possessed sufficient funds ... to pay his past due support obligation in its entirety." Mathes, 151 F.3d at 253 (emphasis added). The Fifth Circuit rejected this argument, declaring, "Mathes's interpretation of the [Child Support Recovery Act (CSRA)] as requiring proof beyond a *1177 reasonable doubt that, during the period alleged in the indictment, the defendant had the ability to pay the entire amount of past due child support owed possesses no basis in the language of the statute." Id. at 254 (emphasis added). The Fifth Circuit determined, "Mathes's legal obligation to pay ... approximately $20,000 in child support arrearages necessarily encompassed an obligation to pay any lesser-included amount that Mathes was capable of paying," and thus, "[Mathes] could have willfully failed to pay the lesser amount that he was capable of paying." Id. The Fifth Circuit continued, "Were we to conclude otherwise, child support obligors would be able to insulate themselves from criminal liability by simply failing to make child support payments until the total amount past due is an amount that they are incapable of paying in one lump sum." Id.
The Second Circuit agreed with the Fifth Circuit. See Mattice, 186 F.3d at 227-28. Judge Sonia Sotomayor, writing for the Second Circuit, found "Congress's choice of `any amount,' rather than `the amount,' [wa]s significant." Id. at 227 (referring to the definition of "obligation" found at 18 U.S.C. § 228(d) (1999), the prior version of 18 U.S.C. § 228(f)(3)). The Second Circuit reasoned, "The relevant `obligation' under the CSRA ... is the obligation to pay `any amount' past due under a state court or administrative child support order.... [Therefore] the government must demonstrate only that the defendant was able to pay some portion of his past due child support obligations in order to establish liability under the CSRA." Id. at 228.
We agree with the reasoning of the Fifth and Second Circuits.[3] If Davis's child support obligation was more than he could pay, Davis's remedy was in the Iowa district court where Davis could seek modification of his support obligation. The CSRA is legislation designed to assist and enforce state child support orders, not a law to modify or undermine such state orders. It is logical to assume, if Congress had intended § 228(a)(3) to impose liability only on those individuals who have the ability to pay the entire support obligation, but fail to do so, Congress would have said so.
We also note Davis jointly submitted to the district court the following proposed jury instruction, and failed to make any objection to the instruction's submission to the jury:
You may find that [Davis] had the financial ability to pay and acted willfully if you find that he had sufficient income or assets, or both, to enable him to pay the child support obligation, or at least make partial payments. In other words, if you find that he had the ability to pay more than he did in fact pay, you may find that his failure to pay more was willful.
This instruction is in accord with our view and the Second and Fifth Circuits' interpretation of 18 U.S.C. § 228. We thus reject Davis's argument and conclude the government was not required to prove Davis had the ability to pay the entire amount of past due child support in order to prove Davis willfully failed to pay child support in violation of 18 U.S.C. § 228(a)(3).
*1178 In the alternative, Davis claims, even if the government could prove willfulness by showing Davis had the ability to pay something less than the entire amount of past due child support, the government failed to prove Davis had the ability to pay any more child support than he did. Davis contends the government failed to meet its burden to show Davis's failure to pay was willful because the government never presented evidence to the jury establishing what amount of support Davis reasonably could have paid. Without such evidence, Davis suggests "the jury was left without any compass to guide them." We disagree.
The jury instructions, to which Davis stipulated and did not object, permitted the jury to find Davis willfully failed to pay child support if the jury found Davis "had the ability to pay more than he did in fact pay." The jury was not required to specify what amount of support Davis could pay. The government presented evidence concerning Davis's skills, employment history, and income. The jury also heard testimony and viewed exhibits outlining the Iowa CSRU's difficulty in keeping track of Davis and collecting child support payments from him. The jury was aware of the fact that every child support payment collected from Davis was either the result of an income withholding order or a payment made to purge contempt. The jury learned the CSRU was unable to collect any payments from Davis after December 2004, even though the evidence showed Davis earned income in Colorado from various employers in 2005 through 2007. Janey testified, when she confronted Davis about his child support responsibility, Davis told Janey, "No, I'm not going to help you out," and "They're your girls." Additionally, the Iowa district court in its January 10, 2002, order found Davis "had the ability to pay some or all of [the child] support," and Davis's "failure to pay child support [wa]s willful."
Viewing the evidence in the light most favorable to the government and accepting all reasonable inferences drawn from the evidence that support the jury's verdict, we conclude there was sufficient evidence for the jury to find Davis was capable of paying more child support than he did, and therefore, find Davis guilty of willfully not paying his child support obligations, in violation of 18 U.S.C. § 228(a)(3). See Cannon, 475 F.3d at 1020.
III. CONCLUSION
For the reasons stated in this opinion, we affirm the district court's judgment.
NOTES
[1] The Honorable Linda R. Reade, Chief Judge, United States District Court for the Northern District of Iowa.
[2] A violation of 18 U.S.C. § 228(a)(3) occurs when a person "willfully fails to pay a support obligation with respect to a child who resides in another State, if such obligation has remained unpaid for a period longer than 2 years, or is greater than $10,000." A person violates 18 U.S.C. § 228(a)(1) when he "willfully fails to pay a support obligation with respect to a child who resides in another State, if such obligation has remained unpaid for a period longer than 1 year, or is greater than $5,000."
[3] Davis refers us to United States v. Holbrook, 15 F.Supp.2d 10, 18-19 (D.D.C.1998), wherein a district court judge granted a defendant's motion for judgment of acquittal based on the government's failure to prove the defendant had sufficient income to pay the entire past due child support obligation. We conclude the Second and Fifth Circuits' interpretation of 18 U.S.C. § 228 is better reasoned, and we decline Davis's invitation to adopt the reasoning of Holbrook.
| {
"pile_set_name": "FreeLaw"
} |
878 F.2d 380
U.S.v.Griffin (Wendell H.)
NO. 88-5112
United States Court of Appeals,Fourth Circuit.
JUN 23, 1989
Appeal From: E.D.Va., 696 F.Supp. 164
1
AFFIRMED.
| {
"pile_set_name": "FreeLaw"
} |
FILED
NOT FOR PUBLICATION AUG 17 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
AMERICAN INDEPENDENCE MINES No. 11-35123
AND MINERALS CO., an Idaho joint
venture composed of Ivy Minerals, Inc., an D.C. No. 1:09-cv-00433-EJL
Idaho corporation, and Walker Mining
Company, an Idaho corporation and IVY
MINERALS, INC., an Idaho corporation, MEMORANDUM *
Plaintiffs - Appellants,
and
VALLEY COUNTY,
Intervenor-Plaintiff,
v.
UNITED STATES DEPARTMENT OF
AGRICULTURE, an agency of the United
States; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Idaho
Edward J. Lodge, District Judge, Presiding
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Argued and Submitted July 10, 2012
Portland, Oregon
Before: GOODWIN, PREGERSON, and CHRISTEN, Circuit Judges.
Plaintiff-Appellant, American Independence Mines and Minerals Co.
(“American Mines”), appeals the dismissal of its complaint seeking judicial review
of a travel management plan governing use of the roads in the Payette National Forest.
American Mines filed suit against the U.S. Department of Agriculture, the Secretary
of Agriculture Tom Vilsack, the U.S. Forest Service, and several local employees of
the U.S. Forest Service (collectively, the “Federal Defendants”) for alleged NEPA
violations stemming from the issuance of new road use regulations in the Payette
Forest.
The complaint alleged that the final environmental impact statement underlying
the travel management plan was based on facts that the U.S. Forest Service knew were
inaccurate. The district court dismissed the complaint after concluding that American
Mines’ interest in the Payette National Forest was purely economic, and therefore it
lacked prudential standing under NEPA. American Mines subsequently filed a motion
to alter or amend the judgment under Rule 59(e) of the Federal Rules of Civil
Procedure, which was untimely by one day. The Federal Defendants opposed the
Rule 59(e) motion but did not object on timeliness grounds. The district court granted
2
the Rule 59(e) motion, in part, but left intact its holding regarding American Mines’
lack of standing.
The Federal Defendants argue that we do not have jurisdiction over this appeal
because the time to file a Rule 59(e) motion cannot be extended by the court. The
Supreme Court has distinguished between time constraints mandated by statute, i.e.,
jurisdictional rules that pertain to the court’s ability to hear the case, and judicially-
imposed time restraints, i.e., claim-processing rules that can be forfeited if not raised
in a timely fashion. See Kontrick v. Ryan, 540 U.S. 443, 452–56 (2004); Eberhardt
v. United States, 546 U.S. 12, 15–19 (2005). We have held that Rule 6(b), the rule
governing time limits for Rule 59(e) motions, is a claim-processing rule subject to
forfeiture. See Art Attacks Ink, LLC v. MGA Entm't Inc., 581 F.3d 1138, 1143 (9th
Cir. 2009). Because the Federal Defendants failed to raise untimeliness until after the
district court had considered the merits of the Rule 59(e) motion, they forfeited that
argument. See Eberhardt, 546 U.S. at 18–19.
We review the denial of a Rule 59(e) motion to amend for abuse of discretion.
Sch. Dist. No. 1J, Multnomah Cnty., Or. v. AcandS, Inc., 5 F.3d 1255, 1262 (9th Cir.
1993).
3
Prudential standing
Prudential standing requires that “the interest sought to be protected by the
complainant arguably [must be] within the zone of interests to be protected or
regulated by the statute . . . in question.” Ashley Creek Phosphate Co. v. Norton, 420
F.3d 934, 939–40 (9th Cir. 2005). Although the prudential standing test “is not meant
to be especially demanding,” Match-E-Be-Nash-She-Wish Band of Pottawatomi
Indians v. Patchak, 132 S. Ct. 2199, 2210 (2012) (internal quotation marks omitted),
the district court did not abuse its discretion in refusing to identify a theory for
prudential standing that arguably was mentioned in a 39-page, single-spaced
attachment to the complaint, but such theory was neither articulated in the 33-page
complaint nor argued in response to the motion to dismiss.
American Mines alleges that its economic interests are within NEPA’s zone of
interests because its business is necessarily intertwined with the environment. The
district court concluded that American Mines’ efforts “were not environmental in
nature but were completed in pursuit of Plaintiffs’ economic interests in mineral
resource development and, therefore, do not fall within the environmental zone of
interests.” We agree.
The Ashley Creek court held that § 102 cannot be divorced from the overall
purpose of NEPA, which the court defined as “a national commitment to protecting
4
and promoting environmental quality.” Ashley Creek, 420 F.3d at 944–45. American
Mines asserts that its environmental interests are driven by considerations of
practicality, regulatory compliance, and business judgment that compel it to mine in
a responsible fashion. American Mines’ argument relies on three paragraphs in the
complaint that allege its commitment to environmental studies and mitigation
activities. However, these activities, as the district court correctly held, are
undertaken only as part of the pursuit of American Mines’ economic interests in
mining in the Payette Forest. These purely economic interests do not fall within
NEPA’s environmental zone of interests. See id. at 945; Ranchers Cattlemen Action
Legal Fund v. U.S. Dep’t of Agric., 415 F.3d 1078, 1103–04 (9th Cir. 2005); Nevada
Land Action Ass’n v. U.S. Forest Serv., 8 F.3d 713, 716 (9th Cir. 1993). Therefore,
American Mines lacks prudential standing.
AFFIRMED.
5
| {
"pile_set_name": "FreeLaw"
} |
547 F.3d 667 (2008)
UNITED STATES of America, Plaintiff-Appellee,
v.
John David KUEHNE, Jr., Defendant-Appellant.
No. 06-3668.
United States Court of Appeals, Sixth Circuit.
Argued: March 13, 2008.
Decided and Filed: October 28, 2008.
*674 ARGUED: Kevin M. Schad, Schad & Schad, Lebanon, Ohio, for Appellant. Benjamin C. Glassman, Assistant United States Attorney, Cincinnati, Ohio, for Appellee. ON BRIEF: Kevin M. Schad, Schad & Schad, Lebanon, Ohio, for Appellant. Benjamin C. Glassman, Assistant United States Attorney, Cincinnati, Ohio, for Appellee. John D. Kuehne, Jr., Terre Haute, Indiana, pro se.
Before: CLAY and McKEAGUE, Circuit Judges; BOYKO, District Judge.[*]
OPINION
CLAY, Circuit Judge.
Defendant, John David Kuehne ("Kuehne"), appeals his conviction for one count of conspiracy to steal firearms from *675 a federally licensed firearms dealer in violation of 18 U.S.C. § 371; two counts of aiding and abetting the theft of firearms from a firearms dealer in violation of 18 U.S.C. §§ 922(u), 2 and 924(i); three counts of possessing stolen firearms in violation of 18 U.S.C. §§ 922(j) and 924(a)(2); three counts of being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g) and 924(a)(2); and three counts of use of a firearm during and in relation to a drug trafficking crime in violation of 18 U.S.C. § 924(c). Kuehne raises a number of challenges to his conviction. For the reasons that follow, we AFFIRM Kuehne's conviction.
BACKGROUND
A. Factual Background
In November of 2002, four individuals, Jeremy Fogt ("Fogt"), Daniel Minaya ("Minaya"), David Nunez ("Nunez") and Kuehne met in Columbus, Ohio and discussed an opportunity for the sale of an illegal drug popularly known as "ecstacy" at reduced prices. Fogt, Kuehne and Minaya were friends and frequently purchased and sold ecstacy to one another, with Nunez serving as the ultimate supplier. Nunez, who alternatively went by "Noonie" or "12 o'clock," was from New York City.
During the discussion, Nunez indicated that he was interested in obtaining semi-automatic weapons and that he was amenable to trading his supply of ecstacy for firearms. Kuehne and Fogt agreed to the guns for drugs exchange. Later, Kuehne and Fogt traveled back to their home in Sidney, Ohio. On the way home, the two discussed how they would obtain the guns to supply Nunez in exchange for ecstacy. The conversation soon turned to Fogt's cousin, Nathan Marlow ("Marlow"), who had previously stolen firearms without being caught. Marlow was later approached by Fogt and agreed to participate. Marlow then solicited the assistance of his friend, Justin Duckro ("Duckro"), who had a car that could be used during the robberies. Duckro agreed to help, in exchange for half of whatever Marlow received from the robberies.
In early December of 2002, Kuehne and Marlow selected and "cased" their first robbery target, Rich Mart Guns and Ammo. Later, Marlow and Duckro returned to Rich Mart and stole approximately fifty semi-automatic pistols. The guns were then taken to Fogt's house for storage. Thereafter, Kuehne and Fogt traveled to New York to exchange the weapons with Nunez. On the way, Kuehne delivered three guns to Minaya.
Upon meeting with Nunez, Kuehne exchanged thirty semi-automatic pistols for 1,000 pills of ecstacy. Although Kuehne and Fogt agreed to split the pills, Fogt later purchased Kuehne's share. Marlow received 200 pills, some of which were then given to Duckro.
In January of 2003, Kuehne, Marlow and Duckro selected the next robbery target, Craig's Gun Shop in North Lewisburg, Ohio. Marlow and Duckro later robbed the store, taking approximately twenty handguns and more than twelve assault rifles. Again, the weapons were stored at Fogt's house and Kuehne took the guns to New York for exchange with Nunez. Marlow also took a number of weapons and sold them in Tennessee.
In February of 2003, Marlow and Duckro robbed Niekamp's Flea Market in St. Henry, Ohio and stole over 100 semi-automatic pistols. Approximately one-half of the weapons was stored at Fogt's house and the other half was taken to New York. Prior to taking the trip to New York, Kuehne borrowed a car from a friend, *676 Andy Murray, in exchange for money and a gun.
To pay for the trip, Kuehne sold a number of guns in Sidney. Kuehne offered to sell the guns to three individuals, Robert Hilyard, Fred Hilyard and Jimmy Riggins, who declined. Eventually Kuehne, Fogt and Marlow made it to New York to barter the firearms with Nunez, and returned to Sidney with approximately 2,000 ecstacy pills.
Between late 2002 and early 2003, Kuehne made several trips to New York City to barter with Nunez. On one occasion Kuehne took his girlfriend, Lisa Hicks, along for the trip and stayed overnight at Nunez's after taking in the sights in New York. Upon return from a trip to New York, Duckro notified Kuehne that police had become aware of their activities because individuals had been caught in possession of the stolen weapons. Soon thereafter, Kuehne was arrested. While incarcerated at the county jail, Kuehne telephoned his mother regarding digital photographs of him and his girlfriend in New York. Kuehne "request[ed] her to go and get these two digital disks, and he stated to her that it was very, very important." (J.A. at 1244)
B. Procedural Facts
In May of 2003, a grand jury sitting in the Southern District of Ohio returned a fifteen-count indictment against Kuehne, Fogt, Marlow and Duckro. Kuehne was charged in twelve counts of the indictment. The indictment alleged one count of conspiracy to steal firearms from a federally licensed firearms dealer in violation of 18 U.S.C. § 371, two counts of aiding and abetting the theft of firearms from a firearms dealer in violation of 18 U.S.C. §§ 922(u), 2 and 924(i), three counts of possessing stolen firearms in violation of 18 U.S.C. §§ 922(j) and 924(a)(2), three counts of being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g) and 924(a)(2), and three counts of use of a firearm during and in relation to a drug trafficking crime in violation of 18 U.S.C. § 924(c). Each count alleged in the indictment specified the involvement of one to two guns. Fogt, Marlow and Duckro entered into plea agreements with the government and Kuehne proceeded to trial on the offenses listed in the indictment.
Prior to trial, Kuehne filed a motion to suppress evidence gathered when police seized his cellular phone and obtained the names of a number of potential witnesses. The district court granted the motion in part and denied the motion in part. Thereafter, at Kuehne's trial in September of 2004, the government called a number of witnesses that participated in the gun robberies or the trips to New York, including Fogt, Marlow, Duckro, and Lisa Hicks. The government also called Robert Hilyard, Fred Hilyard and Jimmy Riggins to testify regarding Kuehne's attempt to sell them weapons. Altogether, the government offered evidence that over 200 firearms were involved in the offenses alleged in the indictment. In his defense, Kuehne alleged that he did not participate in any of the counts alleged in the indictment and called his mother as an alibi witness for the dates he was alleged to have been in New York. Following the dismissal of count 7 of the indictment, the jury returned a verdict of guilty as to all of the remaining counts.
Following his conviction, Kuehne, proceeding pro se, filed a motion for acquittal and a motion for new counsel. The district court granted Kuehne's motion for new counsel and denied his motion for a new trial after a hearing.
On May 10, 2006, the district court conducted Kuehne's sentencing hearing. The district court sentenced Kuehne to a sixty-month *677 term of imprisonment for count 1, to run concurrently with a 120-month term of imprisonment for counts 6, 11 and 15. Kuehne was also sentenced to concurrent three-year terms of supervised release for counts 1, 2, 4, 5, 9, 10, 13 and 14, and concurrent five-year terms of supervised release for counts 6, 11 and 15.
Kuehne now timely appeals.
DISCUSSION
I. Venue
A. Standard of Review
Kuehne argues that the district court erred when it failed to grant his motion for acquittal based on improper venue. The Court "review[s] de novo the trial court's denial of a motion for judgment of acquittal. In conducting this review, we view the evidence in the light most favorable to the prosecution, and inquire whether a rational trier of fact could find that venue is proper. The [g]overnment's showing on this point need only be supported by a preponderance of the evidence." United States v. Zidell, 323 F.3d 412, 420-21 (6th Cir.2003) (citations omitted).
B. Analysis
Kuehne asserts that venue was improper in the Southern District of Ohio because the actual trading of the guns for drugs took place in the city of New York. This argument is without merit.
"Venue is proper in the state or district where the offense was committed." United States v. Crozier, 259 F.3d 503, 519 (6th Cir.2001); see also U.S. Const. art. III, § 2, cl. 3 ("Trial shall be held in the State where the said Crimes shall have been committed."); Fed.R.Crim.P. 18 ("[T]he prosecution shall be had in a district in which the offense was committed."). As the Supreme Court noted in United States v. Rodriguez-Moreno, 526 U.S. 275, 281, 119 S.Ct. 1239, 143 L.Ed.2d 388 (1999), "where a crime consists of distinct parts which have different localities the whole may be tried where any part can be proved to have been done." Id. (quoting United States v. Lombardo, 241 U.S. 73, 77, 36 S.Ct. 508, 60 L.Ed. 897 (1916)). Thus, "[v]enue may be had in more than one location." United States v. Williams, 274 F.3d 1079, 1084 (6th Cir.2001).
In Rodriguez-Moreno, the Court found that venue in a prosecution for using or carrying a firearm "during and in relation to any crime of violence" in violation of 18 U.S.C. § 924(c)(1) is proper in any district where any part of the crime of violence was committed. 526 U.S. at 281-82, 119 S.Ct. 1239. The same can be said for a prosecution involving the use of a gun during a drug trafficking crime, also in violation of § 924(c)(1). Cf. Crozier, 259 F.3d at 519 ("For drug conspiracies, venue is proper in any district where the conspiracy was formed or where an overt act in furtherance of the conspiracy was performed.").
In the instant case, there was sufficient evidence to support a finding that venue was proper in the Southern District of Ohio inasmuch as the gun robberies and drug exchanges took place in Ohio. The record demonstrates that Kuehne and others illegally acquired guns in Ohio for the purpose of exchanging them for drugs in New York. Moreover, once Kuehne obtained the drugs from Nunez, he returned to Ohio and distributed the proceeds to his co-conspirators. Under such circumstances, a rational trier of fact could find that a part of the charged offenses occurred in the Southern District of Ohio by a preponderance of the evidence. See United States v. Scaife, 749 F.2d 338, 346 (6th Cir. 1984).
In pressing his claim regarding the impropriety of venue, Kuehne cites United States v. Williams. Kuehne's reliance on *678 Williams, however, is misplaced. In Williams, this Court considered a venue challenge where a defendant was convicted of conspiracy to possess with intent to distribute marijuana in a Michigan district court. 274 F.3d at 1081. There, Williams, who resided in Texas, became involved in a conspiracy to sell marijuana after being contacted by a confidential police informant. Id. The confidential informant arranged to purchase various quantities of marijuana from Williams during tape recorded conversations with Williams and a co-defendant. Id. All conversations occurred in and around Houston, Texas. Id. During one conversation, the confidential informant expressed his intention to sell the marijuana purchased from Williams in Michigan. Id. at 1082. The government used the confidential informant's intention to sell marijuana in Michigan as a justification for venue in Williams' criminal prosecution. Id. at 1084. On review, however, this Court found that venue was improper because the alleged conspiracy's only connection to Michigan was a statement of a government informant, who could not be a co-conspirator. Id. ("Since a government agent cannot be a conspirator, the only conspirators were Williams and Del Bosque."). Thus, the remaining evidence was insufficient to support a Michigan venue inasmuch as the offense and the overt acts in furtherance of the conspiracy took place in Texas. Id. at 1084-85. The instant case, however, is readily distinguishable because significant acts related to the drug trafficking and gun charges took place in Ohio and were conducted by Kuehne and his co-conspirators. Therefore, venue was proper in the Southern District of Ohio.
II. Definition of "Use" Under § 924(c)(1)
A. Standard of Review
Kuehne alleges that his conduct did not satisfy 18 U.S.C. § 924(c)(1)'s "use" requirement. "Because this issue is a matter of statutory interpretation, we conduct de novo review." United States v. VanHoose, 437 F.3d 497, 501 (6th Cir. 2006).
B. Analysis
Kuehne contends that his conviction for the use of a firearm during and in relation to a drug trafficking offense is invalid inasmuch as the exchange of a gun for drugs does not constitute "use" within the meaning of 18 U.S.C. § 924(c)(1). We disagree.
Section 924(c)(1) imposes a minimum five-year term of imprisonment upon any person who "during and in relation to any crime of violence or drug trafficking crime. . . uses or carries a firearm." 18 U.S.C. § 924(c)(1). On three occasions, the Supreme Court has expounded on the word "use" within the meaning of § 924(c)(1) and on each of those occasions Kuehne's contention that an individual who barters firearms for drugs does not "use" such firearms was expressly rejected. See Watson v. United States, ___ U.S. ___, 128 S.Ct. 579, 169 L.Ed.2d 472 (2007); Bailey v. United States, 516 U.S. 137, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995); Smith v. United States, 508 U.S. 223, 113 S.Ct. 2050, 124 L.Ed.2d 138 (1993).
In Smith v. United States, the Court held that a person "uses" a firearm within the meaning of § 924(c)(1) when firearms are traded for drugs. There, the Court determined that, based on the "ordinary and natural" meaning of "use," "it is both reasonable and normal to say that petitioner `used' his MAC-10 in his drug trafficking offense by trading it for cocaine." Smith, 508 U.S. at 230, 113 S.Ct. 2050. In Bailey v. United States, the Court again *679 invoked the "ordinary and natural" meaning of "use" to determine that mere possession of a firearm does not constitute "use" within the meaning of the statute. 516 U.S. at 145, 116 S.Ct. 501. Rather, the Court found that § 924(c)(1) "requires evidence sufficient to show an active employment of the firearm by the defendant, a use that makes the firearm an operative factor in relation to the predicate offense." Id. at 143, 116 S.Ct. 501. Taken together, Smith and Bailey stand for the proposition that the exchange of guns for drugs satisfies the "active employment" necessary for a gun to be "used" under § 924(c)(1).[1]
While this case was pending on appeal, the Supreme Court further clarified the meaning of the term "use" as stated in § 924(c)(1) with respect to the other side of a guns-for-drugs transaction. See Watson v. United States, ___ U.S. ___, 128 S.Ct. 579, 169 L.Ed.2d 472 (2007). In Watson v. United States, the Court determined that a defendant who barters drugs for guns does not "use" a firearm during and in relation to a drug trafficking crime for purposes of § 924(c).[2] 128 S.Ct. at 581. Instead, the Court found that the receipt of a weapon could not be squared with Bailey's prior construction that the "use" of a firearm must include "active employment." Id. at 583.
In reaching this conclusion, however, the Court did not disturb the central holding in Smith: that a person who barters a gun in exchange for drugs can be said to have "used" the gun. Id. ("So, when Watson handed over the drugs for the pistol, the informant or the agent used the pistol, just as Smith held, but regular speech would not say that Watson himself used the pistol in the trade."). Thus, Smith controls and therefore Kuehne's bartering of firearms for drugs constitutes "use" within the meaning of § 924(c)(1).
III. Instruction Regarding Proof Necessary for Conviction Under § 924(c)
A. Standard of Review
Kuehne challenges the district court's instructions to the jury regarding the evidence necessary for conviction under 18 U.S.C. § 924(c). This Court reviews challenges to jury instructions for abuse of discretion. United States v. Ross, 502 F.3d 521, 527 (6th Cir.2007). "When jury instructions are claimed to be erroneous, we review the instructions as a whole, in order to determine whether they adequately informed the jury of the relevant considerations and provided a basis in law for aiding the jury in reaching its decision." United States v. Frederick, 406 F.3d 754, 761 (6th Cir.2005) (quoting Barnes v. Owens-Corning Fiberglas Corp., 201 F.3d 815, 822 (6th Cir.2000)). A judgment may be reversed based upon an improper jury instruction "`only if the instructions, viewed as a whole, were confusing, misleading, or prejudicial.'" United States v. Harrod, 168 F.3d 887, 892 (6th Cir.1999) (quoting Beard v. Norwegian *680 Caribbean Lines, 900 F.2d 71, 72-73 (6th Cir.1990)).
B. Analysis
The government concedes that the district court erred in its instructions to the jury regarding the burden of proof necessary to support a conviction for § 924(c); however, the government asserts that Kuehne's conviction should nevertheless be affirmed because Kuehne was not prejudiced by the erroneous jury instruction.
The district court instructed the jury as follows regarding the counts in the indictment alleging the violation of 18 U.S.C. § 924(c):
For you to find John David Kuehne, Jr. guilty of using a firearm during and in relation to a drug trafficking crime as an aider and abettor in Counts VI, XI and XV you [ ] must be convinced that the Government has prove [sic] each and every one of the following elements beyond a reasonable doubt.
* * *
The exchange or barter of MDMA for a firearm or firearms by an unauthorized person necessarily entails an unlawful act of knowingly and intentionally distributing and/or dispensing a controlled substance in violation of 21 U.S.C. 841(a)(1) which is a drug trafficking crime.
(J.A. at 284-86)
We find, and the government concedes, that the district court's failure to separately instruct the jury regarding the elements of the drug trafficking offenses was erroneous. A defendant has a Fifth and Sixth Amendment right to have a jury pass on the question of whether an offense has been proven beyond a reasonable doubt. Sullivan v. Louisiana, 508 U.S. 275, 278, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993) ("[T]he Fifth Amendment requirement of proof beyond a reasonable doubt and the Sixth Amendment requirement of a jury verdict are interrelated."). As noted above, § 924(c)(1) imposes a minimum five-year term of imprisonment upon any person who "during and in relation to any crime of violence or drug trafficking crime. . . uses or carries a firearm." Therefore, we have held, "under § 924(c)(1), the government must prove that [Kuehne]: (i) carried or used a firearm; (ii) during and in relation to a drug trafficking offense." United States v. Warwick, 167 F.3d 965, 971 (6th Cir.1999). With respect to the second element of § 924(c)(1), a defendant does not actually have to be charged with or convicted of the underlying separate drug trafficking offense. United States v. Wang, 222 F.3d 234, 246 (6th Cir.2000). Nevertheless, in United States v. Nelson, 27 F.3d 199, 201 (6th Cir.1994), we noted that "it is, of course, necessary that the government prove beyond a reasonable doubt all of the elements of § 924(c), one of which is that the defendant committed the underlying crime."
In the instant case, as both parties agree, the district court provided little guidance to the jury regarding its duty to find the predicate drug offenses beyond a reasonable doubt prior to finding Kuehne guilty of § 924(c)(1). Instead, the district court instructed the jury that "the exchange or barter of MDMA[3] for a firearm or firearms by an unauthorized person necessarily entails an unlawful act of knowingly and intentionally distributing and/or dispensing a controlled substance in violation of 21 U.S.C. 841(a)(1) which is a *681 drug trafficking crime." (J.A. at 286) (emphasis added) In essence, the district court instructed the jury that the underlying drug offense need not be separately found because Kuehne's conduct necessarily constituted a crime. This instruction invaded the province of the jury by taking away the question of the predicate drug trafficking offense and therefore was in error.
Determining that the district court erred, however, does not require an automatic reversal. See Neder v. United States, 527 U.S. 1, 8, 12-13, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999). In Neder v. United States, "the Supreme Court distinguished between `trial errors' which may be reviewed for harmless error and `structural errors' which are excluded from harmless error review. Structural errors reflect a `defect affecting the framework within which the trial proceeds, rather than simply error in the trial process itself.'" United States v. Stewart, 306 F.3d 295, 319 (6th Cir.2002) (quoting Neder, 527 U.S. at 8, 119 S.Ct. 1827). In Neder, the Court noted that "most constitutional errors can be harmless." 527 U.S. at 8, 119 S.Ct. 1827. Although an accused has a constitutional right to have each element charged against him proven beyond a reasonable doubt, the Court held that "the omission of an element is an error that is subject to harmless-error analysis[.]" Id. at 15, 119 S.Ct. 1827.
In conducting this harmless error review, the Court cautioned that "safeguarding the jury guarantee will often require that the reviewing court conduct a thorough examination of the record. If, at the end of that examination, the court cannot conclude beyond a reasonable doubt that the jury verdict would have been the same absent the error . . . [it] should not find the error harmless." Id. at 19, 119 S.Ct. 1827. An error will be deemed harmless where an appellate court is satisfied that, despite the deprivation of the due process right, it is "clear beyond a reasonable doubt that a rational jury would have found the defendant guilty despite the lack of an actual jury finding on that element." Id. at 18, 119 S.Ct. 1827. This may be found where the omitted element was "uncontested and supported by overwhelming evidence. . . ." Id. at 17, 119 S.Ct. 1827. Indeed, where the evidence regarding the omitted element is undisputed, "answering the question of whether the jury verdict would have been the same absent the error does not fundamentally undermine the purposes of the jury trial guarantee."[4]Id. at 19, 119 S.Ct. 1827.
*682 In the instant case, the district court's failure to instruct the jury regarding its duty to find the predicate drug offenses beyond a reasonable doubt was harmless error inasmuch as the jury was presented with uncontroverted evidence supporting the predicate drug offenses. During the trial, three of Kuehne's co-conspirators testified regarding three separate occasions during which Kuehne participated in the theft of a number of firearms which he later transported to New York and exchanged for ecstacy. As the government notes, this testimony establishes a number of drug trafficking offenses, including "conspiracy to possess ecstacy with intent to distribute, possession of ecstacy with intent to distribute, and distribution of ecstacy." (Gov't Br. at 20)
Before the jury, Kuehne argued that he did not participate in any illegal activity and that his prosecution for the offenses set forth in the indictment came as a result of unreliable statements and testimony from individuals who were simply trying to minimize their punishment for participation in the alleged crimes. It appears, however, that the jury rejected Kuehne's argument that he was not involved in the transactions involving the stolen firearms. Rather, the jury found that Kuehne was actively involved in a conspiracy to trade guns for drugs with individuals based out of New York City. Absent this defense, the evidence of the underlying drug transactions was uncontroverted. Therefore, we are satisfied that, based on this uncontradicted evidence, the jury would have found that the underlying drug transactions took place beyond a reasonable doubt. Thus, although the district court erred in failing to instruct the jury regarding the predicate drug trafficking offenses, such error was harmless inasmuch as Kuehne was not prejudiced by the omission. See United States v. Luke-Sanchez, 483 F.3d 703, 706-07 (10th Cir.2007) (finding that district court erred in failing to instruct the jury that it was required to find that a gun was used in furtherance of a drug trafficking crime, but that the error was harmless because the circumstances in which a trade of drugs for guns would not involve drug trafficking were not present). But see United States v. Korey, 472 F.3d 89, 96-97 (3d Cir.2007) (finding that the district court's omission of the "unity of purpose" element from jury instructions regarding conspiracy constituted reversible error where there was substantial controversy regarding the evidence supporting the omitted element).
IV. Constructive Amendment or Variance of the Indictment
A. Standard of Review
Generally, this Court evaluates claims of constructive amendments to or variances from an indictment de novo. United States v. Hynes, 467 F.3d 951, 961 (6th Cir.2006); United States v. Flowal, 163 F.3d 956, 962 (6th Cir.1998). However, where no specific objection is raised regarding a constructive amendment or a variance before the district court, we are limited to "plain error" review on appeal. United States v. Mann, 195 Fed.Appx. 430, 437 (6th Cir.2006) (plain error applied to constructive amendment claim where no objection was lodged with the trial court); United States v. Caver, 470 F.3d 220, 236 (6th Cir.2006) (plain error review applied to variance appeal). "To establish plain error, there must be (1) error, (2) that is plain, (3) that affects substantial rights. If all of these requirements are met, an appellate court may then exercise its discretion to notice a forfeited error, but only if (4) the error seriously affects the fairness, integrity, or public reputation of judicial proceedings." United States v. Webb, 403 F.3d 373, 380 (6th Cir.2005) (internal citations *683 and quotations omitted). The defendant bears the burden of proving whether a constructive amendment or variance has occurred. United States v. Chilingirian, 280 F.3d 704, 712 (6th Cir.2002).
B. Analysis
Kuehne alleges that the government constructively amended count 6 of the indictment inasmuch as the jury instructions broadened the basis of conviction under § 924(c). Moreover, Kuehne argues that the discrepancy between the jury instructions, the evidence regarding the number of guns offered at trial and the number of guns alleged in the indictment constitutes either a constructive amendment or a prejudicial variance from the indictment. We find Kuehne's allegations to be without merit.
"An indictment may be the subject of an actual amendment, a constructive amendment, or a variance." United States v. Budd, 496 F.3d 517, 521 (6th Cir.2007). Thus, constructive amendments and variances are two types of "modifications to indictments that have been recognized by this Court." Hynes, 467 F.3d at 961. Constructive amendments and variances, however, differ with respect to the burden placed upon the defendant and the remedy mandated upon a showing that a constructive amendment or variance has occurred.
A constructive amendment "results when the terms of an indictment are in effect altered by the presentation of evidence and jury instructions which modify essential elements of the offense charged such that there is a substantial likelihood that the defendant may have been convicted of an offense other than the one charged in the indictment." United States v. Martinez, 430 F.3d 317, 338 (6th Cir.2005). Constructive amendments are "per se prejudicial because they infringe on the Fifth Amendment's grand jury guarantee." Hynes, 467 F.3d at 962 (internal citations and quotations omitted). Because of the constitutional injury that results from a constructive amendment, when proven, a defendant is entitled to a reversal of his conviction. Id.
A variance, however, is "not per se prejudicial." Budd, 496 F.3d at 521. Rather, reversal is warranted only where a defendant proves that (1) a variance occurred and (2) that the variance affected a substantial right of the defendant. United States v. Prince, 214 F.3d 740, 757 (6th Cir.2000). A variance "occurs when the charging terms [of the indictment] are unchanged, but the evidence at trial proves facts materially different from those alleged in the indictment." Id. at 756-57. The substantial rights of the defendant "are affected only when the defendant shows prejudice to his ability to defend himself at trial, to the general fairness of the trial, or to the indictment's sufficiency to bar subsequent prosecutions." Hynes, 467 F.3d at 962 (quoting United States v. Barrow, 118 F.3d 482, 488-89 (6th Cir.1997)).
1. Constructive Amendment to Count 6 of the Indictment
Kuehne contends that count 6 of the indictment was constructively amended by the district court when the court instructed the jury regarding the use of a firearm during and in relation to a drug trafficking offense under 18 U.S.C. § 924(c).
As noted above, a constructive amendment occurs where the indictment is effectively altered by the presentation of evidence and jury instructions which change the material elements of an offense. To determine whether a constructive amendment has occurred, therefore, we review the language of the indictment, the evidence presented at trial, the jury *684 instructions and the verdict forms utilized by the jury. See United States v. Brown, 332 F.3d 363, 371 (6th Cir.2003).
Count 6 of the indictment alleged that Kuehne aided and abetted the use of a firearm during and in relation to a drug trafficking crime in violation of 18 U.S.C. § 924(c). However, when instructing the jury regarding the offense, the district court erroneously asserted that Kuehne was charged with using and carrying a firearm. In particular, the district court stated:
Count 11[5] charges on or about December 13th, 2002 in the Southern District of Ohio and elsewhere John David Kuehne, Jr. aided and abetted a person known to the grand jury carrying and/or using two firearms, to wit: A Taures Model PT 92[.]9 millimeter pistol, serial number TUE4914 and a Colt model 19110-A1 [.]45 caliber pistol, serial number CV 19208 during and in relation to a drug trafficking crime for which he may be prosecuted in the United States. . . .
(J.A. at 1681-82) (emphasis added)
Although the district court properly instructed the jury regarding the elements that must be proven in order to convict Kuehne of the "use" offense and specifically defined "use" within the meaning of the statute, its initial error in stating that Kuehne was charged with both using and carrying a firearm was repeated on the verdict forms given to the jury. The verdict form for count 6 stated "[w]e, the Jury, find Defendant John David Kuehne, Jr. `Guilty Beyond a Reasonable Doubt' of Aiding and Abetting Using or Carrying [a] Firearm in Relation to a Drug Trafficking Crime, on or about December 13, 2002, a violation of 18 U.S.C. § 324(c) and 2." (J.A. at 42) Indeed, when reading the verdict on count 6, the jury foreperson stated that the jury found Kuehne "guilty beyond a reasonable doubt of aiding and abetting using and carrying a firearm in relation to a drug trafficking crime[.]" (J.A. at 1710)
The difference between the words "use" and "carry" is not merely semantic inasmuch as each has distinct meanings within § 924(c)(1). In Bailey v. United States, 516 U.S. 137, 143, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995), the Supreme Court held that the term "use" is to be construed narrowly and its application limited to the "active employment" of a firearm. "Active employment" includes "brandishing, displaying, bartering, striking with, and, most obviously, firing or attempting to fire a firearm." Id. at 148, 116 S.Ct. 501. The term "carry," however, as used by the statute is construed broadly and retains its ordinary meaning. Muscarello v. United States, 524 U.S. 125, 131, 118 S.Ct. 1911, 141 L.Ed.2d 111 (1998). A defendant carries a firearm when he conveys or moves the firearm, including via a vehicle, and when there is "personal agency and some degree of possession" over the firearm. Id. at 137, 118 S.Ct. 1911; see id. (holding that the term "carry" includes driving a car with guns locked in the glove compartment or the trunk). As the Supreme Court has noted, "a firearm can be used without being carried, e.g., when an offender has a gun on display during a transaction, or barters with a firearm without handling it; and a firearm can be carried without being used, e.g., when an offender keeps a gun hidden under his clothing throughout a drug transaction." Bailey, 516 U.S. at 146, 116 S.Ct. 501. *685 Based on the disparate meanings of the terms "use" and "carry," the introduction of the term "carry" broadened the basis for conviction on count 6.
Although the jury instructions broadened the basis upon which Kuehne could have been convicted, this fact alone does not resolve the question of whether a constructive amendment or a variance occurred in this case. This court has held that a constructive amendment occurs where both the jury instructions and the evidence at trial vary from the indictment to broaden the basis for conviction. See United States v. Cusmano, 659 F.2d 714, 718 (6th Cir.1981); see also Stirone v. United States, 361 U.S. 212, 213, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960). We have also found constructive amendments where jury instructions differ from an indictment, even in the absence of varied evidence, to charge the jury on a separate offense that was not listed in an indictment. See United States v. Combs, 369 F.3d 925, 936 (6th Cir.2004). However, where the jury instructions alone differ from the indictment to charge the same crime, but on an alternative theory, a mere variance occurs and a defendant must demonstrate prejudice. See Budd, 496 F.3d at 522, 525; Martin v. Kassulke, 970 F.2d 1539 (6th Cir.1992).
As an initial matter, Kuehne has not alleged that the evidence offered at trial varied from his indictment. Consequently, Kuehne may demonstrate a constructive amendment only upon a showing that the district court charged the jury on an "alternative crime" rather than an "alternative method[ ] by which one crime . . . could have been committed." Budd, 496 F.3d at 522. We find that Kuehne has not made this showing. As we noted in Combs, § 924 criminalizes two distinct offenses. The first offense criminalizes the "use" or "carrying" of a firearm "during and in relation to" a drug-trafficking crime, while the second criminalizes the "possession" of a firearm "in furtherance" of a drug-trafficking crime. Combs, 369 F.3d at 931. Thus, following the logic of Combs, the term "use and carry" provides two alternative methods of conviction for the "during and relation to" offense. See also United States v. Washington, 127 F.3d 510, 514 (6th Cir.1997) ("[A] defendant can be convicted under § 924(c)(1) if he either uses or carries a firearm in relation to a drug trafficking offense."). Inasmuch as the jury was charged regarding two different methods of committing the same offense rather than a wholly distinct offense, a variance occurred and Kuehne must demonstrate that his substantial rights were affected by the district court's erroneous jury instruction.
"[I]n this context, substantial rights are affected only when a defendant shows prejudice to his ability to defend himself at trial, to the general fairness of the trial, or to the indictment's sufficiency to bar subsequent prosecutions." Hynes, 467 F.3d at 962. In the instant case, we find that Kuehne has not established that his substantial rights were impacted by the erroneous jury instruction. Kuehne's ability to defend himself at trial was not undermined by the instruction because his defense was premised on an assertion that he did not participate in any of the alleged crimes. Moreover, Kuehne has not suggested that the general fairness at trial was compromised or that the indictment will subject him to future prosecutions. Inasmuch as Kuehne has failed to establish that his substantial rights were affected by the jury instruction, he has not shown a prejudicial variance and is therefore not entitled to relief. See United States v. Blankenship, 923 F.2d 1110, 1116 (5th Cir.1991) (finding that an indictment charging the "use" of a firearm during and in relation to a drug trafficking offense was not constructively amended by the district court's addition of the term "carry" when instructing the jury).
*686 2. Remaining Counts
Kuehne further alleges that the government constructively amended the remaining counts of the indictment which charged that Kuehne aided and abetted the theft of, possessed or bartered one or two weapons. Kuehne asserts that because the government offered evidence demonstrating that over 200 weapons were involved in the offenses listed in the indictment, a constructive amendment to the indictment occurred. In the alternative, Kuehne asserts that the increased evidence regarding the number of weapons constituted a material variance. Similar to the above, this argument is without merit.
a. Constructive Amendments
First, Kuehne has not demonstrated that a constructive amendment occurred with respect to any of the counts enumerated in the indictment. Although the government offered evidence of more firearms than were listed in the indictment, the jury was instructed regarding the specific weapons charged in the indictment and that it had to find those weapons were involved in the offenses beyond a reasonable doubt.[6] Moreover, nowhere does Kuehne identify a discrepancy between the counts as listed in the indictment and the instructions regarding the necessary elements for conviction on those counts. Thus, Kuehne's constructive amendment contention fails inasmuch as there was no difference between the charges as enumerated in the indictment and the instructions issued to the jury regarding those charges. Hynes, 467 F.3d at 965.
b. Variance
Second, Kuehne also fails to show that a material variance occurred. In the instant case, the government presented evidence regarding the firearms charged in the indictment. Kuehne's major point of contention is based on the fact that the government produced evidence of additional weapons beyond those alleged to have been stolen in the indictment. The presentation of additional evidence to substantiate charged offenses, however, does not constitute facts materially different from those charged in the indictment. Even assuming that the government's proof of more weapons than were alleged in the indictment constituted a variance, Kuehne has not demonstrated that such a variance affected his substantial rights. The substantial rights of the defendant "are affected only when the defendant shows prejudice to his ability to defend himself at trial, to the general fairness of the trial, or to *687 the indictment's sufficiency to bar subsequent prosecutions." Hynes, 467 F.3d at 962 (quoting United States v. Barrow, 118 F.3d 482, 488-89 (6th Cir.1997)). In the case at bar, Kuehne does not allege that the variance affected his ability to defend himself at trial.[7] Indeed, Kuehne's ability to defend himself was not impacted inasmuch as Kuehne's defense essentially came down to an assertion that the government did not meet its burden of proof with respect to the offenses charged and therefore did not rest on the number of weapons attached to any particular count of the indictment. Nor does Kuehne allege a lack of fair notice regarding the criminal charges he would face. See United States v. Robison, 904 F.2d 365, 369 (6th Cir. 1990) (finding that discrepancy between the type of gun alleged in the indictment and the type of gun described in jury instruction did not constitute a variance because the defense offered at trial was "not substantially affected by the particular type of firearm with which he was convicted of having involvement").
V. Prosecutorial Misconduct
A. Standard of Review
In his next assignment of error, Kuehne contends that the prosecutor engaged in misconduct during his trial. This Court reviews "the question of whether prosecutorial misconduct requires reversal de novo." United States v. Stover, 474 F.3d 904, 914 (6th Cir.2007). Kuehne concedes that he did not raise an objection regarding any of the alleged prosecutorial misconduct and therefore his contention is to be reviewed for "plain error." Under the plain error standard, "there must be (1) error, (2) that is plain, (3) that affects substantial rights. If all of these requirements are met, an appellate court may then exercise its discretion to notice a forfeited error, but only if (4) the error seriously affects the fairness, integrity, or public reputation of judicial proceedings." Webb, 403 F.3d at 380 (internal citations and quotations omitted).
B. Analysis
Generally, to determine whether a prosecutor engaged in misconduct, this Court must consider "whether the prosecutor's conduct and remarks were improper." United States v. Carter, 236 F.3d 777, 783 (6th Cir.2001). If this Court finds that the prosecutor engaged in improprieties, this Court must then determine whether the improprieties were flagrant *688 such that a reversal is warranted. Id. In determining whether the prosecutor's conduct was flagrant this Court considers: "1) whether the conduct and remarks of the prosecutor tended to mislead the jury or prejudice the defendant; 2) whether the conduct or remarks were isolated or extensive; 3) whether the remarks were deliberately or accidentally made; and 4) whether the evidence against the defendant was strong." United States v. Modena, 302 F.3d 626, 635 (6th Cir.2002) (citing Carter, 236 F.3d at 783); see also United States v. Monus, 128 F.3d 376, 394 (6th Cir.1997). Flagrantly improper remarks by the prosecution must be reversed by this Court. Stover, 474 F.3d at 915. Moreover, "prosecutorial misconduct may be so exceptionally flagrant that it constitutes plain error, and is grounds for reversal even if the defendant did not object to it." Carter, 236 F.3d at 783.
If the challenged remarks are not flagrant, reversal is warranted only "if proof of the defendant's guilt was not overwhelming, the defendant objected to the improper remarks, and the court failed to cure the error with an admonishment to the jury." Stover, 474 F.3d at 915 (internal citations and quotations omitted).
Kuehne contends that the Assistant United States Attorney ("AUSA") engaged in misconduct by (1) eliciting testimony from witnesses regarding his time in prison; (2) making improper closing arguments to the jury; and (3) posing leading questions to prosecution witnesses. We find that Kuehne has not demonstrated error, much less plain error, regarding the AUSA's conduct during his trial. In this case, the AUSA's remarks were not flagrant, the evidence against Kuehne was strong, and he failed to object at trial. Therefore, reversal is not warranted in this case.
1. Witness Testimony Regarding Time in Prison
Kuehne argues that the AUSA impermissibly elicited testimony from witnesses regarding his time in prison, despite the fact that he had already stipulated that he had a felony conviction. This argument is without merit.
During Kuehne's trial, the government called a number of witnesses, including alleged co-conspirators. First, the government called Duckro to testify at Kuehne's trial regarding Kuehne's participation in the firearm robberies. On direct examination, the AUSA questioned Duckro regarding Kuehne's participation in the guns-for-drugs exchange as well as his source of drugs. Duckro responded that Kuehne told him he met his source "while he was in prison." (J.A. at 617) Later, the government called Kuehne's co-defendant Nathan Marlow ("Marlow"), who testified pursuant to a plea agreement. Marlow testified regarding Kuehne's interaction with other co-conspirators. In particular, Marlow testified that Kuehne met one co-conspirator when "[t]hey were in prison together." (J.A. at 867) Later, on cross-examination by Kuehne's counsel, Marlow once again referenced Kuehne's time in prison when he stated that Kuehne and Nunez discussed getting into the music business when the two were in prison together.
The AUSA's conduct in examining witnesses did not constitute misconduct warranting reversal. First, it appears that the AUSA's questioning of the witnesses was not improper. From our review of the transcript, the AUSA asked witnesses who participated in the conspiracy how other members were related or came to know one another. The establishment of a relationship between Nunez and Kuehne was particularly important because of the allegations that Kuehne, *689 for example, aided and abetted the use of guns during and in relation to a drug crime. Thus, the prior relationship between Kuehne and Nunez, as well as other co-conspirators, was relevant to proving a number of the counts in the indictment. See United States v. Moore, 376 F.3d 570, 574 (6th Cir.2004) (noting that testimony in a bank robbery trial establishing that a defendant met a co-conspirator while in prison was not improper inasmuch as it proved a "prior relationship" that "was relevant in proving that the [co-conspirators] had a common plan"); see also United States v. Harris, 165 F.3d 1062 (6th Cir.1999) (upholding conviction where government witness made passing reference to defendant's prior arrest). Moreover, the statements regarding Kuehne's time in prison appear to have gone unexplored by the AUSA and thus were relatively isolated within the context of the overall trial. See United States v. Stotts, 176 F.3d 880, 886-87 (6th Cir.1999) (holding that a district court properly denied the defendant's request for a mistrial following a witness' statement that the defendant had "`an extensive criminal record'" because "the remark was isolated and the district court gave an immediate curative instruction").
Second, even if the AUSA's questioning was improper, the questioning was not exceptionally flagrant. As an initial matter, Kuehne was not prejudiced by the witnesses' statements regarding his time in prison. Although Kuehne asserts that the "continual references" to his prison record "prejudiced the jury against" him, (Def. Br. at 22), the jury knew that Kuehne had been convicted of a felony and no additional details regarding that crime were revealed through the AUSA's questioning. Moreover, as stated above, the three instances in which references to Kuehne's time in prison were made were isolated when viewed in light of the entire proceedings, and the evidence against Kuehne was otherwise very strong. Thus, Kuehne is not entitled to reversal as a result of the AUSA's questioning.
2. Prosecutor's Closing Arguments
Next, Kuehne alleges that the AUSA engaged in misconduct during his closing arguments to the jury, thus violating his right to a fair trial. Specifically, Kuehne asserts that the AUSA improperly argued that Kuehne had recruited "specialists" to participate in the conspiracy, when no such facts were in evidence. Kuehne also alleges that the AUSA impermissibly shifted the burden of proof to him by arguing that he did not prove his innocence. Finally, Kuehne argues that the AUSA impermissibly argued that Kuehne conspired to "keep evidence from the jury." (Def. Br. at 25). We disagree.
a. Recruitment of "Specialists"
Kuehne alleges that the AUSA argued facts not in evidence when, in closing arguments to the jury, he contended that Kuehne recruited "specialists" to participate in the conspiracy to steal guns to barter for drugs. In essence, Kuehne is contesting the AUSA's characterization of the evidence presented at trial. This argument is without merit.
During closing arguments to the jury, the AUSA contended that
After meeting with Mr. Minaya and Mr. Nunez in Columbus, Mr. Fogt and Mr. Kuehne returned to Sidney. At that time the Defendant[ ] agreed that Nathan Marlow should be contacted. Mr. Fogt approached Mr. Marlow and suggested the theft of guns. Mr. Fogt and Mr. Kuehne discussed the idea of obtaining guns with Nathan Marlow. Mr. Marlow said he could steal the guns. *690 And Mr. Marlow confirmed that Mr. Fogt had approached him about stealing the guns.
You should observe here that Mr. Kuehne has recruited one specialist and participated in the recruitment of another specialist for the conspiracy.
(J.A. at 1568)
Kuehne alleges that the statement regarding his recruitment of "specialists" was improper because the statement was "not true in any respect." (Def. Br. at 24) Rather, he alleges that the record reflects that Marlow initiated the formation of the conspiracy and that none of the other conspirators had any special skills. This is essentially a quibble about characterization of evidence. During the trial there was also testimony adduced that Kuehne and Nunez devised the conspiracy and that Marlow was later recruited because he had previously robbed a gun store. Moreover, there was evidence at trial suggesting that Fogt was a well-known distributor of ecstacy and that Kuehne would sell his share of the drug proceeds to Fogt. In fact, Kuehne's counsel referred to Fogt as "Mr. Ecstacy in Sidney." (J.A. at 911) In the instant case, the AUSA summarized the evidence, although subject to conflicting inferences, in a manner that supported its theory of the case. See Stover, 474 F.3d at 915 (finding that prosecutor's paraphrasing of the evidence was not improper because "although it is not the only conceivable meaning [of the conversation], it is a meaning supported by the evidence."). Such a summary, or characterization, of the evidence was not improper, nor was it exceptionally flagrant. See United States v. Drake, 885 F.2d 323, 324 (6th Cir.1989) (noting that a prosecutor may "summarize the evidence and comment upon both its quantitative and qualitative significance"). Thus, reversal is not warranted with regard to the AUSA's reference to Kuehne's co-conspirators as "specialists."
b. Statement Regarding Uncontroverted Evidence
Next, Kuehne asserts that the AUSA improperly shifted the burden of proof to him during closing arguments to the jury. This argument is also without merit. During closing argument to the jury, the AUSA did not suggest that Kuehne had the burden of proving that he was innocent; rather, the AUSA merely called the jury's attention to the testimony of three witnesses, Robert Hilyard, Frederick Hilyard and James Riggs, which was uncontradicted by Kuehne. Specifically, the AUSA stated:
The testimony of the witnesses called by the defense, none of their testimony relates to this incident involving the Hilyards and Mr. Riggs. The testimony of those witnesses offers nothing to contradict the testimony of Robert Hilyard, Frederick Hilyard and James Riggs.
The United States suggest that the evidence is overwhelming of the Defendant's guilt on all Counts charged.
(J.A. at 1594-95)
We find that there was nothing improper about highlighting uncontroverted testimony before the jury. Indeed, as this Court has observed, "a prosecutor is entitled to comment on a defendant's failure to call witnesses to contradict the government's case" so long as the prosecutor "avoid[s] commenting in such a manner that treads on the defendant's constitutional rights and privileges." United States v. Clark, 982 F.2d 965, 968 (6th Cir.1993). In the instant case, the AUSA's suggestion that Kuehne did not refute the proof presented by the government was not done in such a manner as to suggest that Kuehne had the burden of proving his innocence. Thus, the AUSA's statement highlighting *691 the uncontroverted evidence was not improper.
c. Statement Regarding Kuehne's Instructions to His Mother
Kuehne also contends that the AUSA engaged in misconduct by arguing that Kuehne attempted to withhold, or keep, evidence from the jury. This argument is also without merit.
During closing arguments, the AUSA asserted that Kuehne traveled to New York City immediately following a robbery specified in the indictment. In making this assertion, the AUSA attacked the testimony of Chris Bell, Kuehne's mother, who testified that Kuehne was at her home during the time the alleged robbery and trip to New York City took place. Specifically, the AUSA stated:
Also please consider that you heard a tape of a conversation between the Defendant and his mother Chris Bell in which Mr. Kuehne recruited his mother to retrieve a piece of material evidence that doesn't belong to him, that belongs to Lisa Hicks. And that is real important, that is very important. In other words, the woman that Mr. Kuehne is recruiting to suppress material evidence is the woman called as a witness to give him an alibi. She is not only the defendant's mother. But the Defendant felt she was capable of assisting him in concealing evidence from you.
(J.A. at 1578)
The AUSA's statements to the jury were not improper, but rather served as proper evidence of guilt for three reasons. First, as the government notes, the AUSA's statement was an accurate summary of the evidence offered at trial. At trial the government produced a photograph of Kuehne and Lisa Hicks in New York City during the time period that Kuehne was alleged to have made trips to New York to exchange guns for drugs with Nunez. The government also produced testimony of a detective who stated that after Kuehne's arrest, law enforcement monitored a conversation between Kuehne and "his mother requesting her to go and get these two digital disks, and he stated to her that it was very, very important." (J.A. at 1244)
Second, this evidence and statement of the AUSA was proper inasmuch as it was intended to call into question the credibility of Kuehne's mother and his alibi. Certainly "[a] prosecutor may not express a personal opinion concerning . . . the credibility of a trial witness because to do so exceeds the legitimate advocate's role by improperly inviting the jury to convict on a basis other than a neutral independent assessment of the record proof." United States v. Owens, 426 F.3d 800, 806 (6th Cir.2005) (internal citations and quotations omitted). However, this Court has held that "[c]ounsel may argue for a reasonable inference that a witness is not credible . . . assuming there exists evidence from which to so infer." Id. (citing United States v. Collins, 78 F.3d 1021, 1040 (6th Cir. 1996)). The AUSA's statements fall into the latter category inasmuch as there was an evidentiary basis for his argument that Kuehne's mother was not a credible witness.
Third, the AUSA's reference was not improper inasmuch as one could infer that Kuehne's attempt to tamper with evidence is probative of guilt. See United States v. Munnerlyn, 202 Fed.Appx. 91, 95 (6th Cir. 2006) (unpublished). For example, in Munnerlyn, this Court held that a tape recording of a phone conversation in which a defendant arrested for a robbery made a call from jail to instruct another person to destroy "it" "was probative evidence suggesting [the defendant's] consciousness of guilt." Id. (citing United States v. Mendez-Ortiz, *692 810 F.2d 76, 79 (6th Cir.1986)). In the instant case, like Munnerlyn, Kuehne's attempt to destroy the photographs was probative evidence that the jury could consider. Thus, nothing in the AUSA's statement was improper, nor was the statement exceptionally flagrant such that reversal is warranted. See United States v. Gardiner, 463 F.3d 445, 459-60 (6th Cir.2006) (finding that prosecutor's misstatement of evidence, even if improper, "was not flagrant and does not warrant reversal on appeal under plain error review").
3. Leading Questions
Lastly, Kuehne contends that the AUSA improperly provided leading questions to witnesses during direct examination. This contention is unpersuasive.
Under Federal Rule of Evidence 611(c), "[l]eading questions should not be used on direct examination of a witness except as necessary to develop the witness' testimony." Fed.R.Evid. 611(c). Although he alleges that the AUSA improperly led witnesses, Kuehne fails to direct this Court to any specific instance in which the AUSA led government witnesses on direct examination. Instead, it appears that leading questions were utilized to direct a witness' attention to a particular individual or date, or to clarify testimony.[8]
VI. Motion for Acquittal
A. Standard of Review
This Court reviews a denial of a motion for a new trial for abuse of discretion. United States v. Kelley, 461 F.3d 817, 831 (6th Cir.2006). "Abuse of discretion is defined as a definite and firm conviction that the trial court committed a clear error of judgment." Greenwell v. Boatwright, 184 F.3d 492, 499 (6th Cir. 1999) (quoting Powers v. Bayliner Marine Corp., 83 F.3d 789, 796 (6th Cir.1996)).
B. Analysis
Kuehne contends that the district court abused its discretion by refusing to proceed to the merits of his pro se motion for judgment of acquittal or a new trial. We disagree.
On March 7, 2005, over five months after the verdict was rendered in his case, Kuehne filed a pro se motion seeking judgment of acquittal or a new trial pursuant to Federal Rules of Criminal Procedure 29 and 33. The government objected to the district court's consideration of the motion, asserting that it was filed more than seven days after the verdict in violation of Rule 33. Kuehne contended that he was unable to comply with the time limits established by the Rule because he was receiving ineffective assistance of counsel. The district court later appointed Kuehne new counsel and conducted a hearing regarding his motion for acquittal.
During the hearing, the district court heard testimony from Kuehne's previous attorney and arguments regarding whether consideration of the motion for acquittal was proper in light of the allegations of ineffective assistance of counsel. After the hearing, the parties submitted memoranda in support of their respective positions. On April 24, 2006, the district court denied *693 Kuehne's motion for acquittal without discussing the merits. The district court did not abuse its discretion in reaching this conclusion.
A district court "may vacate any judgment and grant a new trial if the interest of justice so requires." Fed.R.Crim.P. 33(a). However, any motion filed on grounds other than newly discovered evidence "must be filed within 7 days after the verdict or finding of guilty." Fed. R.Crim.P. 33(b)(1)-(2).
On appeal, Kuehne does not allege that newly discovered evidence excuses his failure to file a timely motion for acquittal. Rather, he asserts that the district court should have reached the merits of his motion for acquittal, notwithstanding its untimely filing, because of the ineffective assistance of his counsel. While Kuehne's argument makes intuitive sense, i.e., that a court should reach the merits of a motion for acquittal where a defendant can demonstrate that he received ineffective assistance of counsel, Rule 33 itself speaks of no such exception.[9]See, e.g., United States v. Vincent, 20 F.3d 229, 237 (6th Cir.1994). Instead, the Rule allows for motions to be filed outside of the seven day window only upon a showing of newly discovered evidence. Fed.R.Crim.P. 33(b)(1). Kuehne has made no such showing and therefore the district court did not abuse its discretion in denying the motion for acquittal. See United States v. Ford, 187 Fed.Appx. 496, 501 (6th Cir.2006) (unpublished) (finding that, notwithstanding the defendant's allegation that he was unable to file a timely motion for acquittal under Rule 33 because of ineffective assistance of counsel, the denial of the motion was proper because "the motion for a new trial was late. This fact alone justifies its denial").
VII. Alleged Inaccuracies in the Transcript of the Proceedings
A. Standard of Review
This Court reviews a district court's refusal to hold an evidentiary hearing for abuse of discretion.[10]Alley v. Bell, 307 F.3d 380, 389 (6th Cir.2002).
B. Analysis
Kuehne, proceeding pro se, alleges that the district court erred in failing to correct alleged inaccuracies or alterations of the transcripts of proceedings in his trial. This claim is without merit.
Kuehne alleges that the district court did not comply with the requirements set *694 forth in 28 U.S.C. § 753(b), which requires that "[e]ach session of the court and every other proceeding designated by rule or order of the court or by one of the judges shall be recorded verbatim by shorthand, mechanical means, electronic sound recording, or any other method, subject to regulations promulgated by the Judicial Conference and subject to the discretion and approval of the judge." We find that Kuehne is not entitled to a remand on this issue because he has not identified any of the inaccuracies alleged and he did not avail himself of the opportunity to correct the record when invited to do so by the district court.
VIII. Propriety of Police Investigation Tactics
A. Standard of Review
Kuehne, proceeding pro se, alleges that his convictions should be reversed because police engaged in improper interrogation tactics with two witnesses who testified at his trial. Because this issue was not raised before the district court, it is subject to plain error review. United States v. Caver, 470 F.3d 220, 245 (6th Cir.2006).
B. Analysis
Kuehne alleges that the police engaged in impermissible investigation tactics by jointly interviewing two of his co-conspirators, Marlow and Duckro, both of whom would eventually testify at his trial. Kuehne contends this constitutes a violation of his due process rights. This claim is without merit.
Kuehne has not demonstrated that the investigative tactics of police were so "outrageous" as to "shock the conscience" in violation of his due process rights. See United States v. Barger, 931 F.2d 359, 363 (6th Cir.1991). While there may be some occasions where government investigation tactics are so outrageous that "a criminal prosecution for the [crime] violates the fundamental principles of due process," this is not one of them. United States v. Russell, 411 U.S. 423, 430, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973). We have not identified a case that suggests that joint interviews of suspects constitutes a violation of due process, nor has Kuehne directed this Court's attention to any such case. Indeed, Kuehne has not demonstrated error, much less plain error in this regard. Thus, Kuehne is not entitled to relief with respect to this claim.
IX. Propriety of the District Court's Findings Regarding Kuehne's Motion to Suppress Evidence
A. Standard of Review
Kuehne, proceeding pro se, next alleges that the district court failed to properly record its findings regarding its denial of Kuehne's motion to suppress evidence. Because Kuehne did not raise this issue before the district court, it is reviewed for plain error on appeal. Caver, 470 F.3d at 245.
B. Analysis
Kuehne alleges that the district court erred when it made factual findings regarding his motion to suppress orally, rather than in writing, in violation of Federal Rule of Criminal Procedure 12.[11] We find this allegation to be without merit.
Prior to the commencement of his trial, Kuehne filed a motion to suppress evidence, including the names of potential witnesses, obtained as a result of a seizure *695 of his cellular phone and review of his phone directory. After conducting a suppression hearing, the district court granted Kuehne's motion upon finding that the seizure of Kuehne's phone was conducted without warrant and without justification by any exception to the warrant requirement. The district court, however, reserved ruling on the extent of the evidence to be suppressed pending an additional hearing to determine if the government would have obtained the evidence through an independent source. Upon hearing the additional testimony from government witnesses, the district court found that, although Kuehne's cellular phone was seized in violation of the Fourth Amendment, the names of four witnesses could be offered at trial because the government knew of the witnesses from other sources. The district court orally announced his findings in lieu of a written opinion. This was not in error.
Rule 12 of the Federal Rules of Criminal Procedure provides that "[w]hen factual issues are involved in deciding a motion, the court must state its essential findings on the record." Fed.R.Crim.P. 12(d). The Rule, however, does not specify the manner in which the findings on the record must be made. Here, the district court produced both a written order granting Kuehne's motion to suppress evidence and stated its reasons orally regarding the scope of that order. Thus, the district court complied with the mandates of Federal Rule of Criminal Procedure 12.
X. Submission of Sentencing Facts to the Jury
Kuehne, proceeding pro se, alleges that the district court erred in submitting the question of the number of firearms involved in each offense for determination by the jury. Because this objection was not raised before the district court, it is reviewed for plain error on appeal. Caver, 470 F.3d at 245. Here, Kuehne cannot demonstrate error, let alone plain error. Kuehne argues that his Sixth Amendment rights were violated because "Appellant was sentenced under § 2K2.1, pursuant to the findings of an uninstructed jury," instead of "an instructed judge." (Kuehne Pro Se Br. at 5) Clearly Kuehne's argument flies in the face of United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), and its progeny, which have instructed courts to do just the opposite. Moreover, this Court has approved of the use of such verdict forms on prior occasions. See, e.g., United States v. Garner, 491 F.3d 532, 536-537 (6th Cir.2007).
XI. Sufficiency of the Indictment
A. Standard of Review
This Court reviews challenges to the sufficiency of an indictment de novo. United States v. Gatewood, 173 F.3d 983, 986 (6th Cir.1999). However, where the sufficiency of an indictment is not challenged until appeal, "the indictment must be construed liberally in favor of its sufficiency." Id. "Under such circumstances, a conviction must not be reversed unless the indictment cannot be reasonably construed to charge a crime." United States v. Lloyd, 462 F.3d 510, 513 (6th Cir.2006).
B. Analysis
Kuehne, proceeding pro se, alleges that his indictment was insufficient with respect to counts 6, 11 and 15 inasmuch as the counts did not specify the predicate drug offenses or the elements of such offenses. Although we agree that particular drug trafficking crimes required under § 924(c)(1) were omitted from the indictment, such an omission does not undermine its sufficiency.
*696 An indictment must include "a plain, concise, and definite written statement of the essential facts constituting the offense charged." Fed.R.Crim.P. 7(c)(1). An indictment is generally sufficient if it "fully, directly, and expressly . . . set[s] forth all the elements necessary to constitute the offense intended to be punished." United States v. Douglas, 398 F.3d 407, 411 (6th Cir.2005) (internal citation and quotation marks omitted). In particular, the indictment must: (1) "set out all of the elements of the charge[d] offense and must give notice to the defendant of the charges he faces[,]" and (2) "be sufficiently specific to enable the defendant to plead double jeopardy in a subsequent proceeding, if charged with the same crime based on the same facts." Id. at 413 (internal citation omitted).
In the instant case, Kuehne correctly notes that counts 6, 11 and 15 did not state which drug trafficking crimes were the predicate offenses for the imposition of § 924(c)(1). In short, the indictment failed to allege a requisite element of § 924(c)(1) itself, i.e., the commission of a drug trafficking crime. However, the failure of the indictment to specify particular drug trafficking offenses does not undermine its sufficiency. The indictment tracked the statutory language of § 924(c) inasmuch as it charged that Kuehne used a firearm "during and in relation to a drug trafficking offense." (J.A. at 21) Thus, the indictment properly gave Kuehne notice of the charges he would be facing at trial. Moreover, the indictment was sufficiently specific so as to provide protection against double jeopardy inasmuch as the counts specified particular dates on which the offenses occurred and the type of drugs which were involved in each transaction (i.e., ecstacy). Thus, liberally construed, the indictment can be read to allege a crime such that reversal is not warranted with respect to this claim. See United States v. Bright, Nos. 94-5166/5167, 1995 WL 98816, at *2 (6th Cir. May 8, 1995) (unpublished); United States v. Hart, 640 F.2d 856, 858 (6th Cir.1981) (finding that indictment was sufficient notwithstanding omission of an element where reference to the criminal statute was made and the defendant was not prejudiced).
XII. Sufficiency of the Evidence with respect to Counts 2, 9, 10 and 11
A. Standard of Review
Kuehne, proceeding pro se, challenges the district court's denial of his motion for acquittal under Rule 29 of the Federal Rules of Criminal Procedure. "A Rule 29 motion is a challenge to the sufficiency of the evidence. [W]hen the sufficiency of the evidence is challenged on appeal, the standard of review 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[.]" United States v. Jones, 102 F.3d 804, 807 (6th Cir.1996) (internal quotation marks omitted). "[T]his court may conclude that a conviction is supported by sufficient evidence even though the circumstantial evidence does not remove every reasonable hypothesis except that of guilt." Id. (internal quotation marks omitted). Before reaching the merits of Kuehne's challenge, however, we must determine if the issue was properly preserved for appeal.
A Rule 29 motion is properly preserved for appeal when a defendant makes a "motion for acquittal at the end of the prosecution's case-in-chief and at the close of evidence. Failure to make the required motions constitutes a waiver of the objections to the sufficiency of the evidence." United States v. Chance, 306 F.3d 356, 368-69 (6th Cir.2002). In the instant case, Kuehne moved for an acquittal *697 pursuant to Rule 29 at the close of the government's evidence. The district court denied the motion. As discussed above, Kuehne failed to make a timely renewal of his Rule 29 motion at the close of all of the evidence. Because a Rule 29 motion was not timely renewed at the close of evidence, Kuehne's sufficiency of the evidence challenge is reviewed under a "manifest miscarriage of justice" standard. United States v. Carnes, 309 F.3d 950, 956 (6th Cir.2002). Under this standard, "we only reverse a conviction if the record is devoid of evidence pointing to guilt." Id.
B. Analysis
Kuehne challenges the district court's denial of his Rule 29 motion for acquittal with respect to counts 2, 9, 10 and 11 of the indictment. Kuehne alleges that there was insufficient evidence to sustain a conviction for violation of those counts. This challenge is without merit. The evidence in this case is sufficient to sustain a conviction on counts 2, 9, 10 and 11 of the indictment, "especially under the manifest miscarriage of justice standard." United States v. Taniguchi, 49 Fed.Appx. 506, 514-15 (6th Cir.2002) (unpublished).
Count 2 of Kuehne's indictment charged that he aided and abetted Marlow and Duckro in "knowingly steal[ing] and unlawfully tak[ing] and carry[ing] away from the premises of . . . Rich-Mart Guns and Ammo . . . two firearms." (J.A. at 26-27) In the instant case, there was ample evidence from which the jury could convict Kuehne of the offense enumerated in count 2 beyond a reasonable doubt inasmuch as both individuals whom Kuehne allegedly aided and abetted testified that Kuehne "cased" the Rich-Mart and directed them regarding which firearms to steal. Therefore, the district court did not err in denying Kuehne's motion for acquittal.
Counts 9, 10 and 11 of the indictment alleged that Kuehne used a firearm during and in relation to a drug trafficking offense in violation of § 924(c). Kuehne alleges that there was insufficient evidence to support his conviction for counts 9, 10 and 11 of the indictment because the government did not offer proof regarding the specific type of firearm alleged to have been stolen, possessed or used as alleged in the indictment. Rather, he alleges that the government offered proof of a different type of weapon. This claim is without merit. As this Court noted in United States v. Robison, under § 924(c) "the specific type of firearm used or possessed by a conspirator is not an essential element of the crime." 904 F.2d at 369. Cf. United States v. Smith, 27 Fed.Appx. 577, 581 (6th Cir.2001) (unpublished) (finding that the type of firearm used during a robbery was not an essential element of 18 U.S.C. § 922(g)). Thus, the government need not prove, and the jury need not find, that a particular kind of weapon was used during an offense beyond a reasonable doubt.[12]
XIII. Alleged Brady Violation
A. Standard of Review
Kuehne alleges that the government did not disclose exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Because Kuehne did not raise this objection before the district court, this Court reviews his allegation for plain error. United *698 States v. Blood, 435 F.3d 612, 627 (6th Cir.2006).
B. Analysis
Kuehne, proceeding pro se, alleges that the government's delayed disclosure of an audio tape recording of Marlow making statements regarding his supplier of ecstacy constituted a violation of Brady. We disagree.
On September 21, 2004, the second day of Kuehne's trial, just after Justin Duckro began to testify, the government turned over to Kuehne's counsel an audio tape which recorded "a conversation of Mr. Duckro and Mr. Marlow" that had been made "to gather evidence against Mr. Marlow before he was cooperating." (J.A. at 615) The tape was turned over to defense counsel approximately one day before the government called Marlow to the stand as a witness.
Under Brady, "the suppression of evidence favorable to an accused upon request violates due process where the evidence is material to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." 373 U.S. at 87, 83 S.Ct. 1194. Brady also applies in the context of non-disclosure of evidence which impacts upon the credibility "of a witness whose `reliability may . . . be determinative of guilt or innocence.'" Blood, 435 F.3d at 627 (quoting Giglio v. United States, 405 U.S. 150, 153-54, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972)). "However, we have held that `Brady generally does not apply to delayed disclosure of exculpatory information, but only to a complete failure to disclose' and that a `delay only violates Brady when the delay itself causes prejudice.'" Id. (quoting United States v. Bencs, 28 F.3d 555, 560-61 (6th Cir.1994)). In the instant case, Kuehne's Brady claim must fail because he is unable to demonstrate that he was prejudiced by the delayed disclosure of the tape. Here, Kuehne had the tape before Marlow took the stand, and he was able to impeach Marlow with prior recorded statements. Thus, Kuehne's Brady claim is without merit.
XIV. Jury Instruction Regarding "Conspiracy" and "Aiding and Abetting"
Lastly, Kuehne alleges that the district court erred in failing to instruct the jury regarding the difference between a "conspiracy" and "aiding and abetting." Because Kuehne did not raise this allegation before the district court, plain error review applies. In the instant case, we find that the district court did not err in instructing the jury. Although the jury instructions issued by the district court were far from perfect, it appears that the district court attempted to clarify for the jury the meaning of terms such as aiding and abetting. For example, when discussing count 2, which alleged that Kuehne aided and abetted Marlow and Duckro in stealing two firearms, the district court stated
Ladies and gentlemen, for you to find the Defendant, John David Kuehne, Jr. guilty of aiding and abetting in the theft of firearms . . . it is not necessary for you to find that he personally committed the crime himself. You may also find him guilty if he intentionally helped or encouraged someone to commit the crime. A person who does this is called an aider and abettor.
(J.A. at 271) Moreover, even if the district court's attempts to provide guidance to the jury were insufficient, Kuehne has not alleged that the error "seriously affect[ed] the fairness, integrity, or public reputation of judicial proceedings." United States v. Webb, 403 F.3d 373, 380 (6th Cir.2005) (internal citations and quotations omitted). *699 Thus, Kuehne's challenge to the district court's jury instructions must fail.
CONCLUSION
For the reasons stated above, we AFFIRM the judgment of the district court.
NOTES
[*] The Honorable Christopher A. Boyko, United States District Judge for the Northern District of Ohio, sitting by designation.
[1] Kuehne, in his pro se brief to this Court, alleges that the district court erred in failing to submit to the jury the question of whether he "actively employed" weapons in the commission of a crime. However, as Smith and Bailey demonstrate, where guns are bartered in exchange for drugs, this satisfies the "active employment" requirement necessary to establish "use" under the statute. Thus, no additional instruction regarding "active employment" was necessary separate and distinct from instructing the jury regarding the "use" of a gun in bartering for drugs.
[2] This Court's precedent is consistent with the Supreme Court's holding in Watson. See United States v. Warwick, 167 F.3d 965, 975-77 (6th Cir.1999) (finding that the receipt of a gun in exchange for drugs does not constitute "use" of a firearm for purposes of § 924(c)(1)).
[3] "Ecstasy is sometimes called `MDMA' because its scientific name is `methylenedioxymethamphetamine.'" Gall v. United States, ___ U.S. ___, 128 S.Ct. 586, 592 n. 1, 169 L.Ed.2d 445 (2007).
[4] The conclusion reached by the Supreme Court in Neder preceded a significant shift in the Court's Sixth Amendment jurisprudence. Since Neder was decided in 1999, the Court has breathed new life into the right to a jury trial in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) and Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). Indeed, three of the five justices that constituted the majority in Apprendi, joined in a dissenting opinion in Neder. Compare Neder, 527 U.S. at 30, 119 S.Ct. 1827 (Scalia, J., dissenting) with Apprendi, 530 U.S. at 468, 120 S.Ct. 2348. Nevertheless, it appears that Neder is still on solid footing given the Supreme Court's decision in Washington v. Recuenco, 548 U.S. 212, 126 S.Ct. 2546, 165 L.Ed.2d 466 (2006). In Recuenco, relying heavily on Neder, the Court held that the "[f]ailure to submit a sentencing factor to the jury, like the failure to submit an element to the jury, is not structural error." Id. at 222, 126 S.Ct. 2546. Moreover, this Court and our sister circuits have applied Neder's harmless error analysis post-Apprendi. See, e.g., United States v. Stewart, 306 F.3d 295, 319 (6th Cir.2002); United States v. Luke-Sanchez, 483 F.3d 703, 706-07 (10th Cir.2007). Thus, although it appears that Neder may be inconsistent with the emphasis placed on a defendant's right to have a jury find, beyond a reasonable doubt, all facts which establish the maximum sentence that can be imposed by a trial court, we are nevertheless obliged to apply its holding absent an intervening decision to the contrary.
[5] It appears that the district court misidentified this count as count 11 when it was actually referencing count 6. For the purpose of our analysis, therefore, we take Kuehne's claim to challenge the district court's instruction with respect to count 6 of the indictment, rather than count 11.
[6] For example, with respect to Count 2, the indictment alleged that Kuehne aided and abetted Nathan Marlow and Justin Duckro in
knowingly steal[ing] and unlawfully tak[ing] and carry[ing] away from the premises of two individuals whose identities are known to the grand jury, doing business as Rich-Mart Guns and Ammo . . . two (2) firearms in the licencees' business inventory, to wit: a Taurus, Model PT92, 9mm pistol, Serial Number TUE49614, and a Colt Model 1911-A1, .45 caliber pistol, Serial Number CV 19208, which firearms had been shipped and transported in interstate commerce. . . in violation of 18 U.S.C. §§ 922(u), 924(i)(1) and (2).
(J.A. at 27)
In reciting what was required for conviction under count 2, the district court instructed the jury that it would have to find, beyond a reasonable doubt, that on or about December 13th, 2002 the co-Defendants, Nathan Marlow and Justin Duckro knowingly stole and unlawfully took and carried away from the premises of the individuals doing business as Rich Mart Guns and Ammo, two firearms, to wit: Taurus, Model PT92, 9mm pistol, Serial Number TUE49614, and a Colt Model 1911-A1, .45 caliber pistol, Serial Number CV19208. (J.A. at 1672)
[7] Additionally, it seems that Kuehne is alleging that the overall fairness of the proceedings was impacted by the government's excess proof regarding the number of weapons involved in the offenses. Kuehne alleges that the evidence of additional weapons, including evidence that he possessed weapons at an apartment he shared with Marlow, confused the jury regarding what they were required to find for a conviction.
In support of this allegation, Kuehne points to a question asked by the jury during deliberations. During deliberations, the court received a question from the jury which stated:
Your Honor . . . we don't have a clear understanding of the second question on the verdict forms. Does the number of firearms have to be consistent with the number of arms stolen or the number of arms listed in each count[?]
(J.A. at 1703) After consulting with counsel for both Kuehne and the government, the district court answered the jury as follows: "If you return a verdict on a count you will then determine the firearms involved in the Count which may or may not be the number stated in the count." (Id.) The difference between the number of guns listed in the indictment and the number of guns offered into evidence did not impact the general fairness of the trial because whatever confusion the jury may have had regarding the number of weapons required for conviction was clarified by the court without objection from Kuehne.
[8] Moreover, under Federal Rule of Evidence 611(a), it is up to the district court to "exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of truth, (2) to avoid needless consumption of time, and (3) protect witnesses from harassment or undue embarrassment." As the Advisory Committee notes that accompany Rule 611(c) state, "[a]n almost total unwillingness to reverse for infractions has been manifested by appellate courts."
[9] Kuehne cites United States v. Cronic, 466 U.S. 648, 667 n. 42, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984), for the proposition that when a defendant files an otherwise untimely motion for acquittal but has alleged that he was prevented from filing a timely motion due to ineffective assistance of counsel, the motion for a new trial may be heard on its merits. United States v. Cronic, however, is inapposite. In Cronic, the Supreme Court stated in a footnote that where the defendant raised the issue of the performance of his counsel though a motion for a new trial under Rule 33, a district court has jurisdiction to reach the merits of the claim, notwithstanding the fact that the case was pending on appeal. Id. at 667 n. 42. As the government notes, the issue addressed by the Court in Cronic is not pertinent to the time limitation issue raised in this case.
[10] In his pro se brief, Kuehne alleges that "the district court has failed to address this issue (the alleged inconsistencies in the transcripts) on numerous occasions." (Def. Pro Se Br. at 1). Consequently, Kuehne requests a remand from this Court "so that the district court and Appellant can review the audio tapes and/or CD's to set forth such [sic] issue more clearly." Construing Kuehne's pro se brief liberally, we take Kuehne's claim as alleging that the district court erred in failing to hold an evidentiary hearing regarding the alleged inaccuracies or omissions in the record.
[11] Kuehne does not, however, challenge the district court's ultimate denial of his motion to suppress evidence.
[12] Kuehne also cannot demonstrate that a material variance occurred because, like Robison, he cannot show that prejudice resulted from the variance based on the nature of his defense. 904 F.2d at 369. Indeed, because Kuehne's defense "was predicated on [his] innocence, the jury instruction in no way can be said to have had a prejudicial effect on [his] defense." Smith, 27 Fed.Appx. at 582.
| {
"pile_set_name": "FreeLaw"
} |
***********************************************
The “officially released” date that appears near the be-
ginning of each opinion is the date the opinion will be pub-
lished in the Connecticut Law Journal or the date it was
released as a slip opinion. The operative date for the be-
ginning of all time periods for filing postopinion motions
and petitions for certification is the “officially released”
date appearing in the opinion.
All opinions are subject to modification and technical
correction prior to official publication in the Connecticut
Reports and Connecticut Appellate Reports. In the event of
discrepancies between the advance release version of an
opinion and the latest version appearing in the Connecticut
Law Journal and subsequently in the Connecticut Reports
or Connecticut Appellate Reports, the latest version is to
be considered authoritative.
The syllabus and procedural history accompanying the
opinion as it appears in the Connecticut Law Journal and
bound volumes of official reports are copyrighted by the
Secretary of the State, State of Connecticut, and may not
be reproduced and distributed without the express written
permission of the Commission on Official Legal Publica-
tions, Judicial Branch, State of Connecticut.
***********************************************
IN RE BRIAN P.*
(AC 43032)
DiPentima, C. J., and Alvord and Moll, Js.
Syllabus
The respondent parents appealed from the judgment of the trial court termi-
nating their parental rights with respect to their minor child, B. They
claimed that the trial court improperly concluded that they had failed
to achieve a sufficient degree of personal rehabilitation as required by
the applicable statute (§ 17a-112). They further claimed that the court
failed to determine the needs of B before deciding whether they had
failed to rehabilitate, and improperly found that termination of their
parental rights was in the best interest of B. Held:
1. The trial court properly found that the respondent parents had failed to
achieve sufficient personal rehabilitation so as to encourage the belief
that they could assume a responsible position in the life of B within a
reasonable time: although the parents claimed that the court erred in
terminating their parental rights solely on the basis of their drug use
and addiction, even though their drug use never caused them to provide
inadequate care for B and they had stopped using drugs, the court based
its finding that the parents failed to rehabilitate on multiple factors,
which this court could not conclude were clearly erroneous, including
the parents’ drug related arrests, their limited engagement in counseling
and treatment, their lack of financial and housing independence, that
their progress in addressing their addiction was outweighed by their
prior pattern of drug use and other instances of bad parental judgment,
and its determination that the parents were not fully credible because
their testimony conflicted with testimony presented by the petitioner,
the Commissioner of Children and Families; furthermore, even though
the parents claimed that drug use was an insufficient basis to terminate
parental rights, B was adjudicated neglected after the parents filed pleas
of nolo contendere to allegations that B was permitted to live under
conditions injurious to well-being, leaving the court at the adjudicatory
phase only to determine whether the parents failed to rehabilitate.
2. The respondent parents could not prevail on their claim that the trial
court failed to determine the needs of B before deciding whether they
had failed to rehabilitate: the court correctly noted that, under § 17a-
112, it was required to analyze the parents’ rehabilitative status as it
related to the needs of B, and, thereafter, found that, after considering
B’s need for a secure, permanent placement, the totality of circum-
stances, and all statutory criteria, and having found by clear and convinc-
ing evidence that reasonable efforts at reunification with the parents
were made and that the parents were unwilling to benefit from those
efforts, that grounds existed to terminate their parental rights for a
failure to rehabilitate, and that it was in B’s best interest to terminate
those rights, before terminating the parents’ parental rights; while it
may have been clearer for the court to have stated B’s needs at the
outset of the adjudicatory phase of its analysis, the court’s findings did
not suggest that it failed to determine B’s needs before concluding that
the parents failed to rehabilitate, particularly it is undisputed that, at
times, some of the findings relevant to the analysis in the adjudicatory
phase will be relevant and overlap with the dispositional phase.
3. The respondent parents’ claim that the trial court improperly found that
termination of their parental rights was in the best interest of B was
unavailing: the court made required findings under the factors set forth
in § 17a-112 (k) before determining that termination of the parents’
parental rights was in the best interest of B; given B’s age, the fact that
B spent more than one-half of his life in foster care, and the court’s
findings as to the parents’ failure to rehabilitate, this court could not
conclude that the court’s findings as to B’s need for a permanent, safe
and nurturing home and the parents’ inability to meet that need were
clearly erroneous; moreover, if, as the parents contended, there was no
evidence that B’s needs were not being met, credit belonged to the
foster mother who was primarily responsible for meeting B’s needs, and
the court’s finding that B’s needs were met by his foster mother was
consistent with its findings that B needed stability and that termination
of the parents’ parental rights was in B’s best interest.
Argued December 10, 2019—officially released February 6, 2020**
Procedural History
Petition by the Commissioner of Children and Fami-
lies to terminate the respondents’ parental rights with
respect to their minor child, brought to the Superior
Court in the judicial district of New London, Juvenile
Matters at Waterford, and tried to the court, Driscoll, J.;
judgment terminating the respondents’ parental rights,
from which the respondents appealed to this court.
Affirmed.
Benjamin M. Wattenmaker, for the appellants
(respondents).
Sara Nadim, assistant attorney general, with whom,
on the brief, were William Tong, attorney general, and
Benjamin Zivyon, assistant attorney general, for the
appellee (petitioner).
James W. Auwood, for the minor child.
Opinion
ALVORD, J. As the trial court aptly observed, ‘‘[t]his
is another sad case involving opiates and their invidious
harm to parents’ lives and families.’’ The respondents,
Jennifer L. (mother) and Brian P. (father), appeal from
the judgment of the trial court rendered in favor of the
petitioner, the Commissioner of Children and Families,
terminating their parental rights with respect to the
minor child, Brian P.1 On appeal, the respondents claim
that the court improperly (1) found that they had failed
to achieve a sufficient degree of personal rehabilitation,
(2) failed to determine the needs of Brian P. before
deciding whether they had failed to rehabilitate, and
(3) found that termination of their parental rights was
in the best interest of Brian P.2 We affirm the judgment
of the trial court.
The following facts, which the court found by clear
and convincing evidence, and procedural history, are
relevant to this appeal. Brian P. was born to the respon-
dents in February, 2016. The respondents have been in
a relationship with one another since 2012, and were
engaged to be married at the time of Brian P.’s birth.
Prior to Brian P.’s birth, the father, a college graduate
with honors, decided against pursuing graduate school
to work, instead, full-time at a casino restaurant in New
London county. The father’s career initially was finan-
cially rewarding, enabling the respondents to purchase
a home in Rhode Island, two cars, and an engagement
ring for the mother. The father’s employment also pro-
vided him with access to illicit drugs, a feature of what
he labelled ‘‘the casino lifestyle.’’ (Internal quotation
marks omitted.) The father began with what he
described as recreational use of opiates, which led to an
addiction. The mother also became addicted to opiates.
The respondents’ addictions caused them to lose their
home, a car, and the mother’s engagement ring.
Together, they moved into the paternal grandmother’s
home while the father continued to work in casino
restaurants. Neither of the respondents sought treat-
ment for their addictions prior to Brian P.’s birth.
During her pregnancy with Brian P., the mother tested
positive for benzodiazepines, opiates, and marijuana.
Upon his birth, Brian P.’s meconium tested positive for
opiates, but no symptoms of withdrawal were noted.
The Department of Children and Families (department)
became involved on the day following Brian P.’s birth.
The mother admitted her addiction to the department,
but the respondents did not admit to the department
that the father had substance abuse issues as well. The
department, the respondents, and the paternal grand-
mother, collectively, entered into a voluntary service
agreement. All parties agreed that Brian P. would
remain in the respondents’ custody while they resided
at the paternal grandmother’s home, that the mother
was not permitted to have any unsupervised contact
with Brian P., and that the mother would participate
in substance abuse treatment and counseling. No treat-
ment was recommended for the father because, at that
time, he had not admitted to having any substance
abuse issues.
The mother’s participation in substance abuse treat-
ment was minimal and, after September, 2016, she
received no counseling and refused all urine screens.
On January 18, 2017, the department filed a neglect
petition on behalf of Brian P. The respondents appeared
in court on February 21, 2017, where they were advised
of their rights and appointed counsel. Following their
court appearance, between March and April, 2017, the
respondents had no contact with the department. On
April 25, 2017, the respondents entered pleas of nolo
contendere, and Brian P. was adjudicated neglected.
For the next six months, Brian P. remained in the
respondents’ custody under court-ordered protective
supervision. The respondents were given specific steps
to follow, including, inter alia, ‘‘that they engage in a
substance abuse evaluation, cooperate with any recom-
mended treatment, obtain and maintain sobriety, obey
the law, maintain an adequate income, and, in the moth-
er’s case, cooperate with counseling.’’
Between May and early June, 2017, the respondents
were unresponsive to the overtures of the department.
On June 9, 2017,3 Brian P.’s disposition was modified,
and he was committed to the custody of the petitioner.
Brian P. has been in the care and custody of the peti-
tioner since then, living in the home of a nonrelative.
The respondents consistently and appropriately have
visited with Brian P. since his commitment to the cus-
tody of the petitioner. On June 14, 2017, the father
admitted to the department and his family that he had
been addicted to opiates for three years. At this time,
the respondents’ specific steps for reunification
remained as set.
The mother was referred to the Connection Counsel-
ing Center (CCC) for regular, individual counseling in
February, 2017. The mother failed to attend her intake
appointment scheduled for March 7, 2017, and never
engaged in counseling at CCC. The department unsuc-
cessfully encouraged the mother to engage in individual
counseling between August, 2017 and January, 2018. On
January 19, 2018, the department referred the mother
to Sound Community Services (SCS) for counseling.
The mother did not schedule an intake appointment
until February 27, 2018, and she failed to appear at the
March 6, 2018 appointment that she had scheduled.
The mother did engage in limited treatment at The
Journey to Hope, Health and Healing, Inc. (The Journey)
in Rhode Island. The mother’s therapist at The Journey
provided a letter that reported that the mother was
open and honest and committed to recovery, but the
letter did not indicate that the mother was addressing
any of her underlying mental health concerns, that she
had made substantial progress in recovery or that she
was in long-term or permanent remission. Between
June 26, 2017 and February 19, 2018, the mother submit-
ted to twenty-eight urine screens at The Journey. Ten
tested positive for illicit substances, including six for
the opiate fentanyl.
From August, 2017 to January, 2018, the department
recommended to the father, as it had to the mother,
that he attend regular, individual counseling. The father
agreed with the department’s recommendation and was
provided with referrals to area providers, but he did
not schedule an intake appointment. On January 19,
2018, the department referred the father to SCS for
counseling. The father, like the mother, did not schedule
an appointment until February 27, 2018, and failed to
appear at his appointment scheduled for March 6, 2018.
The father eventually began individual counseling on
May 22, 2018. The father’s therapist, Timothy Cormier,
testified at trial that the father was making great prog-
ress on his substance abuse issues and that he was
testing negative for drugs. The father reported to Cor-
mier that he was overcoming his cravings. The father,
however, misrepresented to Cormier that that he was
working as a waiter. In actuality, in November, 2017,
the father had been terminated from his restaurant
employment due to substance abuse issues. After his
firing, the father began working at another casino res-
taurant where he remained until he voluntarily left that
employment in June, 2018. The father insisted that he
could return to his previous employer if he so wished,
but his employer testified that, while he would readily
consider hiring the father again, there was no guarantee
of employment. The father’s employer provided a posi-
tive review of the father’s work skills and motivation.
Between June 19, 2017 and February 23, 2018,4 the
father submitted to thirty-one drug screens. Sixteen
of those screens were positive for illicit substances,
including many for fentanyl. The father had multiple
negative drug tests after he began individual counseling
in May, 2018. The father, however, did test positive
for marijuana in an August, 2018 drug screen. When
explaining the positive drug test, the father claimed that
he had last used marijuana in late April or on May 1,
2018. The father’s own expert, however, cast doubt on
that claim by opining that, on the basis of the hair test,
the father had last ingested marijuana no earlier than
late June, 2018.
On September 25, 2017, the mother was arrested and
charged with possession of heroin after a police officer
in an unmarked police vehicle observed her engaging
in a drug transaction in a commercial parking lot. The
mother told police that she was buying the drugs for
the father. The drugs purchased by the mother tested
positive for fentanyl. As a resolution to the charges, the
mother was given an opportunity to participate in a
diversionary program by the criminal court, but, as of
the date of trial on the termination petition, she had
not satisfied her obligations under that program. The
respondents did not tell the department about the moth-
er’s arrest. The department learned of it through a rou-
tine criminal background check in February, 2018.
When the department approached the mother about
the arrest, she acknowledged it but misrepresented the
facts of the arrest in an effort to minimize its nature.
On March 29, 2018, the respondents were stopped by
the police while driving the mother’s car in Rhode Island
because the father was not wearing a seatbelt. The
respondents consented to a search of the vehicle, which
led to the discovery of marijuana and prescription medi-
cine for which neither of the respondents possessed a
prescription. Narcotics also were discovered hidden on
the mother’s person. The father testified that he had
told the police that all of the drugs found were his in
an effort to protect the mother and because they had
advised him that he would not be arrested if he agreed
to assist them as a confidential informant. The respon-
dents did not report the matter to the department for
approximately one month, and, when the incident was
reported to the department, the father stated that he
had received a ticket for possession of marijuana but
did not disclose that the mother was present and that
narcotics were found on her person. As of the date of
the trial in this matter, felony drug charges were still
pending against the father in Rhode Island.
On May 22, 2018, the petitioner filed a petition to
terminate the respondents’ parental rights pursuant to
General Statutes § 17a-112 (j) (3) (B) (i) for their failure
to achieve a degree of personal rehabilitation that would
encourage the belief that, within a reasonable time,
considering the age and needs of Brian P., they could
assume a responsible position in the life of Brian P. A
trial on the petition was held on December 13, 14, and
17, 2018, and January 3, 2019.
On May 3, 2019, the court, Driscoll, J., issued a memo-
randum of decision terminating the respondents’ paren-
tal rights. In the adjudicatory phase,5 the court found
by clear and convincing evidence that ‘‘the department
ha[d] proven . . . that it made reasonable efforts to
reunify the child with the [respondents], that the
[respondents] [we]re unwilling or unable to benefit
from those efforts, and [that] the [respondents] ha[d]
failed to rehabilitate as alleged.’’ Though the court
found ‘‘laudatory the [respondents’] recent efforts to
address their addiction, and their expressed desire to
beat their addiction,’’ it also found that those efforts
were ‘‘too little and too late, and [that it could not]
conclude that their most recent sobriety [was] long-
term.’’
In the dispositional phase; see footnote 5 of this opin-
ion; the court considered the seven statutory factors
of § 17a-112 (k)6 before finding ‘‘by clear and convincing
evidence that termination of [the respondents’] parental
rights [was] in Brian [P.’s] best interests.’’ On May 3,
2019, the court terminated the respondents’ parental
rights and appointed the petitioner as Brian P.’s statu-
tory parent. On June 7, 2019, the respondents filed this
appeal. Additional facts will be set forth as necessary.
I
The respondents first claim that the court improperly
concluded that they had failed to rehabilitate. Specifi-
cally, the respondents argue that it was error for the
court ‘‘to terminate [their] parental rights based solely
on their drug use and addiction where, as here, their
drug use has never caused [them] to provide inadequate
care for [Brian P.], [Brian P.] has never suffered any
harm, and [they] have stopped using drugs altogether.’’
We disagree.
We begin by setting forth the established principles
of law and the standard of review. ‘‘The trial court is
required, pursuant to § 17a-112, to analyze the [parent’s]
rehabilitative status as it relates to the needs of the
particular child, and further . . . such rehabilitation
must be foreseeable within a reasonable time. . . . The
statute does not require [a parent] to prove precisely
when [he or she] will be able to assume a responsible
position in [his or her] child’s life. Nor does it require
[him or her] to prove that [he or she] will be able to
assume full responsibility for [his or her] child, unaided
by available support systems. It requires the court to
find, by clear and convincing evidence, that the level
of rehabilitation [he or she] has achieved, if any, falls
short of that which would reasonably encourage a belief
that at some future date [he or she] can assume a
responsible position in [his or her] child’s life. (Citations
omitted; internal quotation marks omitted.) In re Shane
M., 318 Conn. 569, 585–86, 122 A.3d 1247 (2015). ‘‘Per-
sonal rehabilitation as used in [§ 17a-112 (j) (3) (B) (i)]
refers to the restoration of a parent to his or her former
constructive and useful role as a parent. . . . [I]n
assessing rehabilitation, the critical issue is not whether
the parent has improved [his or her] ability to manage
[his or her] own life, but rather whether [he or she] has
gained the ability to care for the particular needs of the
child at issue.’’ (Citations omitted; internal quotation
marks omitted.) In re Leilah W., 166 Conn. App. 48,
67–68, 141 A.3d 1000 (2016).
‘‘[The] completion or noncompletion [of the specific
steps], however, does not guarantee any outcome. . . .
Accordingly, successful completion of expressly articu-
lated expectations is not sufficient to defeat a depart-
ment claim that the parent has not achieved sufficient
rehabilitation.’’ (Citation omitted; internal quotation
marks omitted.) In re Shane M., supra, 318 Conn. 587.
Whereas, during the adjudicatory phase of a termination
proceeding, the court is generally ‘‘limited to consider-
ing events that precede the date of the filing of the
petition or the latest amendment to the petition, also
known as the adjudicatory date,’’ it ‘‘may rely on events
occurring after the [adjudicatory] date . . . when con-
sidering the issue of whether the degree of rehabilita-
tion is sufficient to foresee that the parent may resume
a useful role in the child’s life within a reasonable time.’’
(Internal quotation marks omitted.) In re Leilah W.,
supra, 166 Conn. App. 69.
‘‘A conclusion of failure to rehabilitate is drawn from
both the trial court’s factual findings and from its
weighing of the facts in assessing whether those find-
ings satisfy the failure to rehabilitate ground set forth in
§ 17a-112 (j) (3) (B). Accordingly . . . the appropriate
standard of review is one of evidentiary sufficiency,
that is, whether the trial court could have reasonably
concluded, upon the facts established and the reason-
able inferences drawn therefrom, that the cumulative
effect of the evidence was sufficient to justify its [ulti-
mate conclusion]. . . . When applying this standard,
we construe the evidence in a manner most favorable
to sustaining the judgment of the trial court.’’ (Emphasis
in original; internal quotation marks omitted.) In re
Shane M., supra, 318 Conn. 587–88. ‘‘We will not disturb
the court’s subordinate factual findings unless they are
clearly erroneous. . . . A factual finding is clearly erro-
neous when it is not supported by any evidence in the
record or when there is evidence to support it, but
the reviewing court is left with the definite and firm
conviction that a mistake has been made.’’ (Citation
omitted; internal quotation marks omitted.) In re
Bianca K., 188 Conn. App. 259, 268–69, 203 A.3d
1280 (2019).
The court, in its memorandum of decision, based its
finding that the respondents had failed to rehabilitate
on multiple factors and not, as the respondents argue,
solely on the basis of their drug use and addiction.
The court found relevant the respondents’ drug related
arrests, their limited engagement in counseling and
treatment, their insufficient independence in their
finances and housing, and their lack of credibility.
To be sure, the respondents’ drug use was a primary
focus of the court’s analysis. The court detailed the
respondents’ many positive drug tests between June,
2017 and February, 2018. The court also noted the
father’s August, 2018 hair test that was positive for
marijuana.7 The respondents argue that despite testi-
mony of the mother and the father that they stopped
all drug use as of April, 2018, and June, 2018, respec-
tively, the court, instead, ‘‘relie[d] heavily upon uncon-
firmed urine screens submitted by the [respondents]
between June, 2017 and February, 2018.’’8 Relatedly,
the respondents argue that the court ‘‘entirely ignore[d]
all of the [respondents’] drug test results since Febru-
ary, 2018.’’ We do not see any fault in the court consider-
ing the respondents’ numerous positive urine screens
prior to the filing of the termination of parental rights
petition on May 22, 2018, and, thus, during the adjudica-
tory phase. See In re Leilah W., supra, 166 Conn. App.
69. In addition, these tests, taken after the respondents
were provided with specific steps for reunification,
including a requirement to ‘‘[n]ot use illegal drugs,’’ are
relevant to whether those steps were followed. We also
do not agree with the respondents’ characterization that
the court ignored their drug test results after February,
2018. The court acknowledged and found ‘‘laudatory the
[respondents’] recent efforts to address their addiction’’
and ‘‘their most recent sobriety.’’ This statement shows
that the court considered the progress made by the
respondents in their rehabilitation. That progress, how-
ever, was outweighed by the respondents’ prior pattern
of drug use, as evidenced by their positive urine screens,
and their other instances of bad parental judgment, as
described subsequently in this opinion, which led the
court to conclude that the progress would not last ‘‘long-
term.’’ We cannot conclude that any of these findings
were clearly erroneous. See In re Shane M., supra, 318
Conn. 593 (‘‘[a]lthough the respondent encourages us
to focus on the positive aspects of his behavior and to
ignore the negatives, we will not scrutinize the record
to look for reasons supporting a different conclusion
than that reached by the trial court’’); see also In re
Luis N., 175 Conn. App. 271, 304–305, 165 A.3d 1270
(trial court’s conclusion that respondent failed to
achieve sufficient personal rehabilitation affirmed on
appeal because, despite six month period of sobriety
prior to end of trial, respondent’s pattern of substance
abuse, including during termination proceedings, was
supported by sufficient evidence), cert. denied, 327
Conn. 958, 172 A.3d 203 (2017).
As stated previously, the court also relied on the
respondents’ drug related arrests to find that they had
failed to rehabilitate. The court found that the mother
was arrested for possession of heroin on September,
25, 2017, and that the father faced felony drug charges
as a result of the March 29, 2018 traffic stop. Not only
did both of these incidents violate the respondents’
specific step to ‘‘[n]ot get involved with the criminal
justice system,’’ but they both also involved illegal
drugs, which the respondents were forbidden from
using. Moreover, the court found that the respondents
were not forthright with the department about these
incidents and that, at trial, they ‘‘professed ignorance’’
or testified in ‘‘conflicting and implausible ways’’ that
‘‘cast grave doubts on their credibility.’’
The respondents argue that, ‘‘[i]f the law in this juris-
diction provides that the courts cannot terminate the
respondents’ parental right on the basis of incarcera-
tion, then the trial court may not do so on the basis of
arrests where, as in this case, they have never been
incarcerated.’’ We first note that the court did not base
its finding that the respondents failed to rehabilitate
only on their drug related arrests. Instead, the respon-
dents’ arrests were one of the factors that the court
deemed relevant. Because one of the respondents’ spe-
cific steps for reunification was to ‘‘[n]ot get involved
with the criminal justice system,’’ we determine that
the court properly relied on the respondents’ arrests,
among other factors, to find that they had failed to reha-
bilitate.
The court also cited the respondents’ limited engage-
ment in regular, individual counseling and in treatment,
and their lack of financial and housing independence
to support its finding that the respondents had failed
to rehabilitate. The court found that the mother had no
counseling after September, 2016, and that her partici-
pation in treatment was limited. The court found that
the father was slow to engage in individual counseling—
not doing so until May 22, 2018—despite the depart-
ment’s encouragement to seek counseling since at least
August, 2017. Furthermore, the court found that, due
to the father’s decision to leave work, the respondents
lacked ‘‘adequate, independent, legal income.’’ The
court found that the respondents’ housing was through
the ‘‘good graces’’ of the paternal grandmother, where
the respondents had lived for years while drug addicted,
and that the respondents were contributing only some
money toward that housing from an employment settle-
ment received by the father.9 These findings were not
clearly erroneous.
Lastly, the court stated that its ‘‘conclusion is based
in part upon the court’s observation of the demeanor
of the [respondents] while testifying. As noted, the court
did not find them fully credible. They were evasive, or
attempted to rationalize, or minimize their drug arrests,
and any perceived negative behaviors.’’ We do not dis-
turb the court’s credibility determinations on appeal.
See, e.g., In re Baciany R., 169 Conn. App. 212, 225,
150 A.3d 744 (2016) (‘‘[w]e defer to the trier of fact’s
assessment of the credibility of the witnesses based on
its firsthand observation of their conduct, demeanor
and attitude’’ [internal quotation marks omitted]). At
oral argument before this court, counsel for the respon-
dents argued that their credibility was not relevant to
their failure to rehabilitate. There was nothing improper
about the court factoring the respondents’ credibility
into its analysis because the respondents testified on
their own behalf and did so in ways that conflicted
with testimony presented by the petitioner. See In re
Santiago G., 154 Conn. App. 835, 857, 108 A.3d 1184
(‘‘the trial judge is the sole arbiter of the credibility
of the witnesses and the weight to be given specific
testimony’’ [internal quotation marks omitted]), aff’d,
318 Conn. 449, 121 A.3d 708 (2015).
The respondents argue that ‘‘evidence that [they]
used drugs, standing alone, is insufficient to terminate
their parental rights without an evidentiary showing
that [they] failed to provide adequate care for [Brian
P.], or that [Brian P.] has ever suffered physical or
psychological harm.’’ We disagree. First, we reiterate
that the respondents’ drug use was not the sole basis
on which the court found that they had failed to rehabili-
tate. Second, Brian P. already had been adjudicated
neglected on April 25, 2017, after the respondents
entered pleas of nolo contendere to allegations that he
was ‘‘permitted to live under conditions, circumstances
or associations injurious to well-being.’’ See General
Statutes § 46b-120 (4) (C). Thus, at the adjudicatory
phase, the court was left only to determine whether
the respondents had failed to achieve such degree of
personal rehabilitation as would encourage the belief
that within a reasonable time, considering the age and
needs of Brian P., they could assume a responsible
position in the life of Brian P.’’ See General Statutes
§ 17a-112 (j) (3) (B); see also In re Shane M., supra,
318 Conn. 585–86. For the reasons stated in part II of
this opinion, we conclude that the court did consider
the particular needs of Brian P. in its discussion of the
adjudicatory phase of the petition.
We recognize, as did the trial court, that the respon-
dents made efforts to address their addictions. We can-
not, however, conclude that there was insufficient evi-
dence to support the court’s finding that they had failed
to achieve sufficient personal rehabilitation so as to
encourage the belief that the respondents could assume
a responsible position in the life of Brian P. within a
reasonable time.10
II
The respondents next claim that the ‘‘court erred as
a matter of law because its memorandum of decision
failed to make a finding regarding the particular needs
of the child in this case, Brian P., before it found that [the
respondents] failed to rehabilitate within the meaning of
. . . § 17a-112 (j).’’ (Emphasis in original.) We disagree.
We begin by setting forth the standard of review.
‘‘The interpretation of a trial court’s judgment presents
a question of law over which our review is plenary.
. . . As a general rule, judgments are to be construed
in the same fashion as other written instruments. . . .
The determinative factor is the intention of the court
as gathered from all parts of the judgment. . . . Effect
must be given to that which is clearly implied as well
as to that which is expressed. . . . The judgment
should admit of a consistent construction as a whole.
. . . If there is ambiguity in a court’s memorandum of
decision, we look to the articulations that the court
provides.’’ (Internal quotation marks omitted.) In re
James O., 322 Conn. 636, 649, 142 A.3d 1147 (2016).
Section 17a-112 (j) (3) (B) requires the court to find
by clear and convincing evidence that a parent has
‘‘failed to achieve such degree of personal rehabilitation
as would encourage the belief that within a reasonable
time, considering the age and needs of the child, such
parent could assume a responsible position in the life
of the child . . . .’’ ‘‘Therefore, the trial court must
first determine the needs of the particular child before
determining whether a parent has achieved a sufficient
rehabilitative status to meet those needs.’’ In re James
O., supra, 322 Conn. 650. In its memorandum of deci-
sion, the court indicated that it did consider the needs
of Brian P. before determining that the respondents had
failed to rehabilitate.
First, the court correctly cited to In re Shane M.,
supra, 318 Conn. 585–86, for the standard relevant to
a termination of parental rights petition, stating that,
under § 17a-112, it must ‘‘analyze the [respondents’]
rehabilitative status as it relates to the needs of the
particular child . . . .’’ Second, the court stated early in
its memorandum of decision that Brian P.’s ‘‘meconium
was positive for opiates, but no symptoms of with-
drawal were noted,’’ thereby implying that Brian P. had
no unique needs stemming from his birth. Later in its
opinion, the court made that point expressly by stating
that Brian P. ‘‘is a happy, healthy child with no special
needs or issues, other than those shared by all children,
that is, the need for a permanent, safe, supportive, nur-
turing home.’’11 Lastly, the court summarized its findings
by stating that, ‘‘after due consideration of [Brian P.’s]
need for a secure, permanent placement, and the total-
ity of the circumstances, and having considered all stat-
utory criteria, and having found by clear and convincing
evidence that reasonable efforts at reunification with
[the respondents] were made and that father and
mother were unwilling to benefit from those efforts,
and that grounds exist to terminate [the respondents’]
parental rights for a failure to rehabilitate as alleged,
and that is in the child’s best interest do so,’’ before
ordering the respondents’ parental rights terminated.
(Emphasis added.)
The court’s findings that Brian P. is a ‘‘happy, healthy
child with no special needs or issues’’ and that he has
a ‘‘need for a secure, permanent placement’’ were
expressed in the dispositional phase of its analysis,
which would support the respondents’ contention that
the court did not consider the needs of Brian P. before
concluding that they had failed to rehabilitate. While
we acknowledge it may be more clear for a trial court
to explicitly state the needs of the minor child at the
outset of the adjudicatory phase of its analysis, we do
not agree that the order of the court’s findings in this
case suggests that the court had failed to determine
Brian P.’s needs before concluding that the respondents
had failed to rehabilitate. It cannot be disputed that, at
times, some of the findings relevant to the analysis
in the adjudicatory phase will also be relevant to and
overlap with the analysis of the dispositional phase,
and vice versa. See In re Malachi E., 188 Conn. App.
426, 437–38, 204 A.3d 810 (2019) (concluding that, in
dispositional phase, trial court need not ‘‘blind itself
to any parental deficiencies that also were considered
during the adjudicatory phase’’ because ‘‘the determina-
tions made in the adjudicatory and dispositional phases
may often be so intertwined that the former leads
almost inexorably to the latter’’ [internal quotation
marks omitted]). This is a case in which the court found
that Brian P. had no special needs in the dispositional
phase of its analysis, which is a finding that would
apply with equal force in the adjudicatory phase of its
analysis. Accordingly, we conclude that the court was
considerate of the needs of Brian P. as it determined
whether the respondents had failed to rehabilitate. See
In re James O., supra, 322 Conn. 649 (‘‘Effect must be
given to that which is clearly implied as well as to that
which is expressed. . . . If there is ambiguity in a
court’s memorandum of decision, we look to the articu-
lations that the court provides.’’ [Internal quotation
marks omitted.]).
III
Lastly, the respondents claim that the court errone-
ously found that termination of their parental rights
was in the best interest of Brian P. We disagree.
We first set forth the relevant principles and the stan-
dard of review. ‘‘In the dispositional phase of a termina-
tion of parental rights hearing, the emphasis appropri-
ately shifts from the conduct of the parent to the best
interest of the child. . . . It is well settled that we will
overturn the trial court’s decision that the termination
of parental rights is in the best interest of the [child]
only if the court’s findings are clearly erroneous. . . .
The best interests of the child include the child’s inter-
ests in sustained growth, development, well-being, and
continuity and stability of [his or her] environment.
. . . In the dispositional phase of a termination of
parental rights hearing, the trial court must determine
whether it is established by clear and convincing evi-
dence that the continuation of the [respondents’] paren-
tal rights is not in the best interest of the child. In
arriving at this decision, the court is mandated to con-
sider and make written findings regarding seven statu-
tory factors delineated in [§ 17a-112 (k)]. . . . The
seven factors serve simply as guidelines for the court
and are not statutory prerequisites that need to be
proven before termination can be ordered. . . . There
is no requirement that each factor be proven by clear
and convincing evidence.’’ (Footnote omitted; internal
quotation marks omitted). In re Joseph M., 158 Conn.
App. 849, 868–69, 120 A.3d 1271 (2015).
The court considered and made findings under each
of the seven statutory factors of § 17a-112 (k) before
determining that, under the totality of the circum-
stances, a termination of the respondents’ parental
rights was in the best interest of Brian P. The respon-
dents assert that a number of the court’s findings made
in its best interest of the child analysis were clearly
erroneous. We are not convinced.
The respondents argue that the court’s finding that
they ‘‘did not provide Brian [P.] with a ‘safe, supportive,
nurturing home’ ’’ was clearly erroneous because ‘‘the
petitioner admitted at trial that there was never any
concern that the [respondents] were unable to provide
adequate care for their child.’’ The respondents further
contend that the court’s finding that Brian P. ‘‘requires
a ‘permanent’ home, and that denying him ‘the perma-
nency to which he is entitled would not be in his best
interests,’ ’’ was clearly erroneous because the court
‘‘cite[d] to no evidence to show that the child felt that
his current situation lacked permanency, or that the
child would suffer adverse results should he remain in
foster care for some additional period prior to reunifica-
tion.’’ The trial court found that ‘‘Brian [P.] is a happy,
healthy child with no special needs or issues, other than
those shared by all children, that is, the need for a
permanent, safe supportive, nurturing home.’’ The court
also found that Brian P. had ‘‘been in foster care for
over half his life, while [the respondents] struggled
greatly with their addiction, and there is no reasonable
foreseeability that their addiction will be addressed per-
manently.’’ Given Brian P.’s age, the amount of time he
has spent in foster care—more than one-half of his life-
—and the court’s findings as to the respondents’ failure
to rehabilitate—as detailed in part I of this opinion—
we cannot conclude that the court’s findings as to Brian
P.’s need for a ‘‘permanent, safe, supportive, nurturing
home’’ and the respondents’ inability to meet that need
were clearly erroneous. See In re Anthony H., 104 Conn.
App. 744, 767, 936 A.2d 638 (2007) (‘‘[o]ur appellate
courts have recognized that long-term stability is critical
to a child’s future health and development’’ [internal
quotation marks omitted]), cert. denied, 285 Conn. 920,
943 A.2d 1100 (2008); In re Victoria B., 79 Conn. App.
245, 263, 829 A.2d 855 (2003) (trial court’s findings as
to best interest of child were not clearly erroneous when
much of child’s short life had been spent in custody of
commissioner and child needed stability and perma-
nency in her life).
The respondents contend that, because there is no
evidence that Brian P.’s needs are not being met, the
court’s findings are clearly erroneous. This argument
ignores the court’s findings that Brian P. has lived more
than one-half of his life in foster care and that ‘‘[Brian
P.] looks to [his] foster mother to meet his needs . . . .’’
If there is no evidence that Brian P.’s needs are not
being met, credit belongs to the foster mother who has
been primarily responsible for meeting those needs.
The court’s finding that Brian P.’s needs are being met
by his foster mother is consistent with both its finding
that he is in need of stability and its conclusion that
termination of the respondents’ parental rights is in his
best interest.
The respondents also argue that the court ‘‘com-
pletely failed to consider the detrimental effect of
removing [Brian P.] from his parents and grandparents,
with whom he shares a close bond.’’ The court did not
overlook the bond between Brian P. and the respon-
dents. Rather, the court stated that Brian P. ‘‘knows
and loves [the respondents], and is loved by them.
Parental love does not equate with parental compe-
tence, which in this case requires complete sobriety.’’
This statement reflects that the court appreciated the
bond between Brian P. and the respondents but, never-
theless, concluded that it was in his best interest to
terminate the respondents’ parental rights. See In re
Anthony H., supra, 104 Conn. App. 765–66 (‘‘[o]ur
courts consistently have held that even when there is
a finding of a bond between [a] parent and a child, it
still may be in the child’s best interest to terminate
parental rights’’ [internal quotation marks omitted]).12
We cannot conclude from our review of the record that
this finding was clearly erroneous.
The judgment is affirmed.
In this opinion the other judges concurred.
* In accordance with the spirit and intent of General Statutes § 46b-142
(b) and Practice Book § 79a-12, the names of the parties involved in this
appeal are not disclosed. The records and papers of this case shall be open
for inspection only to persons having a proper interest therein and upon
order of the Appellate Court.
** February 6, 2020, the date that this decision was released as a slip
opinion, is the operative date for all substantive and procedural purposes.
1
Brian P. is the name of both the father and the minor child. Throughout
this opinion, only the minor child will be referred to as Brian P.
2
Pursuant to Practice Book §§ 67-13 and 79a-6 (c), the attorney for Brian
P. filed a statement adopting in its entirety the brief filed by the petitioner.
3
The trial court’s memorandum of decision states that Brian P. had his
disposition changed and was committed to the custody of the petitioner on
June 19, 2017, but that date seems to have been a scrivener’s error. Those
developments occurred on June 9, 2017.
4
The court’s memorandum of decision states that the father submitted
to drug tests ‘‘between June 19, 2017 and February 23, 2015 . . . .’’ Reference
to the year 2015 appears to be a scrivener’s error.
5
‘‘Proceedings to terminate parental rights are governed by § 17a-112.
. . . Under § 17a-112, a hearing on a petition to terminate parental rights
consists of two phases: the adjudicatory phase and the dispositional phase.
During the adjudicatory phase, the trial court must determine whether one
or more of the . . . grounds for termination of parental rights set forth in
§ 17a-112 [(j) (3)] exists by clear and convincing evidence. . . . If the trial
court determines that a statutory ground for termination exists, then it
proceeds to the dispositional phase. During the dispositional phase, the trial
court must determine whether termination is in the best interests of the
child. . . . The best interest determination also must be supported by clear
and convincing evidence.’’ (Citation omitted; internal quotation marks omit-
ted.) In re Shane M., 318 Conn. 569, 582–83 n.12, 122 A.3d 1247 (2015).
6
General Statutes § 17a-112 (k) states: ‘‘Except in the case where termina-
tion of parental rights is based on consent, in determining whether to termi-
nate parental rights under this section, the court shall consider and shall
make written findings regarding: (1) The timeliness, nature and extent of
services offered, provided and made available to the parent and the child
by an agency to facilitate the reunion of the child with the parent; (2)
whether the Department of Children and Families has made reasonable
efforts to reunite the family pursuant to the federal Adoption and Safe
Families Act of 1997, as amended from time to time; (3) the terms of any
applicable court order entered into and agreed upon by any individual or
agency and the parent, and the extent to which all parties have fulfilled
their obligations under such order; (4) the feelings and emotional ties of
the child with respect to the child’s parents, any guardian of such child’s
person and any person who has exercised physical care, custody or control
of the child for at least one year and with whom the child has developed
significant emotional ties; (5) the age of the child; (6) the efforts the parent
has made to adjust such parent’s circumstances, conduct, or conditions to
make it in the best interest of the child to return such child home in the
foreseeable future, including, but not limited to, (A) the extent to which
the parent has maintained contact with the child as part of an effort to
reunite the child with the parent, provided the court may give weight to
incidental visitations, communications or contributions, and (B) the mainte-
nance of regular contact or communication with the guardian or other
custodian of the child; and (7) the extent to which a parent has been
prevented from maintaining a meaningful relationship with the child by
the unreasonable act or conduct of the other parent of the child, or the
unreasonable act of any other person or by the economic circumstances of
the parent.’’
7
The respondents argue that the court improperly relied on the father’s
marijuana use after he ceased using opiates because, in doing so, it ‘‘fail[ed]
to recognize that General Statutes § 21-279a, which took effect in 2011,
decriminalized the possession of small amounts of marijuana.’’ We disagree.
Although § 21-279a did decriminalize small amounts of marijuana, it remains
illegal. See State v. Dudley, 332 Conn. 639, 650, 212 A.3d 1268 (2019). Section
21a-279a also did not proscribe a court from weighing an individual’s mari-
juana use against that individual when considering a termination of parental
rights petition, like the one in this case, that alleges a failure to rehabilitate
from drug abuse issues. Moreover, there was nothing improper about the
court considering the father’s marijuana use because one of the specific
steps that the respondents were required to follow for reunification was to
‘‘[n]ot use illegal drugs . . . .’’ See In re Anaishaly C., 190 Conn. App. 667,
684, 213 A.3d 12 (2019).
8
The respondents highlight the ‘‘uncontradicted expert testimony’’ of Ilie
Saracovan, a drug testing expert, who testified that urine screens are not
valid, final results for drug tests without additional confirmation tests, to
argue that the court’s ‘‘reliance on these unconfirmed drug screens, without
more, is clearly erroneous.’’ The respondents have not pointed to any author-
ity to support their proposition that a court is barred from considering
positive urine screens that have not been confirmed by what Saracovan
described as ‘‘instrumental analysis where very, very sophisticated instru-
mentation is used.’’ To the contrary, our case law is replete with myriad
examples of courts relying on such urine screens in termination of parental
rights cases. See, e.g., In re Briana G., 183 Conn. App. 724, 731, 193 A.3d
1283 (2018); In re Kaitlyn A., 118 Conn. App. 14, 19, 28, 982 A.2d 253 (2009);
In re Ryan R., 102 Conn. App. 608, 622, 624–25, 926 A.2d 690, cert. denied,
284 Conn. 923, 933 A.2d 724, and cert. denied, 284 Conn. 924, 933 A.2d
724 (2007).
9
The respondents argue that the court impermissibly ‘‘appears to add
several requirements to [their] specific steps that were not part of the original
court order,’’ including that (1) they ‘‘were required to find independent
housing as a requirement for reunification,’’ (2) they ‘‘had an obligation to
challenge [the department’s] right to reduce their visitation privileges,’’ and
(3) their ‘‘failure to enter a methadone program suggested by [the depart-
ment] is evidence of their failure to rehabilitate.’’ We disagree.
With respect to the alleged first additional step, given that the respondents
were addicted to opiates while residing at the paternal grandmother’s home,
it was not clearly erroneous for the court to conclude that the respondents
were not maintaining adequate housing, which was a previously ordered
step for them to follow.
We do not agree that the court added an alleged second additional step
when it stated that they had not contested the reduction of their visitation
with Brian P. We read the court’s statement as an explanation that, in light
of the respondents’ failure to challenge the department’s decision to reduce
their visitation, it could base its own findings on the department’s underlying
justification for that decision, namely, that Brian P. displayed adverse behav-
ioral effects when the respondents’ visits with him were more frequent.
Turning to the third specific step allegedly added, we do not agree that
the court required the respondents to enter a methadone program selected
by the department. Instead, the court’s statement that the respondents ‘‘did
not enter [a methadone] program to which [the department] referred them’’
appears to correspond with its expressed concerns about the respondents’
inconsistent engagement in counseling and treatment, and their lack of
credibility. Given the court’s stated concerns, it was not clearly erroneous
for it to view with disfavor the decision of the respondents to select their
own methadone clinic in the first place.
10
The respondents argue that the court’s finding that their efforts to
rehabilitate were ‘‘too little and too late’’ was belied by the department’s
own statements in 2018. In particular, the respondents claim that on April
27, 2018, a department employee told them ‘‘that if they stayed clean of
drugs and engaged in counseling, then they could ‘actually reunify with
Brian [P.].’ ’’ The respondents also claim that, on July 3, 2018, the father’s
therapist was told that the termination of parental rights petition could still
be withdrawn and Brian P. could be returned to the respondents if they
stopped using drugs. The court heard the testimony regarding both of these
statements, but, nevertheless, concluded that, under the totality of the cir-
cumstances, the respondents had failed to rehabilitate. We conclude that
there was sufficient evidence to support that finding.
11
At oral argument before this court, the respondents’ counsel argued
that, because Brian P. did not have any special needs, the respondents would
not need to be ‘‘as up to speed.’’ We disagree. A child, particularly one of
Brian P.’s age, invariably requires the attention of a sober and responsible
parent regardless of whether that child has identified special needs.
12
The respondents state that the termination of the respondents’ parental
rights will also result in a permanent severance of Brian P.’s strong bond
with his four grandparents, seeming to argue that this was a factor that the
court should have considered. This bond is not a consideration that is
encompassed in any of the seven statutory factors found in § 17a-112 (k).
Therefore, the court’s failure to consider it was not clearly erroneous.
| {
"pile_set_name": "FreeLaw"
} |
352 F.2d 812
The RIGGS NATIONAL BANK OF WASHINGTON, D. C., Successor by Consolidation to the Washington Loan and Trust Company, Trustee under the Will of Joseph S. Justh, Deceasedv.The UNITED STATES.
No. 517-57.
United States Court of Claims.
November 12, 1965.
Arthur J. Phelan, Washington, D. C., for plaintiff. J. Bruce Kellison, Washington, D. C., attorney of record. James E. Murray, Hogan & Hartson and Frederick M. Bradley, Washington, D. C., of counsel.
Robert Livingston, Washington, D. C., with whom was Asst. Atty. Gen. Louis F. Oberdorfer and Acting Asst. Atty. Gen. John B. Jones, Jr., for defendant. Edward S. Smith, and Philip R. Miller, Washington, D. C., of counsel.
Howe P. Cochran, Washington, D. C., filed a brief for Elmer and Jeanette Justh, amicus curiae.
Ward E. Lattin, Washington, D. C., filed a brief for Charlotte S. Holtman, amicus curiae. Meade C. Patrick of Gardner, Morrison & Rogers, Washington, D. C., of counsel.
Before LARAMORE, Acting Chief Judge, REED, Justice (Ret.), sitting by designation, DURFEE and DAVIS, Judges, and JONES, Senior Judge.
PER CURIAM.
1
This is a suit by the taxpayer, as trustee under the will of Joesph S. Justh (a District of Columbia decedent), to recover fiduciary income taxes paid during the years 1951 through 1960. The claim is that these taxes should not have been collected because they were levied on income permanently set aside for charitable purposes under the will.1 As originally presented to the court, the plaintiff's contention was that the will directed the trustee to dispose of the trust's accumulated surplus income, at the end of the trust in 1970, to four charities (named in the will) which were to share the corpus of the trust upon its termination. The defendant countered that the will made no provision at all for this accumulated surplus income, that it would not go to the charities but would pass by intestacy.
2
Since this issue was wholly one "governed by the local laws of the District of Columbia," this court, after an argument directed to that question of local law, ordered (on January 25, 1963) that "further action herein in this court be and the same is suspended to afford the plaintiff an opportunity to file suit in the United States District Court for the District of Columbia for the purpose of securing an interpretation of decedent's will." Such a suit was brought and the District Court determined that the will did not direct that the accumulated surplus income go to the charities; rather, the District Court held, the will did not cover this income and it passed by intestacy to the next of kin. The Riggs National Bank v. Holtman, 221 F.Supp. 599 (1963). This ruling was affirmed by the Court of Appeals for the District of Columbia Circuit. The American National Red Cross et al. v. Holtman, 122 U.S.App.D.C. ___, 351 F.2d 746, decided May 18, 1965. The ruling of the Court of Appeals is now final.
3
The decisions of the District of Columbia courts, which we of course accept, destroy the taxpayer's claim as it was initially argued to us. The will did not direct that the surplus trust income be set aside for, or paid to, the charities. Accordingly, there is no basis for a charitable deduction on that ground.
4
Taxpayer now raises, however, a secondary ground which is said to sustain recovery of a portion of the refund claimed.2 The decedent died in 1950 and his will was admitted to probate in April 1951. In August 1951, the taxpayer, as trustee under the will, borrowed $60,000 with which to pay administration expenses, taxes, and debts. This loan was secured by the trust property (i. e., the real estate which was to go, on termination of the trust, to the four charities) and was payable out of the income derived from this property.3 From 1951 through October 1957, the accumulated surplus income of the trust was used to satisfy this debt of $60,000.4 The will had authorized the taxpayer-trustee to borrow the amounts needed to pay administration, tax, and debt charges against the estate, "and to secure its repayment by a deed of trust or mortgage upon the real estate hereinbefore described and to repay the same as rapidly as possible from the net rents derived therefrom over and above the annuities hereinbefore set out." The claim now is that the trust income used to repay this loan, in 1951-1957, was permanently set aside by the will for charitable purposes since repayment of this loan (as authorized by the will) operated to free, and therefore increase the value of, the encumbered real estate which was due to pass to the charities upon the termination of the trust in 1970; if the loan was not repaid through use of the trust income, the indebtedness would have to be deducted from the distribution to the charities of the proceeds of the sale of the real estate in 1970.
5
We consider taxpayer's new contention because it is embraced within the amended petition filed in this court, but we cannot accept the argument.5 It is now settled by the District of Columbia litigation that, upon the decedent's death, the trust income, as distinguished from the corpus of the real estate, was not destined by the will for charity. We think that, after the decedent's death, such income would not become destined for charity because the trustee and executor used the income to repay a loan needed to satisfy administration expenses, taxes, and debts of the estate. To uphold the deduction in these circumstances would be to grant a far greater allowance for charity than the Internal Revenue Code contemplates. The portion of the estate's residue (i. e., that part of the trust's corpus) which will pass to the charities has already been reflected (at its unencumbered value) in a lessening of the estate tax paid by taxpayer in 1951.6 With respect to the trust income, the Code provides that, for a charitable deduction to be allowable, the income must be paid or permanently set aside in the taxable year, pursuant to the will, for charitable purposes. In the taxable years 1951-1957, the $60,000 in question was not paid or set aside for charity in any ordinary sense; it was simply used to repay a loan which was thought necessary to pay ordinary estate charges. Repayment of the loan, it is true, freed the real property from the encumbrance imposed by the executor-trustee in 1951 and, in that way, assured the charities of receiving in the end the full residue the will provided for them. But this indirect connection is too remote to be characterized as a permanent setting aside for charity pursuant to the will. Congress did not intend that in a case, as here, in which the will leaves only the corpus to charity, repayment by the executor-trustee of an estate debt out of trust income should lead to a charitable deduction because of some ultimate, tangential effect upon the corpus; satisfaction of most charges against an estate, including estate taxes, can have such an indirect impact and, on taxpayer's theory, would be deductible on charitable grounds. We do not think that is the law. See Estate of Freund v. Commissioner, 303 F.2d 30, 32 (C.A. 2, 1962). In the cases on which taxpayer relies7 the income (or most of it), as well as the corpus, was designated for charitable purposes.
6
Taxpayer is not entitled to recover and its petition is dismissed.
Notes:
1
Under Section 162(a) of the Internal Revenue Code of 1939 and Section 642(c) of the 1954 Code a deduction is allowed, in computing the net income of an estate or trust, for that part of the gross income which is paid or permanently set aside during the taxable year (under the will creating the trust) for charitable purposes
2
The total sum claimed in the amended petition was $42,797.79 (plus interest); the amount of taxes at issue on the secondary argument is approximately $23,000 (plus interest)
3
Previously, the real estate had been unencumbered
4
Thereafter, the surplus income was invested in Government obligations and common trust funds
5
At the request of the court, both parties filed supplemental memoranda directed solely to the plaintiff's new contention
6
The estate was allowed a charitable deduction of $49,485.72 in the computation of the estate tax. The real estate (93.25% of the estate) was and is valued at $325,000. On termination of the trust in 1970, some $257,000 (possibly no more than $242,000) will be distributed in specific bequests before the residue passes to the charities. The expenses of administration, taxes, and debts amounted, up to 1951, to about $78,000
7
Commissioner of Internal Revenue v. Citizens & Southern Nat'l Bank, 147 F. 2d 977, 978, 980 (C.A.5, 1945); Arthur Jordan Foundation v. Commissioner, 210 F.2d 885, 888-889 (C.A.7, 1954); Hopkins v. Commissioner, 13 T.C. 952, 979 (1949); Rockland Oil Co. v. Commissioner, 22 T.C. 1307, 1311-1312 (1954). In United States v. Bank of America Nat'l Trust & Savings Ass'n, 326 F.2d 51, 53-54 (C.A.9, 1964), the disputed item was corpus held for charity
7
JONES, Senior Judge (dissenting in part).
8
I agree with the first part of the Per Curiam opinion, but the second raises a novel question that apparently has never been specifically decided. It is a matter of great importance and I feel that it should be fully briefed by the parties before a final conclusion is reached.1
9
The case of Riggs National Bank v. Holtman, 221 F.Supp. 599 (D.C.1963), which has become final, definitely holds that the surplus income accumulated since 1957 was not disposed of by the will and will definitely go to decedent's daughter rather than to the four charities named. Therefore, since such surplus income was not permanently set aside for charitable purposes, plaintiff is not entitled to recover any fiduciary income taxes paid upon such surplus income accumulated after 1957.
10
However, that decision does not touch the question of any income between 1951 and 1957. It, by the terms of the will, might be diverted to the payment of any borrowings made necessary in managing the estate. At the time the will was made it was not known that any borrowing would be necessary but if such borrowing became necessary then a portion of the rental income would be applied to the liquidation of such borrowing.2
11
It thus becomes apparent that the diverting of the accumulating income during 1951 to 1957 to the liquidation of the $60,000 actually borrowed enhanced to that amount the net value of that portion of the final estate that will go to charity after payment of the stipulated legacies. In other words, had no borrowing been necessary the $60,000 which was paid out of rental income to liquidate that amount of borrowing would have gone in its entirety under the Riggs National Bank decision to the sole heir and would thus have reduced by that exact sum the amount that will ultimately be applied to the charitable bequests. The net amount that will finally go to the four charities was thus increased by the $60,000 or rather the amount was not decreased by $60,000 by virtue of the fact that that amount was diverted from what would have otherwise been intestate. If the surplus income had not been used to reduce the mortgage indebtedness, then, upon sale of the trust property in 1970, plaintiff would have been required to deduct the amount of the mortgage loan from the amount distributed to the four charities.
12
It is undisputed that the trustee under the will was required to pay fiduciary income taxes upon the income produced during the years 1951 to 1957, inclusive. It is also very apparent under the Riggs National Bank decision that the $60,000 actually borrowed for the preservation and management of the estate was the only part of the accumulated income, except the specific annuities, that was disposed of by the will and that only on a contingent basis; that is to liquidate any borrowing necessary for the preservation and management of the estate.
13
There seems little doubt that the ultimate value of that part of the estate going to charity was increased by $60,000. It was not and could not have been known at the time what amount, if any, would be thus diverted.
14
Section 162 of the Internal Revenue Code of 1939, as amended, reads as follows:
15
SEC. 162. NET INCOME.
16
The net income of the estate or trust shall be computed in the same manner and on the same basis as in the case of an individual, except that —
17
(a) There shall be allowed as a deduction * * * any part of the gross income, without limitation, which pursuant to the terms of the will or deed creating the trust, is during the taxable year paid or permanently set aside for [charitable] * * * purposes * * *, or is to be used exclusively for religious, charitable, scientific, literary, or educational purposes, * * *. [Emphasis added.]
18
The income of the estate during the years 1951 to 1957 was subject to a fiduciary income tax which was paid during each of those years. Plaintiff insists that it is entitled to a charitable deduction on the fiduciary income taxes paid upon the surplus income of the trust during the years 1951 through 1957, inclusive, which was paid to reduce the indebtedness of the trust estate since all of the income of the trust during those years, except the annuities, was to be set aside for charitable purposes pursuant to the terms of the Justh will.
19
Practically no briefing has been done by the defendant on the particular issue now before the court. A number of cases have been cited by the plaintiff in a brief comment. The facts in the case of J. B. Whitehead's Estate, 3 T.C. 40 (1944) (affirmed Commissioner of Internal Revenue v. Citizens & Southern National Bank, 147 F.2d 977 (5th Cir. 1945)), are very similar to those in the pending case. The plaintiff was permitted to recover in that case. Cited also are Rockland Oil Co., 22 T.C. 1307 (1954); Arthur Jordan Foundation v. Commissioner, 210 F.2d 885 (7th Cir. 1954); also Leon A. Beeghly Fund, 35 T.C. 490 (1960); United States v. Bank of America National Trust & Savings Ass'n, 326 F.2d 51 (9th Cir. 1963). See also Commissioner of Internal Revenue v. Burrow Trust, 333 F.2d 66 (10th Cir. 1964).
20
As was stated in Helvering v. Bliss, 293 U.S. 144, 150-151, 55 S.Ct. 17, 20, 79 L.Ed. 246 (1934):
21
The exemption of income devoted to charity and the reduction of the rate of tax on capital gains were liberalizations of the law in the taxpayer's favor, were begotten from motives of public policy, and are not to be narrowly construed.
22
See also Old Colony Trust Co. v. Commissioner, 301 U.S. 379, 57 S.Ct. 813, 81 L.Ed. 1169 (1937) and Edwards v. Slocum, 264 U.S. 61, 44 S.Ct. 293, 68 L.Ed. 564 (1924).
23
In these circumstances I think that both parties should be requested to thoroughly brief the new issue before the court reaches a final conclusion.
24
Since the court has now decided not to request the parties to file detailed briefs, I respectfully dissent from the second part of the Per Curiam opinion.
Notes:
1
The parties have filed supplemental memoranda briefs, evidently rather hurriedly prepared. The defendant filed a five-page typewritten brief citing only one case — Estate of Freund v. Commissioner, 303 F. 2d 30 (C.A.2d 1962). That case does not dispose of the issue involved here. In view of the importance of the question I think it should be thoroughly briefed in detail by both sides
2
We quote the second paragraph of the Fifth section of the will:
"In the event said rest, residue and remainder shall be insufficient to pay such charges, then I authorize my said Trustee to borrow such sum as may be necessary to pay the same and to secure its repayment by a deed of trust or mortgage upon the real estate hereinbefore described and to repay the same as rapidly as possible from the net rents derived therefrom over and above the annuities hereinbefore set out."
| {
"pile_set_name": "FreeLaw"
} |
138 Ariz. 7 (1983)
672 P.2d 959
The STATE of Arizona, Appellee,
v.
Joe Angel MOYA, Appellant.
No. 1 CA-CR 5903.
Court of Appeals of Arizona, Division 1.
June 23, 1983.
Rehearing Denied September 19, 1983.
Review Denied November 8, 1983.
*8 Robert K. Corbin, Atty. Gen. by William J. Schafer, III, and Linda A. Akers, Asst. Attys. Gen., Phoenix, for appellee.
Ross P. Lee, Maricopa County Public Defender by Terry J. Adams, Deputy Public Defender, Phoenix, for appellant.
OPINION
HOWARD, Chief Judge.
Appellant, tried by a jury in absentia, was convicted of aggravated assault and manslaughter with two prior convictions for assault with a deadly weapon and armed robbery. He was subsequently taken into custody and sentenced to concurrent prison terms of 25 years.
Around midnight of January 2, 1981, appellant rearended a car being driven by Judith Coffee. As she got out of her car, she saw appellant approaching her with a handgun. He put the handgun to her stomach and said, "Get back in the car, bitch." He shoved her and she shoved him back, causing him to drop the weapon. He picked it up and fired three shots. At that time, Mrs. Coffee's husband, who had been in another vehicle, ran up to appellant, struck him with his fist and knocked him down. Appellant then shot Mr. Coffee in the head and throat. Appellant ran to his car. Mrs. Coffee tried to stop him from leaving but she could not. She noticed that there was a woman sitting in the middle of the front seat. Mr. Coffee subsequently died from the gunshot wounds.
The police investigation of the crime led to an automobile owned by Susan Schultz. Three .25-caliber shell casings were found in an ashtray. These casings and the shell casings found at the scene of the crime were fired by the same weapon. A piece of automobile grill found at the scene of the crime also matched the grill of the Schultz car. Officer Richard Fuqua interviewed appellant and arrested him for murder.
At the trial, a witness testified that in June 1981 he had dinner with one Ruth Reynolds, who was employing appellant. Appellant was also present at the dinner. During the dinner there was a conversation between Ruth Reynolds and appellant involving obtaining an attorney. When the witness inquired, appellant stated, "Well, I shot a man and I need a good attorney to defend me." Appellant further explained *9 that he had been involved in a car accident and shot a person after getting into an argument with him.
Reynolds testified that she had hired both appellant and Sue Schultz as domestic help. Appellant told her that he had been involved in a traffic accident and he had shot and killed someone. He also requested financial help from her to obtain an attorney.
Appellant contends the following: (1) The trial court erred in allowing the prosecution to use statements made by him to law enforcement officers after he had requested counsel; (2) the trial court erred in refusing to grant a mistrial based upon the prosecutor's misconduct; (3) the prosecutor committed fundamental error by presenting evidence that appellant had exercised his right to counsel and commenting on it in his closing argument; (4) the prosecution was guilty of misconduct in calling a witness to the stand knowing she would exercise her Fifth Amendment right not to testify; (5) the trial court erred in admitting hearsay evidence, and (6) the trial court erred in instructing the jury. We affirm.
Appellant's first argument is that the trial court erred in allowing the state to use statements made by him to Detective Fuqua after he had requested counsel. Appellant contends this mandates reversal, citing Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981). We do not agree.
Appellant was arrested and taken to the main police building. Det. Fuqua read appellant his constitutional rights. He then asked appellant if he understood them, to which appellant responded by nodding in the affirmative. Appellant then told Det. Fuqua that he wanted an attorney. Det. Fuqua responded, "Okay, fine. My questioning will be terminated."
After invoking his rights, appellant asked Fuqua what it was all about. Fuqua explained that appellant's car, or rather his girlfriend's car, had been identified as being at the location of a shooting at 89th Avenue and Indian School Road. He also said that appellant's photograph had been identified by the victim's wife. Appellant then asked, "How come you waited two weeks to pick me up?" Fuqua responded that the victim had recently died on January 12. The case was then assigned to him and after the investigation pointed to appellant, he was arrested. Appellant then said, "If I was going to kill someone, I wouldn't have my lady with me." Fuqua re-advised appellant of his rights and asked him if he wished to waive his right to remain silent. He said that he did not and there was no further conversation. In Edwards the Court stated:
"[W]hen an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights. We further hold that an accused, such as Edwards, having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police." (Emphasis added) 451 U.S. at 484-485, 101 S.Ct. at 1885.
Since it was appellant who initiated further communication and conversations with the police, his statements were admissible.
Appellant next argues that the trial court erred in refusing to grant a mistrial because of prosecutorial misconduct. The misconduct complained of occurred during the re-direct examination of a witness:
"Q: You were asked some questions on cross-examination about statements by the victim that you later learned his name was Allen Gash ___ excuse me I have another homicide on my mind. That his name was Allen Coffey [sic]?
A. Yes."
Appellant subsequently moved for a mistrial on the ground that the mention of another "murder case" was prejudicial. The trial court denied the motion for mistrial, *10 which appellant claims was error. We do not agree. The decision to grant a mistrial is left to the sound discretion of the trial court which, absent an abuse of discretion, will not be disturbed on appeal. State v. Trotter, 110 Ariz. 61, 514 P.2d 1249 (1973). There was nothing suggesting that this murder had any connection whatsoever with appellant and it was an obvious slip of the tongue.
During the presentation of the evidence the state called two witnesses, both of whom talked with appellant after the incident had occurred and prior to being brought to trial. The first conversation was testified to by Abe Dupler. He testified:
"Q: Okay, Now, how did the conversation start, or how did you become involved in it?
A: Sitting around the table, Joe and Ruth Reynolds were discussing obtaining a good attorney to defend Joe. So I said to Ruth, `What is this all about?'
Q: And what was said?
A: And Joe spoke up and said, `Well, I shot a man and I need a good attorney to defend me.'"
Later, when Ruth Reynolds was testifying, the following colloquy took place between the prosecutor and the witness:
"Q: Now, is there any other conversation that you recall between you and Joe Moya concerning this shooting?
A: Yes, Joe drove me to Sedona.
Q: When was that?
A: Beg your pardon?
Q: When was that?
A: That would be sometime during that week, probably Thursday or Friday of that week.
Q: All right.
A: I had lived in Sedona for a year. I wanted to go up and see some friends. He drove me to Sedona. On the way back he was talking about getting , securing another attorney because he was going to be convicted because he shot the man.
* * * * * *
Q: I think your last answer was Joe said he was going to get convicted?
A: That's what he said to me.
Q: What else, if anything, did he say at this time?
A: Well, he was very concerned, and he wanted he wanted help in getting out of the situation.
Q: And what kind of help?
A: Well, he asked for some financial help for a new attorney.
Q: And who did he request that financial help from, you?
A: From me.
Q: And how did he ask for help? What did he say?
A: Outright. He said he needed money to pay for another attorney."
The prosecutor in his final argument to the jury stated, inter alia:
"Remember, he told Ruth Reynolds that he was only guilty of second degree murder, because there was no premeditation. Now, in both statements to both Abe Dupler and in his statement to Ruth Reynolds, there was no mention of the word self defense.
Are we to believe, using our best powers of reasoning and logic, that a person sophisticated enough, and not naive enough to know the difference between premeditation and second degree murder? Would not know the more basic concept of self defense?
Imagine yourself in the same situation as a defendant. You're talking to people and you want to get Ruth Reynolds to help you, assist you in paying for a [sic] attorney, because you're dissatisfied with Mr. Babbitt. And you're talking to people about your crime, and you don't immediately say I shot a man, but I shot him in self defense.
Isn't that what you would say if you were in the similar circumstance? Isn't that what you would expect someone else to say, using your best powers of reasoning and logic? The absence of the statement by the defendant of the word self *11 defense is because he knew that he it didn't exist in this particular case.
Now you'll be instructed self defense is not available to one who is at fault in provoking the difficulty that resulted in the homicide. A person cannot sit up in his own defense and assess that he brought upon himself." (Emphasis added)
Citing United States ex rel. Macon v. Yeager, 476 F.2d 613 (3rd Cir.1973), cert. den. 414 U.S. 855, 94 S.Ct. 154, 38 L.Ed.2d 104, and Zemina v. Solem, 438 F. Supp. 455 (D.S.D. 1977), aff'd 573 F.2d 1027 (8th Cir.1978), appellant contends the admission of the evidence and the argument by counsel wrongfully penalized him for exercising his constitutional right to counsel. We do not agree.
In Zemina, a habeas corpus case, there was evidence that after a homicide the defendant called and spoke with his lawyer. In his final argument to the jury, the prosecutor stated that the petitioner's call to his lawyer was "a telling sign," the inference being that it was a "telling sign" of petitioner's guilt. In holding the prosecutor's statement to be prejudicial error the court stated:
"Similarly, comment on a defendant's exercise of his right to counsel could make the exercise costly, especially where it was never explained to the jury that the defendant had such a right, and a cautionary instruction that no inference of guilt should be drawn from exercise of that right was not given. The prosecution should not be allowed to imply that only guilty people contact their attorneys." 438 F. Supp. at 466.
In United States ex rel. Macon v. Yeager, supra, the prosecutor in his summation to the jury, stated:
"He goes home and puts the shirt down in the chest, a torn shirt. Then he goes to bed. He says he had trouble sleeping. He gets up the next morning and lo and behold, what does he do? He calls his lawyer. These are acts of innocence? (Emphasis added)" 476 F.2d at 514.
The court in Macon held that the comments by the prosecutor exacted a penalty for the exercise of the petitioner's constitutional rights and was prejudicial error.
In contrast to Zemina and Macon the evidence here did not consist solely of the exercise of one's right to an attorney. In other words, the evidence here did not consist of appellant exercising his right to call a lawyer. Rather, it consisted of an attempt by him to seek financial help to get a new attorney. In the process, he admitted the homicide but never said to anyone that he had acted in self-defense at the time. This is important, since even though appellant was not present at the trial, his attorney used the state's evidence to attempt to show he acted in self-defense.
Appellant next claims the prosecution was guilty of misconduct in calling a witness to the stand knowing that she would exercise her Fifth Amendment right not to testify. See State v. Blankinship, 127 Ariz. 507, 622 P.2d 66 (App. 1980).[1] We do not agree. The state called Susan Schultz, who upon being sworn, stated: "For the record, at the preliminary hearing I was granted immunity and I want to make sure that it still held true for this trial." The prosecutor suggested that the court take up the matter in chambers and a recess was declared. In chambers the state explained that Mrs. Schultz had been given use immunity at the preliminary hearing. However, the state would not give her immunity at the trial because her testimony at the preliminary hearing did not indicate any involvement which could result in her prosecution. Mrs. Schultz then stated: "Well, I just feel that anything that I say could be held criminally against me." The trial court accepted this statement as invoking her Fifth Amendment right.
If the state knows before trial that a witness will refuse to testify, then calling a witness for the purpose of raising inferences in a form not subject to cross-examination, can constitute prosecutorial misconduct *12 and may violate the confrontation clause of the Sixth Amendment in certain instances. State v. Blankinship, supra. Nothing in the record indicates that the prosecutor had prior knowledge that Mrs. Schultz did not intend to testify at trial. She appeared at trial under the false assumption that she would have immunity. When she discovered that immunity would not be granted, she refused to testify. There is no evidence in the record to indicate the state in any way contributed to Mrs. Schultz' misunderstanding of the immunity she had previously been granted. The state did not attempt to draw any inferences from the fact that Susan Schultz invoked her Fifth Amendment privilege; nor did the prosecutor ever mention such refusal to the jury.
Appellant next claims that the trial court erred in admitting two prior consistent statements of Judith Coffee. Det. Fuqua was permitted to offer testimony from his police report about what Judy Coffee had told him. The second instance also concerned Judy Coffee's statements to another police officer. Rule 801(d), Arizona Rules of Evidence, 17A A.R.S., provides in pertinent part, as follows:
"A statement is not hearsay if
(1) Prior statement by witness. The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is ...
(B) consistent with his testimony and is offered to rebut an express or implied charge against him of recent fabrication or improper influence or motive, .. ."
Appellant's primary defense was one of self-defense. Appellant's counsel cross-examined Judy Coffee and the other investigating officers at length regarding statements by Mrs. Coffee concerning the sequence of events and her powers of observation, especially her first report of the incident as compared to subsequent reports. In addition, appellant also raised issues pertaining to a possible misidentification. The cross-examination was obviously intended to raise the inference that Judy Coffee had recently fabricated her trial testimony or had been improperly influenced by the police during their investigation of the crime. The prior statements were admitted to rebut this inference.
The last claimed error concerns the following instruction given to the jury without any objection by appellant:
"Now, one who merely does an act which affords an opportunity for conflict is not precluded from claiming self defense. The defendant's burden with respect to his plea of self defense extends no further than to raise in your mind a reasonable doubt as to whether his act was justified."
Appellant contends that the instruction wrongfully places upon him the burden of proving a reasonable doubt. We do not agree. The instruction merely concerns appellant's burden of proof on the self-defense issue and was proper. See State v. Denny, 119 Ariz. 131, 579 P.2d 1101 (1978); and State v. Garcia, 114 Ariz. 317, 560 P.2d 1224 (1977).
Affirmed.
HATHAWAY and BIRDSALL, JJ., concur.
NOTE: This cause was decided by the Judges of Division Two as authorized by A.R.S. § 12-120(E).
NOTES
[1] See also Annot., 19 A.L.R. 4th 368 (1983).
| {
"pile_set_name": "FreeLaw"
} |
T.C. Summary Opinion 2010-146
UNITED STATES TAX COURT
CARLOS SADA, JR. AND AMANDA SADA, Petitioners v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 11362-08S. Filed September 27, 2010.
Carlos Sada, Jr. and Amanda Sada, pro sese.
Brooke S. Laurie, for respondent.
DAWSON, Judge: This case was heard pursuant to the
provisions of section 7463 of the Internal Revenue Code in effect
when the petition was filed.1 Pursuant to section 7463(b), the
decision to be entered is not reviewable by any other court, and
1
Unless otherwise indicated, references to sections other
than sec. 7463 are to the Internal Revenue Code (Code) in effect
for the years at issue, and Rule references are to the Tax Court
Rules of Practice and Procedure.
- 2 -
this opinion shall not be treated as precedent for any other
case.
Respondent determined the following deficiencies in
petitioners’ Federal income taxes and accuracy-related penalties
under section 6662(a) for 2004, 2005, and 2006:
Accuracy-Related Penalty
Year Deficiency Sec. 6662(a)
2004 $15,564 $3,112.80
2005 28,182 5,636.40
2006 27,264 5,452.80
Respondent filed an amended answer asserting that
petitioners are liable for an increased deficiency in income tax
of $21,125 (a $5,561 increase) and an increased penalty under
section 6662(a) of $4,225 (a $1,112.20 increase) for 2004, and an
increased deficiency in income tax of $33,288 (a $5,106 increase)
and an increased penalty under section 6662(a) of $6,657.60 (a
$1,021.20 increase) for 2005.
After concessions by the parties,2 the issues to be decided
are:
2
The parties agree that (1) subject to the limitations in
sec. 221(b), petitioners are allowed deductions for (A) student
loan interest payments of $141 in 2004, $165 in 2005, and $157 in
2006 and (B) tuition and fees expenses of $3,000 in 2006; (2)
petitioners omitted $49 of interest income from Texas State Bank
on their 2004 return; and (3) petitioners have substantiated
charitable contributions of $4,200 in 2004, $3,885 in 2005, and
$3,955 in 2006.
- 3 -
(1) Whether petitioners are entitled to deductions claimed
on Schedules C, Profit or Loss From Business (Sole
Proprietorship), of their 2004, 2005, and 2006 Federal income tax
returns;
(2) whether petitioners had gross receipts from a trade or
business as reported on Schedules C of their 2004, 2005, and 2006
returns;
(3) whether depreciation petitioners claimed on their 2003
return is subject to section 1245 recapture in 2004;
(4) whether petitioners are liable for self-employment taxes
on the gross receipts reported on Schedules C of their 2004,
2005, and 2006 returns and on gain realized on the sale of
section 1245 property in 2004, if any;
(5) whether petitioners are entitled to deduct under section
213 medical expenses of $17,083 for 2006; and
(6) whether petitioners are liable for accuracy-related
penalties under section 6662(a) for the years at issue.
Background
Some of the facts have been stipulated. The stipulation of
facts and the attached exhibits are incorporated herein by this
reference. Petitioners are married individuals who filed joint
Federal income tax returns for 2004, 2005, and 2006. Petitioners
resided in Texas when their petition was filed. They have two
children, who were ages 12 and 9 at the time of trial.
- 4 -
Petitioner Amanda Sada (Mrs. Sada) is a teacher and was
employed as such during the years at issue.
Petitioner Carlos Sada (Mr. Sada) has a bachelor of science
degree. He has been selling cars for 10 or 11 years. During the
years at issue, he worked as a new car sales manager at Boggus
Ford. As such he was entitled to purchase under the Ford D plan
one or two new cars each year at $100 over the invoice cost plus
tax, title, and license.
During the years at issue Mr. Sada purchased new vehicles
from Boggus Ford, kept them for about a year, and then traded
them in on the purchase of newer vehicles. The trade-in
allowances he received for the old vehicles were less than the
balances owed on the loans obtained to purchase the old vehicles.
He obtained sufficient financing on the purchase of the new
vehicles to pay off the balance owed on the old vehicles over the
amount of the trade-in allowance.
Mr. Sada and his wife used the vehicles for commuting and
other personal daily activities, but they kept a “for sale” sign
on each vehicle from the time of purchase until Mr. Sada traded
it in on a new one. Although Mr. Sada’s employment with Boggus
Ford generally did not involve selling used cars, he negotiated
the selling price of the vehicles he traded in. Petitioners
reported the purchases and sales of the vehicles as Mr. Sada’s
- 5 -
business activity on Schedules C of their 2004, 2005, and 2006
Federal income tax returns.
Mr. Sada owned two 2003 Toyota Sequoias--a desert-colored
Sequoia, which he had purchased for $36,171.35 in November 2002
at which time it had an odometer reading of 52 miles (the desert
2003 Sequoia), and another (the second 2003 Sequoia), for which
the record does not disclose the date of purchase, purchase
price, color, or odometer reading at time of purchase.3 He also
owned a 1998 Isuzu Trooper which he had purchased used for $5,500
to $6,000 in 2003. In 2004 he sold the Trooper in a cash
transaction for $7,500, making a profit of $2,000.
On November 18, 2004, Mr. Sada traded in the desert 2003
Sequoia for a gold 2005 Ford Expedition, which he purchased for
$38,251.71. He received a $27,500 allowance for the desert 2003
Sequoia and financed the balance of the purchase price. The
desert 2003 Sequoia had an odometer reading of 17,435 miles and a
3
Mr. Sada asserts that he owned only one 2003 Toyota
Sequoia. In respondent’s brief, respondent agrees that
petitioners did not own the second 2003 Sequoia. However, motor
vehicle purchase orders from Boggus Ford dated Nov. 18, 2004, and
July 8, 2005, indicate that: (1) Carlos Sada traded in a 2003
Toyota Sequoia, serial number ending 149129, on the Gold 2005
Ford Expedition that he acknowledges he purchased in 2004 and (2)
he traded in a 2003 Toyota Sequoia, serial number ending 150073,
on a white 2005 Ford Expedition that he acknowledges he purchased
in 2005. Mr. Sada also stipulated that he traded in the second
Sequoia on the white 2005 Expedition. Respondent’s concession is
clearly contrary to the stipulation and to the facts that we have
found are established by the record, and we shall disregard it.
See Cal-Maine Foods, Inc. v. Commissioner, 93 T.C. 181, 195
(1989).
- 6 -
payoff amount of $28,518 at the time of the trade-in. At the
time of the purchase the gold 2005 Expedition had an odometer
reading of 11 miles.
Mr. Sada purchased two vehicles in 2005. In July 2005 Mr.
Sada traded in the second 2003 Sequoia for a white 2005
Expedition. He purchased the white 2005 Expedition for
$37,310.21; he received a $22,000 allowance from the trade-in of
the second 2003 Sequoia towards the purchase price and financed
the balance. The second 2003 Sequoia had an odometer reading of
25,877 miles and a payoff amount of $25,947.81 at the time of the
trade-in. The white 2005 Expedition had an odometer reading of
37 miles at the time of purchase.
In December 2005 Mr. Sada traded in the gold 2005 Expedition
on a 2006 gray Expedition. He purchased the gray 2006 Expedition
for $37,631.16; he received a $32,000 allowance from the trade-in
of the gold 2005 Expedition towards the purchase price and
financed the balance. The gold 2005 Expedition had an odometer
reading of 10,078 miles and a payoff amount of $33,110 at the
time of the trade-in. The gray 2006 Expedition had an odometer
reading of 376 miles at the time of purchase and 13,771 miles on
April 19, 2007.
Mr. Sada purchased two vehicles in July 2006. He purchased
a white 2006 Ford Fusion for $22,428; he paid $500 down and
financed the balance. He also traded in the white 2005
- 7 -
Expedition on a black 2006 Ford F-250, which he purchased for
$42,205.75. He received a $30,000 allowance from the trade-in of
the white 2005 Expedition and financed the balance. At the time
of trade-in the white 2005 Expedition had an odometer reading of
9,186 miles and a payoff amount of $33,990.
Petitioners reported income on their 2003, 2004, 2005, and
2006 returns as follows:
2003 2004 2005 2006
Wages, salaries, tips, etc. $106,324 $143,027 $159,594 $188,737
Interest 16 -- 78 56
Business income (Schedule C) (35,635) (43,533) (97,782) (73,503)
Total income 70,705 99,494 61,890 115,290
Adjustments (223) (2,910) (250) (3,354)
Adjusted gross income 70,482 96,584 61,640 111,936
Petitioners filed an amended return for 2004, reducing their
adjusted gross income to $92,675 for a $3,909 overstatement of
wages.
Petitioners reported gross receipts, expenses, and net
losses on the purchases and sales of the vehicles on Schedules C
of their 2003, 2004, 2005, and 2006 Federal income tax returns,
as follows:
2003 2004 2005 2006
Income:
Gross receipts $1,325 $3,190 $4,269 $9,468
Cost of goods sold 7,850 -- -- --
Gross profit (6,525) 3,190 4,269 9,468
Expenses:
Advertising 1,249 150 -- --
Car/Truck expenses 778 2,948 -- 4,810
- 8 -
Depreciation 17,708 32,938 91,821 72,208
Insurance -- 2,880 --
Legal/professional services 1,250 1,350 500
Office expense 186 -- --
Rent/equipment 267
Repairs/maintenance 250 182 -- --
Supplies 113
Meals/entertainment 5,626 7,293 4,413 1,425
Cell phone 1,347 1,524 1,326 1,248
Internet 252 252 261 --
Roadrunner -- -- 580
Computer 1,520 -- -- 2,200
Total expenses 29,110 46,723 102,051 82,971
Net profit (loss) (35,635) (43,533) (97,782) (73,503)
Mr. Sada did not include the $7,500 he received on the sale
of the Isuzu Trooper in the gross receipts for 2004.
Mr. Sada reported the vehicles as 3-year property on Forms
4562, Depreciation and Amortization (Including Information on
Listed Property), attached to his joint returns for 2003 through
2006. The depreciation petitioners claimed for 2003 included a
special depreciation allowance of $12,750 and general
depreciation of $4,958 for property placed in service in 2003. The
depreciation petitioners claimed for 2004 included: (1) A special
depreciation allowance of $21,250 and general depreciation of $1,771
for property placed in service in 2003 and (2) MACRS depreciation
of $9,917 for assets place in service before 2004. The
depreciation petitioners claimed for 2005 included: (1) A
special depreciation allowance of $39,500 and general
depreciation of $5,188 for property placed in service in 2005 and
- 9 -
(2) MACRS4 depreciation of $45,570 for property placed in service
before 2005. The depreciation petitioners claimed for 2006
included: (1) A special depreciation allowance of $10,610 and
general depreciation of $5,655 for property placed in service in
2006 and (2) MACRS depreciation of $48,166 for property placed in
service before 2006.
On their 2004, 2005, and 2006 returns, petitioners claimed
the following deductions on Schedule A, Itemized Deductions:
Schedule A 2004 2005 2006
Medical/dental1 -- -- $8,688
Taxes $4,590 $6,449 6,273
Interest 5,770 4,948 7,720
Gifts to charity 5,500 4,090 3,935
Total deductions 15,860 15,487 26,616
1
Total medical expenses ($17,083 for 2006) over 7.5 percent of
adjusted gross income ($8,395 for 2006).
In addition to the itemized deductions claimed on Schedules
A, petitioners claimed deductions for: (1) Student loan interest
of $2,660 for 2004 and $104 for 2006, (2) educator expenses of
$250 each year, (3) tuition and fees of $2,660 for 2004, and (4)
domestic production activities of $3,000 for 2006. Petitioners
also claimed child tax credits of $2,000 for 2004 and 2005 and
$1,900 for 2006.
4
MACRS refers to the “Modified Accelerated Cost Recovery
System”. Generally, MACRS is used to depreciate any tangible
property placed in service after 1986.
- 10 -
On February 7, 2008, respondent mailed to petitioners a
statutory notice of deficiency for 2004, 2005, and 2006
disallowing their deductions for business expenses claimed on
Schedules C and increasing their taxable income by $46,723 for
2004, $102,051 for 2005, and $82,971 for 2006. As a result of
the disallowance of the deductions for the business expenses,
respondent determined that Mr. Sada was subject to self-
employment taxes of $85 for 2004, $114 for 2005, and $254 for
2006 on the gross receipts reported on the Schedules C and was
entitled to a deduction each year for one-half of the self-
employment tax.
Respondent also disallowed petitioners’ itemized deductions
claimed on Schedules A for medical expenses of $17,083 claimed
for 2006 and charitable contributions of $5,500, $4,090, and
$3,935 claimed respectively for 2004, 2005, and 2006. The
disallowance of those itemized deductions increased petitioners’
taxable income by $5,500 for 2004, $4,621 for 2005, and $13,571
for 2006. The adjustments to petitioners’ total income caused
the following computational adjustments: (1) The tuition and
fees deduction for 2006, the student loan interest deduction for
2006, the child tax credits for 2005 and 2006, and the education
credits for 2004 and 2005 were disallowed in full, and (2) the
child tax credit for 2004 was reduced to $500. Additionally,
- 11 -
respondent determined that petitioners were not liable for the
alternative minimum tax reported for 2006.
Discussion
I. Income (Loss) From Activity of Buying and Selling Vehicles
Mr. Sada contends that he purchased the vehicles during the
years at issue with the purpose of selling them at a profit and
properly reported the activity on Schedules C of his tax returns
for the years at issue. He therefore argues that the expenses
claimed on the Schedules C are deductible. To the contrary,
respondent asserts that Mr. Sada has not established that the
expenses were incurred in a trade or business within the meaning
of section 162 or for the production of income within the meaning
of section 212. Respondent asserts that the expenses are
personal expenses, deductions for which are disallowed by section
262.
A. Claimed Schedule C Expenses
Taxpayers generally may deduct expenses that are ordinary
and necessary in carrying on a trade or business. Sec. 162(a).
Taxpayers also generally may deduct expenses that are ordinary
and necessary for (1) the production or collection of income, or
(2) the management, conservation, or maintenance of property held
for the production of income. Sec. 212(1) and (2). Further,
while business expenses and expenses related to income-producing
property are currently deductible, a taxpayer is not entitled to
- 12 -
deduct a capital expenditure (i.e., an amount paid out for new
buildings or for permanent improvements or betterments made to
increase the value of any property or estate),5 sec. 263(a)(1),
but may be allowed a depreciation deduction if the property is
used in a trade or business or is held for the production of
income, sec. 167; see INDOPCO, Inc. v. Commissioner, 503 U.S. 79,
83-84 (1992). Personal, living, and family expenses, on the
other hand, generally may not be deducted to any extent unless
otherwise expressly allowed in the Code (e.g., State and local
real property taxes are deductible pursuant to section
164(a)(1)). Sec. 262(a). The prohibitions of section 262
regarding deductibility of personal expenses take precedence over
the allowance provisions of sections 162 and 212. Commissioner
v. Idaho Power Co., 418 U.S. 1, 17 (1974); Sharon v.
Commissioner, 66 T.C. 515, 523 (1976), affd. 591 F.2d 1273 (9th
Cir. 1978). As stated by the Supreme Court in Commissioner v.
Groetzinger, 480 U.S. 23, 35 (1987):
not every income-producing and profit-making endeavor
constitutes a trade or business. * * * [T]o be engaged
in a trade or business, the taxpayer must be involved
in the activity with continuity and regularity and
* * * the taxpayer’s primary purpose for engaging in
the activity must be for income or profit. * * *
5
Sec. 1.263(a)-2(a), Income Tax Regs., generally provides:
“The cost of acquisition * * * of * * * property having a useful
life substantially beyond the taxable year” is a capital
expenditure.
- 13 -
In order to be deductible, vehicle expenses must be incurred
in the pursuit of a trade or business. Sec. 162(a). Expenses
incurred in commuting from a residence to a business or in the
course of other personal use are nondeductible personal expenses.
Sec. 262; Green v. Commissioner, 59 T.C. 456 (1972). Similarly,
automobile depreciation is permitted as a deduction only if, and
to the extent that, the automobile is used in the pursuit of a
trade or business or for the production of income. Sec. 167(a).
The ownership and maintenance of the property must relate
primarily to a business or profit-making endeavor, rather than a
personal purpose. Intl. Artists, Ltd. v. Commissioner, 55 T.C.
94, 104 (1970); Chapman v. Commissioner, 48 T.C. 358, 366 (1967).
If the acquisition and maintenance of property such as an
automobile are primarily profit motivated and personal use is
distinctly secondary and incidental, deductions for maintenance
expenses and depreciation will be permitted; if acquisition and
maintenance are motivated primarily by personal considerations,
deductions are disallowed; and if substantial business and
personal motives exist, allocation becomes necessary. Intl.
Trading Co. v. Commissioner, 275 F.2d 578, 584-587 (7th Cir.
1960), affg. T.C. Memo. 1958-104; Intl. Artists, Ltd. v.
Commissioner, supra at 104-105; Deihl v. Commissioner, T.C. Memo.
2005-287; Mann v. Commissioner, T.C. Memo. 1981-684. If
allocation is necessary, the deduction for allocable business use
- 14 -
in such cases is computed by reference to the ratio of time or
space devoted to business as compared with total use. Intl.
Artists, Ltd. v. Commissioner, supra at 105.
Over the years, courts have considered a variety of factors
in determining the taxpayer’s primary purpose for holding
property, including: (1) The taxpayer’s purpose in acquiring the
property and the duration of his ownership, (2) the purpose for
which the property was subsequently held, (3) the taxpayer’s
everyday business and the relationship of income from the
property to total income, (4) the frequency, continuity, and
substantiality of the sales, (5) the extent to which the taxpayer
used advertising, promotion, or other activities to increase
sales, and (6) the time and effort the taxpayer habitually
devoted to the sales. United States v. Winthrop, 417 F.2d 905,
910 (5th Cir. 1969); Cottle v. Commissioner, 89 T.C. 467, 487
(1987); Raymond v. Commissioner, T.C. Memo. 2001-96; Neal T.
Baker Enters., Inc. v. Commissioner, T.C. Memo. 1998-302; Nadeau
v. Commissioner, T.C. Memo. 1996-427; Tollis v. Commissioner,
T.C. Memo. 1993-63, affd. without published opinion 46 F.3d 1132
(6th Cir. 1995). Although these factors may aid the finder of
fact in determining, on the entire record, the taxpayer’s primary
purpose for holding property, they have no independent
significance and individual comment on each factor is not
necessary or required. Cottle v. Commissioner, supra at 487-489;
- 15 -
see also Suburban Realty Co. v. United States, 615 F.2d 171,
177-179 (5th Cir. 1980); Hay v. Commissioner, T.C. Memo.
1992-409.
Mr. Sada asserts that he purchased the vehicles intending to
make a profit by selling them at the manufacturer’s suggested
retail price over his employee bargain purchase price. As an
experienced new car salesman, Mr. Sada had reason to know that a
new car purchaser most often can negotiate a price that is less
than the manufacturer’s suggested retail price. Indeed, it is
not unusual for new car dealers to advertise a promotional price
below the manufacturer’s suggested retail price. Moreover, the
new vehicles became “used” once Mr. Sada drove them off the car
lot. Mr. Sada merely placed “for sale” signs on the vehicles and
did not use any other advertising, promotion, or other activities
to increase sales. He made no effort toward and devoted no time
to the sales other than driving the vehicles for commuting and
other personal purposes. Mr. Sada held the vehicles for more
than a year, and he and Mrs. Sada used the vehicles solely for
personal purposes. He traded in the used vehicles on new ones
and did not sell them to end users. The frequency, continuity,
and substantiality of the sales are consistent with usual
consumer ownership and do not show a profit-making motive.
Although Mr. Sada may have hoped to make profits on the
sales of his vehicles, that is not sufficient to convert
- 16 -
inherently personal expenses into deductible business expenses.6
Sapp v. Commissioner, 36 T.C. 852 (1961), affd. 309 F.2d 143 (5th
Cir. 1962); see also Finney v. Commissioner, T.C. Memo. 1980-23
(because the automobile was used 100 percent of the time for
personal reasons, any business deductions with respect to that
automobile taken on the taxpayers’ joint return for the taxable
years in issue were properly denied under section 262).
We note that, had we found that Mr. Sada was in the trade or
business of selling the vehicles or held them for the production
of income, sections 274 and 280F provide further limitations with
potential bearing on business-related deductions claimed under
section 162 or 167. Pursuant to section 274(d), no deduction or
credit is allowed with respect to any listed property, within the
meaning of section 280F(d)(4) unless the taxpayer substantiates
by adequate records or sufficient evidence corroborating the
taxpayer’s own statement: (1) The amount of the expense; (2) the
time and place of the use of the property; and (3) the business
purpose of the expense. Sec. 274(d); Vaksman v. Commissioner,
6
The purchase of a personal vehicle is analogous to the
purchase of a residence. Although people who buy residential
property generally are interested in making a later profitable
sale, the purchase or construction of a personal residence
generally is not considered a transaction entered into for
profit. “A loss sustained on the sale of residential property
purchased or constructed by the taxpayer for use as his personal
residence and so used by him up to the time of the sale is not
deductible under section 165(a).” Sec. 1.165-9(a), Income Tax
Regs.
- 17 -
T.C. Memo. 2001-165, affd. 54 Fed. Appx. 592 (5th Cir. 2002).
Section 280F limits the allowable amount of depreciation for
“listed property” to a multiple equal to the percentage of actual
business use. A.J. Concrete Pumping, Inc. v. Commissioner, T.C.
Memo. 2001-42; sec. 1.280F-2T(i), Temporary Income Tax Regs., 49
Fed. Reg. 42707 (Oct. 24, 1984). Pursuant to section
280F(d)(4)(A)(i) and (ii), passenger automobiles and any other
property used as a means of transportation are “listed property”
subject to the strict substantiation requirements of section
274(d). Cellular telephones are also “listed property” subject
to the strict substantiation requirements of section 274. Mr.
Sada failed to submit any documentation to establish the business
use of his cellular telephone.
Similarly, Mr. Sada has failed to provide any evidence of a
business purpose for all other expenses claimed on Schedules C of
petitioners’ income tax returns for the years at issue.
Accordingly, we hold that petitioners are not entitled to deduct
any of the expenses claimed on Schedules C for those years
because Mr. Sada was not in the business of selling cars as a
sole proprietor and did not hold the vehicles for the production
of income.
B. Gross Receipts Reported on Schedules C
Respondent disallowed all the expenses claimed on the
Schedules C but did not make any adjustments to the gross
- 18 -
receipts. We have held that Mr. Sada was not in the trade or
business of selling the vehicles and did not hold the vehicles
for the production of income. Consequently, Mr. Sada did not
have Schedule C gross receipts from his purchase and sale of the
vehicles. Therefore, the gross receipts should be eliminated
from the computations of petitioners’ taxes for the years at
issue.
C. Gain or Loss on Sales of Vehicles
1. Desert 2003 Sequoia
In the amended answer respondent asserts that petitioners
must “recapture” the depreciation on vehicles claimed on Schedule
C in 2003 in the year of the sale of the vehicle; i.e., gain on
the sale of the vehicles attributable to depreciation deductions
they claimed on their 2003 return is taxable as ordinary income
in the year of sale. Respondent has the burden of proving any
new matter pleaded in the amended answer. See Rule 142(a); Canal
Corp. v. Commissioner, 135 T.C. , (2010) (slip op. at 30).
Respondent was uncertain whether the depreciation claimed on
petitioners’ 2003 return should be recaptured in 2004, when the
desert 2003 Sequoia was traded in, or 2005, when the second 2003
Sequoia was traded in. Therefore, in the amended answer
respondent asserted the full amount of the recapture in each tax
year 2004 and 2005.
- 19 -
Motor vehicle purchase orders from Boggus Ford dated
November 18, 2004, and July 8, 2005, indicate that: (1) Mr. Sada
traded in the desert 2003 Sequoia (serial number ending 149129)
on the Gold 2005 Expedition, which he acknowledges he purchased
in 2004, and (2) he traded in another 2003 Toyota Sequoia with a
different serial number (ending 150073) on the white 2005
Expedition, which he acknowledges he purchased in 2005. However,
Mr. Sada denied owning a 2003 Sequoia other than the desert 2003
Sequoia. He testified that the depreciation deduction claimed on
the 2003 return was for the desert 2003 Sequoia, and we so find.
Respondent’s position on brief is that in 2004 Mr. Sada is
required to recapture as ordinary income $9,037 of the
depreciation deducted in 2003 for the desert 2003 Sequoia and he
is not required to recapture any of the depreciation deductions
in 2005.
Although Mr. Sada was not in the trade or business of
selling the vehicles and did not hold the vehicles for the
production of income, petitioners must report on their returns
for the years at issue any gains Mr. Sada realized on sales of
the vehicles when he traded them in for new ones.
Section 1001 provides that gain from the sale or other
disposition of property equals the excess of the amount realized
from the sale over the adjusted basis in the property sold.
- 20 -
The amount of gain realized is the excess of the amount
realized over the taxpayer’s adjusted basis in the property, and
the amount of loss realized is the excess of the adjusted basis
over the amount realized. Sec. 1001(a). For purposes of
computing gain or loss, the “amount realized” is defined by
section 1001(b) as the sum of any money received plus the fair
market value of the property received. Furthermore, the amount
realized generally includes the amount of liabilities from which
the transferor is discharged as a result of the sale or
disposition. Crane v. Commissioner, 331 U.S. 1 (1947); sec.
1.1001-2(a), Income Tax Regs. While the amount realized by the
seller includes the amount of any debt secured by the property
that is assumed by the purchaser, settlement charges to the
seller used to pay off an existing loan do not increase the
amount realized on the sale of property. See Kurata v.
Commissioner, T.C. Memo. 1997-252. In such an instance, the
seller has paid the debt; there is no cancellation or forgiveness
of the indebtedness. Here, Boggus Ford did not assume the
outstanding loans on the old vehicles. Mr. Sada effectively paid
off the outstanding balances with the trade-in allowances and the
new financing for the purchase of the new vehicles. The amount
realized by Mr. Sada on the trade-in of the desert 2003 Toyota
was the $27,500 trade-in allowance he received.
- 21 -
Generally, the adjusted basis of property equals its
original cost, increased by expenditures properly chargeable to
capital account, and decreased by the greater of amounts allowed
or allowable as depreciation deductions. Secs. 1011, 1012,
1016(a)(1) and (2). Thus, if the taxpayer claimed depreciation
deductions and the Internal Revenue Service did not audit the
return or otherwise disallow the deductions, the full amounts of
depreciation deductions claimed by the taxpayer decrease the
basis in the property even if the deductions were not properly
allowable. Sec. 1016(a)(2); sec. 1.1016-3(a)(1), (b), Income Tax
Regs.
Mr. Sada purchased the desert 2003 Sequoia for $36,171.35 in
November 2002. On Form 4562 of his 2003 return he reported that
it was placed in service in 2003, and he deducted $17,708 on
Schedule C. Petitioners’ 2003 return was not audited, and Mr.
Sada was allowed a deduction for the depreciation claimed for the
desert 2003 Sequoia on the 2003 return. Thus, his basis in the
desert 2003 Sequoia was reduced to $18,463.35 ($36,171.35 -
$17,708). In 2004 Mr. Sada received a $27,500 trade-in allowance
towards the purchase price of the Gold 2005 Expedition. Thus, he
realized $9,036.65 of gain on the disposition of the desert 2003
Sequoia in 2004.
- 22 -
Respondent asserts that pursuant to section 1245(a)(1), Mr.
Sada is required to recognize the $9,036.65 gain as ordinary
income in 2004.
Section 1245(a)(1) provides for the recapture of
depreciation as ordinary income upon the disposition of section
1245 property. As relevant here, section 1245 property includes
personal property “which is or has been property of a character
subject to the allowance for depreciation provided in section
167”. Section 167(a) provides the following general rule:
There shall be allowed as a depreciation deduction a
reasonable allowance for the exhaustion, wear and tear
(including a reasonable allowance for obsolescence)--
(1) of property used in the trade or business, or
(2) of property held for the production of income.
We have held that Mr. Sada did not use the vehicles for
which he claimed depreciation, including the desert 2003 Sequoia,
in a trade or business or for the production of income.
Consequently, the desert 2003 Sequoia is not section 1245
property.
Nonetheless, respondent argues that petitioners must
“recognize the recapture income” because they treated the desert
2003 Sequoia as section 1245 property by claiming depreciation
deductions for it on their 2003 return and the period of
limitations for 2003 has expired, so that respondent cannot
adjust petitioners’ 2003 return by disallowing the improperly
- 23 -
claimed depreciation for that year. In support of that position
respondent cites Herrington v. Commissioner, 854 F.2d 755 (5th
Cir. 1988), affg. Glass v. Commissioner, 87 T.C. 1087 (1986),
which applies the duty of consistency.
The duty of consistency applies when: (1) The taxpayer made
a representation or reported an item for Federal income tax
purposes in one year, (2) the Commissioner acquiesced in or
relied on that representation or report for that year, and (3)
the taxpayer attempts to change that representation or report in
a subsequent year, after the period of limitations has expired
with respect to the year of the representation or report, and the
change is detrimental to the Commissioner. LeFever v.
Commissioner, 103 T.C. 525, 543 (1994), affd. 100 F.3d 778 (10th
Cir. 1996); see also Herrington v. Commissioner, supra at 758.
When these requirements are met, the Commissioner may treat the
previous representation by the taxpayer as true, although, in
fact, it is not. Herrington v. Commissioner, supra at 758. The
duty of consistency is an affirmative defense raised by
respondent, and respondent has the burden of showing that it
applies. See rule 142(a). Respondent did not raise the duty of
consistency as an affirmative defense in the amended answer but
merely alluded to it in respondent’s opening brief by citing
Herrington. Moreover, as discussed below, respondent has not
shown that the third requirement has been met and, thus, has not
- 24 -
met his burden of establishing that the duty of consistency
applies.
On Form 4562 of petitioners’ 2003 return Mr. Sada reported
that depreciable property was placed in service in 2003, and he
claimed a depreciation deduction of $17,708 on Schedule C. Thus,
the first requirement is met.
The Commissioner acquiesces or relies on a representation of
the taxpayer when the taxpayer files a return that contains an
inadequately disclosed item and the Commissioner accepts that
return and allows the period of limitations to expire without an
audit of that return. Herrington v. Commissioner, supra at 758.
Petitioners’ 2003 return was not audited, and Mr. Sada was
allowed a deduction for the depreciation claimed for the desert
2003 Sequoia on the 2003 return. Thus, the second requirement is
also met.
However, Mr. Sada never took an inconsistent position with
respect to his activity of buying and selling the vehicles.
Petitioners’ 2004 return claimed depreciation for property placed
in service before 2003. When respondent audited petitioners’
2004 return, respondent disallowed that depreciation deduction.
The 2004 return put respondent on notice that Mr. Sada likely
claimed depreciation for that property on his 2003 return.
Respondent has not established that the period of limitations for
- 25 -
assessing additional tax for 2003 had expired when the audit of
petitioners’ 2004 return was completed.
Because respondent did not raise the duty of consistency as
an affirmative defense in the amended answer and has not met the
burden of establishing that the duty of consistency applies in
this case, we hold that Mr. Sada is not subject to the recapture
provisions of section 1245. Mr. Sada purchased the desert 2003
Sequoia in November 2002 and disposed of it in November 2004.
The gain he realized is taxable in 2004 as long-term capital gain
and not as ordinary income. See sec. 1222(3).
2. Other Vehicles
The record establishes that the trade-in allowances Mr. Sada
received for all of the vehicles was less than the amounts he
paid for them. Mr. Sada has not been allowed the depreciation
deductions he claimed on the vehicles except for the depreciation
deductions he claimed for the desert 2003 Sequoia on petitioners’
2003 return. Consequently, Mr. Sada realized losses on the other
vehicles when he traded them in.
Section 165(a) generally allows a deduction for any loss
sustained during the taxable year that is not compensated by
insurance or otherwise. However, in the case of an individual,
section 165(c) limits deductible losses that are not incurred
either in a trade or business or a transaction entered into for
profit to losses arising from fire, storm, shipwreck, or other
- 26 -
casualty or from theft. A loss sustained on the sale of a
vehicle used exclusively for personal use is not deductible
pursuant to section 165(c), and petitioners may not deduct Mr.
Sada’s losses on the vehicles.
II. Self-Employment Taxes
Respondent determined that Mr. Sada was liable for self-
employment tax on the gross receipts he reported on the Schedule
C for each year at issue and allowed petitioners a deduction for
half of those taxes. We have held that those gross receipts are
not included in Mr. Sada’s income. Consequently, he is not
subject to self-employment taxes on the gross receipts reported
on the Schedules C for the years at issue.
III. Medical Expenses
Respondent disallowed petitioners deduction for medical
expenses of $8,688 claimed on Schedule A of their 2006 return.
Section 213(a) allows a deduction for expenses paid during the
taxable year for medical care that are not compensated for by
insurance or otherwise and to the extent that such expenses
exceed 7.5 percent of adjusted gross income. For 2006
petitioners reported total medical expenses of $17,083 and
adjusted gross income of $111,936. Their adjusted gross income
for 2006 is increased by $73,503 to $185,439 for the disallowed
net loss claimed on Schedule C for that year. Consequently, if
petitioners had substantiated the amount of medical expenses they
- 27 -
paid in 2006, they could have deducted only medical expenses in
excess of $13,908.
At trial Mr. Sada produced receipts and statements regarding
medical services provided to him and his family during the years
at issue. He provided explanations of benefits from Mutual of
Omaha for 2004 and most of 2005 and from American Administrative
Group for the end of 2005 and all of 2006. The explanations of
benefits indicate that the medical insurance was provided through
Mrs. Sada’s employment. The Mutual of Omaha explanations of
benefits show that Mrs. Sada and the rest of the Sada family were
also covered by another insurance carrier and show the amount of
the claim paid by coinsurance. The explanations of benefits from
American Administrative Group did not show the amount paid by
coinsurance. Mr. Sada did not provide the Court with the other
carrier’s explanation of benefits.
Of the two dozen receipts for 2006, all but two were for $45
or less. One receipt was for $269. A receipt dated March 28,
2006, from a surgeon indicates that Mrs. Sada paid a $500 cash
deposit for surgery on March 31, 2006. Her insurance company’s
explanation of benefits shows a claim totaling $8,450 for
services provided by that surgeon to Mrs. Sada on March 31, 2006.
The explanation states that the claim was being denied because it
was filed late. Petitioners did not provide an explanation of
- 28 -
benefits from the coinsurance or a statement of Mrs. Sada’s
account from the surgeon.
Although Mr. Sada produced the receipt for the cash deposit
for the surgery, as well as receipts for smaller amounts that he
or Mrs. Sada paid in cash for medical services on other dates, he
did not provide a receipt from the surgeon or a canceled check
showing that petitioners had in fact paid any or all of the
$8,450. He did not provide any evidence of cash withdrawals used
to pay the bill, and the bank records Mr. Sada produced did not
show any cash withdrawals large enough to pay the bill.
Accordingly, we hold that petitioners have failed to
substantiate that they paid medical expenses in excess of 7.5
percent of their adjusted gross income for 2006.
IV. Accuracy-Related Penalties
Initially, the Commissioner has the burden of production
with respect to any penalty, addition to tax, or additional
amount. Sec. 7491(c). The Commissioner satisfies this burden of
production by coming forward with sufficient evidence that
indicates it is appropriate to impose the penalty. See Higbee v.
Commissioner, 116 T.C. 438, 446 (2001). Once the Commissioner
satisfies this burden of production, the taxpayer must persuade
the Court that the Commissioner’s determination is in error by
supplying sufficient evidence of an exception. Id.
- 29 -
Respondent determined an accuracy-related penalty against
petitioners under section 6662(a) for each of the years at issue.
Section 6662(a) and (b)(1) imposes a penalty in an amount equal
to 20 percent of the portion of the underpayment attributable to
negligence or disregard of rules or regulations. “Negligence”
includes any failure by the taxpayer to make a reasonable attempt
to comply with the provisions of the Internal Revenue Code, to
keep adequate books and records, or to substantiate items
properly. See 6662(c); sec. 1.6662-3(b)(1), Income Tax Regs.
The term “disregard” includes any careless, reckless, or
intentional disregard. Sec. 6662(c). Disregard of rules or
regulations is careless if the taxpayer does not exercise
reasonable diligence to determine the correctness of a return
position that is contrary to the rule or regulation. Sec.
1.6662-3(b)(2), Income Tax Regs. A taxpayer is not liable for
the penalty if he shows that he had reasonable cause for the
underpayment and that he acted in good faith. Sec. 6664(c).
Respondent has established that there is an underpayment of
tax for each of the years at issue attributable to
unsubstantiated itemized deductions claimed on Schedules A and
net losses claimed on Schedules C for Mr. Sada’s purchases and
sales of vehicles that petitioners used solely for personal
purposes. Petitioners failed to maintain and produce adequate
records to substantiate the deductions they claimed on the
- 30 -
Schedules A and C. The records they produced were incomplete and
thus misleading. The law is clear that deductions for vehicles
used solely for personal purposes are not allowed. Accordingly,
respondent has met the burden of production with respect to the
accuracy-related penalty for each year at issue.
Section 6664(c) provides that the section 6662(a) penalty
shall not apply to any portion of an underpayment if it is shown
that there was reasonable cause for such portion and the taxpayer
acted in good faith. Whether a taxpayer acted with reasonable
cause and in good faith is determined on a case-by-case basis,
taking into account all relevant facts and circumstances,
including the taxpayer’s experience, knowledge, and education.
Sec. 1.6664-4(b)(1), Income Tax Regs. Generally, the most
important fact is the taxpayer’s effort to assess the proper
liability. Id.
Reliance on a tax professional may demonstrate that the
taxpayer had reasonable cause and acted in good faith where the
taxpayer establishes that: (1) The adviser was a competent
professional with sufficient expertise to justify the taxpayer’s
reliance, (2) the taxpayer provided the adviser with necessary
and accurate information, and (3) the taxpayer actually relied in
good faith on the adviser’s judgment. 3K Inv. Partners v.
Commissioner, 133 T.C. 112, 117 (2009); DeCleene v. Commissioner,
- 31 -
115 T.C. 457, 477 (2000); Sklar, Greenstein & Scheer, P.C. v.
Commissioner, 113 T.C. 135, 144-145 (1999).
Petitioners have not established that their reliance on
their return preparer was reasonable or in good faith. First,
petitioners presented no evidence with respect to their return
preparer’s experience or qualifications. Petitioners’ return
preparer attended the trial but did not testify. Mr. Sada stated
that the return preparer was neither an accountant nor an
enrolled agent. Second, petitioners did not establish that they
provided necessary and accurate information to the return
preparer, particularly regarding the purchases and sales of the
vehicles. Petitioners presented no evidence regarding what, if
anything, Mr. Sada discussed with the return preparer. Finally,
petitioners did not establish that they actually relied in good
faith on the return preparer’s judgment. Mr. Sada hired him
because he “came highly recommended”. Mr. Sada initially
testified that his return preparer had been recommended to him by
“more than a thousand people” but later reduced the number to “a
couple dozen people”. However, Mr. Sada knew nothing of the
preparer’s qualifications except that “he has a license to be in
business as a tax preparer” and “has prepared thousands of income
tax returns for people.” Mr. Sada did not investigate whether
his return preparer was a certified public accountant. Mr. Sada
did not establish that his return preparer was a competent
- 32 -
professional with sufficient expertise to justify his reliance on
him.
Petitioners did not seek professional advice from an
accountant or an attorney. They have not shown that they acted
with reasonable cause or made a good faith effort to properly
report their taxes for the years at issue.
Accordingly, we hold that petitioners are liable for the
accuracy-related penalties under section 6662(a) for 2004, 2005,
and 2006.
We have considered all arguments made, and, to the extent
not mentioned, we conclude they are moot, irrelevant or without
merit.
To reflect the foregoing, and the concessions of the
parties,
Decision will be entered
under Rule 155.
| {
"pile_set_name": "FreeLaw"
} |
691 F.2d 508
U. S.v.Arrellanno-Arteaga
81-1580
UNITED STATES COURT OF APPEALS Ninth Circuit
9/9/82
1
C.D.Cal.
AFFIRMED
| {
"pile_set_name": "FreeLaw"
} |
539 U.S. 984
Whittenburgv.United States, ante, p. 952.
No. 02-10821.
Supreme Court of United States.
August 25, 2003.
1
Petition for rehearing denied.
| {
"pile_set_name": "FreeLaw"
} |
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
__________________________________________
)
EMMANUEL N. LAZARIDIS, )
)
Plaintiff, )
)
v. ) Civil Action No. 09-1177 (RMC)
)
UNITED STATES DEPARTMENT OF )
JUSTICE, et al., )
)
Defendants. )
__________________________________________)
MEMORANDUM OPINION
In this pro se civil action, plaintiff Emmanuel N. Lazaridis, who is suing also on
behalf of his minor daughter, V.L, seeks records under the Freedom of Information Act (“FOIA”),
5 U.S.C. § 552, from the United States Department of Justice (“DOJ”), the National Center for
Missing and Exploited Children (“NCMEC”) and the International Centre for Missing and Exploited
Children (“ICMEC”). In addition, Mr. Lazaridis seeks relief under 28 U.S.C.
§ 1782(a) to “compel . . . testimony and documents [from NCMEC and ICMEC] as may not be
obtained under the FOIA, for use in proceedings before foreign tribunals.”1 Compl. ¶¶ 1, 83-94.
1
The Court previously determined that § 1782 does not create a private cause of action but rather
is a mechanism for foreign or international tribunals or litigants appearing before them to obtain
testimony or discovery via the “district court of the district in which a person resides or is found” for
use in the foreign tribunal. 28 U.S.C. § 1782(a). This Court may issue an order compelling
testimony or discovery “pursuant to a letter rogatory issued, or request made, by a foreign or
international tribunal or upon the application of any interested person[.]” Mr. Lazaridis makes clear
that he is invoking this statute only against NCMEC and ICMEC, see Mem. of P. & A. in Support
of the Plaintiff’s Cross Motion for Summary Judgment on Claims 1 and 2 (“Pl.’s Mem.”) at 1 n.1,
neither of which “resides” in the District of Columbia but arguably “is found” here. Presumably
because Mr. Lazaridis’ need for such relief is contingent upon his inability to obtain information
under the FOIA, he has not specified “the testimony or statement to be given, or the document[s] .
. . to be produced.” 28 U.S.C. § 1782(a). His application, see Compl. at 20 (“Fourth Cause of
(continued...)
Pending before the Court are DOJ’s motion to dismiss under Federal Rule of Civil
Procedure 12(b)(1) for lack of subject matter jurisdiction and Rule 12(b)(6) for failure to state a
claim upon which relief can be granted [Dkt. # 27], NCMEC and ICMEC’s joint motion to dismiss
under Rule 12(b)(6) [Dkt. # 18] and Mr. Lazaridis’ motion for summary judgment on “Claims 1 and
2” [Dkt. # 30]. Upon consideration of the parties’ submissions, the Court will grant NCMEC and
ICMEC’s motion to dismiss, grant in part and deny in part DOJ’s motion to dismiss, and deny Mr.
Lazaridis’ motion for summary judgment.
I. BACKGROUND
A. DOJ Records
Mr. Lazaridis, who resides in Greece, alleges that on August 22, 2005, he submitted
three FOIA requests to DOJ for records maintained by the Executive Office for United States
Attorneys (“EOUSA”), the Federal Bureau of Investigation (“FBI”) and the United States National
Central Bureau of INTERPOL. Compl. ¶ 9. He requested “written audio, video or electronic
records” pertaining to himself and V.L. “dating from 2002 to 2005.” Id. ¶ 10. DOJ denied Mr.
Lazaridis’ requests because of his alleged fugitive status. Id. ¶ 11. On November 13, 2008, Mr.
Lazaridis submitted four requests to DOJ for the same type of records but “dating from 2002 to
2008.” Id. ¶ 13. INTERPOL denied Mr. Lazaridis’ request for V.L.’s records based on its
determination that he was in violation of two state court judgments awarding custody of V.L. to his
ex-wife and, thus, “lack[ed] the capacity to make a [FOIA] request for [his] daughter’s records on
her behalf[.]” Id. ¶ 14 (quoting “Denial of March 27, 2009").
1
(...continued)
Action”), is not only too broad to support an order authorized by § 1782 but is also premature. Only
the FOIA claims are properly before the Court.
2
B. NCMEC and ICMEC Records
Mr. Lazaridis alleges that on November 13, 2008, he submitted two requests to
NCMEC and to ICMEC, both based in Alexandria, Virginia, “for records pursuant to the Privacy
Act 1974, the FOIA and Virginia Code § 2.2-3806.” Id. ¶ 15. Each organization denied Mr.
Lazaridis’ request on the basis that it was a private, non-profit organization not subject to the Privacy
Act or the FOIA. Id. ¶¶ 16-17. Mr. Lazaridis filed this civil action on June 26, 2009.
II. LEGAL STANDARD
The Court’s jurisdiction under the FOIA extends only to claims arising from the
improper withholding of agency records. 5 U.S.C. § 552(a)(4)(B); McGehee v. CIA, 697 F.2d 1095,
1105 (D.C. Cir. 1983) (quoting Kissinger v. Reporters Committee for Freedom of the Press, 445
U.S. 136, 150 (1980)). As a general rule, the requestor’s identity and need for the records are
irrelevant to the FOIA analysis. See U.S. Dep’t of Justice v. Reporters Comm. for Freedom of the
Press, 489 U.S. 749, 770-71 (1989); Swan v. S.E.C., 96 F.3d 498, 499-500 (D.C. Cir. 1996); North
v. Walsh, 881 F.2d 1088, 1096-97 (D.C. Cir. 1989). Therefore, the Court, unlike the parties, will
confine its discussion to the FOIA issues at hand.2
At this pleading stage, a complaint may be dismissed for failure to state a claim upon
a determination that the plaintiff cannot establish “any set of facts consistent with the allegations in
the complaint” to support the alleged violation. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555
(2007) (citations omitted). “A pleading that [merely] offers ‘labels and conclusions’[,] ‘a formulaic
recitation of the elements of a cause of action’ [or] ‘naked assertion[s]’ devoid of ‘further factual
enhancement’” cannot survive a Rule 12(b)(6) motion to dismiss. Ashcroft v. Iqbal, 129 S.Ct. 1937,
2
The Court will deny Mr. Lazaridis’ motion for summary judgment on Claims 1 and 2 because, as
will become apparent, it is predicated on facts immaterial to the FOIA issues.
3
1949 (2009) (quoting Twombly). In ruling on a motion to dismiss, the Court need not accept legal
conclusions cast as factual allegations, Warren v. District of Columbia, 353 F.3d 36, 40 (D.C. Cir.
2004), or “inferences drawn by [the plaintiff] if such inferences are unsupported by the facts set out
in the complaint,” Kowal v. MCI Communications Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994).
III. ANALYSIS
A. Subject Matter Jurisdiction
On a motion to dismiss for lack of subject matter jurisdiction, the plaintiff bears the
burden of establishing that the court has subject matter jurisdiction. Lujan v. Defenders of Wildlife,
504 U.S. 555, 561 (1992); Delaney v. District of Columbia, 612 F. Supp. 2d 38, 42 (D.D.C. 2009)
(citing cases). "The defect of standing is a defect in subject matter jurisdiction." Haase v. Sessions,
835 F.2d 902, 906 (D.C. Cir. 1987).
DOJ argues correctly that Mr. Lazaridis lacks standing to sue on V.L.’s behalf
because he is neither an attorney nor V.L.’s duly appointed representative as defined by Federal Rule
of Civil Procedure 17(c)(1). Pursuant to 28 U.S.C. § 1654, “the parties [in federal court] may plead
and conduct their own cases personally or by counsel as, by the rules of such courts, respectively,
are permitted to manage and conduct causes therein.” In other words, a lay person such as Mr.
Lazaridis can appear pro se but is not qualified to appear as counsel for others. Georgiades v.
Martin-Trigona, 729 F.2d 831, 834 (D.C. Cir. 1984); accord Delaney v. District of Columbia, 612
F. Supp. 2d 38, 41 (D.D.C. 2009). Moreover, Mr. Lazaridis has not established that he is V.L.’s
“general guardian” or “a like fiduciary,” Fed. R. Civ. P. 17(c)(1), under District of Columbia law.
See Brimhall v. Simmons, 338 F.2d 702, 706 (6th Cir. 1964) (concluding that under Fed. R. Civ. P.
17(b) and (c), “the capacity to sue by one acting in a representative capacity shall be determined by
4
the law of the state in which the district court is held”).3 The Court therefore will grant DOJ’s Rule
12(b)(1) motion to dismiss the claims brought on behalf of V.L.
B. NCMEC and ICMEC’s Motion
The FOIA creates a cause of action only against federal agencies and agency
components of the executive branch of the United States. See Sherwood Van Lines, Inc. v. U.S.
Dep’t of Navy, 732 F. Supp. 240, 241 (D.D.C. 1990). They include "any executive department,
military department, Government corporation, Government controlled corporation, or other
establishment in the executive branch of Government (including the Executive Office of the
President ), or any independent regulatory agency[.]" 5 U.S.C. § 552(f)(1).
NCMEC and ICMEC argue that as private, non-profit organizations, they are not
subject to the FOIA’s disclosure requirements. Mr. Lazaridis appears to concede this issue, see
Response in Opposition to Defendants NCMEC and ICMEC’s Motion to Dismiss (“Pl.’s Opp’n.”)
at 10, but “reserv[es] [] the right to request review on appeal and rejection of [the District of
Columbia Circuit’s] construction of 5 U.S.C. § 552(f)” announced in Dong v. Smithsonian Inst., 125
F.3d 877, 879 (D.C. Cir. 1997). In Dong, the D.C. Circuit reasoned that in crafting § 552(f),
“Congress evidently viewed the four specified classes as examples of ‘establishments in the
executive branch,’ so that an entity clearly outside the executive branch would not qualify even if
it could otherwise be shoehorned into the concept of a ‘Government controlled corporation.’” 125
F.3d at 879. It concluded that “because the Smithsonian is not an establishment in the executive
branch, it cannot fall into any of the conceivably applicable § 552(f) categories.” Id. at 880. While
3
Given the unsettled nature of the custody dispute over V.L., see Def.’s Mem. at 3-8, “[i]t would
be wholly inappropriate to recognize either parent as an appropriate guardian” for the purpose of
resolving this case. Foretich v. Glamour, 741 F. Supp. 247, 250 (D.D.C. 1990).
5
acknowledging “an impressive array of links between the Smithsonian and the federal government,”
including its operating under “a federal charter granted by Congress in 1846,” id., the D.C. Circuit
determined nonetheless that “the Smithsonian lacks both the [substantial independent] ‘authority’
necessary for it to qualify as an ‘authority of the government of the United States’ under § 551(1)
and the executive department status necessary under § 552(f).” Id. at 883. It reasoned that the
Smithsonian “does not make binding rules of general application or determine rights and duties
through adjudication. It issues no orders and performs no regulatory functions.” Id. at 882.
NCMEC’s and ICMEC’s connections to the executive branch are much more remote
than the Smithsonian’s. “NCMEC was established in 1984 as a private, nonprofit 501(c)(3)
organization to provide services nationwide for families and professionals in the prevention of
abducted, endangered, and sexually exploited children.” Mandate and Mission,
http://www.ncmce.org (follow “About Us” hyperlink; then follow “Mandate & Mission” hyperlink)
(last visited May 26, 2010). It was founded by private individuals John and Reve Walsh of Walsh
Consultants, and its Board of Directors includes representatives of the private, non-profit, corporate
and public sectors.4 See id. (follow “About Us” hyperlink; then follow “Board of Directors”
hyperlink); cf. with Dong, 125 F.3d at 879 (finding it “plain that the Smithsonian is not an [executive
branch] establishment” where most of the governing Board of Regents is appointed by Congress).
As a federal grantee, NCMEC is “a key component” of programs administered by the Child
Protection Division of DOJ’s Office of Juvenile Justice and Delinquency Prevention (“OJJDP”),
“which prevent or address offenses committed against vulnerable children and which support
missing children's organizations[.]” 42 U.S.C. § 5773(8)-(9). It serves as a national resource center
4
Neither Mr. Lazaridis nor the website suggests that the executive branch has a hand in appointing
board members.
6
and clearinghouse, “works in partnership” with a number of agencies “in the effort to find missing
children and prevent child victimization” and operates a national network with international links.
Id. at (9). In addition to receiving an annual grant from OJJDP, NCMEC is funded by corporations,
foundations and individuals. See http://www.ncmec.org (follow “Supporters” hyperlink). NCMEC
“launched” ICMEC in 1998 “to identify and coordinate a global network of organizations fighting
child-sexual exploitation and abduction.” Missing Children Website, http://www.icmec.org (last
visited May 26, 2010).
Mr. Lazaridis has identified neither a statutory nor a regulatory source authorizing
NCMEC to exercise independent governmental authority. See Dong, 125 F.3d at 882.
Similar to the D.C. Circuit’s observation of the Smithsonian, NCMEC “appears to be no different
from any private [organization] which receives federal funds and enjoys some control over their
use.” Id. at 882. Its seemingly “public authority” is “entirely ancillary to its [informational] and
educational mission.” Id. Because NCMEC and ICMEC are not subject to the FOIA, the Court
will grant their motion to dismiss for failure to state a claim upon which relief can be granted.5
C. DOJ’s Motion
DOJ seeks dismissal of this FOIA lawsuit because of Mr. Lazaridis’ alleged fugitive
status. Under the fugitive disentitlement doctrine, a court, in its discretion, may dismiss a civil action
if the plaintiff is a fugitive, his fugitive status has a connection to the present proceedings, see
Daccarett-Gia v. Comm’r of I.R.S., 70 F.3d 621, 626 (D.C. Cir. 1995), and dismissal “is necessary
5
Mr. Lazaridis may have “a common-law right of access to public records that stands independently
of the [FOIA].” Hill v. Fed. Judicial Center, 238 Fed.Appx. 622, 623 (D.C. Cir. 2007). Because
NCMEC and ICMEC are based in Virginia, however, the Court declines to exercise supplemental
jurisdiction over such a claim, which presumably is redressable in the Virginia courts under Virginia
law.
7
to effectuate the concerns underlying the . . . doctrine.” Magluta v. Samples, 162 F.3d 662, 664 (11th
Cir. 1998) (citations omitted). “[T]he sanction of disentitlement is most severe” and, thus, is “limited
by the necessity giving rise to its exercise.” Degan v. United States, 517 U.S. 820, 828-29 (1996).
As the D.C. Circuit explained:
[T]he doctrine is grounded in a court's power to control its own
docket and its own proceedings. If the individual's fugitive status has
no ‘connection’ to the present proceedings in the sense that it neither
affects the court's ability to carry out its judicial business nor
prejudices the government as a litigant, the claim may not be
dismissed. There is no exception to this rule for individuals who
remain fugitives.
Daccarett-Gia, 70 F.3d at 626; see Jaffe v. Accredited Surety and Casualty Co., Inc., 294 F.3d 584,
596-97 (4th Cir. 2002) (observing that since the Degan opinion in 1996, “[f]ederal courts . . . have
required a substantial nexus between a litigant's fugitive status and the issue before the court”)
(citations omitted).
DOJ has not established the requisite connection between Mr. Lazaridis’ fugitive status
and these proceedings. Practically all FOIA cases are decided on the papers, and discovery is rare and
“usually limited to the adequacy of the agency's search and similar matters.” Voinche v. F.B.I., 412
F. Supp. 2d 60, 71 (D.D.C. 2006) (citations omitted); see Schrecker v. U.S. Dep’t of Justice, 217 F.
Supp.2d 29, 35 (D.D.C. 2002) (stating that a discovery motion in a FOIA case “should be denied
where an agency's declarations are reasonably detailed, submitted in good faith and the court is
satisfied that no factual dispute remains”) (citation omitted). Mr. Lazaridis’ physical presence
therefore is unlikely to be required. Moreover, because FOIA decisions typically turn on the
sufficiency of the government’s declarations, DOJ would be hard-pressed to assert prejudice based
8
solely on Mr. Lazaridis’ absence from this jurisdiction.6 See Daccarett-Gia, 70 F.3d at 628
(observing that the appellant’s “failure to appear in reference to the New Jersey federal indictment
has had no institutional effect on the Tax Court [because] [a]ppellant's presence was in no way
required at the Tax Court's proceedings); id. at 627, 629 (stating that “mere commonality of subject
matter is insufficient” to “give rise to the authority to dismiss the petition” under the fugitive
disentitlement doctrine).
In the absence of a demonstrable connection between Mr. Lazaridis’ fugitive status
and these FOIA proceedings, the Court declines the invitation to apply the fugitive disentitlement
doctrine to Mr. Lazaridis. DOJ’s Rule 12(b)(6) motion to dismiss therefore will be denied.7
IV. CONCLUSION
For the foregoing reasons, the Court will grant the joint motion of NCMEC and
ICMEC to dismiss under Rule 12(b)(6) and DOJ’s motion to dismiss the claims as to V.L. under Rule
6
DOJ notes that Mr. Lazaridis “recently requested that he be given substantially more time to
respond to Defendants’ filings just because he is litigating his case from Greece,” Mem. of P. & A.
in Support of United States Dep’t of Justice’s Mot. to Dismiss (“DOJ’s Mem.”) at 19 n.20, but DOJ
did not oppose Mr. Lazaridis’ motion and has not asserted any prejudice arising from the granting
of said motion. Nor could it, given the regularity with which government attorneys seek
continuances. DOJ also argues that Mr. Lazaridis’ fugitive status would “compromise[]”
enforcement of orders, but it refers to potential orders issued in unrelated proceedings in other courts.
Id. at 19. DOJ does not assert, and the Court does not detect, how Mr. Lazaridis’ absence from
these proceedings could negatively affect enforcement of this
Court’s orders, which would most likely be directed at the agency to, for example, release responsive
records.
7
DOJ indicates that it has processed some of Mr. Lazaridis’ requests and “reserves the right to assert
[] FOIA exemptions.” Def.’s Mem. at 24 n.24. Mr. Lazaridis claims that DOJ has waived the right
to assert exemptions, see Pl.’s Mem. at 1 n.2, but DOJ has yet to address the merits of the complaint
and the resolution of the pending motions does not end the case. See Maydak v. Dep’t of Justice, 218
F.3d 760, 764 (D.C. Cir. 2000) (reiterating that “as a general rule, [the government] must assert all
[FOIA] exemptions at the same time in the original district court proceedings”) (citations omitted)
(emphasis added). The Court therefore finds Mr. Lazaridis’ waiver claim to be premature.
9
12(b)(1), and will deny DOJ’s motion to dismiss under Rule 12(b)(6) and Mr. Lazaridis’ motion for
summary judgment under Rule 56. A separate Order accompanies this Memorandum Opinion.
Date: May 26, 2010 /s/
ROSEMARY M. COLLYER
United States District Judge
10
| {
"pile_set_name": "FreeLaw"
} |
290 F.3d 303
TERREBONNE PARISH SCHOOL BOARD, Plaintiff-Appellant,v.COLUMBIA GULF TRANSMISSION CO. and Koch Gateway Pipeline Co., Defendants-Appellees.
No. 01-30131.
United States Court of Appeals, Fifth Circuit.
May 10, 2002.
COPYRIGHT MATERIAL OMITTED COPYRIGHT MATERIAL OMITTED COPYRIGHT MATERIAL OMITTED Andrew J. Gray, III (argued), Wade Thomas Visconte, The Gray Law Firm, Lake Charles, LA, Michael X. St. Martin, Joseph G. Jevic, St. Martin & Williams, Houma, LA, for Plaintiff-Appellant.
Thomas R. Blum (argued), Christina H. Belew, James A. Burton, Simon, Peragine, Smith & Redfearn, New Orleans, LA, for Columbia Gulf Transmission Co.
Robert J. Young, III, Robert J. Young, Jr. (argued), Young, Richaud & Myers, New Orleans, LA, for Koch Gateway Pipeline Co.
Appeal from the United States District Court for the Eastern District of Louisiana.
Before DUHÉ, WIENER, and BARKSDALE, Circuit Judges.
WIENER, Circuit Judge:
1
Plaintiff-Appellant the Terrebonne Parish School Board (the "Board"), as owner of a servient estate, appeals from the district court's summary judgment that the Board's causes of action against the two owners of separate dominant estates — Defendants-Appellees Koch Gateway Pipeline Company ("Koch") and Columbia Gulf Transmission Company ("Columbia") — have prescribed. Concluding that genuine issues of material fact exist with regard to prescription of the Board's possible causes of action under Louisiana's law of delict (tort) and contract, we reverse the district court's grant of summary judgment and remand.
I.
FACTS AND PROCEEDINGS
2
Shortly after Louisiana gained statehood, Congress extended to Louisiana a policy of reserving, from among the public lands in newly created states, the sixteenth section of every township for the support of education.1 This policy created a patchwork of reserved section sixteen lands ("sections sixteen") throughout each such state, as a result of uniform surveying according to the township-and-range system. (A township is six miles square and contains thirty-six sections, which are one mile square; thus each section sixteen is five miles distant from the nearest other sections sixteen, one in each of the four contiguous townships.)
3
Title to sections sixteen in Terrebonne Parish passed from the United States to the Board sometime during the nineteenth century.2 The Board-owned section sixteen that is located in Township 18 South, Range 13 East, Terrebonne Parish, Louisiana, and which contains about 641 acres, is the subject of this case and is hereafter referred to as "Section 16 (18-13)."
4
Before the events at issue here, much of Terrebonne Parish, including Section 16 (18-13), consisted of floating freshwater marsh. Typically, this kind of marsh comprises "marsh mats" that are as much as a foot thick and literally float several feet above the silt and clay bottom, unattached by roots.
5
Section 16 (18-13) is now traversed by two pipelines that exist pursuant to conventional (contractual) servitude agreements granted by the Board. The first was constructed pursuant to a "standard form" agreement executed by the Board in 1957 in favor of Koch's ancestor in interest. This servitude agreement (the "Koch Agreement") reads in part as follows:
6
That for and in consideration of THREE HUNDRED SIXTY SIX AND 60/100 ($366.60) Dollars ... Grantor does hereby Grant and Convey unto United Gas Pipeline Company ... a right of way and easement one hundred feet in width to construct, maintain, operate, repair, replace, change the size of and remove pipe lines and appurtenances thereto, including the right at its election to lay such pipe line or lines in open ditches or canals not to exceed forty feet in width, which may be filled in or left open at the option of Grantee....
7
...
8
TO HAVE AND TO HOLD unto Grantee, its successors and assigns, so long as the rights and easements herein granted, or any of them, shall be used by, or useful to Grantee for the purposes herein granted, with ingress to and egress from the premises, ... for the purposes of construction, inspecting, repairing and replacing the property of Grantee herein described....
9
...
10
[S]aid Grantor shall not obstruct or permit to be constructed any house, structures or obstructions, on or over, or that will interfere with the maintenance or operation of, any pipe line or appurtenances constructed hereunder, and will not change the grade over such pipe line.
11
Koch's pipeline canal was dredged and its pipeline built in 1958.
12
In 1964, Columbia entered into negotiations with the Board to build the second pipeline across Section 16 (18-13). During negotiations, however, Columbia built its pipeline. When, in 1965, this trespass was discovered by the Board, it and Columbia negotiated a servitude agreement using a somewhat different standard form (the "Columbia Agreement"). In return for $685.20, the Board granted Columbia
13
a servitude, right of way and easement to construct, lay, maintain, operate, alter, repair, remove, change the size of, and replace a pipe line and appurtenances thereto, including but not limited to fittings, tie-overs, valves, corrosion control equipment and other apparatus....
14
...
15
[S]aid Grantors shall not construct nor permit to be constructed any house, structures, or obstructions and shall not plant nor permit to be planted trees on or over, or that will interfere with the construction, maintenance or operation of any pipe line or appurtenances constructed hereunder, and will not change the grade over such pipe line.
16
The right of way granted herein shall be 100 feet wide.... It is understood and agreed that Grantee shall not be required to backfill the open flotation ditch excavated during construction.
17
It is hereby understood that the Grantee, its successors and assigns, shall not be obligated to pay Grantors or any subsequent owner of [Section 16 (18-13)] any damages resulting from the construction of the [pipeline], such damages having been anticipated and paid in advance at the time of execution of this instrument.
18
Koch and Columbia have continuously maintained the pipelines, often using the canals to do so. Both concede, however, that they have not maintained the canals or their banks.
19
The Board contends that, at least partly as a result of the servitude holders' failure to maintain the canals or their banks, the canals have widened and their banks have been breached. The Board asserts that the Koch canal has widened to an average width of 70 feet, almost double the 40-foot limit specified in the Koch Agreement; and that the Columbia canal has widened beyond the specified 100-foot right of way, to an average width of 135 feet. Koch and Columbia (collectively, "the defendants") object that there is no record evidence for these statistics, but a scaled satellite photo tends to support the Board's assertion. There is also causation evidence suggesting that breaches in the canals' banks have exposed the floating marsh to tidal surges, which have washed away, and continue to wash away, the light organic soil necessary for the marsh mats to cohere. The record suggests that this erosion may occur slowly — and vertically — from the water bottom up, causing the marsh mats to thin out and eventually disappear. Now, argues the Board, where there was once healthy marsh, there is open water.
20
The Board sued several entities that operated on its sections sixteen, filing the instant action in state court in October 1999 against Columbia and Koch jointly, and seeking either the physical restoration of Section 16 (18-13) or compensatory damages. The Board's petition contains explicit tort and contract claims, the latter including an innominate property argument.3 The defendants removed to the Eastern District of Louisiana and later moved for summary judgment.
21
The district court granted summary judgment to the defendants. It held, in contract, that the servitude agreements did not require Columbia and Koch to continue to maintain the canals' banks; therefore any contractual claim had prescribed. In tort, the district court reasoned that failure to maintain a canal is not conduct that can support a claim under a continuing tort theory. The district court also held that the Board's "failure to hire an expert or investigate the erosion at the time it became aware of the damage does not prevent prescription from commencing." Apparently viewing the defendants' liability as arising out of discontinuous violations, the court held that prescription of the Board's delictual (tort) claims began to run when it learned of the damage to various of its sections sixteen. As the Board "was aware of the erosion of Section 16 in or before 1985," the district court reasoned, it cannot now maintain an action with respect to Section 16 (18-13). This timely appeal followed.
II.
ANALYSIS
22
Even though the district court approached this case as largely implicating tort claims, it actually involves equal or greater questions of contract and property rights. To review the district court's ruling, we must consider procedural and delictual issues, but the Louisiana law that governs this case is chiefly the civil law of servitudes — a mixture of contract interpretation and suppletive (gap-filling) rules of property law.
A. Standard of Review
23
The Board appeals from summary judgment, which the district court characterized as turning on prescription. We review a grant of summary judgment de novo, applying the same standard as the district court.4 A motion for summary judgment is properly granted only if there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law.5 An issue is material if its resolution could affect the outcome of the action.6 In deciding whether a fact issue has been created, the inferences to be drawn from the evidence must be viewed in the light most favorable to the nonmoving party.7
B. Procedure
24
Initially, we must address one challenge that the Board raises to the procedural propriety of summary judgment in the district court. The Board urges that summary judgment for Columbia was improper because it did not seek summary judgment on the basis of prescription. Rather, notes the Board, the district court sua sponte rendered summary judgment based on prescription of the Board's claims against Columbia; and, in so doing, the court failed to give the Board ten days' notice, which this Circuit requires.8 We review the failure to furnish such notice for harmless error.9
25
Columbia counters that error, if any, was harmless, stating accurately that (1) Columbia pleaded prescription as an affirmative defense; (2) Koch moved for summary judgment on the basis of prescription; and (3) the Board filed a lengthy answer that responded to Koch's prescription argument. Furthermore, Columbia did move for judgment on the pleadings, or in the alternative for partial summary judgment, with respect to the tort claims, even though this motion did not address prescription. In addition, the district court granted summary judgment only five days before the bench trial was scheduled to begin, and the Board has not identified material evidence that it was unable to present to the district court because of the lack of notice. Lastly, the legal theories and facts that the Board marshals against each defendant are quite similar. In light of the foregoing, we conclude that the Board had ample opportunity to defend, so any procedural error in entering summary judgment for Columbia without ten days' advance notice was indeed harmless. We therefore turn to the merits.
C. Substance
26
Substantive analysis of this case requires first that we touch on the distinction between contract and delict (or tort) under Louisiana law.10 To paraphrase Planiol, contractual fault consists of violating a contractual obligation; delictual fault is an act between juridical strangers that violates some duty imposed by law, not by contract, and that requires reparation.11 The parties here are juridical acquaintances. The Board, Columbia, and Koch's predecessor decided to burden one estate for the benefit of two others. These decisions created conventional predial servitudes that the parties memorialized in servitude agreements.12 The proper place to begin analyzing this case is thus the servitude agreements themselves. Then we shall turn to obligations supplied or imposed by the Civil Code.
1. Contract
27
When there is a contract, it is law between the parties and must be performed in good faith and enforced according to its terms.13 When, as here, the contract creates a conventional predial servitude, the mode of use of the servitude is regulated by the contract.14 If, however, the contract is silent on a non-essential question, like the mode of use, Louisiana's law of conventional obligations in general and predial servitudes in particular supplies the answer, filling in the blanks.15
28
The parties dispute two aspects of their contractual relationship: (1) whether the Board released Koch and Columbia from liability for marsh erosion; and (2) whether the contract imposes any duties to maintain the canal or its banks — stated differently, any duties to protect the servient estate against damage resulting from use of the servitude.
a. Release
29
Koch and Columbia contend that even if they (1) owed a duty, under any of the Board's theories, to prevent the canals from widening and their banks from being breached, (2) violated that duty, and (3) are liable on a cause of action that has not prescribed, Koch and Columbia were released by the Board. When the Board executed the servitude agreements, it also executed standard-form releases. The release obtained from the Board by Koch's ancestor in title provided:
30
This will acknowledge receipt of the sum of Fourteen Hundred Sixty-six & 40/100 ($1466.40) DOLLARS ... paid by UNITED GAS PIPE LINE COMPANY in full and complete settlement and satisfaction in advance for all damages caused to crops, timber, fences, lands or other improvements owned or leased by the undersigned along and in the vicinity of the [pipeline across Section 16 (18-13)], which said damages may be caused by reason of the construction of said line or operations in connection with the construction thereof.
31
[The Board] hereby acknowledges and declares that the above mentioned payment is made in full consideration of all damages which may be occasioned as above set forth by either United Gas Pipe Line Company or Contractor engaged in the building and construction of said pipe line.
32
It is clear that this agreement, by its express terms, released United Gas (and thus Koch) only from claims for damage resulting from the pipeline's construction. The damages bargained for are those that "may be caused by reason of the construction" of the pipeline "or operations in connection with" its construction, "by either United Gas Pipe Line Company or Contractor engaged in the building and construction." Only the phrase "in advance" has any potential for ambiguity in this regard, and even that is easily explained. Use of this phrase merely acknowledged the simple fact that the pipeline had yet to be built; it did not address the fact that the damages released might actually result from a released party's act or omission decades after the pipeline's construction.
33
In releasing Columbia, the Board acknowledged that it was paid $7,879.80
34
in full payment and settlement for all damages of every kind and character (contractual, negligence or otherwise) caused to [the Board's] interest(s) as owner(s) by the construction, operation, [and] maintenance of a pipe line and appurtenances across [Section 16 (18-13)], in the place and manner such pipe line and appurtenances have been constructed and laid, and we release and discharge [Columbia] from all liability therefor.
35
At the time of this release, Columbia had already built its pipeline across Section 16 (18-13), albeit as a trespasser. Consequently, the release's verbs are in the past tense: "caused" and "in the manner such pipe line and appurtenances have been constructed and laid" entail no futurity. Our interpretation — that this release did not, and was not intended to, cover damages that might be caused by acts or omissions decades later — is confirmed by the servitude agreement itself, which states that
36
[i]t is hereby understood that the Grantee, its successors and assigns, shall not be obligated to pay Grantors or any subsequent owner ... any damages resulting from the construction of the first pipe line authorized hereunder, such damages having been anticipated and paid in advance at the time of execution of this instrument.
37
Once again, the language focuses on damages resulting from construction of, not from continued use of or failure to maintain, the pipeline and canal.
38
Koch and Columbia nevertheless argue that to the extent the Board's causation theory is correct, the marsh erosion does result (eventually) from "construction" of the pipeline. We disagree. This remote causation proposition may sound reasonable in hindsight, but nothing in the record supports the view that in signing these agreements and releases, the parties had any contemplation that erosion would occur. The agreements and releases are at best ambiguous as to whether the parties anticipated marsh erosion and intended to include marsh erosion damages caused decades later in their bargain.16 One Louisiana court, in construing a similar release from claims arising from pipeline construction, held that the release applied only to claims existing when the release was executed, because the release was a standard form and was ambiguous with respect to the claims at issue.17 We cannot read the ambiguous standard-form language here as encompassing the erosion damages of which the Board complains.
b. Continuing Contractual Duty to Maintain
39
The parties also debate whether the servitude agreements require Columbia and Koch to maintain the banks of the canals so as to prevent widening and breach. Although the district court stated that it granted the motion for summary judgment "only as to prescription of the claims," this characterization overlooks its own explicit ruling that the servitude agreements did not impose a continuing duty to maintain the canals. This ruling flowed in turn from the court's understanding of St. Martin v. Mobil,18 in which we affirmed a trial court's conclusion that such a duty existed. In that case, the servitude agreement provided that
40
Grantor does hereby convey to [Grantee], its successors and assigns, the right and servitude to dredge, construct, maintain and use a canal having a width of 65 feet.... Grantee is also given the right to deposit spoils within a distance of 150 feet on each side of the banks of the canal, but shall do so in such manner as to cause as little interference as possible to drainage.19
41
Despite the implication from this language that the canal was meant to drain, we held that the agreement imposed a duty on Grantee to maintain the banks of the canal so as to prevent further marsh erosion.20 We also concluded, from the agreement's statement that the rights it created would exist until leases expired, that the ten-year prescriptive period in contract did not apply, and that the landowner's right to enforce the canal owner's duty to maintain the canal lasted for the length of the servitude.21
42
In the instant case, the district court distinguished St. Martin on the ground that here "[t]here is no language regarding the continuing obligations of the defendants in either of the contracts." Therefore, reasoned the court, St. Martin v. Mobil did not apply, and the Board lacked a viable claim in contract. We agree with this distinction only in part, disagreeing in part as well.
43
One basis for this distinction, advanced on appeal by Koch and Columbia, is that the agreement in St. Martin v. Mobil was a canal servitude, unlike these agreements, which specify pipelines, not canals. This argument is an oversimplification. Each agreement at issue here grants a right of way and easement for a "pipe line and appurtenances thereto." The Koch Agreement specifically states that this grant "includ[es]" the right to lay the pipeline in "open ditches or canals." The Columbia Agreement specifically states that the "Grantee shall not be required to backfill the open flotation ditch excavated during construction." Both agreements provide that the Board "will not change the grade over such pipe line," so that the right to change the grade along the pipeline rests with Koch and Columbia, not the Board.
44
Both Koch and Columbia concede that they continue to use the canals to inspect and maintain the pipelines. We harbor no doubt, then, that if the Board were to try to fill in the canals, Koch and Columbia would cry foul, and rightly so. We therefore view the canals not merely as vestiges of the pipelines' original construction that have no relevance to the parties' continuing relationship, but rather as "appurtenances"22 to the pipelines and essentials to their use. The canals are part and parcel of these conventional predial servitudes.
45
The more meaningful distinction between this case and St. Martin v. Mobil is found in the answer to the question whether the servitude agreements require that the canals be maintained. We agree with the district court that the language in these agreements is much less explicit and more ambiguous than the language in the St. Martin v. Mobil agreement. As a matter of contract interpretation alone, the mere grant of a right to maintain a canal does not necessarily impose the duty to maintain it or to take other steps to prevent the canals from widening and the surrounding marsh mat from eroding. But neither do the agreements clearly contemplate that the canals will widen; nor do they either explicitly or implicitly permit Koch and Columbia simply to stand by and let this happen while continuing to use the canals in connection with their use of the pipeline servitudes.
46
Indeed, on this point each agreement contains an internal contradiction: Each specifically allows the grantee to keep the canals open and bars the Board from regrading; but the Koch Agreement gives the grantee the right to dig a canal "not to exceed forty feet in width," and the entire width of each servitude is only one hundred feet. The parties variously contend that these provisions resolve the marsh-erosion question one way or the other, but in light of what the summary-judgment evidence tells us about the delicate hydrology of floating marshes, we view these provisions as being in internal conflict, to whatever extent they bear on the question. This conflict suggests that the parties either did not anticipate erosion damage in drafting and signing the agreements or did not intend the explicit language of the agreements to resolve the liability question one way or the other.
47
This case, therefore, does not at all resemble Ryan v. Southern Natural Gas Co.,23 on which Columbia relies heavily. As here, the landowner in Ryan sued the pipeline servitude owner for damages caused by the erosion of marshland and the widening of a pipeline canal.24 We held that language of the servitude agreement governed the parties' relationship, "reliev[ing the pipeline owner] of any duty to dam the canal," and therefore the landowner could not recover either in tort or in contract, at least on the servitude agreement itself.25 The best factual support for our Ryan holding was not the servitude agreement's provision (as in the Koch Agreement here) that the pipeline canal could be left "open,"26 but rather, as the district court noted, the pipeline owner's signature on and the landowner's acceptance of a "letter agreement" that bound the former to pay the latter $400 per acre of land encroached on by the canal in the event that it widened.27 The intent of the Ryan parties, as evidenced by this letter agreement, precluded recovery by the Ryan plaintiffs on the servitude agreement, irrespective of the underlying legal theory advanced. Ryan is therefore clearly distinguishable from the instant case, as there is no provision in either the Koch Agreement or the Columbia Agreement — or any side agreement — that demonstrates how the parties intended to treat claims of marsh erosion.
48
As we do not understand the pertinent kind of erosion to have been within the parties' contemplation for release purposes, it should come as no surprise that we do not interpret the servitude agreements themselves as determining whether Koch and Columbia have a continuing duty to prevent marsh-erosion damage. Therefore, under Louisiana law, our task shifts from plain-wording contract interpretation to application of the Louisiana Civil Code's suppletive rules for immovable property, which — together with relevant case law — come into play when issues are not explicitly disposed of in the writings of the parties.28
c. Louisiana's Suppletive Law — Conventional Servitudes
49
Civil Code article 697 establishes that when the parties creating a conventional servitude do not specify the use and extent of that servitude, Louisiana's suppletive rules of property law apply.29 Because the district court did not apply any of them, we shall address them only to the extent necessary to determine whether the district court correctly granted Koch and Columbia summary judgment on the basis of prescription.
50
One principle of servitude jurisprudence is that ambiguity in a servitude agreement must be construed in favor of the servient estate30 — here, the interests of the Board. As the Louisiana Supreme Court has reasoned:
51
Predial servitudes are in derogation of public policy because they form restraints on the free disposal and use of property. Therefore, servitudes are not entitled to be viewed with favor by the law and can never be sustained by implication. Any doubt as to the existence, extent or manner of exercise of a predial servitude must be resolved in favor of the servient estate.31
52
This principle militates in favor of our interpretation of the servitude agreements and suggests that they do not govern marsh-erosion claims.
53
Another well-established rule of servitude law is that the dominant estate owner — here, each defendant — must not "aggravate" the condition of the servient estate.32 As Professor A.N. Yiannopoulos has observed, the duty not to aggravate the condition of the servient estate, "correlative of the real right of servitude, is not grounded on negligence"; and, absent an express contractual exoneration for marsh erosion damages, "to the extent that the damage to the servient estate was caused by abuse of right, the damage should be compensable."33
54
Furthermore, the duty not to aggravate the servient estate is a continuing duty. This is the lesson of Lewis v. Sohio Petroleum Co.,34 in which the Louisiana Supreme Court evidently found merit in a claim similar to the one advanced by the Board, tersely reversing a summary judgment that the plaintiff's causes of action had prescribed.35 Lewis involved a canal servitude agreement that provided that the canal "shall not be more than sixty-five feet wide."36 In 1957, the canal exceeded its permissible width by thirty feet.37 When the landowner sued, in 1985, the intermediate appellate court affirmed summary judgment on the ground that the plaintiff's claims had prescribed.38 The Louisiana Supreme Court, however, granted certiorari, reversed the summary judgment, and remanded the case to the district court with instructions to refer the exception of prescription to the merits.39 From this result, we conclude that the life of the duty of a servitude owner not to aggravate the condition of the servient estate by allowing a canal to widen is coextensive with the life of the servitude. When such a duty exists, it is continuous.
55
Whether and to what extent the defendants' use of the canals caused the deterioration of the Board's property and aggravated the servient estate are questions to be determined in the light of this case's particular circumstances.40 As the district court made no factual findings on this point, even a de novo appellate review of this issue would be improvident. It is enough for us to conclude that it was improper for the district court to grant summary judgment on the basis that, because the contracts did not expressly impose a continuing duty, any contract claim had prescribed.
d. Damages Recoverable; Prescriptive Period
56
Even if the district court determines, on remand, that Koch and Columbia are under a continuing duty not to aggravate the servient estate, effectively rendering prescription irrelevant for liability purposes, prescription may nevertheless matter when it comes to damages.41 The prescriptive period governing a claim for aggravation of a servient estate is not yet well established in Louisiana.
57
When adjudicating a claim for which state law provides the rule of decision, federal courts are bound to apply the law as interpreted by the state's highest court; but if the state's highest court has not spoken on a particular issue, we must make an "Erie guess" and determine as best we can what the highest court of the state would be most likely to decide.42 The district court's task on remand will be to "attempt to predict state law, not to create or modify it."43 In making that attempt, a federal court "may look to the decisions of intermediate state courts for guidance."44 Indeed, "a decision by an intermediate appellate state court is a datum for ascertaining state law which is not to be disregarded by a federal court unless it is convinced by other persuasive data that the highest court of the state would decide otherwise."45
58
Only one intermediate appellate Louisiana court has ruled on the length of the prescriptive period for a claim of aggravation to the servient estate. In Stephens v. Int'l Paper Co.,46 the court held that the duty not to aggravate the servient estate was a "general duty rather than a specific contractual duty or obligation assumed by the owner of the servitude," making the action ex delicto and thus prescriptable in one year, rather than ex contractu and thus prescriptable in ten years.47 This distinction — between general legal duties and specific contractual ones — is foundational for the distinction in Louisiana between delictual and contractual actions:
59
The classical distinction between "damages ex contractu" and "damages ex delicto" is that the former flow from the breach of a special obligation contractually assumed by the obligor, whereas the latter flow from the violation of a general duty owed to all persons.48
60
The Stephens court, however, may have misapplied this fundamental principle, and the district court may be persuaded that if the Louisiana Supreme Court were to consider this issue, it would adopt the opposite rule. For even though the servitude agreements here do not expressly impose on the grantees an affirmative duty actively to prevent the canals from widening, the duty to avoid aggravating a servient estate is not one that is owed to all persons under the law, but is one that is owed only to the servient estateholder by the grantee as a result of the conventional (contractual) relationship of the parties. Here, the parties are not neighbors, and the property interests involved here are not two contiguous but separately owned estates that have reciprocal obligations of vicinage. The fact that, as imposed here, the duty to avoid aggravation is supplied by the Civil Code and is also applicable to all servitudes may not mean that the parties' relationships and the duties they owe each other are general. Rather, as we observed at the outset, this case arises out of free choices to enter into conventional relationships.
61
When faced with this issue, the Louisiana Supreme Court might determine that ten years is the appropriate prescriptive period for an action by the grantor of a servitude against the grantee for aggravation of the servient estate. If it did so, that conclusion would be bolstered by the fact that prescription of the servitude itself for nonuse is a ten-year prescription49: A coextensive prescription period for damage to the servient estate by the neglect of the dominant estateholder would be logical. On remand, the district court should address whether, for damages-calculation purposes, the Board's cause of action for aggravation of its servient estate is governed by a prescriptive period of one year or of ten years.
2. Delict (Tort)
62
The district court also granted summary judgment on the determination that the Board's delictual (tort) claims had prescribed. Louisiana law permits a party to maintain actions in tort as well as contract,50 and we have not resolved whether aggravation of the servient estate occurred here. We must therefore review this summary judgment under a tort analysis as well as a contractual one.
63
Regarding tort, the parties differ as to (1) whether summary judgment was proper in a case of prescription that turns on notice; (2) whether general notice about erosion in some sections sixteen started the running of prescription with respect to all such sections owned by the Board; (3) whether the doctrine of contra non valentem prevented the running of prescription from commencing; and (4) whether there is any continuing tort.
a. Summary Judgment on Subjective Knowledge
64
The Board argues that summary judgment was improper on an issue such as prescription that turns on subjective knowledge or notice. Although federal courts often grant summary judgment because a statute of limitations has expired, they
65
refuse to grant summary judgment for defendant if there is an issue of fact as to when the limitations period began, such as in products-liability actions in which the statutory period begins to run when plaintiff knew or should have known that the injury was caused by defendant's product.51
66
Endeavoring to establish such an issue, the Board points to the opinion of its expert, Dr. Chabreck, that the causes of marshland erosion vary and are specific to each individual plot of land.52 Therefore, the Board urges, knowledge or notice of erosion occurring generally in some of its sections sixteen cannot suffice to give either actual or constructive notice of the Board's causes of action against these defendants for erosion to Section 16 (18-13). Koch responds that it has introduced objective, documentary evidence that the Board knew of erosion generally in its sections sixteen in the early 1980s. This issue therefore reduces to whether, on summary judgment, general knowledge of the existence of erosion problems in sections sixteen — none of which is closer than five miles to another — or specific knowledge of erosion in one or more other sections sixteen, is sufficient to charge the Board with notice of erosion in Section 16 (18-13) in particular. To answer this question, we must examine delictual prescription in some detail.
b. Prescription and Contra Non Valentem
67
Generally, a claim in tort arising out of damage to immovable property is subject to a one-year period of liberative prescription which, under article 3493 of the Civil Code, begins to run "from the day the owner of the immovable acquired, or should have acquired, knowledge of the damage."53 Nothing in this code article restricts its application to third parties not in privity with the landowner, yet the district court inexplicably failed to cite this article. Rather, the court relied on the preceding article, 3492, for delictual prescription in general, which begins to run "from the day injury or damage is sustained."54 There is a palpable difference between these standards. In cases of damage to land, the running of prescription commences when the owner gains either actual or constructive knowledge, not when the damage occurs, a rule essentially congruent with the doctrine of contra non valentem.55
68
"[P]rescription statutes are to be strictly construed against prescription and in favor of the claim that is said to be extinguished. Of the two possible constructions, the one that maintains enforcement of the claim or action, rather than the one that bars enforcement, should be adopted."56 The defendant has the initial burden of proving that a tort claim has prescribed, but if the defendant shows that one year has passed between the tortious acts and the filing of the lawsuit, then the burden shifts to the plaintiff to prove an exception to prescription.57
69
One such exception is found in the doctrine of contra non valentem, which prevents the commencement of the running of prescription "when the plaintiff does not know nor [sic] reasonably should know of the cause of action."58 The doctrine applies even if the plaintiff's ignorance is not induced by the defendant.59 Furthermore, the cause of action is defendant-specific: under contra non valentem, "prescription does not necessarily begin to run at the first indication that the plaintiff may have suffered harm, but rather ... `when plaintiff has reasonable basis to pursue [a] claim against [a] specific defendant.'"60 Once again, however, because contra non valentem is a judicial exception to the statutory rule of prescription, "Louisiana courts strictly construe this doctrine and only extend its benefits up to `the time that the plaintiff has actual or constructive knowledge of the tortious act.'"61
70
It is not apparent from the district court's opinion that the court adverted to this law, or considered contra non valentem or the effect of the idiosyncrasies of the township and range system on this case.62 Without acknowledging the law noted above or conducting a reasonableness analysis, the district court nevertheless found that the Board "was aware of the erosion of Section 16 in or before 1985," which, as we shall describe, was a questionable result in summary-judgment proceedings, even if by "Section 16" the court meant Section 16 (18-13). The court did not indicate which kind of notice — actual or constructive — that it found the Board to have had; rather, the court simply stated that the Board knew about "Section 16 land erosion."
i. Actual Notice
71
Even though the record is replete with evidence that the Board knew that marsh erosion in its sections sixteen generally was a serious problem,63 no evidence in the summary-judgment record suggests that the Board actually knew that Section 16 (18-13) in particular had suffered or was suffering erosion. This case is thus distinguishable from Eldredge v. Martin Marietta Corp.64, in which we held that contra non valentem did not apply because the landowner personally had observed the actual damage to his property caused by barge traffic.65
72
The parties have not pointed us to, nor have we located, a case standing for the proposition that actual knowledge of damage to one or more remote, noncontiguous tracts of land brings with it actual knowledge of the same kind of damage to yet another noncontiguous tract — even a similar one — lying miles away. We are satisfied that actual notice must result from overt knowledge of damage to the specific property at issue, particularly when, as here, the plaintiff landowner has long held title to many remote and scattered sections sixteen, only one of which is Section 16 (18-13), but many of which are located in the extensive, marshy, southern part of this coastal parish. This observation is bolstered by the recognition that the use and possession of these largely inaccessible sections are generally exercised not directly by the landowner but by licensees, invitees, or lessees. With respect to actual notice, then, there was at least a genuine issue of material fact sufficient to preclude summary judgment in favor of Koch and Columbia grounded in prescription.
ii. Constructive Notice
73
The question of constructive notice is more complex. Generally, knowledge is imputed only when the plaintiff has "information sufficient to excite attention and to prompt further inquiry."66 This sufficiency standard asks what is it that would excite the attention of or prompt action by a reasonable person. Thus, "[t]he heart of the inquiry into constructive knowledge is the reasonableness of plaintiff's inaction."67
74
Extension by analogy is needed to make that analysis here, because the parties have not directed us to, nor have we found, any contra non valentem case that is directly comparable to the instant action. Applicable Louisiana jurisprudence suggests, unsurprisingly, that reasonableness of inaction depends almost entirely on the particular circumstances, requiring a case-by-case analysis.68
75
When the alleged fault is not obvious, delay may not be unreasonable. If, for example, a homeowner learned from an engineer's report that cracks in walls resulted from a contractor's failure to comply with city code provisions, only then did prescription begin to run on the homeowner's claim against the city, not months earlier when a mason had generally advised the homeowner that the cracks could indicate a structural problem.69
76
In medical tort and redhibition cases, Louisiana courts have explicitly disowned an inquiry-notice rule in favor of the reasonableness standard; constructive notice is thus acquired only after the plaintiff learns of not only the tortious act and the damage, but also "the causal relationship between the tortious act and the damage."70 Consequently, "[m]ere apprehension that something might be wrong does not make delay in filing an action unreasonable, nor does knowledge that one has a disease."71 In a medical case, for example, even the plaintiff's awareness that he "had sand in his lungs" and "had evidence of silicosis" did not suffice to start the running of prescription when doctors told the plaintiff that his medical condition had not yet deteriorated.72 And, in a redhibition case, a synagogue that had knowledge that its roof was leaking need not have sued a contractor, architect, and roofing manufacturer before learning that the leaking had been caused by a faulty roofing system and not merely by inadequate maintenance.73 Neither did the buyers of a house have constructive knowledge of the causation element in their cause of action until an engineer told them that an elevation differential might be the cause of structural damage.74
77
Read together, these cases establish the proposition that when damage is evident but causation is reasonably mysterious, Louisiana courts sometime pretermit the running of prescription. It also appears that an investigation into causation need not be made, and constructive notice need not be imputed, until damage becomes apparent.75 Because Columbia and Koch did not establish, on summary judgment, that the Board had actual knowledge, it was thus legal error for the district court to hold that the Board's "failure to hire an expert or investigate the erosion at the time it became aware of the damage does not prevent prescription from commencing."
78
In summary, viewing the summary-judgment evidence in the light most favorable to the Board as non-movant, the district court lacked any evidence of actual notice and failed to apply the appropriate legal standard of reasonableness to the question of constructive notice. The district court may also have missed the importance of the township-and-range system, and the nature and separation of the Board's properties, in determining whether there was a genuine issue of material fact. Summary judgment on the basis that contra non valentem did not prevent prescription of the Board's claims was therefore error.
c. Continuing Tort
79
The parties also disagree whether this case involves a continuing tort. A continuing tort presents another exception to Louisiana's one-year prescriptive period for delicts, because "when the tortious conduct and resulting damages continue, prescription does not begin until the conduct causing the damage is abated."76 As the Louisiana Supreme Court has stated, "the continuous nature of the alleged conduct has the dual effect of rendering such conduct tortious and of delaying the commencement of prescription."77 For a continuing tort to exist, however, there must generally be continuing wrongful conduct, coupled with continuing damage.78 Both continuing damage and continuing conduct are at issue here.
80
The district court made no ruling with respect to continuing damage: It discussed the distinction between continuous and discontinuous damages, but it did not identify which, in its opinion, was occurring here. On appeal, Koch and Columbia assert that the Louisiana Supreme Court's decision in Crump v. Sabine River Authority79 establishes that marsh erosion is discontinuous damage. We disagree; in fact our precedent holds otherwise. In Crump, the plaintiff alleged that excavation of a canal permanently drained water from her property, depriving her of marine access to a nearby lake.80 We have distinguished such water diversion, however, from marsh erosion:
81
In [Crump], the continuing presence of a canal was not sufficient to preclude prescription. However, the damage alleged in this case is not the mere presence of the canals or a static condition related to their existence (e.g. diversion of water as part of their normal course of operation), but an ongoing and cumulatively increasing deterioration of plaintiffs' property adjoining the canals due to defendants' continuing conduct in their failure to maintain the canal banks.81
82
Crump itself distinguishes between continuous and discontinuous damage as follows:
83
[A] distinction is made between continuous and discontinuous causes of injury and resulting damage. When the operating cause of the injury is "not a continuous one of daily occurrence", there is a multiplicity of causes of action and of corresponding prescriptive periods. Prescription is completed as to each injury, and the action is barred upon the lapse of one year from the date in which the plaintiff acquired, or should have acquired, knowledge of the damage.... [This is to be distinguished from the situation where] the "operating cause of the injury is a continuous one, giving rise to successive damages from day to day...."82
84
In the latter case, the treatise quoted in Crump suggests, "it may be that prescription does not begin to run from the date the injury was first inflicted, but it ought to run at least from the date the damage was completed and the injured party acquired knowledge of it."83 Here, erosion of the Board's marsh allegedly continues even unto this day. The damage is not yet "completed," but rather continues, albeit slowly and imperceptibly.
85
With respect to the continuing conduct prong of the continuing tort doctrine, the district court held that "[f]ailure to maintain a canal and its levees is not `conduct' of the type necessary to support a claim under the continuing tort theory," citing St. Martin v. Quintana Petroleum Corp.84 in support of this proposition. We recently affirmed St. Martin v. Quintana in an unpublished, and therefore nonprecedential,85 decision in which we said that Ryan controlled.86 As we have stated above, however, Ryan is distinguishable from the instant case, as here there are no side agreements supplementing the servitude agreements at issue and specifically providing for the contingency of marsh erosion.
86
The Louisiana Supreme Court has summarized the continuing tort exception by explaining that a continuing tort "is occasioned by continual unlawful acts and for there to be a continuing tort there must be a continuing duty owed to the plaintiff and a continuing breach of that duty by the defendant."87 This formulation does not exclude the possibility that "unlawful acts" may include omissions that breach a duty. To the extent that aggravation of the servient estate might be found to have occurred as a result of such omissions or failures to act, a reasonable factfinder could determine that Koch and Columbia, by using the canals but failing to protect them against resulting breaches and widening, violated a duty and thus "acted" unlawfully. Indeed, summary-judgment evidence suggests that the defendants might be continuing to do so. If so, such conduct could be wrongful for the purposes of a continuing-tort analysis. These are additional genuine issues of material fact that preclude summary judgment grounded in tort prescription.
D. Poiencot Deposition
87
Lastly, as a collateral matter, the Board has moved to strike Columbia's appellate record excerpt number five and any references to it in Columbia's brief. This excerpt is the deposition of Malcolm Poiencot, which is in the record. The Board argues that the deposition (1) was not considered on summary judgment by the trial court because the Board's motion in limine to exclude the deposition was pending; (2) was given by a witness who would not qualify as an expert; (3) is not newly discovered and previously unknown evidence, as it was taken three weeks before the district court rendered summary judgment; and (4) is untimely, because it was not made part of the record within ten days of the summary judgment motion, as required by Rule 56(c). Poiencot's deposition testimony, which focuses on the nutria,88 goes mostly to proportional causation, which (as we understand contra non valentem) is not an issue in this appeal of the trial court's summary judgment on prescription grounds. As the subject deposition is therefore irrelevant to our disposition of this appeal,89 we deny the motion as moot.
III.
CONCLUSION
88
We agree with the district court that the servitude agreements here at issue do not expressly impose on Columbia and Koch the duty to prevent the canals from widening and eroding adjoining marshland. Whether, in the absence of an express contractual duty, the suppletive law of Louisiana might here impose such a duty remains to be resolved, as does the question whether such a duty might in turn render the failure to maintain canal banks a continuing tort. Because this case presents several genuine issues of material fact — not the least of which implicate actual or constructive knowledge of damage and its causation — with respect to prescription as well as duty, in tort and in contract, summary judgment was not providently granted. We remand this action for further proceedings consistent with this opinion.
89
REVERSED and REMANDED; MOTION DENIED.
Notes:
1
See Act of April 21, 1806, 2 Stat. 391, 394 (reserving sections sixteen in the western district of the territory of Orleans); Act of Feb. 15, 1811, 2 Stat. 617, 618-19 (extending the same policy to the eastern district of the territory of Orleans); Act of March 26, 1804, 2 Stat. 283, 283 (defining the "territory of Orleans" to be that portion of the Louisiana Purchase lying below the thirty-third parallel).
2
See, e.g., Act of Feb. 15, 1843, 5 Stat. 600 (authorizing the Louisiana state legislature to convey in fee simple lands in the state reserved by Congress for the use of schools).
3
The sum of the petition's property argument is this: "Defendants had a duty to use only so much of the School Board property as necessary to conduct operations," and they "breached their duty as reasonably prudent operators to cause the least possible damage" to Board property, and, in their failure to restore the property, they "unreasonabl[y] exercise[d their] rights without regard to those of plaintiff."
4
Morris v. Covan World Wide Moving, Inc., 144 F.3d 377, 380 (5th Cir.1998).
5
FED.R.CIV.P. 56(c);Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
6
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
7
See United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962); Olabisiomotosho v. City of Houston, 185 F.3d 521, 525 (5th Cir.1999).
8
See Judwin Properties, Inc. v. United States Fire Ins. Co., 973 F.2d 432, 436-37 (5th Cir. 1992) (noting that a district court may grant summary judgment sua sponte, but that it must give the nonmovant ten days' notice; and finding error because even if summary judgment is proper on the merits, the nonmovant is entitled to an opportunity to defend against it).
9
Washington v. Resolution Trust Corp., 68 F.3d 935, 939-40 (5th Cir.1995) (citing Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 28 F.3d 1388, 1398 (5th Cir.1994)).
10
See, e.g., Davis v. Le Blanc, 149 So.2d 252, 254 (La.App. 3 Cir.1963).
11
See State ex rel Guste v. Simoni, Heck & Associates, 331 So.2d 478, 490 (La.1976) (Summers, J., dissenting) (quoting 2 M. PLANIOL, TREATISE ON THE CIVIL LAW, Nos. 873-74 at 485-86 (11th ed. La. State. L. Inst.trans. 1939)).
12
See LA. CIV.CODE ANN. art. 646 (West 1980) (defining "predial servitude").
13
See LA. CIV.CODE ANN. art. 1983 (West 1987).
14
See Ogden v. Bankston, 398 So.2d 1037, 1040 (La.1981).
15
See LA. CIV.CODE ANN. art. 697 (West 1980) ("The use and extent of such servitudes are regulated by the title by which they are created, and, in the absence of such regulation, by the following rules.").
16
Compare the explicit letter of agreement in Ryan v. Southern Natural Gas Co., 879 F.2d 162 (5th Cir.1989), which we discuss below.
17
Vizinat v. Transcontinental Gas Pipeline Corp., 552 So.2d 1237, 1238-39 (La.App. 3 Cir.1989).
18
St. Martin v. Mobil Exploration & Producing U.S. Inc., 224 F.3d 402 (5th Cir.2000).
19
Id. at 414 (Barksdale, J., dissenting).
20
Id. at 408-10 (majority).
21
Id. at 409 n. 9.
22
Webster's defines "appurtenance" as:
1: an incidental property right or privilege... belonging to a principal right ... 2: a subordinate part, adjunct, or accessory ... 3: appurtenances pl: accessory objects used in any function: apparatus, gear.
WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 107 (1986). American Heritage gives the following:
1
Something added to another, more important thing; an appendage.... 2. appurtenances. Equipment, such as clothing, tools, or instruments, used for a specific purpose or task; gear. 3Law. A right, privilege, or property considered incident to the principal property for passage of title, conveyance, or inheritance.
AMERICAN HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE 91 (3d ed.1992). The O.E.D. is similar:
1
Law and gen. A thing that belongs to another, a "belonging"; a minor property, right, or privilege, belonging to another more important, and passing in possession with it; an appendage.
2
A thing which naturally and fitly forms a subordinate part of, or belongs to, a whole system; a contributory adjunct, an accessory
3
esp. in pl. The mechanical accessories employed in any function or complex scheme; apparatus, gear.
1
OXFORD ENGLISH DICTIONARY 589-90 (2d ed.1989)
23
Ryan v. Southern Natural Gas Co., 879 F.2d 162 (5th Cir.1989).
24
Id. at 163.
25
Id. at 165.
26
Id. at 164.
27
Ryan v. Southern Natural Gas Co., 1987 WL 19044, at *2 (E.D.La.).
28
Given our uncertainty as to whether the Board had notice of erosion in Section 16 (18-13), which we discuss below, we do not accept, for summary-judgment purposes, Koch's and Columbia's arguments that the Board acquiesced in a course of performance that evinces the intention of the parties with respect to marsh erosion
29
LA. CIV.CODE ANN art. 697
30
LA. CIV.CODE ANN. art. 730 (West 1980) ("Doubt as to the existence, extent, or manner of exercise of a predial servitude shall be resolved in favor of the servient estate.");McGuire v. Central Louisiana Electric Co., 337 So.2d 1070, 1072 (La.1976).
31
Palomeque v. Prudhomme, 95-0725, 7 (La.11/27/1995), 664 So.2d 88, 93 (citations omitted).
32
See LA. CIV.CODE ANN. art. 743 (West 1980) ("Rights that are necessary for the use of a servitude are acquired at the time the servitude is established. They are to be exercised in a way least inconvenient for the servient estate."); LA. CIV.CODE ANN. art. 745 (West 1980) ("The owner of the dominant estate ... may deposit materials to be used for the works and the debris that may result, under the obligation of causing the least possible damage."); Duet v. Louisiana Power & Light Co., 169 F.Supp. 184, 186 (D.La. 1958):
It is settled in Louisiana ... that one having an easement or servitude on another's land is bound to use that easement or servitude in such manner as not unreasonably to injure the right of the owner of the servient estate, and that if the owner of the easement or servitude uses it in a negligent, unauthorized, or unreasonable manner, the owner of the servient estate may maintain an action for damages resulting from such use.
See also Stephens v. Int'l Paper Co., 542 So.2d 35, 39 (La.App. 2 Cir.1989); Board of Commissioners v. Ill. Cent. Gulf R.R. Co., 379 So.2d 838, 841 (La.App. 4 Cir.1980); A.N. YIANNOPOULOS, 4 LOUISIANA CIVIL LAW TREATISE: PREDIAL SERVITUDES § 156 (West 1997) ("The owner of the dominant estate may not make a use of the servitude that aggravates the condition of the servient estate."); id. § 152 ("The propositions that the owner of the dominant estate may only use the servitude within the limits established by title or possession and that he cannot make changes in the manner of use of the servitude that aggravate the condition of the servient estate are self-evident and do not require legislative affirmation.").
33
YIANNOPOULOS, PREDIAL SERVITUDES,supra, § 156.
34
Lewis v. Sohio Petroleum Co., 532 So.2d 754 (La. 1988).
35
Id.
36
Lewis v. Sohio Petroleum Co., 528 So.2d 1084, 1086 (La.App. 3 Cir.1988).
37
Id. at 1087.
38
Id. at 1085, 1090.
39
Lewis, 532 So.2d at 754 (La.).
40
YIANNOPOULOS, PREDIAL SERVITUDES,supra, § 156. See also Chevron U.S.A., Inc. v. Common L.P., 1999 WL 1021831 (E.D.La.) ("[C]ourts should take into account the situation of the estates, the agreement of the parties, the needs of the dominant estate at the time of the creation of the servitude, and the prejudice sustained by the owner of the servient estate."). This is a fact-intensive inquiry best left to the district court or jury.
41
See R.J. Reynolds Tobacco Co. v. Hudson, 314 F.2d 776, 781 (5th Cir.1963) (stating that where alleged offense was a continuing tort, parties may recover for the damages sustained within the applicable prescriptive period before suit was filed).
42
Barfield v. Madison County, Miss., 212 F.3d 269, 271-72 (5th Cir.2000).
43
United Parcel Service, Inc. v. Weben Industries, Inc., 794 F.2d 1005, 1008 (5th Cir.1986).
44
Howe ex rel. Howe v. Scottsdale Ins. Co., 204 F.3d 624, 627 (5th Cir.2000).
45
First Nat'l Bank of Durant v. Trans Terra Corp., 142 F.3d 802, 809 (5th Cir.1998).
46
Stephens v. Int'l Paper Co., 542 So.2d 35 (La.App. 2 Cir.1989).
47
Stephens, 542 So.2d at 39. This result has received some criticism. See YIANNOPOULOS, PREDIAL SERVITUDES, supra, § 156 (discussing the prescription holding in Stephens) ("One may, of course, be critical of this analysis.").
48
Davis, 149 So.2d at 254.
49
LA. CIV.CODE ANN. art. 753 (West 1980)
50
Saul Litvinoff,Contract, Delict, Morals, and Law, 45 Loy. L.Rev. 1, 28 (1999) ("Since an early time, Louisiana courts have been aware that a particular wrongful act could be a breach of contract and also a quasi-delict, and that such an act would prompt the aggrieved party to seek a contractual remedy or a delictual one.").
51
10B CHARLES ALAN WRIGHT, ARTHUR R. MILLER, & MARY KAY KANE, FEDERAL PRACTICE AND PROCEDURE § 2734 & nn. 9, 21 (West 1998) (discussingReynolds, 314 F.2d at 776 (5th Cir.), at length).
52
Chabreck's report states that "[J]ust because one piece of property suffers from direct and indirect impacts due to one cause or causes does not mean that another piece of land will suffer direct and indirect impacts due to the same cause or causes."
53
LA. CIV.CODE ANN. art. 3493 (West 1994)
54
LA. CIV.CODE ANN. art. 3492 (West 1994)
55
Short forcontra non valentem agere nulla currit praescriptio: literally, "no prescription runs against one unable to act." See Cartwright v. Chrysler Corp., 255 La. 597, 232 So.2d 285, 287 (1970).
56
Louisiana Health Serv. & Indem. Co. v. Tarver, 93-2449, 11-12 (La.4/11/94); 635 So.2d 1090, 1098.
57
See Miley v. Consolidated Gravity Drainage Dist. No. 1, 93-1321, 4 (La.App. 1 Cir. 9/12/1994), 642 So.2d 693, 696 (involving land erosion claims); Dixon v. Houck, 466 So.2d 57, 59 (La.App. 2 Cir.1985).
58
Picard v. Vermilion Parish Sch. Bd., 2000-1222, 4 (La.App. 3 Cir. 4/4/2001), 783 So.2d 590, 594.
59
Landreneau v. Fruge, 598 So.2d 658, 662 (La.App. 3 Cir.1992).
60
Picard, 2000-1222 at 5, 783 So.2d at 595 (citing Jordan v. Employee Transfer Corp., 509 So.2d 420, 424 (La.1987), where the court stated that "prescription did not begin to run until [the plaintiff] had a reasonable basis to pursue a claim against a specific defendant").
61
Eldredge v. Martin Marietta Corp., 207 F.3d 737, 743 (5th Cir.2000) (citing Bergeron v. Pan Am. Assurance Co., 98-2421, 9 (La.App. 4 Cir. 4/7/1999), 731 So.2d 1037, 1042); Picard, 2000-1222 at 4, 783 So.2d at 594; Harsh v. Calogero, 615 So.2d 420, 422 (La.App. 4 Cir. 1993) ("Contra non valentem is an exceptional remedy ... which is in direct contradistinction to articles in our Civil Code. Therefore, it must be strictly construed.").
62
The court stated that "the plaintiff was aware of the erosion of Section 16," described evidence of "the school board's knowledge of Section 16 land erosion," and mentioned "the act/omissions of the defendants on § 16/T18/R13." It is not clear from these passages that the Board owns many sections sixteen in this vast coastal parish, none closer to another than five miles, and many separated by multiples of that distance
63
According to a newspaper report, a Board member opposed further dredging in 1981 because "it would make an already bad erosion problem worse," but nothing in the article indicates that the section sixteen at issue was Section 16 (18-13). Various Board minutes from the 1980s show that the Board was aware of erosion of section sixteen lands. In 1982, the Board even commissioned a study of erosion in five of its sections sixteen, but of these the closest to Section 16 (18-13) was apparently fifteen miles distant. As Columbia noted at oral argument, the Louisiana legislature has enacted legislative responses to the problem of marshland erosion. In 1996, a lawyer who owned land adjacent to another of the Board's sections sixteen made a presentation to the Board about widening of pipeline canals
64
Eldredge v. Martin Marietta Corp., 207 F.3d 737 (5th Cir.2000).
65
Id. at 743.
66
Picard, 2000-1222 at 5, 783 So.2d at 595.
67
Id. (emphasis of "inaction" added; emphasis of "reasonableness" original).
68
For example, the seizure of a semisubmersible drilling rig (evidenced by a posting thereon) was deemed sufficient to excite a reasonable person's attention and prompt inquiry into whether a lawyer had committed malpractice by failing to file a preferred ship's mortgage for the rigCarroll v. Wolfe, 98-1910, 6 (La.App. 1 Cir. 9/24/1999), 754 So.2d 1038, 1041 (holding that observing U.S. Marshals' signs on the rig gave plaintiffs notice). Similarly, when the owner of a tractor knew immediately after retrieving it from a repair shop that it was still malfunctioning, the owner could not sue the repairer more than one year later: the owner's delay was not reasonable, amounting instead to willful neglect, which in turn rendered contra non valentem unavailable. K & M Enters. v. Richland Equip. Co., 96-2292 6-9 (La.App. 1 Cir. 9/19/1997), 700 So.2d 921, 924-25.
69
Rihner v. Chevalier, 98-1032, 4-5 (La.App. 5 Cir. 3/30/1999), 731 So.2d 429, 431-32.
70
Beth Israel v. Bartley, Inc., 579 So.2d 1066, 1072 (La.App. 4 Cir.1991).
71
Ducre v. Mine Safety Appliances, 963 F.2d 757, 760 (5th Cir.1992) (citations and quotation marks omitted) (citing Griffin v. Kinberger, 507 So.2d 821, 823 (La. 1987) and Knaps v. B & B Chem. Co., 828 F.2d 1138, 1139 (5th Cir.1987)); see also Beth Israel, 579 So.2d at 1072.
72
Ducre, 963 F.2d at 760-62. We refused to charge the Ducre plaintiff with knowledge of his cause of action before he learned that his silicosis could have been caused by sand-blasting. Until he did so learn, the question of his knowledge was one for the jury. Id. at 761-62.
73
Beth Israel, 579 So.2d at 1072-77.
74
Encalade v. Coast Quality Construction Corp., 2000-925 (La.App. 5 Cir. 10/31/2000), 772 So.2d 244, 247.
75
See South Cent. Bell Tel. Co. v. Texaco, Inc., 418 So.2d 531, 532 (La.1982) ("Generally, the prescriptive period for damage to adjacent land commences when the damage becomes apparent and the injured party discovers who or what caused it."); Dean v. Hercules, Inc., 328 So.2d 69, 73 (La.1976) ("[D]amages from industrial emissions and the like may not become apparent until some years after the occurrence. Additionally, it might be impossible for the injured party to know what or who caused the damage, until an investigation can be made after the damage in fact becomes apparent. In such cases, the prescriptive period would run only from the date the damage becomes apparent."); YIANNOPOULOS, PREDIAL SERVITUDES, supra, § 63 (discussing obligations of vicinage) ("In accordance with Article 3493 of the Civil Code, prescription begins to run from the day the injured party acquired, or should have acquired, knowledge of the injury and other pertinent facts, namely, from the day the damage becomes apparent.").
76
South Cent. Bell, 418 So.2d at 533 ("Where the cause of the injury is a continuous one giving rise to successive damages, prescription dates from cessation of the wrongful conduct causing the damage."); Estate of Patout v. City of New Iberia, 97-1097, 9 (La.App. 3 Cir. 3/6/1998), 708 So.2d 526, 531 (citing South Cent. Bell).
77
Bustamento v. Tucker, 607 So.2d 532, 539 (La. 1992).
78
South Cent. Bell, 418 So.2d at 533.
79
Crump v. Sabine River Auth., 98-2326 (La.6/29/1999), 737 So.2d 720.
80
Crump, 98-2326 at 1-3, 6-7 (La.6/29/99); 737 So.2d at 723, 726.
81
St. Martin v. Mobil, 224 F.3d at 409 n. 8.
82
Crump, 98-2326 at 7 (La.6/29/99); 737 So.2d at 726 (citing YIANNOPOULOS, PREDIAL SERVITUDES, supra, § 63); see also Estate of Patout v. City of New Iberia, 2001-0151, 4 (La.App. 3 Cir. 4/3/02), 2002 WL 535037, at *4 (citing same).
83
YIANNOPOULOS, PREDIAL SERVITUDES,supra, § 63 (internal quotations and footnotes omitted).
84
2001 WL 175226 (E.D.La.)
85
See 5TH CIR. RULE 47.5.
86
St. Martin v. Quintana Petroleum Corp., No. 01-30315, 32 Fed.Appx. 127 (5th Cir. Feb.20, 2002).
87
Crump, 98-2326 at 10 (La.6/29/99), 737 So.2d at 728.
88
For anyone who might not be familiar with this exotic emigré from South America that now is a ubiquitous resident of the marshes of South Louisiana, nutria are large aquatic rodents that feast on marsh grasses and roots
89
The defendants assert that Poiencot's statements that he warned the Board that nutria were eating the marsh in Section 16 (18-13) are further evidence supporting the conclusion that the Board had notice of marsh deterioration in the 1980s. Nutria damage, however, is different from hydrological erosion, and knowledge of the former does not give constructive notice of a cause of action based on the latter. In fact, notice of nutria damage may make the failure to investigate into possible hydrological erosion more reasonable, not lessSee our foregoing discussion of Louisiana contra non valentem cases.
| {
"pile_set_name": "FreeLaw"
} |
Filed 8/17/16 P. v. Martinez CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or
ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D068954
Plaintiff and Respondent,
v. (Super. Ct. No. JCF34729)
ALDO MANUEL MARTINEZ,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Imperial County, Ruth
Bermudez Montenegro, Judge. Affirmed.
Cannon & Harris and Donna L. Harris for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal, Andrew
Mestman and Minh U. Le, Deputy Attorneys General, for Plaintiff and Respondent.
A jury found Aldo Manuel Martinez guilty of one count of assault with a deadly
weapon (Pen. Code, § 245, subd. (a)(1)). The trial court sentenced Martinez to a four-
year prison term.
Martinez contends that the trial court committed prejudicial error concerning two
jury instructions: (1) the instruction on self-defense; and (2) the instruction on asserting
self-defense in instances of mutual combat. We conclude that Martinez's arguments lack
merit, and we accordingly affirm the judgment.
I.
FACTUAL AND PROCEDURAL BACKGROUND
On February 17, 2015, at around 9:00 p.m., in El Centro, Julio Castrejon parked
his van next to the sidewalk at his sister-in-law's apartment while his wife went upstairs
to pick up their two young children. Castrejon's daughter came down the stairs by
herself, and Castrejon got out of the van to put her in the backseat. At that point,
Castrejon saw Martinez walking on the sidewalk, coming toward the van. According to
Castrejon, as Martinez walked by the van, Martinez stated, "What you looking at, you
son of a bitch." Castrejon replied, "Calm. Just chilling." Martinez stated, "You like me
or what, you son of a bitch." Castrejon responded by waving Martinez away and stating,
"No. That's it. That's enough. Just go on." Castrejon and Martinez did not know each
other.
Castrejon saw that he was blocking someone from exiting a parking space, so he
backed up his van to let the person leave the parking space, and he then moved forward to
where he was originally positioned. As he was repositioning the van, Castrejon saw
2
Martinez in his rearview mirror making insulting and challenging gestures toward him.
After Castrejon parked again, Martinez walked back up to Castrejon, who was in the
driver's seat of the van, and said, "What do you want? You want problems, you son of a
bitch." Castrejon later told police that he thought maybe Martinez misunderstood his
backing up of the van as an action of aggression directed toward Martinez, rather than a
movement to let someone exit a parking space. According to Castrejon, his driver's side
window was slightly open, and Martinez tried to punch him through the window, but
Martinez did not make contact with his face.
Around that time, Castrejon's wife, Christina, came down the stairs with the
couple's son. She saw Martinez moving toward Castrejon, swearing at him and throwing
punches inside the van's window, which she believed made contact with Castrejon
approximately two times. Christina heard Martinez say something such as, "I'm going to
fuck you up."
Castrejon explained that he was worried about his family's safety, so he took
action against Martinez by opening the door to the van and hitting Martinez with the
door. Castrejon got out of the van, and both men started throwing punches at each other.
Castrejon felt Martinez land a blow on the left side of his neck. Castrejon punched
Martinez several times in the face and body. Christina tried to pull the men apart, but
they continued fighting. Castrejon felt that he was bleeding and that a piece of skin was
hanging near his ear, which made him realize Martinez must have a knife, although he
never saw a weapon during the fight. Castrejon became more angry and started kicking
at Martinez's leg, trying to break it.
3
At some point, Castrejon tackled Martinez to the ground and the fight continued.
Finally, Christina succeeded in convincing Castrejon to end the fight, and Castrejon
withdrew. Martinez walked away from the area.
Castrejon was taken by paramedics to the hospital, where it was discovered that he
had two cuts on the back of his neck, which required stiches and a transfer to San Diego
by helicopter for further evaluation.
Martinez testified at trial and explained that on the night of the assault, he had just
been in an argument with his wife and had several alcoholic drinks. He was walking next
to the apartment complex, preparing to cross in back of Castrejon's van, when Castrejon
unexpectedly backed up, almost hitting Martinez. Martinez and Castrejon had no
interaction before the van backed up. Martinez was angry that Castrejon almost hit him,
and he therefore shouted rude remarks to Castrejon, swearing at him and telling him to
watch where he was going.
According to Martinez, Castrejon then backed up the van so that the two men were
face-to-face. Castrejon flung open the door, hitting Martinez. Martinez backed away and
started swinging to defend himself. The two men then engaged in a fist-fight, with
Martinez hitting Castrejon two or three times in self-defense, and Castrejon hitting
Martinez four or five times. Castrejon tackled Martinez to the ground, kicking and
hitting him several more times and then putting his hands around Martinez's neck so that
he had difficulty breathing. According to Martinez, the fight ended when Castrejon
released the grip on his neck, and Martinez walked away. Martinez testified that he did
4
not have a knife during the fight, and he did not hit or punch through the driver's side
window.
Martinez was charged with and convicted of one count of assault with a deadly
weapon. (Pen. Code, § 245, subd. (a)(1).) The trial court sentenced Martinez to four
years in prison.
II.
DISCUSSION
A. The Trial Court Did Not Err in the Jury Instruction on Self-defense
We first consider Martinez's argument that the trial court erred in giving a jury
instruction on self-defense that misstated the applicable law.
Based on CALCRIM No. 3470, the trial court gave the following instruction on
self-defense:
"Self-defense is a defense to assault with a deadly weapon. The
defendant is not guilty of that crime if he used force against the other
person in lawful self-defense. The defendant acted in lawful self-defense
if:
"1. The defendant reasonably believed that he was in imminent
danger of suffering bodily injury;
"2. The defendant reasonably believed that the immediate use of
force was necessary to defend against that danger;
"AND
"3. The defendant used no more force than was reasonably necessary
to defend against that danger.
"Belief in future harm is not sufficient, no matter how great or how
likely the harm is believed to be. The defendant must have believed there
was imminent danger of bodily injury to himself. Defendant's belief must
5
have been reasonable and he must have acted because of that belief. The
defendant is only entitled to use that amount of force that a reasonable
person would believe is necessary in the same situation. If the defendant
used more force than was reasonable, the defendant did not act in lawful
self-defense.
"When deciding whether the defendant's beliefs were reasonable,
consider all the circumstances as they were known to and appeared to the
defendant and consider what a reasonable person in a similar situation with
similar knowledge would have believed. If the defendant's beliefs were
reasonable, the danger does not need to have actually existed.
"The defendant's belief that he was threatened may be reasonable
even if he relied on information that was not true. However, the defendant
must actually and reasonably have believed that the information was true.
"A defendant is not required to retreat. He or she is entitled to stand
his or her ground and defend himself [or herself] and, if reasonably
necessary, to pursue an assailant until the danger of death/bodily injury has
passed. This is so even if safety could have been achieved by retreating.
"The People have the burden of proving beyond a reasonable doubt
that the defendant did not act in lawful self-defense. If the People have not
met this burden, you must find the defendant not guilty of assault with a
deadly weapon."
Focusing solely on the first sentence of the instruction, which states that "[s]elf-
defense is a defense to assault with a deadly weapon," Martinez contends that the
instruction misstated the law because it erroneously led the jury to believe that a
defendant is "entitled to use self[-]defense to defend himself only if he was assaulted with
a deadly weapon."1 (Italics added.) As it is undisputedly not a correct statement of the
law that a defendant may assert the legal defense of self-defense only in instances where
1 The first sentence of CALCRIM No. 3470 states: "Self-defense is a defense to
<insert list of pertinent crimes charged>." Here, the first sentence of the instruction as
given by the trial court was created by inserting the name of the crime with which
Martinez was charged, namely assault with a deadly weapon.
6
the defendant is himself assaulted with a deadly weapon (see People v. Minifie (1996) 13
Cal.4th 1055, 1064 [threat of imminent bodily injury justifies self-defense]), Martinez
contends that the jury was misled by the instruction and the judgment should be reversed.
As we will explain, the argument lacks merit.
"A defendant challenging an instruction as being subject to erroneous
interpretation by the jury must demonstrate a reasonable likelihood that the jury
understood the instruction in the way asserted by the defendant." (People v. Cross (2008)
45 Cal.4th 58, 67-68 (Cross).) " '[T]he correctness of jury instructions is to be
determined from the entire charge of the court, not from a consideration of parts of an
instruction or from a particular instruction.' " (People v. Carrington (2009) 47 Cal.4th
145, 192.) Further, in examining the entire charge we assume that jurors are
" ' " ' "intelligent persons and capable of understanding and correlating all jury
instructions which are given." ' " ' " (People v. Smith (2008) 168 Cal.App.4th 7, 13.)
Here, when the entire instruction on self-defense is considered, there is not a
reasonable likelihood that the jury understood it in the way asserted by Martinez. The
interpretation advanced by Martinez is possible only by ignoring the second sentence of
the instruction. Taken together, the first and second sentence state: "Self-defense is a
defense to assault with a deadly weapon. The defendant is not guilty of that crime if he
used force against the other person in lawful self-defense." (Italics added.) The italicized
portion of the second sentence, referring to "that crime," unambiguously relates back to
the crime of assault with a deadly weapon identified in the first sentence. Therefore,
reading the two sentences together, any reasonable person would understand the first
7
sentence to mean that self-defense is a legal defense to the crime of assault with a deadly
weapon.
Subsequent portions of the instruction make clear that the type of threat that gives
the defendant the right to use self-defense is not limited to a threat of injury from a
deadly weapon, but rather any "imminent danger of suffering bodily injury."
Specifically, the first element specified in the instruction requires a finding that the
defendant "reasonably believed that he was in imminent danger of suffering bodily
injury," and the instruction later repeats this requirement by stating that "[t]he defendant
must have believed there was imminent danger of bodily injury to himself."
Further, when a defendant claims that an instruction was misleading, we may also
"consider the arguments of counsel in assessing the probable impact of the instruction on
the jury." (People v. Young (2005) 34 Cal.4th 1149, 1202.) Here, nothing was said
during closing argument, either by the prosecutor or defense counsel, to suggest that
Martinez could claim the legal defense of self-defense only if Castrejon assaulted him
with a deadly weapon. Instead, the portion of the closing arguments discussing self-
defense focused on whether Martinez reasonably believed he was in immediate danger of
bodily harm.
Accordingly, we conclude there is no reasonable likelihood that the jury
understood the first sentence of the instruction to mean that Martinez acted in self-
defense only if he was responding to an assault with a deadly weapon.
8
B. The Trial Court Did Not Err in the Jury Instruction on Mutual Combat
Martinez's second argument is that the trial court erred in instructing on mutual
combat for two reasons: (1) the evidence did not support a mutual combat instruction;
and (2) the mutual combat instruction misstated the law.
1. The Mutual Combat Instruction
The trial court instructed with CALCRIM No. 3471, titled "Right to Self-defense:
Mutual Combat or Initial Aggressor," as follows:
"A person who engages in mutual combat/ or who starts a fight has a
right to self-defense only if:
"1. he actually and in good faith tried to stop fighting;
"AND
"2. he indicated, by word or by conduct, to his opponent, in a way
that a reasonable person would understand, that he wanted to stop fighting
and that he had stopped fighting.
"AND
"3. he gave his opponent a chance to stop fighting.
"If the defendant meets these requirements, he then had a right to
self-defense if the opponent continued to fight.
"However, if the defendant used only non-deadly force, and the
opponent responded with such sudden and deadly force that the defendant
could not withdraw from the fight, then the defendant had the right to
defend himself with deadly force and was not required to try to stop
fighting/ or communicate the desire to stop to the opponent, or give the
opponent a chance to stop fighting.
"A fight is mutual combat when it began or continued by mutual
consent or agreement. That agreement may be expressly stated or implied
and must occur before the claim to self-defense arose."
9
2. Martinez's Argument That Insufficient Evidence Supported the Instruction
Lacks Merit
Martinez's first argument is that the instruction should not have been given to the
jury because "there was insufficient evidence either that [Martinez] started the fight or
that there was any agreement to fight."
Martinez's argument relies on the principle that "[i]t is error to give an instruction
which, while correctly stating a principle of law, has no application to the facts of the
case." (People v. Guiton (1993) 4 Cal.4th 1116, 1129.) "The trial court has the duty to
instruct on general principles of law relevant to the issues raised by the evidence
[citations] and has the correlative duty 'to refrain from instructing on principles of law
which not only are irrelevant to the issues raised by the evidence but also have the effect
of confusing the jury or relieving it from making findings on relevant issues.' " (People
v. Saddler (1979) 24 Cal.3d 671, 681.)
As an initial matter, we note that although Martinez now claims that insufficient
evidence supported the instruction, he requested the instruction in the trial court by
including it in his packet of requested instructions. Accordingly, the doctrine of invited
error applies.
" 'The doctrine of invited error is designed to prevent an accused from gaining a
reversal on appeal because of an error made by the trial court at his behest. If defense
counsel intentionally caused the trial court to err, the appellant cannot be heard to
complain on appeal. . . . [I]t also must be clear that counsel acted for tactical reasons and
not out of ignorance or mistake.' " (People v. Coffman and Marlow (2004) 34 Cal.4th 1,
10
49.) However, "[i]n cases involving an action affirmatively taken by defense counsel,"
courts "have found a clearly implied tactical purpose to be sufficient to invoke the invited
error rule." (Ibid.) Here, defense counsel clearly took the affirmative action of
requesting that the trial court instruct the jury on mutual combat and never withdrew the
request. Accordingly, under the doctrine of invited error, Martinez has forfeited the
contention that insufficient evidence supported the giving of a jury instruction on mutual
combat. (See People v. Jackson (1996) 13 Cal.4th 1164, 1225 [defendant waived his
appellate argument that insufficient evidence supported a jury instruction, as defendant
requested the instruction in the trial court].)
Even were we to reach the merits of Martinez's contention, we would reject it
because the evidence does support the instruction.
Although Martinez contends that the evidence does not show any agreement to
engage in mutual combat, such an agreement may be implied from the evidence. (People
v. Ross (2007) 155 Cal.App.4th 1033, 1046, 1047 (Ross) [mutual combat may be based
on an "express or implied" agreement to fight]; CALCRIM No. 3471 [a mutual
agreement to fight "may be expressly stated or implied"].) Here, a reasonable juror could
conclude that under a scenario in which (1) Martinez was shouting obscenities at
Castrejon and making threatening gestures, and (2) Castrejon got out of his car and
confronted Martinez in a violent manner, the two men had entered into an implied
agreement to engage in mutual combat to settle their differences. Specifically, Castrejon
testified that when Martinez walked back to confront him, Martinez said, "You want
problems, you son of a bitch," and following that statement Castrejon got out of the car.
11
A reasonable juror could conclude that Martinez's specific words, coupled with
Castrejon's act of getting out of the car, indicated an implied agreement between the two
men that they would fight each other. Indeed, as both Castrejon and Christina testified,
the two men started throwing punches at each other as soon as they were standing face-
to-face.
Sufficient evidence supports the instruction for a second reason. CALCRIM
No. 3471, as given by the trial court, applies in two distinct circumstances: (1) where the
defendant "engages in mutual combat"; and (2) where a defendant "starts a fight." Here,
the evidence supports the instruction because there is sufficient evidence to support a
finding that Martinez started the fight, regardless of whether the evidence supports a
finding of mutual combat. Specifically, Christina testified that she saw Martinez punch
through the open half of the driver's side window and make contact with Castrejon at
least two times. Martinez's conduct can reasonably be understood as starting a fight as
the initial aggressor.
3. The Instruction Did Not Misstate the Law
Finally, Martinez contends that CALCRIM No. 3471 misstates the law regarding
self-defense in the context of mutual combat.2 Although Martinez did not argue in the
trial court that CALCRIM No. 3471 reflects an incorrect statement of the law, such an
argument is not forfeited on appeal by failing to raise it below. (People v. Hudson (2006)
38 Cal.4th 1002, 1012 [forfeiture rule "does not apply when . . . the trial court gives an
2 The trial court's instruction followed the text of CALCRIM No. 3471, without
substantive change.
12
instruction that is an incorrect statement of the law"].) Accordingly, we will consider
Martinez's argument. "The independent or de novo standard of review is applicable in
assessing whether instructions correctly state the law." (People v. Posey (2004) 32
Cal.4th 193, 218.)
According to Martinez, CALCRIM No. 3471 misstates the law because, under
controlling law, the agreement to engage in mutual combat must be reached before the
initiation of hostilities. Accordingly, Martinez argues that two flaws are present in
CALCRIM No. 3471: (1) instead of stating that the agreement to engage in mutual
combat must precede the initiation of hostilities, the instruction incorrectly states that
such an agreement may also consist of an agreement to continue an already-ongoing
fight; and (2) instead of stating that the agreement to engage in mutual combat must
precede the initiation of hostilities, the instruction states that the agreement to engage in
mutual combat "must occur 'before the claim to self-defense arose.' "
As authority for his argument, Martinez relies solely on Ross. At the time Ross
was decided, the applicable jury instruction on self-defense in circumstances of mutual
combat did not define the term "mutual combat." (Ross, supra, 155 Cal.App.4th at
p. 1043.) Ross therefore considered the "meaning of 'mutual combat' as that phrase is
used in this state's law of self-defense." (Ibid.) CALCRIM No. 3471 specifically cites to
Ross as support for its definition of mutual combat. (Judicial Council of Cal. Crim. Jury.
Instns. (2016) CALCRIM No. 3471, Authority, p. 984.)
Summarizing existing case law at the outset of its analysis, Ross explained that
"[o]ld but intact case law confirms that as used in this state's law of self-defense, 'mutual
13
combat' means not merely a reciprocal exchange of blows but one pursuant to mutual
intention, consent, or agreement preceding the initiation of hostilities." (Ross, supra, 155
Cal.App.4th at p. 1045.) Ross then fleshed out this initial statement by engaging in an
extensive review of the case law.
Ross began its review of the case law by observing that in the "lead case" of
People v. Fowler (1918) 178 Cal. 657, our Supreme Court stated that " 'the phrase
"mutual combat" has been in general use to designate the branch of the law of self-
defense relating to homicides committed in the course of a duel or other fight begun or
continued by mutual consent or agreement, express or implied.' " (Ross, supra, 155
Cal.App.4th at p. 1045, quoting Fowler, at p. 671, italics modified from original.) Ross
then synthesized its review by arriving at the following summary of the law: "We are
satisfied that 'mutual combat' consists of fighting by mutual intention or consent, as most
clearly reflected in an express or implied agreement to fight. The agreement need not
have all the characteristics of a legally binding contract; indeed, it necessarily lacks at
least one such characteristic: a lawful object. But there must be evidence from which the
jury could reasonably find that both combatants actually consented or intended to fight
before the claimed occasion for self-defense arose." (Id. at pp. 1046-1047, italics
modified from original.)3
3 Similarly, in a footnote, Ross explains that the "common intention or desire [to
fight] must precede the first assaultive conduct, or at least the first conduct sufficient to
trigger a right of self-defense in its target." (Ross, supra, 155 Cal.App.4th at p. 1045,
fn. 14, italics added.)
14
In arguing that CALCRIM No. 3471 is flawed because Ross requires that the
agreement to engage in mutual combat must occur before the initiation of hostilities,
rather than as an agreement to continue a fight or as an agreement made before the right
to self-defense arises, Martinez incorrectly takes a single statement in Ross out of
context. Although, as we have described, Ross initially summarizes the "[o]ld but intact"
case law by stating that mutual combat must be "pursuant to mutual intention, consent, or
agreement preceding the initiation of hostilities" (Ross, supra, 155 Cal.App.4th at
p. 1045, italics modified from original), the subsequent discussion in Ross, which we
have quoted above, expands on this statement and makes clear both that (1) mutual
combat includes an agreement to continue a fight, and (2) there need only be evidence
that both combatants consented or intended to fight before the occasion for self-defense
arose. (Id. at pp. 1045, 1047.)4 Therefore, we find no merit to Martinez's argument that
CALCRIM No. 3471 is inconsistent with the law as stated in Ross.
In his reply brief, Martinez appears to make a third challenge to CALCRIM
No. 3471, in which he argues that the instruction is misleading because it does not require
the jury to determine whether the parties agreed to engage in mutual combat. Martinez
4 Martinez claims that Ross cannot have intended to define mutual combat to
include an agreement to continue a fight because that would create a risk that a
defendant's conduct of fighting back in self-defense "may become mutual combat simply
because the person exercising his self-defense right 'continues' the fight by fighting
back." We disagree. Because both Ross and CALCRIM No. 3471 also specify that an
agreement to engage in mutual combat can only come about before the right to self-
defense arises, there is no risk that a defendant will be precluded from claiming self-
defense in the event that he continues to fight simply to defend himself from imminent
bodily injury.
15
contends that the instruction improperly permits the jury to simply assume there was such
an agreement. Specifically, Martinez argues, "CALCRIM No. 3471 . . . did not instruct
the jury that it must first find [Martinez] and Castrejon mutually agreed to fight" and did
not "make clear that there must be proof of an agreement to fight." Looking to the text of
the instruction, we reject the argument.5
CALCRIM No. 3471 states that "[a] person who engages in mutual combat" must
meet the three requirements set forth in the instruction to claim self-defense. The
instruction then gives the jury a definition of mutual combat so that it may determine
whether the instruction applies: "A fight is mutual combat when it began or continued by
mutual consent or agreement." In light of this language, it is clear that the instruction is
calling upon the jury to make a determination of whether there was an agreement to
engage in mutual combat, and we perceive no reasonable likelihood that the instruction
would be interpreted in the manner identified by Martinez, under which the jury is
allowed to assume that an agreement existed. (Cross, supra, 45 Cal.4th at pp. 67-68
[defendant must demonstrate a reasonable likelihood that the jury instruction was
understood as he interprets it].)
In sum, we reject Martinez's argument that CALCRIM No. 3471 contains
incorrect or misleading statements of law.
5 Although we may elect not to address an argument made for the first time in a
reply brief (People v. Zamudio (2008) 43 Cal.4th 327, 353), in this instance we exercise
our discretion to do so.
16
DISPOSITION
The judgment is affirmed.
IRION, J.
WE CONCUR:
MCCONNELL, P. J.
BENKE, J.
17
| {
"pile_set_name": "FreeLaw"
} |
767 F.Supp. 222 (1991)
In re GRAND JURY PROCEEDINGS JUNE 1991.
No. 91-Y-129.
United States District Court, D. Colorado.
July 3, 1991.
Thomas O'Rourke, Denver, Colo.
Daniel Sears, Raymond Friedlob and Thomas Bromberg, Denver, Colo.
MEMORANDUM OPINION AND ORDER
CARRIGAN, District Judge.
*223 X Corporation (X)[1] moved to intervene in a federal grand jury proceeding, moved to quash subpoenas duces tecum served on its in-house counsel and its former assistant counsel, and sought a protective order to preclude questioning these attorneys regarding communications allegedly subject to the corporation's attorney-client privilege. After considering briefs and hearing argument, I denied both those motions, holding that the crime-fraud exception to the attorney-client privilege applied.
Pursuant to 28 U.S.C. § 1292(b), X filed a motion for certification of issues for interlocutory appeal and for a stay pending that appeal of this court's denial of its motions. At a hearing, I denied the motion for certification. This order explicates the basis for the latter ruling.
Section 1292(b), 28 U.S.C., provides that:
"When a district judge, in making in a civil action an order not otherwise appealable under this section, shall be of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, he shall so state in writing in such order. The Court of Appeals which would have jurisdiction of an appeal of such action may thereupon, in its discretion, permit an appeal to be taken from such order, if application is made to it within ten days after entry of the order: Provided, however, that application for an appeal hereunder shall not stay proceedings in the district court unless the district judge or the Court of Appeals or a judge thereof shall so order."
The statute imposes four criteria to be met before an issue may be are certified for appeal under § 1292(b):
(1) the action must be a "civil action";
(2) the court must conclude that the order from which appeal is to be taken involves a "controlling question of law";
(3) as to that question there must be "substantial ground for difference of opinion"; and
(4) the court must believe that "an immediate appeal from the order may materially advance the ultimate termination of the litigation."
Citing United States v. Bonnell, 483 F.Supp. 1091 (D.Minn.1979), X argued that all four criteria are here established. Bonnell involved, not a grand jury, but an investigation by the Internal Revenue Service into possible criminal tax violations. The party asserting that a document obtained by the IRS was subject to attorney-client privilege sought § 1292(b) certification and a stay of enforcement of grand jury subpoenas pending appeal. The grand jury in that case had not yet begun to meet, and because it was a special grand jury, its term could have been extended. Id. at 1093.
Addressing whether the § 1292(b) criteria had been met, the Bonnell court determined, first, that:
"After reflecting upon the nature of this case, the purposes of grand jury proceedings, and the goals of § 1292(b), this Court believes that the term "civil action" may be interpreted to include grand jury proceedings such as this one." 483 F.Supp. at 1092.
In reaching that conclusion, the court noted that its Circuit, the Eighth, had not passed on the question whether grand jury proceedings were "civil actions," and recognized a split of authority among other circuits. Id. at 1092.
Second, the court found the question presented to be "controlling" because disclosure of the document sought would cause prejudice to parties involved in the grand jury proceeding. Id. at 1093. Third, it determined that the question whether the document was subject to privilege was one creating substantial ground for difference *224 of opinion.[2]
Finally, the Bonnell court determined that the joinder on appeal of the issue sought to be appealed with several other issues that clearly were appealable would allow expeditious determination of all questions in one appeal. Id. Noting that other courts had been reluctant to allow appeals because of concern that the grand jury's term might expire before the completion of the appellate process, citing In re Grand Jury Proceedings (U.S. Steel-Clairton Works), 525 F.2d 151, 156 (3d Cir.1975), and mindful of the policy against allowing piecemeal appeals that cause inordinate delays in grand jury investigations, citing Cobbledick v. United States, 309 U.S. 323, 60 S.Ct. 540, 84 L.Ed. 783 (1940), the court found that "immediate consideration of all the related issues in this litigation outweigh any minimal disruption of the grand jury process." Bonnell, 483 F.Supp. at 1092-93. Delay of the grand jury inquiry was not a deterrent to certification because the special grand jury's term could be extended if necessary. Id. at 1093.
Bonnell obviously is not controlling precedent in this circuit and the Tenth Circuit has not spoken on the issue before me. I conclude that the better reasoned analysis is found in cases not cited by X in presenting its motion. Further, even if I were to accept Bonnell's conclusion that grand jury proceedings are "civil actions" within the meaning of § 1292(b) (which I do not), I conclude that the facts relied upon to justify certification under § 1292(b) in Bonnell are not present here.
The more recent cases hold that grand jury proceedings are not "civil actions," and therefore that § 1292(b) certification is unavailable in a grand jury context. In re Grand Jury Proceedings, 832 F.2d 554 (11th Cir.1987), for example, was a case in which the district court had certified a § 1292(b) appeal. The Eleventh Circuit there declared:
"We hold that a grand jury proceeding is not a "civil action" for purposes of section 1292(b). Just in terms of the plain meaning of the words, it seems self-evident that an order denying a motion to quash a subpoena issued by a grand jury investigating a possible criminal violation is not part of a "civil action." We base our conclusion on more than a mechanical labeling of the proceedings below, however. By expressly limiting section 1292(b)'s application to "controlling question[s] of law" in "civil" cases, Congress clearly indicated its intent not to disturb well-established precedent forbidding piecemeal review of grand jury proceedings. In Cobbledick v. United States, 309 U.S. 323, 60 S.Ct. 540, 84 L.Ed. 783 (1940), decided eighteen years before Congress enacted section 1292(b), the Supreme Court held that a district court's denial of a motion to quash a grand jury subpoena was not an appealable final decision within the meaning of the predecessor section of 28 U.S.C. § 1291 (1982). Noting that the Constitution itself makes the grand jury a part of the criminal process, the Court concluded that "[i]t is no less important to safeguard against undue interruption the inquiry instituted by the grand jury than to protect from delay the progress of trial after an indictment has been found....
We are unable to conclude that Congress, by authorizing permissive interlocutory appeals of "controlling questions of law" in "civil" actions, intended to undermine the strong policy against permitting appellate interruption of grand jury proceedings." Id. at 557-58.
Similarly, at least one court held, prior to Bonnell, that a grand jury investigation of possible criminal tax violations is not a civil action. See In re April 1977 Grand Jury Subpoenas, 584 F.2d 1366, 1368 (6th Cir. 1978) (further holding that even if the appeal could be deemed a "civil action," the appeal would be dismissed because it would *225 not materially advance ultimate termination of the litigation). See also In re Grand Jury Subpoena Duces Tecum, 1985, 775 F.2d 499, 502 (2d Cir.1985) (in deciding that no costs were awardable under the Equal Access to Justice Act to party successful on motion to quash grand jury subpoena, court noted that "[p]roceedings before a grand jury are essentially criminal in nature.").
Admittedly there is a split of authority on whether § 1292(b) certification is available in the grand jury context. See, e.g., In re Grand Jury Empanelled August 14, 1979, 638 F.2d 1235 (3d Cir.1981) (noting possibility that § 1292(b) could be invoked, noting problems with its use, and finding no jurisdiction under § 1291); In re Grand Jury Investigation, 599 F.2d 1224, 1244-45 (3d Cir.1979) (noting possibility of § 1292(b)'s application, but determining that appellate jurisdiction existed only under § 1291, not § 1292(b)); Bonnell, 483 F.Supp. at 1092 (and cases there cited).
I am persuaded by the better reasoned analysis of the Eleventh Circuit in In re Grand Jury Proceedings, 832 F.2d 554, and the other above cited cases that grand jury proceedings are not "civil actions." The predominant functions of a grand jury proceeding are to investigate charges in serious criminal cases and return indictments where appropriate. Costello v. United States, 350 U.S. 359, 362, 76 S.Ct. 406, 408, 100 L.Ed. 397 (1956). A grand jury is convened pursuant to Fed.R.Crim.P. 6, and its proceedings are criminal in nature, even though its actions, like those in a criminal trial itself, may give rise to collateral controversies where criminality is not an immediate issue. See Grand Jury Subpoena Duces Tecum, 775 F.2d at 502. Indeed, the United States Constitution itself makes the grand jury a part of the criminal process. U.S. Const. amend. V.
Had Congress intended § 1292(b) to allow interlocutory appeals from criminal investigations, it could have easily so provided, but it did not. This court will not construe the plain language of that statute in a manner contrary to Congress' manifest intent not to disturb the strong policy against piecemeal appeal to delay grand jury proceedings. Cobbledick, 309 U.S. at 327, 60 S.Ct. at 542.
Moreover, I am unconvinced that grand jury proceedings are "actions" at all, civil or criminal. Rather, they are part of the investigatory process that precedes the institution of criminal actions. As the United States Supreme Court noted almost 100 years ago in Post v. United States, 161 U.S. 583, 16 S.Ct. 611, 40 L.Ed. 816 (1896), a case relied on by the Bonnell court, a criminal proceeding is not commenced until a formal charge is brought openly. Thus there can be no "action" until that time. It strains credulity to assert that grand jury proceedings, which exhibit only limited aspects of the adversarial characteristics of lawsuits prosecuted in open court, constitute "actions" within the common meaning of that term or of the statute here at issue. For the above reasons, I hold that a grand jury proceeding is not a "civil action" for purposes of 28 U.S.C. § 1292(b).
Assuming, arguendo, that grand jury proceedings are "civil actions," however, I conclude that the second through fourth criteria for certifying issues for appeal under § 1292(b) are not met in the instant case.
The statute's second requirement is that the question of law presented for appeal be "controlling." The critical requirement is that the question be one having the potential for substantially accelerating disposition of the litigation. 9 Moore's Federal Practice, ¶ 110.22[2] (1991). If the correct answer to the question will end the matter pending, the question is controlling. Id.
The questions presented in X's motions fail to meet this requirement. They are not controlling in the sense that their resolution would accomplish the speedy resolution of the grand jury inquiry. Rather the reference of these matters by certification on interlocutory appeal would achieve the opposite result, delay in the grand jury's work.
The third requirement is that substantial grounds for difference of opinion exist as *226 to the question to be certified. That standard implies that the question is difficult, novel, and either a question on which there is little precedent or one whose correct resolution is not substantially guided by previous decisions. The questions here presented relate to intervention in grand jury proceedings and attorney-client privilege on which much law exists. They are not of the kind normally qualifying for interlocutory appeal.
Finally, the instant proposed appeal would doubtless not materially advance ultimate termination of the litigation (assuming that the proceedings of a grand jury constitute "litigation" at all). This case is inapposite to Bonnell where the special grand jury proceedings had not commenced and could be extended. Nor are several related issues, for which appeal clearly may be taken, here joined with the issues on which X seeks review, as in Bonnell. Granting X's motion, I conclude, would cause undue delay in the pending grand jury investigation, contrary to the strong policy expressed by United States Supreme Court that grand jury proceedings should not be so delayed. Cobbledick, 309 U.S. at 327, 60 S.Ct. at 542.
X, choosing among available alternatives, sought review only under 28 U.S.C. § 1292(b). It could well have proceeded under 28 U.S.C. § 1291 or sought an extraordinary writ. See In re Vargas, 723 F.2d 1461 (10th Cir.1983). I express no opinion, however, on the availability of any such alternate vehicle for appeal, for no such issue has been raised before me. In conclusion, I hold that X is not entitled to interlocutory appeal under 28 U.S.C. § 1292(b).
Accordingly, IT IS ORDERED that X's motion for § 1292(b) certification of issues for interlocutory appeal and for a stay pending appeal is denied.
NOTES
[1] The movant is identified by this fictitious name to preserve the secrecy of the grand jury proceeding to which its motion is addressed.
[2] A close reading of Bonnell reveals that the court was persuaded to so rule because "several key issues [unrelated to the privilege question] in this litigation have been hotly contested and pose novel and difficult questions." Bonnell, 483 F.Supp. at 1093. The conclusion is inescapable that the court found justification for certification of its question in the fact that related matters presented issues subject to a difference of opinion. Id.
| {
"pile_set_name": "FreeLaw"
} |
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
20.1
CA 13-00791
PRESENT: SCUDDER, P.J., SMITH, CENTRA, CARNI, AND WHALEN, JJ.
SOUTH BUFFALO DEVELOPMENT, LLC,
PLAINTIFF-APPELLANT,
V MEMORANDUM AND ORDER
PVS CHEMICAL SOLUTIONS, INC.,
DEFENDANT-RESPONDENT.
DUKE, HOLZMAN, PHOTIADIS & GRESENS, LLP, BUFFALO (MATTHEW J. BECK OF
COUNSEL), FOR PLAINTIFF-APPELLANT.
BLAIR & ROACH, LLP, TONAWANDA (DAVID L. ROACH OF COUNSEL), FOR
DEFENDANT-RESPONDENT.
Appeal from an order of the Supreme Court, Erie County (Timothy
J. Walker, A.J.), entered March 12, 2013. The order, among other
things, granted the cross motion of defendant for summary judgment
dismissing the complaint.
It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.
Memorandum: Plaintiff and defendant own contiguous parcels in
the vicinity of the Buffalo River in South Buffalo that were once part
of one common property owned by defendant’s predecessor in interest.
Defendant’s property sits between a large section of plaintiff’s
property and the Buffalo River, and currently houses a “sewer effluent
line” that provides discharge from plaintiff’s property into the
Buffalo River. Pursuant to an easement agreement executed in 1977,
when the common property was severed, defendant’s predecessor in
interest granted an easement to plaintiff’s predecessor in interest
“for the maintenance and operation of a sewer effluent line from
Grantee’s property to the Buffalo River, over, under, across and upon
a [15-foot] strip of land of Grantor’s property.” The easement
agreement further provided that the “fail[ure] to use said right of
way and easement for the purpose designated for a period of 12
consecutive months” would result in termination of the easement.
After commencing this action for, inter alia, injunctive relief,
plaintiff moved for summary judgment determining that an easement
exists in favor of plaintiff and preventing defendant from interfering
with the easement, and defendant cross-moved for summary judgment
dismissing the complaint.
Supreme Court properly granted defendant’s cross motion upon
-2- 20.1
CA 13-00791
determining that plaintiff is not entitled to the easement set forth
in the easement agreement. The “conditional easement [was]
extinguished by its own terms” in 2005 (Norse Realty Group, Inc. v
Mormando Family Ltd. Partnership, 38 AD3d 735, 736), inasmuch as
plaintiff’s predecessor in interest, which had ceased its operations,
“fail[ed] to use [the] right of way and easement for the purpose
designated,” i.e., “the maintenance and operation of a sewer effluent
line,” for the preceding 12 months. Contrary to plaintiff’s
contention, the fact that storm water incidentally passed through the
sewer effluent line before and after plaintiff’s predecessor in
interest ceased its operations does not save the easement from
termination. Notably, the easement was for a sewer effluent line, not
a general sewer line or a storm drainage system, and the court
properly determined that the easement agreement was unambiguous in
that respect. “In determining whether a[n agreement] is ambiguous,
the court first must determine whether the [agreement] ‘on its face is
reasonably susceptible of more than one interpretation’ ” (Gilpin v
Oswego Bldrs., Inc., 87 AD3d 1396, 1397, quoting Chimart Assoc. v
Paul, 66 NY2d 570, 573). Here, the court properly concluded that the
language of the easement agreement and the plain and ordinary meaning
of “effluent” demonstrated that the purpose of the easement was solely
to remove wastewater (see generally Kass v Kass, 91 NY2d 554, 566;
Mazzola v County of Suffolk, 143 AD2d 734, 735).
Contrary to plaintiff’s further contention, it is not entitled to
an implied easement to use the sewer effluent line to convey storm
water. Even assuming, arguendo, that we may decide this appeal on a
legal theory not expressly raised in the complaint (see Boyle v Marsh
& McLennan Cos., Inc., 50 AD3d 1587, 1588, lv denied 11 NY3d 705; see
generally CPLR 3026), we conclude that plaintiff is not entitled to an
implied easement inasmuch as the express easement for wastewater was
in effect at the time the common property was severed, i.e., when the
implied easement was allegedly created, and an express easement and an
implied easement cannot exist simultaneously (see Corrarino v Byrnes,
43 AD3d 421, 425; Oliphant v McCarthy, 208 AD2d 1079, 1080; see also
Alt v Laga, 207 AD2d 971, 971).
Entered: March 21, 2014 Frances E. Cafarell
Clerk of the Court
| {
"pile_set_name": "FreeLaw"
} |
689 F.Supp. 1082 (1988)
LaVonne WILLIAMS, Plaintiff,
v.
HEALTH MAINTENANCE ORGANIZATION OF FLORIDA, a/k/a HMO of Florida, Defendant.
No. 85-1286-CIV ORL-18.
United States District Court, M.D. Florida, Orlando Division.
March 1, 1988.
*1083 Beryl B. Thompson, Orlando, Fla., for plaintiff.
Gary R. Kessler, Joe C. Ashworth, Atlanta, Ga., and Harvey B. Hardy, Lakeland, Fla., for defendant.
*1084 ORDER
GEORGE KENDALL SHARP, District Judge.
This case came before the court for a non jury trial. Pursuant to Federal Rule of Civil Procedure 52, the court enters the following findings of fact and conclusions of law.
I. FINDINGS OF FACT
Plaintiff, Lavonne Williams, is a black female who brings this action on charges of failure to hire, failure to train and constructive discharge. Defendant, HMO of Florida (HMOFL) is an employer within the meaning of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. HMOFL is a wholly-owned subsidiary of U.S. Healthcare, Incorporated. Defendant and its parent company are involved in the development, marketing and administration of health maintenance organizations to employers and employees whom HMOFL seeks to enroll as members. HMOFL opened an Orlando office in the fall of 1983. The marketing department of the Orlando office was then comprised of a marketing director, two marketing managers, marketing representatives, member relations representatives, marketing administrators and a receptionist.
In January of 1984 plaintiff applied for a job as marketing representative (MR), pursuant to an ad in the Orlando Sentinel. Job requirements included a bachelors degree, strong interpersonal and group communication skills and the ability to work independently. Plaintiff applied in writing to the stated address, enclosing a copy of her resume which indicated she had received a bachelors degree in Business Education from Southern College. Plaintiff testified that she had graduated with a 3.5 grade point average. In addition, plaintiff had taken postgraduate classes at the University of Central Florida.
Plaintiff's resume indicated she had several years of work experience in the health care and insurance fields. Additionally, plaintiff had experience as an office manager for the Orlando Legal Aid Society, where she had a secretarial assistant who did her typing. However, none of plaintiff's previous jobs was in sales, and although plaintiff claimed to have experience speaking before small groups of people, she admitted having no experience speaking before groups of 20 or more, as was required for the position of MR.
Plaintiff was not hired as an MR but was subsequently hired as a marketing administrator (MA). Plaintiff testified that while training as a MA, Heidi Grey (Grey), a marketing manager for defendant, stated that "defendant was looking for more young green-eyed MRs like herself." Grey denied making any such statement.
The series of events leading to plaintiff's employment are as follows. After being rejected for the job of MR, defendant called plaintiff back to interview for the position of member relations representative (MRR). Typing was not a prerequisite for the job of MRR. Plaintiff was offered the position but refused it because the pay was too low. Following the interview, Plaintiff spoke with Dan Tillotson (Tillotson), defendant's Orlando marketing director, regarding possible employment opportunities. As a result of this meeting Tillotson offered plaintiff a marketing administrator (MA) position, which paid $13,000.00, $3000.00 more than the MRR position. Tillotson indicated plaintiff was qualified for the job and would eventually be the senior MA, working directly under Tillotson himself.
Defendant's standard business practice was to administer a typing test to each individual who applied for the MA position. The typing test was routinely administered during the first set of interviews with the marketing managers. Since plaintiff did not follow the standard interview process for MAs the typing test was inadvertently overlooked. As a result defendant did not know plaintiff's level of typing proficiency. While plaintiff testified she was capable of doing light typing and had attained a level of 45 words per minute while working at the Legal Aid Society the previous year, testimony indicated plaintiff did not possess the level of proficiency normally required of MAs.
*1085 Plaintiff received a letter, dated February 29, 1984, confirming her employment. (Plaintiff's exhibit 4). The letter stated plaintiff had been selected from among a number of applicants based upon her qualities and qualifications. In addition, the letter said defendant would provide training at its corporate headquarters in Willow Grove, Pennsylvania.
Plaintiff commenced employment on March 5, 1984. That same day Grey asked plaintiff to sign an employer-employee agreement setting forth plaintiff's job duties and responsibilities. Grey testified it was customary to send new employees a confirmation letter prior to their commencing work, and at the start of their employment have them execute an employer-employee agreement specifically listing the employee's job duties.
Grey stated that the job responsibilities listed in the employer-employee agreement were extracted from the job description outline developed for MAs. Plaintiff testified she protested signing the agreement because it failed to properly reflect her duties, as the majority of those duties listed involved typing. Plaintiff said Grey told her this was not an accurate description of her responsibilities but to sign it anyway. Grey denied saying anything to that effect. Plaintiff signed the employer-employee agreement without voicing her protest to Tillotson.
Shortly after her arrival, plaintiff was sent to Jacksonville for training. Angelo Divita (Divita), vice-president of sales for defendant's Pennsylvania office, testified that the Jacksonville office had been set up just months prior to the Orlando office. Divita testified that the start up phase for each office lasted approximately three to six months and that the Orlando office was in its start up phase during plaintiff's employ. Divita added that during the start up phase there is an established routine with respect to basic tasks but not with respect to targeting the specific market. Divita did not say whether Jacksonville was still in the start up phase when plaintiff trained there.
While in Jacksonville plaintiff worked with Joan Kosumal (Kosumal). Plaintiff testified she spent most of her time helping Kosumal assemble packets. Plaintiff said she did not engage in nor discuss typing with Kosumal.
Thereafter, plaintiff was sent to the home office in Pennsylvania to train for two weeks. Joan Bender (Bender), assistant vice-president in charge of marketing and purchasing, met plaintiff at the airport. Bender was responsible for hiring and training MAs and stated that the standard procedure in all offices was to give prospective MAs a typing test prior to their hire. Bender added that typing was crucial to the job of MA and that MAs were expected to know how to type before coming to Pennsylvania to train. Bender testified that plaintiff was the only MA sent for training who had not been given a typing test to determine her proficiency. All other MAs who had trained in Pennsylvania met or exceeded defendant's proficiency standards. Bender stated that no formal training program was in existence when plaintiff trained, but that training consisted of bringing MAs to Pennsylvania for a couple of weeks for hands on experience, comprised of typing, familiarizing oneself with defendant's various forms and procedures and learning how to assemble sales packets.
Returning to the events that took place, plaintiff testified that Bender seemed nervous when she picked plaintiff up from the airport. Bender told plaintiff her son was ill and another HMOFL employee would take plaintiff to lunch. Lorraine McNair took plaintiff to lunch and showed her around the area.
Plaintiff began training the following day. She reported directly to Bender. Plaintiff testified that Bender indicated that she was very busy and did not have time to train plaintiff. Bender instructed plaintiff to sit in on a MRR training class. Bender testified it was not unusual for MAs to sit in on these training sessions because of the interrelationship between MAs, MRs and MRRs. Plaintiff testified that there were no blacks in the training *1086 session and that she only met one black during her entire time in Pennsylvania.
That afternoon Bender asked another employee, Pam Martin (Martin), to train plaintiff. Bender testified Martin was to train plaintiff regarding various "marketing functions." Plaintiff testified Martin showed her a MA training manual, which plaintiff had requested from a number of employees since her employment began. Plaintiff asked to take the manual with her but was told she would need the proper authorization to do so. Plaintiff said that when she asked Martin to explain the manual, Martin refused. At the end of the afternoon plaintiff was turned over to Lorraine McNair who plaintiff testified was supposed to "keep plaintiff busy" for the remainder of the day.
Bender testified that the manual plaintiff referred to was not a training manual but a reference manual and that a training manual was in the process of being developed. Bender stated that there was only one reference manual per marketing department and that everyone was expected to share. Bender added that a manual should have been available in the Orlando office for plaintiff's use.
The next morning plaintiff reported to Martin who asked another employee, Anne, whose last name is not contained in the record and, thus, will be referred to on a first-name basis, to assist plaintiff. Anne was herself a MA who had trained about a half dozen other MAs in the past. Anne worked with plaintiff all morning and part of the afternoon. Plaintiff testified Anne was rude and hostile towards her. Plaintiff stated Anne gave her something to type without giving her instructions, telling her the purpose of the typing exercise or that it would subsequently be reviewed. Plaintiff added she was twice asked to move from the typing station where she was sitting.
At the end of the third day plaintiff spoke to Lorraine McNair about the inadequacy of training and lack of cooperation she was receiving from defendant's employees. That same afternoon plaintiff told Bender she wanted to speak with the president of HMOFL regarding her training. Bender responded by telling plaintiff to come back the next morning.
That same afternoon, Anne informed Bender that plaintiff lacked the necessary typing skills needed to perform as MA. Bender contacted Mr. Rogers (Rogers), vice president of marketing, who suggested contacting Tillotson in the Orlando office. Tillotson acknowledged that plaintiff had admitted her typing skills were "a little rusty," but Tillotson said he felt her other attributes outweighed this deficiency. Bender stated she disagreed with Tillotson's assessment, primarily because plaintiff's typing skills were worse than Tillotson had anticipated.
The following morning Bender reviewed plaintiff's typing exercise from the previous afternoon and said she found many errors and formatting problems. Based on the verbal reports of Anne (last name unknown) and Martin, and on her own evaluation of plaintiff's typing skills, Bender concluded plaintiff was unqualified for the job and should be dismissed. Bender discussed the matter in person with Martin, Mr. Skillman (Skillman), another of HMFLO's vice-presidents, and Rogers and spoke with Tillotson via conference calling. All parties agreed with Bender's assessment.
That morning when plaintiff arrived she was called into Bender's office whereupon Bender and Rogers terminated plaintiff's employment. Plaintiff testified Rogers said they had made a mistake in hiring plaintiff and that plaintiff "did not fit in." Before leaving plaintiff asked to speak with defendant's president, Mr. Abramson (Abramson), but was told he was unavailable. Plaintiff left very upset.
Plaintiff went back to her sleeping quarters to gather her belongings and again telephoned defendant's office to speak with Abramson, but was told he was unavailable. Plaintiff returned to defendant's office demanding to speak with Abramson. Once permitted to speak with Abramson she informed him of what had transpired. Abramson inquired about plaintiff's background and asked whether plaintiff had been given a typing test to which plaintiff *1087 replied no. Abramson asked Bender why plaintiff had been terminated to which Bender responded she could not type.
Abramson apologized for any mistreatment plaintiff might have suffered and asked plaintiff to stay on as a MA, provided she enroll in outside typing classes upon returning to Orlando. Abramson gave plaintiff the option of continuing her training in Pennsylvania or returning to Orlando and training at a later date. Plaintiff chose to return to Orlando to consider Abramson's offer of reinstatement.
Upon her arrival at the airport, plaintiff discovered defendant had failed to make the proper arrangement for her return flight. However, after some difficulty and confusion the proper arrangements were made. Plaintiff returned to Orlando.
Plaintiff testified she was disturbed by the incident. She said she felt humiliated and mistreated. She felt like she had not been given a fair opportunity in Pennsylvania but was judged on her race. However, plaintiff decided to keep her position with defendant and return to work in the Orlando office. She telephoned Abramson the next day regarding her decision.
Upon return to the Orlando office plaintiff's primary duties were assembling packets and ordering supplies. Plaintiff said she again requested a training or reference manual but never received it. Plaintiff also stated she requested various supplies from the Pennsylvania office which she never received. Plaintiff stated she informed Tillotson of this problem. However, both Bender and Divita testified that supplies were often delayed because of the distance between Orlando and the home office and that white MAs as well had trouble getting supplies in a timely fashion.
Regarding the assembly of packets, plaintiff testified that her desk, which was in the main office area prior to her trip to Pennsylvania, was now located in the stockroom. Grey testified she was unaware that plaintiff had been told she had to stay in the stockroom. Grey further stated that plaintiff's desk was in the stockroom for two reasons. First, because that is where the materials for assembling packets were located and it was considerably easier to assemble packets in the stockroom. In fact, it was standard procedure for all MAs to assemble packets in the stockroom. In addition, Grey indicated, through a drawing she sketched of defendant's Orlando office, that there was little or no room in the main office area because of the ongoing expansion of personnel.
Regarding the expansion of personnel, Grey testified that there was at least one full time MA in February. Grey stated she was unsure if others were hired in March, but two other MAs were hired after the beginning of April. One of those hired was Sarah, who was initially hired as a temporary to perform plaintiff's typing duties until plaintiff learned to type proficiently. All three MAs hired were white females and Grey described their typing skills as either "strong" or "excellent."
Plaintiff testified that the temporary MA, Sarah, worked directly with Tillotson, sat at plaintiff's desk, and did most if not all of the phone calling and message taking. In addition, plaintiff testified that Sarah was given the key to the file cabinet, the weekly planner and reminder for MRs, the daily telephone log and the rolodex. Plaintiff testified Sarah told her that Tillotson promised Sarah she would be sent to Pennsylvania for training to take over plaintiff's position.
Divita testified that typing was an essential part of almost every facet of a MAs job and that a MA's inability to type would substantially impair her ability to perform other MA duties. Divita stated that MAs took messages and made calls for MRs. Divita said that often MRs would dictate information for MAs to transcribe or phone in information that MAs were required to type up immediately, which made it necessary for MAs to keep in close contact with their respective MRs. Divita testified that each MR was paired with one MA, and they operated as a unit. Divita stated it was imperative that each MR be responsible for contacting and be able to rely on one particular MA. Divita stated this was precisely why a temporary, such as Sarah, would be assigned the telephone duties, with the *1088 attendant telephone log and rolodex, and why she would be responsible for the MR's weekly planner, while plaintiff would be primarily responsible for assembling packets.
Divita further testified that assembling support materials was a very important task, rarely entrusted to temporary employees unless at the specific direction of a supervisor. Grey and Bender also testified that assembling packets was an important part of a MA's job, and Bender added that all MAs, black and white, assembled packets. Divita stated that at times everyone in the office was required to assist in assembling materials.
Plaintiff testified she inquired about typing courses and found that they were only offered at night. Plaintiff interpreted this to mean that she would have to work full time during the day and take classes at night, although she was never specifically told this would be the arrangement. In addition, plaintiff claimed she already possessed some typing skills, and perhaps felt an extensive typing course was unnecessary, but, admittedly, never made defendant aware of this fact.
A couple of weeks after returning to the Orlando office, plaintiff terminated her employment. Plaintiff immediately began a new job paying $1300.00 more per annum. Thereafter, plaintiff filed charges with the Orlando Department of Human Relations and the EEOC alleging age and race discrimination. The EEOC made a "no reasonable cause" determination and subsequently sent plaintiff a right to sue letter which resulted in the instant action being taken.
II. CONCLUSIONS OF LAW
Plaintiff brings this action under Title VII, 42 U.S.C. § 2000e, et seq., and 42 U.S.C. § 1981. In an employment action brought under 42 U.S.C. § 1981 the court may apply the same standard of proof developed under Title VII. Nesmith v. Martin Marietta Aerospace, 676 F.Supp. 1183, (M.D.Fla.1987), aff'd., 833 F.2d 1489 (per curiam). Plaintiff is proceeding on a "disparate treatment" theory, alleging that because of her race she was treated differently than those outside the protected class.
There are two ways to prove racially based employment discrimination. A party may prove discrimination by producing direct evidence that the employer acted with discriminatory intent. McCarthney v. Griffin-Spalding County Board of Education, 791 F.2d 1549, 1553 (11th Cir.1986). The more common method is through use of circumstantial evidence supporting an inference of discrimination. Lee v. Russell County Board of Education, 684 F.2d 769, 773-74 (11th Cir.1982). The latter method embodies the McDonnell Douglas framework, McDonnell Douglas v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), which provides an analysis for determining the existence of intentional discrimination. Lee, 684 F.2d at 773 (citing Texas Department of Community Affair v. Burdine, 450 U.S. 248, 254, 101 S.Ct. 1089, 1094, 67 L.Ed.2d 207 (1980)).
In the instant case plaintiff testified that at least one of defendant's agents made racial comments towards her. Normally, this might be considered direct evidence of discrimination not subject to the McDonnell Douglas standard. However, the law is clear that statements made by non-decision-makers in defendant's employ cannot be attributed to defendant's management officials and, therefore, are not attributable to defendant. See, e.g. Feazell v. Tropicana Products, Inc., 819 F.2d 1036, 1041 (11th Cir.1987); Fowler v. Carrollton Public Library, 799 F.2d 976 (5th Cir.1986); Autry v. North Carolina Department of Human Resources, 641 F.Supp. 1492 (D.C.N.C.1986), aff'd., 820 F.2d 1384 (4th Cir.1987); McCann v. Delaware River Port Authority, 548 F.Supp. 1206 (E.D.Pa.1982), aff.d., 725 F.2d 669 (3rd Cir 1983). Therefore, the alleged statements cannot be considered in determining the legality of defendant's conduct. Because all remaining evidence adduced at trial was circumstantial, application of McDonnell Douglas is appropriate.
The three step analysis espoused in McDonnell Douglas requires the plaintiff *1089 to establish a prima facie case of racial discrimination. 411 U.S. at 802, 93 S.Ct. at 1824. Once plaintiff establishes a prima facie case, the burden then "must shift to the employer to articulate some legitimate, nondiscriminatory reason for the employee's rejection." Id. Defendant has only a burden of production, not persuasion, meaning that defendant need only raise a genuine issue of fact regarding whether it discriminated against plaintiff. Burdine, 450 U.S. at 254, 101 S.Ct. at 1904; Lincoln v. Board of Regents of the University System of Georgia, 697 F.2d 928, 937 (11th Cir.), cert. denied, 464 U.S. 826, 104 S.Ct. 97, 78 L.Ed.2d 102 (1983). If defendant is successful in rebutting plaintiff's presumption of discrimination, plaintiff then must establish that the reasons proffered by defendant are pretextual. Lincoln, 697 F.2d at 937-38.
A. Failure to Hire
At the close of plaintiff's case, the court granted defendant's motion for involuntary dismissal on the issue of failure to hire. To establish the requisite prima facie case of employment discrimination arising out of failure to hire a party must show:
1) that she or he is a member of a protected class; 2) that she or he applied and was qualified for a job for which the employer was seeking applicants: 3) that despite her or his qualifications, she or he was rejected; and 4) that after this rejection the position remained open or was filled by a person not within the protected class. McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. at 1824, 36 L.Ed.2d at 677.
Welborn v. Reynolds Metals Co., 810 F.2d 1026 (11th Cir.1987).
Plaintiff established that she is within the protected class. However, plaintiff failed to make a prima facie showing that she was qualified for the position of MR. Plaintiff had a bachelors degree and several years of work experience, but had no prior sales experience or experience speaking to groups of 20 or more. Furthermore, plaintiff failed to present evidence of who, if anyone, was hired in place of plaintiff, or whether that person was outside the protected class. Plaintiff failed to establish the qualifications of any MRs hired. Similarly, she failed to present evidence that she was equally or more qualified than other MRs hired. For the stated reasons the court granted defendant's motion for involuntary dismissal.
B. Failure to Train
The Seventh Circuit articulated the McDonnell Douglas analysis specifically applicable to failure to train claims. To establish a prima facie case of failure to train plaintiff must demonstrate that "she is a member of a protected class, that he or she is otherwise similarly situated to members of the unprotected class, and that he or she was treated differently from members of the unprotected class." Ramsey v. American Air Filter Company, Inc., 772 F.2d 1303 (7th Cir.1985). While plaintiff established that she was a member of the protected class, she failed to establish that she was similarly situated to those outside the protected class. The testimony clearly indicates that plaintiff did not possess the requisite typing skills, while all the other MAs hired were skilled typist who typed approximately 70 wpm or more and who had been administered a typing test to determine their proficiency. Regarding the third factor, plaintiff was not refused training despite her typing deficiency. Once defendant's president, Abramson, learned that plaintiff had been terminated he immediately offered to reinstate her, conditioned on her taking typing courses at defendant's expense. Abramson stated plaintiff could continue her training in Pennsylvania, or return to Pennsylvania to train at a later date. See generally Ramsey, 772 F.2d at 1308-09 (finding of discrimination where black plaintiff was completely denied all opportunity to train); compare Robinson v. Montgomery Ward and Company, Inc., 823 F.2d 793, 797-98 (4th Cir.), cert. denied, ___ U.S. ___, 108 S.Ct. 773, 98 L.Ed. 2d 860 (1988) (no finding of discrimination where black plaintiff was not forever denied opportunity to train but had not yet received necessary training to qualify for particular position).
*1090 Regarding any allegation that plaintiff was refused training prior to Abramson's offer of reinstatement, the testimony indicates that during her four days in Pennsylvania plaintiff attended at least one training session and participated in "hands on" training relevant to her duties as MA. Plaintiff bases her failure to train claim on the alleged fact that those who trained her were hostile and unfriendly. However, the Eleventh Circuit has made clear that "[p]ersonal animosity is not the equivalent of sex discrimination and is not proscribed by Title VII." McCollum v. Bolger, 794 F.2d 602, 611 (11th Cir.1986), cert. denied, 479 U.S. 1034, 107 S.Ct. 883, 93 L.Ed.2d 836 (1987).
Plaintiff relies on Washington v. Kroger, 506 F.Supp. 1158 (W.D.Mo.1981), vacated, 671 F.2d 1072 (8th Cir.1982), to support her position that she established a prima facie case of failure to train. Upon examination the court finds that the Eight Circuit subsequently vacated the district court opinion, including that portion finding that plaintiff successfully established a cause of action based on failure to train. Washington v. Kroger Company, 671 F.2d 1072 (8th Cir.1982). The appeals court remanded the case for further proceedings in light of previously undisclosed evidence. However, with regard to the facts established in the earlier proceeding upon which plaintiff relies, the Eight Circuit determined that plaintiff had not proven race or sex discrimination.
Even assuming plaintiff established a prima facie case of failure to train, defendant articulated nondiscriminatory reasons for its actions sufficient to rebut a presumption of discrimination. As indicated by Bender's testimony, MAs were expected to be proficient typist before going to Pennsylvania to train. In fact, Divita and Bender both testified that a substantial portion of MA training involved typing and a MA's inability to type would seriously impede the training process. Therefore, the court concludes that, if plaintiff was refused training during any portion of her time in Pennsylvania, it was because she lacked the requisite skills necessary to participate in defendant's training program, not because of her race.
C. Constructive Discharge
Plaintiff also alleges racial discrimination on the basis of constructive discharge. To establish a case of constructive discharge "the employee must prove that his working conditions were so difficult or unpleasant that a reasonable person in the employee's shoes would have felt compelled to resign." Wardwell v. School Board of Palm Beach County Florida, 786 F.2d 1554 (11th Cir.1986) (citing Bourque v. Powell Electrical Manufacturing Company, 617 F.2d 61, 65 (5th Cir.1980)).
Plaintiff claims that upon return to the Orlando office she was relegated to the stockroom and stripped of virtually all her duties. Defendant hired a temporary to fulfill all plaintiff's typing responsibilities. Plaintiff testified this temporary employee subsequently informed plaintiff she was hired to replace plaintiff and was being sent to Pennsylvania to train for plaintiff's position. Finally, plaintiff testified that tillotson told plaintiff she would not want to go back to Pennsylvania because of her past experience there.
While the above evidence establishes a prima facie case of constructive discharge, defendant adequately rebutted plaintiff's presumption. Both Grey and Divita testified that assembling packets was a critical part of a MA's job. They testified that almost all other MA duties involved typing and that plaintiff's temporary MA was assigned the remaining responsibilities because they involved a substantial amount of typing. Grey testified that plaintiff's desk was located in the stockroom because the packets were assembled there, all needed materials were located there and there was not enough space for MAs to assemble packets at their desks. Plaintiff admitted she never voiced her dissatisfaction with being in the stockroom nor was she ever told she would have to stay in the stockroom indefinitely. Grey testified defendant was unaware of plaintiff's dissatisfaction and remained under the impression that plaintiff would take typing courses *1091 and would eventually resume all her MA duties. Regarding the temporary MA's comment to plaintiff, it was made by a non-decision-maker and cannot be imputed to defendant. Feazell, 819 F.2d at 1041. Finally, with respect to Tillotson's comment that plaintiff would not want to return to Pennsylvania, the statement was made in the context of plaintiff's inquiry about another position. Plaintiff was never told she could not return to Pennsylvania for MA training. In fact, Abramson, president of HMFLO, specifically told plaintiff she could return for training at a future date.
Although plaintiff may have disliked assembling packets, testimony indicates packet assembly was a significant part of a MA's job and one of the few duties that did not require typing. In fact, plaintiff herself testified that Kosumal, plaintiff's counterpart in defendant's Jacksonville office, spent a substantial portion of her time assembling packets. Plaintiff claims that defendant did everything within its power to force plaintiff to leave. However, the evidence indicates that defendant went out of its way to accommodate plaintiff's unique situation. Defendant hired a temporary employee to perform all plaintiff's typing duties, without any reduction in plaintiff's pay. Defendant offered to pay for plaintiff's typing course. Plaintiff claims it was too difficult to take typing classes at night and work all day, but she never brought this problem to the attention of her supervisors.
In conclusion, the court finds plaintiff left of her own volition. A reasonable person in plaintiff's position might have concluded that other jobs more closely fit their particular needs and qualifications, but a reasonable person would not have felt compelled to leave defendant's employ. Therefore, the court finds plaintiff failed to establish constructive discharge.
D. Attorney's Fees
Title VII, 42 U.S.C. § 2000e-5(k), provides that a district court may, in its discretion, award attorney's fees to a prevailing defendant upon a finding that plaintiff's action was "frivolous, unreasonable, or without foundation, even though not brought in subjective bad faith." Christianburg Garment Co. v. Equal Employment Opportunity Commission, 434 U.S. 412, 421, 98 S.Ct. 694, 700, 54 L.Ed.2d 648 (1977). The issue is not which party ultimately prevails, but whether plaintiff's suit was "so lacking in arguable merit as to be groundless or without foundation." Sullivan v. School Board of Pinellas County, 773 F.2d 1182, 1189 (11th Cir.1985).
Factors important in determining whether attorney's fees are appropriate include whether the court dismissed the case prior to trial and whether the plaintiff made out a prima facie case. Id. at 1189. In the instant case defendants were granted a directed verdict on plaintiff's failure to hire claim. However, the other claims withstood defendant's motion for a directed verdict and were decided on the merits. Furthermore, defendants are not automatically entitled to attorney's fees upon the granting of a directed verdict in their favor. The court must make an additional finding that the action was frivolous unreasonable and lacking in foundation. Christianburg, 434 U.S. at 421, 98 S.Ct. at 700; see Jackson v. Color Tile, 638 F.Supp. 62, 64 (N.D. Miss.), aff'd., 803 F.2d 201 (5th Cir.1986). Additionally, while plaintiff did not establish a prima facie case of failure to hire, plaintiff did establish a prima facie case of constructive discharge and, arguably, established a prima facie case of failure to train.
In conclusion, the court finds plaintiff's claims, while unsuccessful, were not so lacking in foundation nor so frivolous as to warrant an award of attorney's fees.
Accordingly, plaintiff shall not recover on any of its discrimination claims and defendant is not entitled to attorney's fees. Each party shall bear its own costs. The clerk shall enter judgment in accordance with the above findings.
| {
"pile_set_name": "FreeLaw"
} |
125 F.3d 862
97 CJ C.A.R. 2169
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.
Usha KATARIA, Plaintiff-Appellant,v.John J. CALLAHAN, Acting Commissioner, Social SecurityAdministration,* Defendant-Appellee.No. 97-5050.(D.C.No. 95-CV-730)
United States Court of Appeals, Tenth Circuit.
Oct. 1, 1997.
Before ANDERSON, BARRETT, and MURPHY, Circuit Judges.
1
ORDER AND JUDGMENT**
2
MURPHY, C.J.
3
After examining the briefs and appellate record, this panel has determined unanimously to grant the parties' request for a decision on the briefs without oral argument. See Fed. R.App. P. 34(f); 10th Cir. R. 34.1.9. The case is therefore ordered submitted without oral argument.
4
Claimant Usha Kataria appeals from an order of the district court affirming the final decision of the Commissioner of Social Security denying her application for supplemental security income benefits. We review the Commissioner's decision to determine whether it is supported by substantial evidence and whether the correct legal standards were applied. See Washington v. Shalala, 37 F.3d 1437, 1439 (10th Cir.1994). The Commissioner's factual findings are conclusive when supported by substantial evidence, see 42 U.S.C. § 405(g), which is adequate relevant evidence that a reasonable mind might accept to support a conclusion, see Richardson v. Perales, 402 U.S. 389, 401 (1971).
5
In her application for benefits filed in March 1993, claimant contended that she was disabled due to a variety of ailments including bone spurs in her heels, goiter, hypertension and ulcer disease. Subsequently she was diagnosed as having diabetes. Relying on the opinion of a medical expert who had reviewed claimant's medical records, the administrative law judge (ALJ) concluded that the goiter, hypertension, ulcer disease and diabetes were adequately controlled through medication and thus were not severe impairments. He found her bone spurs to be severe impairments, but also found they did not prevent her from performing the full range of sedentary work. Because claimant had no past relevant work, the case proceeded to step five of the five-part sequential process for determining disability. See 20 C.F.R. § 416.920. Relying on the Medical-Vocational Guidelines, 20 C.F.R. Pt. 404, Subpt. P, App. 2, the ALJ determined that claimant was not disabled and denied her application for benefits. The Appeals Council denied review, making the ALJ's determination the final decision of the Commissioner.
6
On appeal, claimant contends that the ALJ's finding that her goiter, hypertension, ulcer disease, and diabetes were not severe impairments because they were well controlled with medication is not supported by substantial evidence because the ALJ failed to consider the fact that claimant could not afford and therefore was not taking the medication necessary to control these ailments. She further contends that because this case reached step five, the burden was on the Commissioner to show that the impairments were adequately controlled.
7
Ordinarily, a claimant cannot be found disabled when her impairment can be controlled through medical treatment and she unjustifiably refuses to undergo that treatment. See 20 C.F.R. § 416.930; Teter v. Heckler, 775 F.2d 1104, 1107 (10th Cir.1985). Claimant does not question the ALJ's conclusion that her impairments can be readily controlled through use of prescribed medications. She contends instead that (1) she did not take the medications, and (2) the reason she did not take them was because she could not afford them, which may be a justifiable excuse, see id.
8
There is evidence in the record that claimant was at least delayed in obtaining, and maybe never did obtain, certain medical procedures, such as X-rays and a thyroid scan that apparently were not available from free clinics. However, there is no medical evidence that she could not or did not obtain prescribed medications or that her condition deteriorated or was not controlled because of a failure to take prescribed medications. It is clear that at least until October 1993, nine months prior to her hearing before the ALJ, she was taking her prescribed medications. See Appellant's App. Vol. II at 129 (claimant's statement listing medications she was then taking, including zantac for her ulcer, hyydrochlorathizide for hypertension, and synthroid for her goiter). She apparently obtained these medications from the Morton Clinic, which claimant describes as a clinic for the homeless that apparently provides, at no cost, medications and certain medical services. See, e.g, Appellant's Br. at 4-5 (describing numerous doctor visits to Morton and Neighbor for Neighbor clinics and noting that "Ms. Kataria returned each month [to the Morton Clinic] for her medication").
9
There is some evidence indicating that at some point claimant may have been unable to obtain her medications and was not taking them. At her hearing before the ALJ on July 1, 1994, claimant stated that the doctor had given her medicine for her thyroid problem, but that it did not help much. Appellant's App. Vol. II at 40. Later, in response to a question from her representative concerning why she needed benefits, she stated:
10
I don't have money to pay the bills. I don't have any doctor. My sickness, my disease, this thyroid problem, knee pain, I just need some medicine, some medication, some treatment. I can not go to any doctor, they always refuse to do my treatment.
11
Id. at 56-57. There were no followup questions or other discussion at the hearing concerning claimant's failure to take and/or inability to obtain her prescribed medications. The only other indication in the record that she might not be taking her medications is a January 1995 notation in the records from the Neighbor for Neighbor Clinic, where claimant went for treatment for her diabetes, stating that the University of Oklahoma Adult Medicine Clinic "turned pt over to collections--so pt. discontinued treatment & has not been going any where for care since then." Id. at 236. However, claimant apparently obtained medication for her diabetes from the Neighbor for Neighbor Clinic "to last until Morton appt." Id. at 235.
The ALJ found that
12
[t]he claimant has medically-determinable impairments of hypothyroidism and goiter, hypertension, ulcer disease, and diabetes, but the medical evidence shows that these conditions are well controlled with medication. The Administrative Law Judge finds that these impairments are not severe and would no more than minimally affect her ability to engage in substantial gainful activity.
13
Id. at 14. The ALJ did not address whether claimant was continuing to take her medications, nor whether she failed to take them because she could not afford them.
14
The evidence is at best inconclusive whether claimant in fact failed to take her prescribed medications, and whether if she did not take them, it was because she could not afford them, particularly in light of their apparent availability from free clinics. We disagree with claimant's contention that the absence of evidence from October 1993 to January 1995 showing that she did take her medications necessarily means that she did not take them, that the reason she did not take them was because of her poverty, or even that she continued to experience symptoms. Moreover, her contention that the lack of treatment for her thyroid disorder caused her diabetes is not supported by any medical evidence. We conclude that the ALJ did not commit reversible error in finding that claimant's goiter, hypertension, ulcer disease and diabetes were well controlled by medications.
15
AFFIRMED.
*
Pursuant to Fed. R.App. P. 43(c), John J. Callahan, Acting Commissioner of Social Security, is substituted for Shirley S. Chater, Commissioner of Social Security, as the defendant in this action
**
This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3
| {
"pile_set_name": "FreeLaw"
} |
363 F.3d 8
Harold METTS, et al., Plaintiffs, Appellants,v.William J. MURPHY, etc., et al., Defendants, Appellees.
No. 02-2204.
United States Court of Appeals, First Circuit.
Heard February 4, 2004.
Decided March 30, 2004.
Anita Earls, UNC-Center for Civil Rights, with whom Sunil R. Kulkarni, Morrison & Foerster LLP, Cara Fineman, Lawyers' Committee for Civil Rights Under Law, Dennis Hayes, NAACP Legal Department, and Bruce G. Pollock were on supplemental opening brief for appellants.
Nadine Cohen, Lawyers' Committee For Civil Rights Under Law of the Boston Bar Association, Rudolph F. Pierce, Barbara Van Gorder, Heather Butterfield and Goulston & Storrs, P.C. on brief for Angel Meza, Gabriel Valerio, Juan Vega, Chelsea's Commission on Hispanic Affairs, Inc., and ¿Oiste?: The Massachusetts Statewide Latino Organization, Amicus Curiae.
Katherine A. Fallow, Sam Hirsch and Jenner & Block LLP on supplementary brief for the Puerto Rican Political Action Committee and Direct Action for Rights and Equality, Amicus Curiae.
Neil Bradley, ACLU Foundation Inc., and Laughlin McDonald, ACLU Foundation Inc., on supplemental brief for American Civil Liberties Union and Rhode Island Affiliate of the American Civil Liberties Union, Amicus Curiae.
John A. Tarantino with whom Patricia K. Rocha, Victoria M. Almeida, Adler Pollock & Sheehan P.C., Normand G. Benoit, Eugene G. Bernardo, II, Partridge, Snow & Hahn LLP, Richard B. Woolley, Department of Attorney General, Thomas A. Palombo, Department of Attorney General, and Raymond A. Marcaccio were on brief for appellees Joseph A. Montalbano, Senate President, William J. Murphy, Speaker of the House of Representatives, Matthew A. Brown, Secretary of State, and Roger Begin, State Board of Elections Chairman.
Before BOUDIN, Chief Judge, TORRUELLA and SELYA, Circuit Judges, STAHL, Senior Circuit Judge, LYNCH, LIPEZ and HOWARD, Circuit Judges.
OPINION EN BANC
PER CURIAM.
1
In February 2002, the Rhode Island legislature adopted a redistricting plan in response to the 2000 census and a state constitutional amendment reducing the number of seats in both houses. Based on the allegations in the complaint, it appears that African-Americans are about 4 percent of Rhode Island's population, but more than half live in Providence. Prior to redistricting, State Senate District 9 in Providence was 25.69 percent African-American and 41.08 percent Hispanic. Until redistricting, an African-American, Charles Walton, had represented District 9 for many years.
2
Under the 2002 redistricting plan, much of the same African American population now lies within the new District 2, which allegedly is 21.42 percent African-American and 46.74 percent Hispanic. In the 2002 primary after redistricting, a Latino challenger defeated Walton and went on to win the election. Well before the primary, in May 2002, a number of individual African-American voters and related organizations brought the present suit under section 2 of the Voting Rights Act, 42 U.S.C. § 1973 (2000), to challenge the redistricting plan.
3
In September 2002, the district court granted a motion under Fed.R.Civ.P. 12(b)(6) to dismiss the complaint, Metts v. Almond, 217 F.Supp.2d 252 (D.R.I.2002), holding that the claim failed two of the three threshold tests for a section 2 case under Thornburg v. Gingles, 478 U.S. 30, 106 S.Ct. 2752, 92 L.Ed.2d 25 (1986). On appeal, a divided panel of this court reversed, remanding for further proceedings. Metts v. Murphy, 347 F.3d 346, 2003 WL 22434637 (1st Cir.2003).
4
We granted the defendants' petition for rehearing en banc and vacated the panel opinion. Metts v. Murphy, No. 02-2204, 2003 U.S.App. LEXIS 24313 (1st Cir. Dec. 3, 2003). We now review and vacate the district court's judgment of dismissal and remand for further proceedings. The reason for our remand is to allow a fuller development of the evidence, and further legal analysis based on that evidence, before any final determination is made.
5
Section 2, adopted as part of the Voting Rights Act of 1965, forbids voting-related measures that deny or abridge the right to vote "on account of race or color." 42 U.S.C. § 1973. Under a 1982 amendment, a violation is established "if, based on the totality of circumstances, it is shown that... members of a class of citizens ... have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice." § 1973(b).
6
The Delphic language of the amendment can be understood only against the background of its legislative history and subsequent Supreme Court interpretation. The former tells us that discriminatory intent is not a necessary element in a violation and that Congress intended a broad range of factors to be taken into account. These points, and the relevant citations, are developed in Gingles, the first post-amendment decision on section 2 by the Court and still the leading authority. 478 U.S. at 43-46, 106 S.Ct. 2752.
7
However, Gingles was primarily concerned with the use of multi-member districts, which have an obvious potential to submerge the electoral power of even a substantial and cohesive minority bloc. 478 U.S. at 46-48 & nn. 11-13, 106 S.Ct. 2752. If such a group represents a majority of votes in a single member district but a numerical minority when combined with an adjoining district or districts, the combining of those districts into one multi-member district can easily eliminate the minority's ability to elect one of their own to any of the seats.
8
In Gingles, the Supreme Court set up a three-part test, ruling that section 2 would ordinarily not be violated by multi-member districts unless three conditions were met: that the minority challenging such a district would be "a majority" in a compact single member district; that the minority was politically cohesive (so it would bloc vote in such a district); and that the multi-district majority voted as a bloc (so it would usually defeat the minority's candidate in a multi-member district). Gingles, 478 U.S. at 50-51, 106 S.Ct. 2752. If satisfied, these preconditions would not end the case but would raise a presumption of a violation. Vecinos De Barrio Uno v. City of Holyoke, 72 F.3d 973, 980 (1st Cir.1995); see also Johnson v. DeGrandy, 512 U.S. 997, 1011, 114 S.Ct. 2647, 129 L.Ed.2d 775 (1994) (Gingles preconditions necessary but not sufficient to establish claim).
9
Gingles was directed to a particular practice — multi-member districts — which the Court suggested was particularly problematic, 478 U.S. at 47-48, 106 S.Ct. 2752; Growe v. Emison, 507 U.S. 25, 40, 113 S.Ct. 1075, 122 L.Ed.2d 388 (1993), and the decision did not purport to offer a general or exclusive gloss on section 2 for all situations, Gingles, 478 U.S. at 46 n. 12, 106 S.Ct. 2752. But the concreteness of the Gingles test, set against the vagueness of the statute and plethora of criteria, has made it a focus in subsequent cases dealing with quite different problems. Indeed, the Supreme Court has said several times that Gingles applies to vote dilution claims directed against single member districts, see, e.g., Voinovich v. Quilter, 507 U.S. 146, 158, 113 S.Ct. 1149, 122 L.Ed.2d 500 (1993); Growe, 507 U.S. at 40-41, 113 S.Ct. 1075, but it has effectively qualified this statement in two different ways.
10
First, several Supreme Court opinions after Gingles have offered the prospect, or at least clearly reserved the possibility, that Gingles' first precondition — that a racial minority must be able to constitute a "majority" in a single-member district — could extend to a group that was a numerical minority but had predictable cross-over support from other groups. DeGrandy, 512 U.S. at 1008-09, 114 S.Ct. 2647; Voinovich, 507 U.S. at 158, 113 S.Ct. 1149 ("[T]he first Gingles precondition, the requirement that the group be sufficiently large to constitute a majority in a single district, would have to be modified or eliminated when analyzing the influence-dilution claim we assume, arguendo, to be actionable today."). Further, the Court has so far reserved judgment on a second-cousin question: whether dilution of a minority racial group's influence, as opposed to the power to elect, could violate section 2 — a position that would require substantial modification of Gingles ` first-prong "majority" precondition. Growe, 507 U.S. at 41 n. 5, 113 S.Ct. 1075; Vecinos De Barrio Uno, 72 F.3d at 990-91.
11
Second, where single member districts are at issue — as in our case — opinions have increasingly emphasized the open-ended, multi-factor inquiry that Congress intended for section 2 claims. Voinovich, 507 U.S. at 158, 113 S.Ct. 1149 ("Of course, the Gingles factors cannot be applied mechanically and without regard to the nature of the claim."); DeGrandy, 512 U.S. at 1007, 114 S.Ct. 2647 (same). To say that Gingles applies as a precondition to section 2 liability may not tell one very much if Gingles itself is no longer to be "mechanically" applied. Gingles was in its original incarnation a mechanical first-step evaluation for a particular problem, so its rationale is not easily adapted by lower courts to a different set of problems.
12
The present case concerns not multi-member districts but a redrawing of single-member district boundaries. In one key district this has produced a modest readjustment in the proportionate sizes of the two large minority groups — but a readjustment that certainly can affect who wins the election. So far the parties' argument has been about whether and how to squeeze this case into the Gingles preconditions — raising difficult questions about whether the "majority" requirement in Gingles is a numerical majority or an effective majority that could be constructed out of cross-over votes; how rigidly the Gingles preconditions apply when moving away from multi-member districts; and how to apply Gingles when no racial group makes up more than 50 percent of the district.
13
It is no accident that most cases under section 2 have been decided on summary judgment or after a verdict, and not on a motion to dismiss. This caution is especially apt where, as here, we are dealing with a major variant not addressed in Gingles itself — the single member district — and one with a relatively unusual history. As courts get more experience dealing with these cases and the rules firm up, it may be more feasible to dismiss weaker cases on the pleadings, but in the case before us we think that the plaintiffs are entitled to an opportunity to develop evidence before the merits are resolved.
14
We are thus unwilling at the complaint stage to foreclose the possibility that a section 2 claim can ever be made out where the African-American population of a single member district is reduced in redistricting legislation from 26 to 21 percent. Yes, one would ordinarily expect the consequences to be small, but not always, and arguably not here (based on past history). At this point we know practically nothing about the motive for the change in district or the selection of the present configuration, the contours of the district chosen or the feasible alternatives, the impact of alternative districts on other minorities, or anything else that would help gauge how mechanically or flexibly the Gingles factors should be applied.
15
On the other hand, the plaintiffs cannot prevail merely by showing that an alternative plan gives them a greater opportunity to win the election, DeGrandy, 512 U.S. at 1017, 114 S.Ct. 2647 ("Failure to maximize cannot be the measure of § 2."), or that an otherwise justified boundary change happened to cost African-Americans a seat. This would convert section 2's all-circumstances test into the far more stringent "anti-retrogression" test of section 5, which imposes rigorous pre-clearance requirements on covered states to prevent redistricting plans with retrogressive consequences for African American voters. Compare 42 U.S.C. § 1973(a)-(b) (2000), with 42 U.S.C. § 1973c (2000). See generally Beer v. United States, 425 U.S. 130, 141, 96 S.Ct. 1357, 47 L.Ed.2d 629 (1976) (anti-retrogression test); Reno v. Bossier Parish Sch. Bd., 520 U.S. 471, 476-80, 117 S.Ct. 1491, 137 L.Ed.2d 730 (1997) (discussing differences between sections 2 and 5). Rhode Island is not a covered state.
16
As the district court correctly pointed out, there is tension in this case for plaintiffs in any effort to satisfy both the first and third prong of Gingles. To the extent that African-American voters have to rely on cross-over voting to prove they have the "ability to elect" a candidate of their choosing, their argument that the majority votes as a bloc against their preferred candidate is undercut. But it is not clear on the pleadings alone how many cross-over votes are needed to win an election — unlike in Gingles, Rhode Island law allows a candidate to win with less than an absolute majority, see R.I. Const. art. IV, § 2 (general elections); R.I. Gen. Laws § 17-15-29 (2002) (primary elections) — nor do we have any evidence at this stage about how vigorously the majority votes as a bloc over time, nor the impact of the fact that the "majority" here is made up of both Hispanics and whites. Gingles itself warned that "there is no simple doctrinal test for the existence of legally significant racial bloc voting," 478 U.S. at 58, 106 S.Ct. 2752, a further warning against deciding such issues in the abstract.
17
The burden of inquiry is on the plaintiffs — they are the ones challenging the redistricting plan — but in this case they are entitled (within ordinary limits) to develop the evidence that they think might help them. Whether a full-scale trial is needed is an entirely different matter; perhaps summary judgment will suffice depending on how the evidence develops and the ultimate theory or theories offered by both sides — theories that hopefully will go beyond dueling claims as to what Gingles means. In all events, it is premature to close the door now.
18
The judgment of the district court is vacated and the matter remanded for further proceedings consistent with this opinion. Each side shall bear its own costs on this appeal.
19
It is so ordered.
20
SELYA, Circuit Judge, with whom TORRUELLA, Circuit Judge, joins, dissenting.
21
I appreciate the measured tone of the majority opinion, and I agree with much of what the court writes: section 2 of the Voting Rights Act (VRA), 42 U.S.C. § 1973, verges on the opaque and the Supreme Court precedent interpreting it leaves many questions unanswered. Moreover, I acknowledge that, in the ordinary course, district courts should allow vote dilution claims to proceed beyond the Rule 12(b)(6) stage. Thus, were this an arguable case, factual development would be preferable to outright dismissal.
22
Here, however, the case is not arguable.1 The plaintiffs' claim depends upon a radical premise: that a minority group whose members cannot conceivably comprise anything close to a numerical majority, even in what is from their point of view an ideally configured single-member district, can mount a vote dilution claim. Given the small size of the identified minority group in this case and the magnitude of the crossover voting on which it must rely, the claim necessarily fails. See Valdespino v. Alamo Heights Indep. Sch. Dist., 168 F.3d 848, 852-53 (5th Cir.1999); Cousin v. Sundquist, 145 F.3d 818, 828-29 (6th Cir. 1998); McNeil v. Springfield Park Dist., 851 F.2d 937, 943-45 (7th Cir.1988); Parker v. Ohio, 263 F.Supp.2d 1100, 1104-05 (S.D.Ohio) (three-judge court), aff'd mem., 540 U.S. 1013, 124 S.Ct. 574, 157 L.Ed.2d 426 (2003). Further factual development, therefore, will only raise false hopes in the African American community while at the same time squandering scarce judicial resources.
23
I will be brief. The plaintiffs allege that African Americans represented approximately 26% of the relevant population in former Senate District 9 yet represent only 21% of the population in the new district (Senate District 2). They characterize this 5% differential as a political kiss of death and ask that the district lines be redrawn so that, in their ideal district, African Americans again will number 26% of the population.
24
Stripped of rhetorical flourishes, the postulate underlying the plaintiffs' claim proceeds along the following lines. Whenever a candidate preferred by African-Americans runs for the state senate in the new district, he or she will receive all the African-American votes plus no less than 32% but no more than 37% of the combined white and Hispanic votes (these being the percentages of all white and Hispanic voters necessary to form a majority in conjunction with a monolithic African American vote when African-Americans constitute 26% and 21% of the population, respectively). Whether viewed as a matter of logic, political science, or human behavior, this postulate, which assumes that the electorate's polarization is so deeply entrenched that candidate-specific variations will operate only within a 5% margin, strikes me as fanciful. Moreover, the impetus behind it is the plaintiffs' conviction that they can forge some sort of functional majority, i.e., that African Americans, though not numerous enough to comprise anything close to a majority in their ideal district, nonetheless will have the ability to elect a particular candidate with the aid of a large and predictable non-African-American crossover vote. Whatever may be said for functional majority claims in general — a matter on which I take no view — the plaintiffs' functional majority claim lies well beyond the prophylaxis of section 2. The minority group described in the amended complaint comprises too small a fraction of the district's total population and, therefore, must rely too heavily on crossover votes.
25
The plaintiffs seek to blink this reality by treating crossover voters as if they constitute part of a protected minority within the purview of section 2. Fidelity to core democratic values demands that we reject this taxonomy. Although the Gingles preconditions contemplate a certain degree of crossover voting, see Thornburg v. Gingles, 478 U.S. 30, 56, 106 S.Ct. 2752, 92 L.Ed.2d 25 (1986); Jenkins v. Red Clay Consol. Sch. Dist. Bd. of Educ., 4 F.3d 1103, 1123 (3d Cir.1993), there is a point at which crossover voting becomes so large a part of the picture as to crowd out the possibility of a legally cognizable vote dilution claim. That is the case here; after all, the bricolage comprises a roughly equal mix of African American and crossover voters. Under these circumstances, allowing a vote dilution claim to go forward would make sense only if the end game were to ensure the success of candidates favored by minority groups. That is plainly not the proper object of section 2 of the VRA, which is a law aimed at ensuring equality of opportunity rather than at guaranteeing the electoral success of particular candidates. See Johnson v. De Grandy, 512 U.S. 997, 1014 n. 11, 114 S.Ct. 2647, 129 L.Ed.2d 775 (1994).
26
The plaintiffs' claim also trips over the third Gingles precondition. See Gingles, 478 U.S. at 56, 106 S.Ct. 2752 (explaining that plaintiffs must show the existence of majoritarian bloc voting sufficient to defeat minority-preferred candidates most of the time). A showing of majoritarian bloc voting is structurally inconsistent with the plaintiffs' exposition of their case. Their reliance on a high level of crossover voting, ranging upward from a minimum of 32% and nearly equaling the whole of the African American vote, belies any majoritarian bloc voting and thus defenestrates their claim of illegal vote dilution. See Abrams v. Johnson, 521 U.S. 74, 92-93, 117 S.Ct. 1925, 138 L.Ed.2d 285 (1997) (affirming lower court decision that average majority crossover voting of 22% to 38% is sufficient to demonstrate the "general willingness of [majority] voters to vote for [minority] candidates" (internal quotation marks omitted)); cf. Voinovich v. Quilter, 507 U.S. 146, 151-52, 158, 113 S.Ct. 1149, 122 L.Ed.2d 500 (1993) (approving lower court's finding of no majority bloc voting where "black candidates have been repeatedly elected from [single-member] districts with only a 35% black population").
27
The plaintiffs showcase Senator Walton's past electoral successes as proof of the cogency of their ability to elect claim — but that datum is a two-edged sword. Consistent electoral success on the part of a racial or ethnic minority group that comprises considerably less than a numerical majority of the electorate is a telling indicium of the absence of majoritarian bloc voting and, thus, is presumptively inconsistent with an actionable vote dilution claim. See Gingles, 478 U.S. at 102, 106 S.Ct. 2752 (O'Connor, J., concurring); Overton v. City of Austin, 871 F.2d 529, 540 (5th Cir.1989) (per curiam); see also Brooks v. Miller, 158 F.3d 1230, 1241 (11th Cir. 1998); Turner v. Arkansas, 784 F.Supp. 553, 570-71 (E.D.Ark.1991) (three-judge court), aff'd mem., 504 U.S. 952, 112 S.Ct. 2296, 119 L.Ed.2d 220 (1992).
28
In short, I do not believe that section 2 of the VRA authorizes vote dilution claims that are wholly dependent upon massive crossover voting. There is a critical distinction between minority-preferred candidates who lose because redistricting excludes too much of the minority electorate from a particular district (illegal vote dilution) and minority-preferred candidates who lose because they do not attract enough votes from other constituencies within the district (legal majoritarian rule). The amended complaint, even when taken at face value, blurs this distinction.
29
Some vote dilution cases are sufficiently clear that, on any rational view of the facts alleged, further proceedings are inappropriate. This is one of them. Accordingly, I respectfully dissent from the court's decision. Left to my own devices, I would affirm the order of dismissal.
Notes:
1
There are obvious dangers in applying the principle favoring further factual development too liberally. If one is willing to split an infinite number of hairs, it always will be possible to conjure up remote scenarios that might be disinterred during discovery (and, thus, might prevent the allowance of a motion to dismiss). Rule 12(b)(6) does not invite courts to engage in such endless surmise; rather, "[t]he method of Rule 12(b)(6) requires courts ... to resolve allrealistic possibilities in the pleader's favor." Garrett v. Tandy Corp., 295 F.3d 94, 105 (1st Cir.2002) (emphasis supplied).
| {
"pile_set_name": "FreeLaw"
} |
99 F.3d 1302
35 Fed.R.Serv.3d 1211
Harold McQUEEN, Jr., Petitioner-Appellant,v.Gene SCROGGY, Warden, Respondent-Appellee.
Nos. 93-5854, 94-6116.
United States Court of Appeals,Sixth Circuit.
Argued April 12, 1996.Decided Nov. 4, 1996.Rehearing and Suggestion for Rehearing En Banc Denied Dec.30, 1996.*
Melissa D. Bellow, Asst. Public Advocate (briefed), Northpoint Training Center, Dept. of Public Advocacy, Burgin, KY, Randall L. Wheeler (argued and briefed), Kentucky Capital Litigation Resource Center, Frankfort, KY, for Petitioner-Appellant.
Elizabeth A. Myerscough, Asst. Attorney Gen., David A. Smith Asst. Attorney Gen. (argued and briefed), Office of the Attorney General, Frankfort, KY, for Respondent-Appellee.
Before: KEITH, KENNEDY, and BOGGS, Circuit Judges.
BOGGS, J., delivered the opinion of the court, in which KENNEDY, J., joined. KEITH, J. (pp. 1336-40), delivered a separate opinion concurring in part and dissenting in part.
BOGGS, Circuit Judge.
1
Harold McQueen appeals from the district court's denial of his petition for a writ of habeas corpus (No. 93-5854) and from the district court's denial of his subsequent motion for relief from judgment under Fed.R.Civ.P. 60(b) (No. 94-6116). A Kentucky court convicted McQueen of capital murder and sentenced him to death in 1981. For the reasons set out more fully below, we find no merit in any of McQueen's contentions and therefore affirm the district court's denial of the petition for a writ of habeas corpus and the district court's denial of the Rule 60(b) motion.
2
* A jury convicted Harold McQueen of capital murder on March 29, 1981. The charge stemmed from the execution-style slaying of 22-year-old Rebecca O'Hearn in Richmond, Kentucky on January 17, 1980. The murder was part of an armed robbery of the "Minit Mart" convenience store where O'Hearn was working. McQueen, 27 at the time of the murder, apparently spent most of January 17 drinking and taking drugs. McQueen does not dispute that he was in the habit of drinking, taking valium, and smoking marijuana, often contemporaneously. On the date of the murder, McQueen and his girlfriend Linda Rose picked up McQueen's half-brother and accomplice William Burnell, who was 19 at the time. The group went to the Minit Mart at 11:00 p.m. where, according to Ms. Rose, McQueen said "he had some business to take care of." McQueen, armed with a .22 caliber pistol, left Rose in the car and he and Burnell entered the store. Several minutes later, Rose heard shots.
3
Burnell and McQueen emerged from the store, Burnell carrying a bag with the store's surveillance camera, and McQueen carrying three small bags. Rose testified that McQueen told her that he shot O'Hearn twice, and stated that "I know the bitch is dead." McQueen and Burnell then disposed of the surveillance camera in a nearby pond. Apparently, Burnell then left McQueen and Rose, who retired to a motel room for the evening.
4
At approximately 11:30 p.m., Michael Rhodu, a park ranger, stopped at the Minit Mart for a soda. He found Rebecca O'Hearn kneeling and slumped forward with her hands over her face, on the floor behind the counter. Officer Brock arrived at the scene in response to Rhodu's call for assistance. Brock recalled driving past the Minit Mart at about 11:15 p.m. and seeing Rebecca O'Hearn wave to him. He also recalled seeing two white males at the scene, one of whom he later identified as Harold McQueen.
5
Rebecca O'Hearn was barely alive when the police arrived at the scene and was dead on arrival at the hospital. The evidence, including the pathologist's report, disclosed that McQueen shot O'Hearn in the face from a distance of three to six inches with a .22-caliber handgun. The shot was not fatal and may not have even induced unconsciousness. McQueen delivered the fatal shot to the back of O'Hearn's neck and head, either after he made O'Hearn kneel on the floor or after she fell in a kneeling position.
6
Three days later, on January 20, 1980, police arrested Burnell for driving with a revoked operator's license. The next day, police arrested McQueen and Rose on an unrelated theft charge when they went to the Madison County Jail to visit Burnell.
7
A series of searches of the trailer where McQueen and Rose lived, some based on consent by Rose, some on search warrants, turned up a significant body of incriminating evidence.1 In particular, officers found a bundle of cash (the evidence showed that the robbers had made off with $1500), a white bag with two pistols, and a bundle of food stamps taken from the Minit Mart. One food stamp bore notations from the manager of the Minit Mart, another bore notations made by O'Hearn. A dollar bill taken from the trailer bore a handwritten notation by the manager of the Minit Mart, and another dollar bill bore handwritten notations made by O'Hearn. A ballistic test revealed that one of the firearms recovered from the bag was the murder weapon. Finally, Rose led police to the pond where Burnell and McQueen dumped the video camera, which police divers recovered.
8
McQueen and Burnell were tried jointly for robbery and capital murder, beginning on March 16, 1981, before a Madison County Jury. The prosecution introduced the physical evidence, as well as testimony from Rose. The jury found both men guilty on March 29, 1981. The jury convicted Burnell and the judge sentenced him to two twenty-year terms, in light of the jury's refusal to recommend the death penalty. However, as recommended by the jury, the trial court sentenced McQueen to twenty years in prison for the robbery and to death for the murder. The Kentucky Supreme Court affirmed the conviction and sentence on direct appeal. McQueen v. Commonwealth, 669 S.W.2d 519(Ky.), cert. denied, 469 U.S. 893, 105 S.Ct. 269, 83 L.Ed.2d 205 (1984).
9
McQueen then filed a state collateral attack in the Madison Circuit Court, pursuant to Kentucky Rule of Criminal Procedure 11.42. The court held an evidentiary hearing, as well as two other hearings, before denying relief. The Kentucky Supreme Court affirmed the denial of post-conviction relief. McQueen v. Commonwealth, 721 S.W.2d 694 (Ky.1986), cert. denied, 481 U.S. 1059, 107 S.Ct. 2203, 95 L.Ed.2d 858 (1987).
10
McQueen then filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, on June 8, 1987. On July 21, 1988 a magistrate filed proposed findings of fact and recommended that the district court deny the petition. After a series of motions requesting evidentiary hearings and expert fees, the district court dismissed the habeas petition on June 24, 1991. McQueen then filed a motion pursuant to Fed.R.Civ.P. 59 for a new trial on July 9, 1991.
11
On September 18, 1991, while the Rule 59 motion was pending in federal district court, McQueen filed a petition in the Kentucky Supreme Court seeking "relief from a judgment affirmed on appeal, or to reinstate an appeal," on the ground of ineffective assistance of appellate counsel. This motion raised alleged deficiencies in the performance of appellate counsel for the first time, and was filed in light of purported new remedies created in the Kentucky Supreme Court's preliminary opinion in Hicks v. Commonwealth, 89-sc-213-tg (decided September 6, 1990).
12
On the same day (September 18, 1991), McQueen filed a motion in the federal district court to hold in abeyance any further proceedings, particularly his Rule 59 motion, pending resolution of the Kentucky Supreme Court petition. Although warden Scroggy filed papers in opposition, the district court granted the motion on March 6, 1992.
13
The Kentucky Supreme Court denied the petition to reinstate the appeal on August 28, 1992, based on the final opinion in Hicks v. Commonwealth, 825 S.W.2d 280 (1992). The Kentucky Supreme Court then denied McQueen's petition for rehearing on October 20, 1992. The United States Supreme Court denied a petition for certiorari on April 5, 1993. McQueen v. Kentucky, 507 U.S. 1020, 113 S.Ct. 1820, 123 L.Ed.2d 450 (1993).
14
McQueen and Scroggy filed status reports in federal district court on April 15 and 16, 1993. On May 5, 1993, the district court denied McQueen's Rule 59 motion. It vacated the stay of execution and, in accord with its June 24, 1991 decision, noted the matter as stricken from the docket. On May 17, 1993, McQueen filed a motion for reconsideration. The district court denied this motion on May 21, 1993. McQueen then filed an appeal in this court, docketed as No. 93-5854, from the denial of the habeas petition.
15
While this appeal was pending, McQueen filed a motion in this court seeking a remand to the district court. The purported goal of the motion was to allow the habeas petition to be amended to include the ineffective assistance of appellate counsel issues raised and rejected by the Kentucky Supreme Court. McQueen then filed a second motion seeking to supplement the initial motion to remand to the district court. The goal of the second motion was to allow further amendment of the habeas petition to include claims that McQueen has brain damage. On February 8, 1994, this panel denied the motion to remand and, in doing so, called McQueen's attention to Fed.R.Civ.P. 60(b).
16
On May 5, 1994, McQueen filed a motion in the district court pursuant to Fed.R.Civ.P. 60(b). McQueen also filed an accompanying motion asking the district court to, in effect, request a remand of the case from this court to the district court under First Nat'l Bank of Salem v. Hirsch, 535 F.2d 343 (6th Cir.1976). Scroggy opposed both motions. Specifically, Scroggy claimed that the Rule 60(b) motion constituted a successive petition and an abuse of the writ.
17
On July 25, 1994, the district court denied McQueen's motion for judgment pursuant to Rule 60(b) and for remand from this court. The district court determined that the Rule 60(b) motion was an attempt to raise new claims and, as such, was a successive petition and an abuse of the writ. McQueen then filed an appeal from this decision, docketed in this court as No. 94-6116.
18
Though the two appeals were separately briefed, this court consolidated them for argument and we will address them jointly in this opinion.
II
19
This court reviews de novo a district court's refusal to grant a writ of habeas corpus. Seaton v. Jabe, 992 F.2d 79, 80-81 (6th Cir.), cert. denied, 510 U.S. 871, 114 S.Ct. 200, 126 L.Ed.2d 157 (1993). We review the district court's factual findings only for clear error. McCall v. Dutton, 863 F.2d 454, 459 (6th Cir.1988), cert. denied, 490 U.S. 1020, 109 S.Ct. 1744, 104 L.Ed.2d 181 (1989). Also, this court defers to state court factual findings. Lundy v. Campbell, 888 F.2d 467, 469-70 (6th Cir.1989), cert. denied, 495 U.S. 950, 110 S.Ct. 2212, 109 L.Ed.2d 538 (1990).
20
Pursuant to 28 U.S.C. § 2254(d), we presume a state trial or appellate court's conclusions as to facts are correct unless the petitioner demonstrates by convincing evidence that the facts are erroneous under one of the eight conditions enumerated in 28 U.S.C. § 2254(d)(1)-(8). Sumner v. Mata, 455 U.S. 591, 597, 102 S.Ct. 1303, 1306-07, 71 L.Ed.2d 480 (1982) (per curiam); Levine v. Torvik, 986 F.2d 1506, 1514 (6th Cir.), cert. denied, 509 U.S. 907, 113 S.Ct. 3001, 125 L.Ed.2d 694 (1993); Hart v. Marion Correctional Inst., 927 F.2d 256, 257 (6th Cir.), cert. denied, 502 U.S. 816, 112 S.Ct. 70, 116 L.Ed.2d 44 (1991); Nichols v. Perini, 818 F.2d 554, 557 (6th Cir.1987). The burden rests with the petitioner to establish by convincing evidence that the factual determination by the state court is erroneous, see 28 U.S.C. § 2254(d); Sumner v. Mata, 449 U.S. 539, 551, 101 S.Ct. 764, 771, 66 L.Ed.2d 722 (1981); Smith v. Jago, 888 F.2d 399, 407 (6th Cir.1989), cert. denied, 495 U.S. 961, 110 S.Ct. 2572, 109 L.Ed.2d 754 (1990); Brown v. Davis, 752 F.2d 1142, 1147 (6th Cir.1985).
21
The presumption only applies to basic, primary facts, and not to mixed questions of law and fact. Levine, 986 F.2d at 1514 (question of mental competency is a mixed question of law and fact, subject to de novo review); Sims v. Livesay, 970 F.2d 1575, 1579 (6th Cir.1992) (ineffective assistance of counsel claim is a mixed question of law and fact, subject to de novo review); Smith, 888 F.2d at 407 (same). The presumption also applies to implicit findings of fact, logically deduced because of the trial court's ability to adjudge the witnesses' demeanor and credibility. Indeed, the presumption applies with particular force to credibility determinations, as the Supreme Court has ruled that such determinations receive "special deference" from the federal courts. Patton v. Yount, 467 U.S. 1025, 1038, 104 S.Ct. 2885, 2892, 81 L.Ed.2d 847 (1984); see Brown, 752 F.2d at 1147.
22
Where the state court findings have support in the record, those findings must control, even though the federal habeas court might have rendered contrary findings that also would have support in the record. Wainwright v. Goode, 464 U.S. 78, 85, 104 S.Ct. 378, 382-83, 78 L.Ed.2d 187 (1983) (if two different conclusions find fair support in the record, a federal court may not substitute its view of the facts for that of the state court). If a federal district court does not defer to the state court findings of fact, it must provide a written justification and state which of the first seven factors under § 2254(d) are present, or it must provide reasons for concluding that the state court findings are not fairly supported by the record, pursuant to the eighth factor of § 2254(d). Sumner, 449 U.S. at 551, 101 S.Ct. at 771.
23
To establish ineffective assistance of counsel, McQueen must show that counsel's performance was deficient and that the deficient performance so prejudiced the defense as to render the trial unfair and the result unreliable. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984); Sims, 970 F.2d at 1579-81; Beam v. Foltz, 832 F.2d 1401, 1408-09 (6th Cir.1987), cert. denied, 485 U.S. 980, 108 S.Ct. 1278, 99 L.Ed.2d 489 (1988); United States v. Cox, 826 F.2d 1518, 1525-26 (6th Cir.1987), cert. denied, 484 U.S. 1028, 108 S.Ct. 756, 98 L.Ed.2d 768 (1988). While we review the district court's findings of fact pertinent to this question for clear error, Strickland, 466 U.S. at 698, 104 S.Ct. at 2070; Blackburn v. Foltz, 828 F.2d 1177, 1181 (6th Cir.1987), cert. denied, 485 U.S. 970, 108 S.Ct. 1247, 99 L.Ed.2d 445 (1988), the performance and prejudice components of the Strickland test are considered mixed questions of law and fact, and are thus subject to de novo review. Strickland, 466 U.S. at 698, 104 S.Ct. at 2070; Sims, 970 F.2d at 1579; Blackburn, 828 F.2d at 1181.
24
The reviewing court's scrutiny of counsel's performance is highly deferential, Strickland, 466 U.S. at 689, 104 S.Ct. at 2065; indeed, "the court should recognize that counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Id. at 690, 104 S.Ct. at 2066; accord O'Hara v. Wigginton, 24 F.3d 823, 828 (6th Cir.1994); United States v. Morrow, 977 F.2d 222, 229-30 (6th Cir.1992) (en banc), cert. denied, 508 U.S. 975, 113 S.Ct. 2969, 125 L.Ed.2d 668 (1993). The court also must not indulge in hindsight, but must evaluate the reasonableness of counsel's performance within the context of the circumstances at the time of the alleged errors. Strickland, 466 U.S. at 690, 104 S.Ct. at 2066; Cobb v. Perini, 832 F.2d 342, 347 (6th Cir.1987), cert. denied, 486 U.S. 1024, 108 S.Ct. 1998, 100 L.Ed.2d 230 (1988); Blackburn, 828 F.2d at 1180-81. Indeed, "trial counsel's tactical decisions are particularly difficult to attack," O'Hara, 24 F.3d at 828, and a defendant's challenge to such decisions must overcome a presumption that the " 'challenged action might be considered sound trial strategy' ". Ibid. (quoting Strickland, 466 U.S. at 689, 104 S.Ct. at 2065). Nonetheless, the court must make an independent judicial evaluation of counsel's performance and not be swayed by the defendant's possible acquiescence in counsel's performance at trial, Ward v. United States, 995 F.2d 1317, 1322 (6th Cir.1993), and must also ensure that counsel acted reasonably under all the circumstances. Sims, 970 F.2d at 1580-81 (counsel still has " 'a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary ' " quoting Strickland, 466 U.S. at 691, 104 S.Ct. at 2066 (emphasis added in Sims )); accord O'Hara, 24 F.3d at 828 (failure to investigate, especially as to key evidence, must be supported by a reasoned and deliberate determination that investigation was not warranted); Workman v. Tate, 957 F.2d 1339, 1345-46 (6th Cir.1992) (reasonable investigation was lacking and hence counsel's performance was deficient).
25
To satisfy the prejudice prong of the Strickland test, "[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694, 104 S.Ct. at 2068; accord Sims, 970 F.2d at 1581; Cox, 826 F.2d at 1525-26. To some degree, "[t]he essential question is whether better lawyering would have produced a different result." Ward, 995 F.2d at 1321; see also United States v. Sanchez, 960 F.2d 610, 612 (6th Cir.1992) (per curiam).
26
Notwithstanding the outcome-determinative focus in Strickland, the Court in Lockhart v. Fretwell, 506 U.S. 364, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993), clarified that
27
an analysis focusing solely on mere outcome determination, without attention to whether the result of the proceeding was fundamentally unfair or unreliable, is defective. To set aside a conviction or sentence solely because the outcome would have been different but for counsel's error may grant the defendant a windfall to which the law does not entitle him.
28
Id. at 369-70, 113 S.Ct. at 842 (footnote omitted).
29
Hence, the Lockhart Court instructs us to focus on whether counsel's errors have undermined the reliability of and confidence in the result, i.e., can one confidently say that the trial or proceeding has reached a fair and just result. Ibid.; see also Nix v. Whiteside, 475 U.S. 157, 175, 106 S.Ct. 988, 998, 89 L.Ed.2d 123 (1986); United States v. Cronic, 466 U.S. 648, 658, 104 S.Ct. 2039, 2046, 80 L.Ed.2d 657 (1984); Workman, 957 F.2d at 1346. On balance, "[t]he benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland, 466 U.S. at 686, 104 S.Ct. at 2064.
III
30
McQueen advances a broad claim of ineffective assistance by his trial counsel, Jerome Fish, during the penalty phase of the trial. Because they are not properly before the court, as discussed below at Section VI, pp. 61-63, we will not address McQueen's claims that Fish was ineffective because of alleged failures regarding his "brain damage." This "evidence" of organic brain damage did not appear until twelve years after the trial and then only as part of a Rule 60(b) motion made by McQueen in the federal district court. As to the claims properly before the court, we hold that McQueen's assertions of ineffective assistance of counsel at the penalty phase of the trial are unpersuasive. We note as background that Fish had been practicing in the same area for over 20 years at the time of trial, that half his practice was criminal law, and that he had previously tried several murder cases.
31
A. Ineffective assistance at the penalty phase
32
McQueen appears to raise two primary issues for his claim of ineffective assistance of counsel during the penalty phase of the trial. First, he argues that Fish's conduct regarding the calling of Dr. Gebrow, an expert psychiatric witness, was ineffective. Second, McQueen claims that Fish should have put on more character witnesses. Specifically, McQueen claims that certain unused character witnesses, who are all family members, would have served two purposes: they would have humanized him and they would have provided testimony about his terrible childhood.
1. Dr. Gebrow
33
McQueen raises several points that he claims demonstrate that Fish was ineffective in his handling of Dr. Gebrow. Each is meritless. After moving for a psychiatric evaluation, which McQueen received, Fish sought out his own expert, in an effort to get a more favorable opinion. Ironically, he relied on the Department of Public Advocacy, McQueen's current counsel, for assistance in defending the case, and it was the Department of Public Advocacy that provided a list of psychiatrists that it thought qualified. McQueen does not dispute that the only psychiatrist that Fish found willing to testify was Dr. Gebrow.
34
Dr. Gebrow interviewed McQueen and administered a standardized psychiatric test. Contrary to McQueen's allegation that Gebrow knew nothing about him or his childhood, Gebrow was able to state on direct examination at trial that the "examination consisted of talking with the defendant about the reasons for his coming to see me and I talked about his past history, his family history, and I did a mental status examination." Gebrow backed up this claim by relating to the jury that
35
"Mr. McQueen has a rather long history of drug abuse and alcohol abuse also. He began drinking at the age of 10 or 11 years old and when I commented to him that this was rather young, he stated he never had anyone to tell him to stop drinking. He was brought up essentially by older grandparents who were unable to give much control or support. He began taking drugs in 1970 and was taking such drugs as LSD, amphetamines or speed, cocaine, heroin, and all kinds of downers or sedative drugs. Somewhere in the 1970's he began taking Valium and by 1976 through 1978 he had been taking them he described by the handful. He was taking upwards from 150 milligrams a day and he was drinking anywhere from 2 to 3 pints of whiskey and a case of beer a day, in addition to the Valium."
36
Therefore, the claim that Fish was somehow ineffective for not preparing Gebrow simply has no factual basis. As the testimony indicates, Gebrow was familiar with McQueen's background. This testimony also refutes the claim that Fish had no idea of McQueen's past drug and alcohol problems.
37
Similarly, the claim that somehow Fish was ineffective because Gebrow testified that McQueen had a sociopathic personality and because he also testified that it was possible for a person to become acclimated to heavy drinking and drug use also fails. There is no basis for the proposition that when an expert gives less than favorable testimony, the attorney eliciting the evidence is unconstitutionally ineffective. Such a holding would be anomalous when the role of the expert is considered. Certainly an attorney looks for an expert who will best support his version of the facts. Nonetheless, that expert gives his testimony under oath and under penalty of perjury. McQueen cannot seriously suggest that an attorney must have an expert who will tailor his testimony, in the face of his honest opinion, to suit the defense. Nor can McQueen contend that an attorney is ineffective whenever he decides to call an expert whose opinion does not directly track, on each point, what the defense hoped to prove.
38
While there may indeed be circumstances where putting an expert on the stand is so harmful and so obviously detrimental to a client's case that offering the testimony would amount to ineffective assistance of counsel, that is not the case here. Fish faced a simple dilemma. Gebrow, the only witness willing to testify, was frank in his assessment of McQueen in his private conversations with Fish, apparently telling Fish words to the effect that McQueen was "just one of those asses ... just bad ... just a mean boy...."2 However, he also made it clear that he would "lean as far as I can" on behalf of McQueen and would testify to the effect of drugs and alcohol (J.A. 3549). Fish faced the choice of no expert testimony, since no one else was willing to testify, or of presenting Gebrow's testimony and putting it in the best light possible. Fish chose the latter, a reasonable tactical decision under the circumstances. Although the dissent (p. 1339) essentially states as a matter of law that Fish was ineffective for putting Gebrow on the stand, we do not doubt that had he failed to do so, Fish would now stand accused of ineffective assistance of counsel for failing to present any expert.
2. The decision not to call family members
39
McQueen also attacks Fish's performance with respect to his decision to not call family members as character witnesses. In certain circumstances, failing to call appropriate mitigation witnesses can amount to ineffective assistance of counsel. Specifically, this is true where the character witnesses had evidence to offer and where it was not a reasonable tactical decision to refuse to call them. See Kenley v. Armontrout, 937 F.2d 1298, 1304-09 (8th Cir.), cert. denied, 502 U.S. 964, 112 S.Ct. 431, 116 L.Ed.2d 450 (1991). The claim that Fish's failure to call McQueen's family witnesses was ineffective assistance of counsel has an intuitive appeal, until one examines the substance behind Fish's decision not to call them3. McQueen claims that calling his family members would serve two purposes. First, it would humanize him. Second, it would demonstrate the miserable childhood he had, providing a basis for his later destructive behavior. However, when we review the record, Fish's decision not to call McQueen's family members appears within the bounds of reasonable competence.
40
With regard to humanizing McQueen, Fish felt that calling family members would only antagonize the jury. At least one member of the original jury venire was dismissed because he was a victim of Harold McQueen, Sr.'s criminal conduct. Similarly, McQueen admits that his father was known to be an alcoholic, and it was reasonable for Fish to fear that the proverbial sins of the father would be visited on the son. Fish testified in the post-trial proceedings that, from his knowledge and experience in the community, he felt that the McQueen family had a bad reputation, and he feared that the jury would hold it against his client.
41
Furthermore, the humanizing effect of the testimony would have been minimized, if not eliminated, by the lack of knowledge of the proposed witnesses. Specifically, the testimony that would have been offered would lead a reasonable jury to conclude that the witnesses actually knew next to nothing about McQueen's adult life.
42
McQueen claims that Fish should have called three family members as character witnesses: his stepfather, his mother, and an aunt. When the three witnesses testified during the post-trial proceedings, McQueen was represented by his current counsel. At this point the gravity of the situation, that McQueen had been convicted of capital murder, that he had been sentenced to death, and that his direct appeal had failed, should have been readily apparent to all concerned. Nevertheless, even at this late date, the proposed witnesses were unable to offer more than a cursory knowledge of McQueen and his adult life.
43
Harold McQueen's stepfather, William Burnell, while testifying that he loved his stepson, was unable to offer any details about his life. He testified that he married Harold's mother when Harold was approximately six years old and that Harold lived with them for about ten years, moving out of his home around 1969. As to his knowledge of McQueen's life after moving out of the house, he admitted that he knew about McQueen's felony convictions from reading about them in a newspaper.
44
Harold McQueen's mother is also proposed as a character witness. However, McQueen's mother admitted that she did not know how far her son had gone in school or that he had been convicted of a felony. Furthermore, John Lackey, the counsel for McQueen's half-brother and accomplice, also refused to call McQueen's mother as a character witness during the penalty phase. Apparently Lackey concurred in Fish's tactical judgment regarding the effect of calling McQueen's mother. Similarly, the last witness proposed by McQueen, Faye Ballenger, McQueen's aunt, had knowledge of his prior criminal record but did not know whether he had served time in prison for past criminal behavior.
45
Taken as a whole, it cannot be said that the decision not to call witnesses who knew little about McQueen's adult life amounted to ineffective assistance of counsel. When the minimal testimony that could have been offered is balanced against the risks faced during cross-examination, the decision not to call them is not an example of an unconstitutional ineffectiveness. McQueen has failed to demonstrate that there was a deficient performance, let alone that the purported deficiency makes it a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694, 104 S.Ct. at 2068, 104 S.Ct. at 2068. Still less can he meet the Fretwell standard.
46
McQueen's second argument is that the testimony of his stepmother, mother, and aunt would have demonstrated to the jury that he had a difficult and troubled childhood. However, other than McQueen's obviously self-serving affidavits, not a single witness offered by McQueen has characterized his childhood as horrible. To the contrary, the three witnesses proposed by McQueen (as well as McQueen himself) all testified in the RCr 11.42 hearing and that his childhood was relatively normal. No witness offered the type of testimony that would render a decision not to call that witness an example of ineffective assistance of counsel.
47
McQueen's mother testified about his childhood as follows:
48
Q. Okay. And how would you describe Harold as a child? What was he like?
49
A. Well, he was like any ordinary child.
50
Q. Did he seem to have a pretty normal childhood, apart from being, you know, having divorced parents?
51
A. Yes, he did.
McQueen's stepfather testified similarly:
52
Q. Okay. And can you tell us what Harold was like as a child? Was he fairly normal--act fairly normal?
53
A. Yes. He was.
54
Finally, McQueen's aunt also testified that McQueen was a normal child, going through a normal childhood.
55
Q. Did he seem to be a fairly normal child?
56
A. Yes, yes, he was.
57
THE COURT: I take it Mrs. Ballenger, the--your sister's divorce from Harold's natural father didn't seem to have affect[ed] him in any way. He grew up in--without any visible personality disorder?
58
A. Well I am sure at times it probably did bother him. Because we all had a father and mother.
59
THE COURT: Well, you said he's a normal child--
60
A. Well--
61
THE COURT:--and he's a sweet little boy.
62
A. --because my father more or less stepped in and tried to take over where his father left off.
63
THE COURT: So that didn't, in your opinion, didn't affect his personality in any way?
64
A. Not as far as--as I could tell, no.
65
McQueen, while making the general accusations above, is unable to provide any support for his contention that Fish was unconstitutionally ineffective in his conduct regarding Dr. Gebrow or the purported character witnesses. Whenever an attorney loses a case or suffers some adverse result, he may be ineffective in the colloquial sense of the word. However, "ineffective assistance of counsel" is a constitutional term of art. Because the sole basis for the presence of an attorney is not to turn a courtroom into a jousting arena, but to ensure systemic fairness, an attorney's merely losing, being wrong, or miscalculating is not enough to free every person convicted of a crime. As Fretwell makes clear, even proving that the outcome would have been different standing alone is not enough. Here, McQueen has not shown that the outcome would have been different, let alone that the failure to achieve a different outcome was the result of constitutional ineffectiveness.
66
B. Other claims of ineffectiveness--no prejudice shown
67
Generally, "a court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies.... If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice ... that course should be followed." Strickland, 466 U.S. at 697, 104 S.Ct. at 2069. Several of the claims so clearly fail to present any plausible claim of prejudice that we need not examine whether counsel was ineffective. These three claims are: Fish relied on Burnell's counsel for motion practice; Fish failed to seek a trial separate from that of Burnell; and Fish failed to investigate properly the composition of the jury.
1. The reliance on Burnell's attorney
68
McQueen argues that Fish was ineffective for allowing Burnell's attorney to make pre-trial motions for him. Specifically, after the parties and the judge agreed that any motion made by one attorney would be considered as if it were made also by the other when their interests did not conflict, Fish purportedly failed to make motions and instead relied on Burnell to do so. McQueen claims that in doing so Fish abdicated his responsibility to defend McQueen.
69
This argument cannot be reconciled with two important facts and therefore must fail. First, Fish did make motions when it was necessary to protect his clients' interest. He made motions for a psychiatric evaluation, for additional time to secure an expert, and for funds to retain that expert. Second, and most important, McQueen is unable to identify a single motion that Fish should have made (with the exception of seeking a change of venue and seeking a separate trial) and did not. Simply stated, even if McQueen were correct, he is unable to demonstrate any prejudice from Fish's actions.
70
The dissent attempts to make a great deal out of the relationship between McQueen's attorney, Mr. Fish, and Mr. Lackey, the attorney for co-defendant Burnell. A careful reading of the record shows that Fish in no way compromised McQueen's interests in his relationship with Lackey. Each counsel knew that the other's client would not testify. (J.A. 3527, 3535-36, 3539). This information in no way allowed Lackey to "sandbag" or disadvantage McQueen. By the time of closing arguments, whether McQueen, Burnell, or anyone else had testified was a historical fact, and Lackey would always have been free to make any argument he chose in closing argument, just as Fish was.
71
The quotation in the dissent (p. 1337), where Lackey appears to be boasting about attacking McQueen when he couldn't hit back, is a garbled account of a theory Lackey hoped to pursue, followed by a question that Lackey asked on voir dire, which was stricken, and after which the judge admonished the jury.
72
In fact, the ellipses before the final sentence of the quotation omits a lengthy discussion at J.A. 3579-80 where Lackey notes that Burnell decided not to take the stand and that he therefore asked a question at voir dire attempting to lay a ground work for dealing with that fact, showing that even before the trial began, the quoted material had become simply an unrealistic hypothetical.
73
Both counsel indicated that they discussed with each other their witnesses and other matters, and that the information flow went both ways (J.A. 3525-29, 3570, 3581, 3588-92, 3596-97). There is no indication that this was disadvantageous to either defendant. Again, had Fish played "hide-the-ball" with every piece of information, he would undoubtedly now be under attack for not making the best use of his available resources, to say nothing of the impossibility of hiding a fact, "that neither brother was going to testify against the other," that was common currency among the parties themselves and their family. In short, it is completely fanciful to suggest that there was anything improper or prejudicial in the sharing of the information in this case.
74
The only direct conflict between the two counsel was that Lackey wanted separate trials and Fish did not. This was understandable, as Ms. Rose would testify that McQueen admitted to being the killer. McQueen wanted to hide behind Burnell, and Burnell wanted to avoid being tainted by McQueen. Fish zealously represented his client on this issue, and prevailed by having a joint trial. The fact that ultimately his strategy failed and Lackey's succeeded does not provide ineffectiveness. It only shows that the facts of the case may have guided the jury's deliberations.
75
2. The decision not to seek a separate trial
76
Similarly, Fish's decision not to seek a separate trial was a reasonable tactical decision. The decision was based on the hope that a joint trial would cloud the issue of guilt by allowing McQueen to hide behind his less culpable half-brother. More importantly, McQueen cannot demonstrate any prejudice from the decision not to seek a separate trial, since it is clear that any such motion would have been denied.
77
Burnell, who had more to fear from a joint trial, apparently thought that McQueen's tactics would result in both parties getting the death penalty, and sought a severance on three occasions, and was denied each time. The Kentucky Supreme Court noted that severance is discretionary and the possibility of antagonistic defenses is only one factor and therefore held that "[d]efense counsel committed no error and there is no evidence of prejudice to [the petitioner]...." McQueen v. Commonwealth, 721 S.W.2d 694, 699 (Ky.1987).
3. The jury composition challenge
78
Similarly, there was no prejudice resulting from Fish's failure to conduct a jury composition challenge. McQueen claims that women were systematically excluded from venire panels. McQueen fails to produce any evidence that this is true. Similarly, it is difficult to conclude that it is ineffective assistance of counsel for an attorney not to challenge the purported under-inclusion of females when the accused is a male accused of murdering a young woman.
79
Finally, even giving the benefit of the doubt to McQueen regarding the above, it is beyond peradventure that McQueen has failed to show any prejudice from the failure to conduct a jury composition challenge. The relevant population group is 52.6% female. The jury was initially compromised of seven men and seven women (twelve jurors plus two alternates). The jury that decided the case after the alternates were dismissed consisted of six men and six women.
80
Each court that has reviewed this issue has concluded that McQueen has failed to demonstrate any prejudice. McQueen makes no new arguments here and fails to make even a colorable claim of prejudice. Therefore, it was not ineffective assistance of counsel not to pursue a jury composition challenge.
81
C. Ineffective assistance claims with no basis in fact
82
Two claims of ineffective assistance merit special discussion because they simply have no basis in fact. McQueen claims that he was never informed of his right to testify at the penalty phase of the trial. He admits that both the trial judge and Fish informed him of his right to testify, and he admits that he told Fish he would not testify. Now he claims he is the victim of a misunderstanding. McQueen claims they never told him that he was entitled to testify at the sentencing phase of the trial, apart from the guilt phase.
83
At the hearing on the state collateral attack, Fish testified at length about his conversations with McQueen and stated that he had numerous discussions with him about the right to testify. While McQueen tries to make something out of the fact that Fish never said that he told McQueen that he could testify at the sentencing phase, every court has noted that this was because Fish was never asked that question. In weighing the credibility of McQueen and Fish, and based on his having sat as the trial judge, Judge Chenault made a finding of fact that McQueen had in fact been informed of his right to testify at the sentencing phase.
84
The trial judge's decision to credit Fish's claims that he repeatedly told McQueen about his right to testify is based on his credibility determination, and is therefore not subject to habeas review. Walker v. Engle, 703 F.2d 959, 969 (6th Cir.), cert. denied, 464 U.S. 951, 104 S.Ct. 367, 78 L.Ed.2d 327 (1983). Similarly, the Kentucky Supreme Court's conclusion that McQueen was informed of his right to testify is subject to a presumption of correctness because it is fairly supported by the record. See 28 U.S.C. § 2254(d); Patton v. Yount, 467 U.S. 1025, 104 S.Ct. 2885, 81 L.Ed.2d 847 (1984).4
85
Similarly, McQueen argues that Fish was ineffective for failing to adopt a strategy for dealing with pre-trial publicity. Specifically, McQueen alleges that Fish should have sought a change of venue. No court reviewing the matter has ever characterized the publicity as sufficiently adverse to warrant constitutional concern. A review of the articles provided in the joint appendix makes the reason obvious.
86
Though the articles are crude photocopies and difficult to read, there appear to be a total of approximately fifty-five articles. Eleven of these report the judge's imposition of a death sentence and eight report the guilty verdicts. Therefore, nineteen of the articles are obviously not "pre-trial" publicity. Furthermore, many of these articles are simply short blurbs reporting the result and containing no significant discussion of the case.
87
Of the remaining thirty-six articles, fully twenty-two articles report on developments during the trial. Since jurors are routinely admonished not to read about cases on which they sit, these articles are also not properly denominated as "pre-trial" publicity. Therefore, only the fourteen remaining articles can be classified as pre-trial publicity.
88
Of these fourteen articles, most reported the crime, the arrest of suspects, and the initial procedural matters (indictment, bail, etc.). These articles are largely contemporaneous with the crime, after which a period of media silence ensued, with one exception, until the trial began more than one year later. The one exception consists of four articles dealing with McQueen's possession of a gun in jail, apparently smuggled into his cell by a fellow prisoner. Therefore, approximately ten articles deal with the crime and its aftermath. The articles are unremarkable and simply report the facts of the crime and the alleged involvement of McQueen.
89
In general, few of the articles contain significant headlines. Most appear to be small blurbs rather than substantive articles and none are hysterical or atypical for a crime of this nature. The vast majority (forty-one) deal with the trial or its aftermath and are therefore, not properly called pre-trial publicity. Similarly, this figure is generous and overstates the amount of publicity, since it is not fifty-five separate days of coverage, but fifty-five different articles appearing in several different newspapers, including the Louisville Courier-Journal, the Lexington Herald, the Lexington Leader (currently the Lexington Herald-Leader), and the Richmond Register, usually on the same days. Therefore, the level of pre-trial publicity was insufficient to warrant constitutional concern.
90
Even assuming, arguendo, that the level of pre-trial publicity was more than minimal and would have merited a change of venue, had one been sought, Fish provided ample justification for his decision not to seek a change of venue. Specifically, Fish stated that he had four reasons for refusing to seek a change of venue. First, he thought jurors in Fayette County (the county to which the trial would have been moved) were more likely to impose the death penalty. Second, Fish felt Judge Chenault was more competent to hear a death penalty case than judges in the adjoining county. Third, because two colleges are located in Madison County, Fish thought he would get more intelligent jurors willing to listen to the intoxication defense. Fourth, based on having lived in the community all his life and having practiced law there for many years, he did not feel that the pre-trial publicity was that bad.
91
This is just the type of reasonable tactical decision that is insulated from attack. Nowhere does McQueen offer any credible evidence that these reasons are not valid. The jury selection process only required sixty-eight jurors to get a qualified panel of thirty-two (before peremptories). While most jurors had heard of the case, only one said that pre-trial publicity was sufficiently extensive to have left her unable to put aside her opinion. Because the evidence of pre-trial publicity offered is simply insufficient to warrant constitutional concern, and because there is ample tactical justification for Fish's decision not to seek a change of venue, this issue does not merit reversal.
92
When the totality of Fish's work is reviewed, our conclusion is that he exceeded the constitutional standard. Fish was not a perfect attorney, but the Constitution does not require perfection. What the Constitution requires is an attorney capable of advancing his client's interest.
93
In this case, there was no plausible claim of actual innocence. McQueen was found to be in possession of the murder weapon and the proceeds of the robbery. McQueen's girlfriend testified to his confession of shooting O'Hearn and led police to corroborating evidence. Finally, a police eyewitness placed McQueen at the scene of the murder. Therefore, Fish was faced with compelling evidence of guilt. In the face of this evidence, Fish advanced an intoxication defense and offered an expert (the only one available) to buttress his claim. He found and offered as a witness the last person who saw McQueen before the crime that night, who testified to McQueen's extreme intoxication. Fish also found and paid personally for a prison chaplain to come and testify, as well as a witness who procured McQueen's religious conversion. He elected not to call family members, and while his reasoning is not crystal clear (he was not questioned until years after the trial), the reasons that are articulated and the substance of the family members' later testimony lead us to conclude that McQueen has not demonstrated that there is a substantial likelihood that but for Fish's conduct the outcome would have been different. For this reason, we reject the claim of ineffective assistance of counsel.
IV
JUROR ISSUES
A. Leo Johnson
94
McQueen alleges that the judge's refusal to disqualify for cause Leo Johnson, a member of the jury venire, was a constitutional error. While McQueen admits that Johnson was dismissed from the jury in response to a preemptory challenge, he nonetheless claims that the judge's refusal to dismiss him for what McQueen characterizes as Johnson's "facile assurances" of impartiality amounted to a violation of his constitutional right to be judged by an impartial jury. McQueen's argument is unpersuasive for two reasons. First, he cannot meet the rigorous burden placed on such claims by the Supreme Court. Second, even assuming that the entire Leo Johnson issue warrants concern of a constitutional magnitude, the fact that Johnson never sat with the jury makes the issue largely academic.
95
During voir dire, Leo Johnson admitted that he was a friend of two of the police officers in the case: Larry Brock and Earl Estes. He also knew Police Chief Russell Lane and had a passing acquaintance with Linda Rose. During the voir dire of Leo Johnson, the defense attorneys elicited from him his view of the case and some of the parties involved. At the conclusion of the voir dire, the judge determined that Johnson was qualified to serve as an impartial juror and refused to dismiss him for cause. At this point, he was excused by a peremptory challenge.
96
The particular answers about which McQueen complains are informative. McQueen claims that Johnson stated that he would be inclined to believe the officers before he believed a stranger. However, Johnson made it clear that this only applied if the parties were not under oath. Johnson stated unequivocally that "when they are under oath, I wouldn't weigh their testimony above somebody else's also under oath...." Similarly, when asked what effect his acquaintance would have in the face of conflicting testimony, he stated "I would have to consider the facts."
97
McQueen also complains that Johnson was contaminated by pretrial publicity. To the contrary, while Johnson admitted that he had read about the case and formed some opinions, he stated unequivocally that "I would make my judgment on the facts, on the basis of the facts in it. Here before, that's all gone by. I would have to decide in my heart on the facts that are brought out here." There is no per se rule that mere exposure to media reports about a case merits exclusion of a juror. To the contrary, in order to merit disqualification of a juror, the media reports must engender a predisposition or bias that cannot be put aside, requiring the juror to decide a case one way or the other.
98
Finally, McQueen claims that Johnson would hold his silence against him and would not follow the presumption of innocence. Specifically, McQueen points to the following testimony:
99
Mr. Lackey: How would you feel if defendant Burnell did not take the witness stand?
100
Mr. Johnson: Well, my personal opinion, I think he should stand up and be counted for if he didn't have anything to hide but that wouldn't have any effect on my decision, but if he doesn't have anything to hide he should stand up and be counted for.
101
Mr. Lackey: Do you feel the fact that he doesn't take the stand indicates that he has something to hide?
102
Mr. Johnson: No, not necessarily.
103
Mr. Lackey: Do you feel like there might be other reasons why a person might not take the witness stand other than they had something to hide?
104
Mr. Johnson: That's right.
105
* * * * * *
106
Mr. Lackey: You feel any problem with the concept that the defendant doesn't have to prove his innocence at all?
107
Mr. Johnson: No, I believe he has to prove his innocence.
108
Mr. Lackey: You think he should have to prove his innocence?
109
Mr. Johnson: Right.
110
* * * * * *
111
The Court: ... Would you have any difficulty in going in with that attitude with the presumption that the defendant is innocent and it is not up to the defendant to prove anything? It is up to the Commonwealth to prove guilt. Do you understand that?
112
Mr. Johnson: Yes, sir.
113
The Court: All right. And will you abide by that principle of law?
114
Mr. Johnson: Yes, sir.
115
Johnson made it clear that he was willing to weigh testimony given under oath without regard to any acquaintance with the witness, that he would put aside any purported contamination from pretrial publicity, and that he would accept the right not to testify and the presumption of innocence. The Supreme Court has made clear the substantial burden faced by McQueen. Specifically, the trial judge's decision that Leo Johnson could obey the instructions of the court and could put any biases aside was one of historical fact. Therefore, the trial judge's decision is one entitled to great deference.
116
In Patton v. Yount, 467 U.S. 1025, 104 S.Ct. 2885, 81 L.Ed.2d 847 (1984), the Supreme Court described the standards to be applied to cases such as this. The court rejected the application of a previous Supreme Court case, Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961), which dealt with the partiality of a trial jury as a whole. The Supreme Court stated that "[w]e do not think its analysis can be extended to a federal habeas corpus case in which the partiality of an individual juror is placed in issue. That question is not one of law and fact. Rather it is plainly one of historical fact: did a juror swear that he could set aside any opinion he might hold and decide the case on the evidence, and should the juror's protestation of impartiality have been believed." Patton, 467 U.S. at 1036, 104 S.Ct. at 2891. As such, "the determination is essentially one of credibility, and therefore largely one of demeanor." Id. at 1038, 104 S.Ct. at 2892.
117
The Supreme Court further stated that "[i]t is here that the federal court's deference must operate, for while the cold record aroused some concern, only the trial judge could tell which of these answers was said with the greatest comprehension and certainty." Id. at 1040, 104 S.Ct. at 2893. Therefore, "the trial court's resolution of such questions is entitled, even on direct appeal, to 'special deference' ... [t]he respect paid such findings in a habeas proceeding certainly should be no less." Id. at 1038, 104 S.Ct. at 2892. (Footnotes and citations omitted). The issue then is not whether this panel or another trial judge would have decided differently. Instead, the issue is whether there is fair support in the record for the court's conclusion that Leo Johnson would be impartial. Clearly there is.
118
McQueen apparently confuses sound trial tactics with constitutional standards. There is no constitutional prohibition against jurors simply knowing the parties involved or having knowledge of the case. The Constitution does not require ignorant or uninformed jurors; it requires impartial jurors. While it may be sound trial strategy for an attorney to exclude anyone with knowledge of the facts or the parties, such a result is not mandated by the Constitution.
119
Even assuming that the inclusion of Leo Johnson on the jury would have been unconstitutional, the fact remains that Johnson was excluded by peremptory challenge. McQueen is unable to demonstrate what constitutional harm resulted from this. There is no constitutional right to peremptory challenges, see Ross v. Oklahoma, 487 U.S. 81, 108 S.Ct. 2273, 101 L.Ed.2d 80 (1988), and there is no showing that had there been one more peremptory available, it would have had any effect on the trial at all, let alone that the lack of a peremptory (because it was used on Leo Johnson) resulted in an unconstitutionally biased jury. It is insufficient simply to claim that, had there been another peremptory available, a different juror would have been excluded, and the result might have been a more favorable jury for McQueen. In other words, it is not enough for a defendant to say "I would have been better off if...." He must demonstrate that judicial or prosecutorial action (or inaction) resulted in a constitutional violation, not a tactical or strategic disadvantage. The Constitution is not designed to afford either party a right to the most advantageous tactical or strategic situation possible. It is designed to insure that a person receives a fair trial by an impartial jury.
120
In this case, the trial judge made a decision based on his impression of the prospective juror's answers. We have no basis for concluding that his judgment was incorrect. The Constitution requires that a person be judged by a fair and impartial jury, and a review of the facts surrounding the purported bias of Leo Johnson leads us to agree that McQueen in fact was judged by such a jury.
121
Equally unpersuasive is McQueen's claim that a peripheral issue surrounding Johnson's voir dire resulted in a denial of due process. Specifically, McQueen points to a question asked of Johnson by Burnell's attorney. This question intimated that a person might refuse to take the stand in his own defense because he "[m]ight not want to take the stand and testify against his brother." The prosecutor objected and the judge sua sponte admonished the venire to disregard any inference that the question might raise. The judge stated:
122
Now, let me again caution you. This is a questioning period and any inference that might have been suggested by that question reflecting on the co-defendant's guilt or innocence should be laid aside. That would have no effect whatever. Mr. Lackey is exploring your attitudes toward being a juror and it is not intended in any way to suggest or condition you that the other defendant is chargeable with this offense in any way. That has to be determined from the evidence that comes from the stand once the trial is started. If any inference was drawn from that, I ask you to lay that aside and dismiss it.
123
(J.A. 2247).
124
The reference by the co-defendant's attorney (not the prosecution), while made during voir dire in the presence of other jurors, was made to a juror who was disqualified, and was fleeting. Similarly, because the question is directed more toward the issue of guilt, an issue McQueen never contests with any credible arguments and which was clearly established, rather than sentencing, the harm (if any) is further attenuated. Any such harm was cured by the judge's admonition and does not warrant reversal of the sentence.
B. Sherry Winkler
125
A significant portion of McQueen's brief on appeal is dedicated to his claim that his constitutional rights were violated by the dismissal of a juror after the trial began. Specifically, McQueen claims that juror Sherry Winkler was dismissed because of her opposition to the death penalty and that such a dismissal was a violation of the Sixth, Eighth, and Fourteenth Amendments of the Constitution. We hold that this claim does not warrant reversal.
126
The legal issues surrounding the whole Winkler affair are not complex or particularly vexing. Nonetheless, they cannot be fully understood without explaining the factual background surrounding both the selection and dismissal of Winkler. The transcripts provide the authoritative version of events.
127
Like all jurors, Winkler was subject to voir dire. The full text of that voir dire follows:
128
Mr. Gilbert [the prosecutor]: Mrs. Winkler, as the Judge explained to you outside, the questions that we want to pose to you in here concern your attitude about the third of the potential punishments that could be considered, and that is about the death penalty.
129
I want to ask you first, ma'am, do you believe that under certain circumstances the death penalty is appropriate for the offense of murder?
130
[Mrs.] Winkler: You mean how severe?
131
Mr. Gilbert: Do you believe it is appropriate under certain circumstances for the offense of murder?
132
Mrs. Winkler: I guess. It would be--it would have to be something really terrible.
133
Mr. Gilbert: Do you have any conscientious scruples against the imposition of the death penalty for the offense of murder?
134
Mrs. Winkler: You mean like is it morally wrong? Is that what you are asking me? I don't understand.
135
* * * * * *
136
Mr. Gilbert: Let me ask you this. I am not inquiring as to your views about capital punishment but let me ask you: would your views about capital punishment, whatever they may be, prevent you from following your oath as a juror and considering all the ranges of punishment that the Court tells you you can consider in the case.
137
Mrs. Winkler: No.
138
Mr. Gilbert: Is your mind in any way closed on the possibility of imposing the death penalty if the evidence and circumstances warranted it and if you were so instructed by the Court?
139
Mrs. Winkler: No.
140
Mr. Gilbert: Could you consider fairly all three of the punishment options that the Court will instruct you on, if we get to that phase, without being prejudiced one against the other?
141
Mrs. Winkler: I wouldn't be prejudiced against them.
142
Mr. Gilbert: And I take it then are you telling us at this time you are not now irrevocably committed against the imposition of the death penalty in the proper case?
143
Mrs. Winkler: That's right.
144
Mr. Gilbert: That's all.
145
The Court: Mr. Fish.
146
Mr. Fish: No questions.
147
The Court: Mr. Lackey.
148
Mr. Lackey [attorney for co-defendant]: Mrs. Winkler, assuming that there is a verdict of guilty in this case in the penalty phase of the case, you are likely to be asked to consider mitigating circumstances, which would mean events, actions that might tend to reduce the blamibility [sic] by the defendant of his conduct, excuse and explain it in some fashion. Would you be able to take those pieces of evidence and use them to consider reducing the amount of the penalty if it was appropriate and if the evidence warranted it? Do you follow me? If something was introduced into evidence at the penalty phase that was intended to mitigate the severity of the crime, you would be able to consider that in fixing the penalty wouldn't you?
149
Mrs. Winkler: Sure.
150
Mr. Lackey: Do you think that every murder is the kind of offense that deserves the death penalty?
151
Mrs. Winkler: No.
152
The Court: Okay, Mrs. Winkler, you go back to the courtroom.
153
(J.A. 1931-35).
154
From the voir dire, itself a legally impeccable, model set of responses, it is clear that Winkler did not voice a strenuous objection to the death penalty. This fact is important because much of McQueen's argument is based on the mistaken notion that somehow Winkler waffled on the issue of the death penalty or was less than likely to impose it. In fact, this position is grounded not in the answers given during voir dire, but instead on the allegations that began to surround Winkler almost immediately.
155
The first of these involved allegations that she discussed the case with another juror and implied that she would not give the death penalty. Specifically, the prosecutor made the following statement to the judge:
156
On Friday afternoon, the spouse of one of the jurors that was on the panel at large; not this particular jury, came to me and advised me in the strictest confidence that juror Sherry Winkler, in the presence of witnesses had publicly stated prior to being selected on the jury, she stated to various people that she did not know why the Commonwealth had kept her in light of her response in here in chambers to the death penalty questions. She said that she could not give it. This person who imparted the information to me did so with the strictest of confidence fearing political reprisal or job reprisal to this person's self or family and also advised this person that the people to whom Mrs. Winkler addressed herself were in similar situations; that they would be greatly embarrassed to testify in this manner. To that extent I fixed up an affidavit setting forth what I know and bring this to the Court's attention. Maybe we should ask Miss [sic] Winkler whether these statements were made and whether it would be proper to bring her back here and talk to her.
157
The judge did question Winkler about this allegation and determined that there was not enough credible information to warrant her removal from the jury. On the following day, Winkler's conduct became an issue again. Once again sources (different from the previous ones) claimed that Winkler had talked about the case and had said that she would never give the death penalty. The initial discussion of this matter follows:
158
[Prosecutor] Your honor, I feel I ought to bring it to the Court's attention, it was brought to my attention yesterday afternoon, that there is possibly another problem with Juror Winkler. I understand that she has technically, I believe, violated the admonition by discussing the case with someone and it is a limited discussion. However, in light of the fact, this person was her brother-in-law, a Sergeant with the Richmond Police Department, I feel that the Court should be made aware of this. It was brought to my attention yesterday afternoon that on Sunday, Sherry Winkler engaged in a discussion with Shelby Winkler, her brother-in-law, to the effect, concerning this case, that she could not give anyone the death penalty. Now what other discussion, if any, took place I don't know. During the recess I was able to get in touch with Shelby Winkler and he advised me--I would have him here but he is in the dentist's chair for oral surgery right now. He advised me that they had engaged in a brief conversation and that it was joking in nature but she told him in a joking manner she could not give anybody the death penalty, and he said he couldn't elaborate at this time because he had to go to the dentist.
159
I wanted to bring that to the Court's attention for whatever purposes so that if something were to later come up that we wouldn't be confronted with the problem that members of the Commonwealth or the Police Department tried to influence one of the jurors.
160
The judge acknowledged this issue and contributed his own story about allegations against Mrs. Winkler. Specifically, he stated that:
161
Well, I am hesitant to say this but last night, it came unsolicited to my attention that Mrs. Winkler--apparently she teaches school at Madison High, and she apparently, at a table, with a number of teachers, made that same remark, that she just couldn't understand why anybody left her on the jury because she made it perfectly clear that she would not give the death penalty. Now, that is an unseemly thing and it came to me, again, I heard it because someone confronted me about, not getting the lady removed, but what kind of jurors did they have trying this case. They had no notion that it would affect the proceedings in any way, but it creates an unseemly cloud on these proceedings with that juror.
162
That is, counting the time that I mentioned, this makes the third time we have had where she has apparently--I gather the first time you said, it was to some juror. The conversation she had the other day was with some person on the jury panel generally, wasn't it? And now it is with a policeman and some teachers? What should we do?
163
The court elected to hear Officer Winkler's testimony the next day. The pertinent parts of the final stage of the inquiry into Juror Winkler's conduct are as follows:
164
The Court: Let the record show we came to the law library outside the presence and hearing of the Jurors for the purpose of taking up some matter mentioned yesterday about Juror Sherry Woolum Winkler. Mr. Smith, what has the Commonwealth concluded on this matter.
165
Mr. Smith: Your Honor, I spoke with her brother-in-law, the Sergeant with the Richmond Police Department, Shelby Winkler, and he related to me that there was a conversation held briefly between himself and Sherry Winkler concerning this case and the nature of the discussion concerned her attitude toward the death penalty and rather than filing an affidavit, I have Shelby Winkler here and I would like to bring him in and have him repeat to the Court that there was a conversation and the nature of the discussion.
166
The Court: All right, sir. Bring Mr. Winkler in.
167
* * * * * *
168
Mr. Smith: And what is the relationship you have with Juror Sherry Winkler?
169
Witness: She is my sister-in-law.
170
Mr. Smith: Last Sunday, were you in the company of Sherry Woolum Winkler?
171
Witness: Yes.
172
Mr. Smith: And did the subject of this trial come up?
173
Witness: Yes.
174
Mr. Smith: Was there some conversation between you two about it?
175
Witness: Yes.
176
Mr. Smith: And would you tell the Court what the nature of that conversation was?
177
Witness: It was just about the penalty, you know, what they could receive and the statement was made whether she could or couldn't and she said she didn't know if she could or couldn't.
178
Mr. Smith: Who all was present at that time?
179
Witness: Just family members.
180
Mr. Smith: How many were there?
181
Witness: Four.
182
Mr. Smith: And this was last Sunday after she had been selected to sit on the jury?
183
Witness. Yes, sir.
184
Mr. Smith: What other discussions took place concerning the trial?
185
Witness: That was about it, you know.
186
Mr. Smith: That was about it. What other things were brought up? What other items were touched on?
187
Witness: Oh, just whether they were guilty or if there was enough evidence. We didn't go into details about it.
188
Mr. Smith: Can you be a little more specific about what you didn't go into detail about?
189
Witness: I don't understand what you mean. You know, I just, myself, I brought it up first. I was just curious, you know, how she felt about it.
190
Mr. Smith: And did she elaborate?
191
Witness: Not a whole bunch. She just made that one statement.
192
Mr. Smith: Did she talk about the amount of proof it would take?
193
Witness: No.
194
Mr. Smith Did she express an opinion?
195
Witness: She just said like she felt like she didn't know whether she could give them the death penalty or not. She told me she didn't know.
196
Cross-examination: I think that's all. Your Honor.
QUESTIONS: THE COURT:
197
Q: Mr. Winkler, you said you discussed, too, just briefly some of the facts involved in the case?
198
A: Yes, sir.
199
Q: And just generally, what were the things--the incidents of the shooting or what facts were discussed?
200
A: Just about the incidents of the robbery, the general information. She wouldn't go into detail.
201
Q: And then there was talk about the death penalty and she said she didn't know whether she could or couldn't?
202
A: Yes.
203
* * * * * *
204
The Court: When the juror comes in, I intend to do the questioning myself. I don't think it is now in a posture where the lawyers should do any questioning.
205
(MRS. WINKLER came into the law library)The Court: Mrs. Winkler, come over and sit down, please. Mrs. Winkler, we have brought you in because another question has arisen concerning possibly some comments that you may have made as a juror after you were selected. We understand that Sunday you were at some kind of family gathering in which perhaps your brother-in-law, the City Policeman, was there and that the case was again discussed and during which time you again expressed an opinion about the imposition of the death penalty.
206
Do you recall any such meeting or any such family gathering?
207
Mrs. Winkler: I remember being there Sunday.
208
The Court: Do you remember the discussions taking place? Perhaps in general or brief discussion of some kind about the facts involved in the case itself?
209
Mrs. Winkler: We were sitting in the kitchen and something was said about the case and I am not sure what was said, exactly how it came about, and I was sitting and I thought, now, I need to leave, and about that time, my husband said, "Sherry can't talk about it," and they might have said, "I hate for you to be on the jury" or something like that. I said, "I hate to be there." Oh, and my brother-in-law said, "I didn't think you would have to be on the jury since I am your brother-in-law," and I said, "well, I was hoping that, too."
210
The Court: Did you make a remark to the effect that you were very much--I won't say very much; that you were in a quandry as to whether or not you could give the death penalty in any case?
211
Mrs. Winkler: No, we didn't say anything about what kind of a verdict--
212
The Court: Were any facts briefly discussed about what happened out at the place about which we have since heard evidence?
213
Mrs. Winkler: You mean at the Minit Mart?
214
The Court: Yes, was anything discussed generally there about what happened?
215
Mrs. Winkler: No. I did say that because of my brother-in-law and the fact that I knew Russell Lane, I was hoping both of those would get me off of it but as far as the facts of the case, I don't remember.
216
The Court: Well, let me ask you one other matter here. It came to my information that perhaps up at Madison High, I understand that you teach at Madison High?
217
Mrs. Winkler: Yes.
218
The Court: Did you, last week, have a discussion; perhaps last Friday, at a time when a table of teachers were eating, or at any rate, a table of teachers, did you then discuss your ability or your lack of ability to impose the death penalty with all of those teachers? Did you make, in substance, the statement that you don't know why they took you on the case because you made it clear you would not give the death penalty. Did you say that in the presence of one or perhaps so many as four people on the faculty of Madison High?
219
Mrs. Winkler: I was approached many times that day and because they thought--it wasn't Friday. It might have been Thursday.
220
The Court: It was after you were sworn here Wednesday night. Yes, Thursday.
221
Mrs. Winkler: I was approached many times. People would come to me and say, Oh, I see you are off, and I said, "no, I have to go back Monday," and they said, "really" and I said, "yes," and they would say, "I can't see why they chose you." I said, "well, I certainly don't know, either. I wish I wasn't," you know, something to that effect. I don't know word for word but I never made--
222
The Court: Are you sure that you didn't say, "I don't know why they chose me because I told them positively I could not give the death penalty and they picked me on the jury anyway." Did you make that statement in the presence of several?
223
Mrs. Winkler: No. I can probably understand--you remember when I was in here before?
224
The Court: Before we were asking you in the presence of a juror.
225
Mrs. Winkler: I know but that is what I was going to say before. There was one teacher that came to me and before the jury duty started, we had talked about the death penalty and because of some things that I had said to her, I am sure that is why she came to me. She didn't know that she wasn't supposed to come to me and talk to me about anything. I guess she got word from someone who had been on jury duty and was relieved that they were asking me questions and she came to me and she said, "I would think that you would have gotten off," and I couldn't explain anything to her. I said, "I cannot talk to you about it at all. I will explain it to you later."
226
The Court: Okay. That's all. Go back to the courtroom and we will see about this.
227
* * * * * *
228
The Court: Well, this is one of the tough calls that a Judge has to make here. You try to get a jury impartial but under the old legal maxim that it is important that justice not only be done but that justice appears to have been done, if the public is to accept the verdict of the jury it has got to be done with the public feeling that the jury is absolutely fair and impartial and properly selected, properly qualified and they are not in any way approached by anyone about any feature. That they honor their admonitions and they don't discuss the case.
229
It is an embarrassment, I suppose, to Mrs. Winkler. That is one reason why I don't think we ought to say too much about it, but I do feel like her presence on the jury throws a cloud over whatever verdict will come now.
230
First off, if she were to--if there would be an acquittal or a lesser penalty, there would be the argument that, "my goodness, they had a juror on there with a predisposition to do that and they knew that to start with." If there were a conviction and the death penalty, it would be as Mr. Lackey pointed out, very arguably, a question contended that she was in effect coerced into it.
231
Now, I have been Judge for fourteen and a half years and in this period of time, this is the first instance I have ever had where a juror has been questioned about anything once they are sworn. Anything about their following the admonitions or anything else.
232
The case is tough. It's mean. We have fourteen jurors. I think in the interest of justice that the juror ought step down. I think that she has created enough problems on it and obviously she has had some kind of conversation at school and she said, well, it was just conversations of people saying, oh, are you on the jury, I didn't think you would be on it, or some such thing as that. Whatever, whatever she intended the impression that has been conveyed is that she, basically, had her fingers crossed when she was qualified to serve as a juror. I think in good conscience I have to excuse her. We will proceed with the thirteen jurors.
233
The preceding factual scenario provides the basis for McQueen's claim that the disqualification of Juror Winkler was improper and therefore mandates reversal of his death sentence.
234
In light of the above, we are required to make two inquiries. First, is the Judge's determination that Winkler violated her oath erroneous? Second, if Winkler did violate her oath, was the decision to disqualify her in accord with the law? As we have noted, the unique nature of a habeas proceeding determines the particular standard of review that we apply here.
235
The Kentucky Supreme Court has held on two occasions that the trial judge's decision was correct. McQueen v. Commonwealth, 669 S.W.2d 519, 521 (Ky.1984), cert. denied, 469 U.S. 893, 105 S.Ct. 269, 83 L.Ed.2d 205 (1984); McQueen v. Commonwealth, 721 S.W.2d 694, 700-01 (Ky.1986). McQueen points out that the Kentucky Supreme Court noted that "it is uncontradicted that any alleged conversations were instigated by others, not by the juror, and that her greatest impropriety, if any, was in not reporting those persons to the court." McQueen, 669 S.W.2d at 521. However, that same court clearly held that the judge had "exercised [his] discretion and dismissed the juror on the appearance of impropriety and on her violation of the admonition not to permit persons to discuss the case with her." Ibid. (emphasis added). On habeas review, we must defer to state court findings, in accordance with 28 U.S.C. § 2254(d). Patton v. Yount, 467 U.S. 1025, 1036-38, 104 S.Ct. 2885, 2891-92, 81 L.Ed.2d 847 (1984). We simply examine the record to determine whether the court's finding is fairly supported, even if we would have reached a different result. Wainwright v. Witt, 469 U.S. 412, 434, 105 S.Ct. 844, 857, 83 L.Ed.2d 841 (1985). McQueen does not offer any evidence to persuade us that Winkler did not in fact violate the trial court's admonition. In fact, when all of the facts are examined, it is clear that Winkler did violate the admonition since, at a minimum, she failed to report her conversation with her brother-in-law to the judge.5
236
This alone is a violation of Kentucky RCr 9.70, which provides, among other things: "The jurors, whether permitted to separate or kept in charge of officers, must be admonished by the court that it is their duty not to permit anyone to speak to, or communicate with, them on any subject connected with the trial, and that all attempts to do so should be immediately reported by them to the court...." Judge Chenault repeatedly admonished the jurors in accordance with this rule. Furthermore, it is reasonable to conclude that, in light of the repeated accusations made against Winkler from diverse and apparently unrelated sources, a judge might consider her answers to have been less than candid. Such a decision, that Officer Winkler's testimony (given under oath and subject to cross-examination) was a more accurate reflection of the events at the family gathering, is not implausible. To the contrary, such a factual determination is well within the authority of the trial judge viewing the demeanor and conduct of the persons answering the questions.
237
It cannot then be seriously contended that Winkler did not violate her oath as a juror. A minor violation perhaps, but a violation that was the grounds for the judge dismissing her from the case. As the judge noted:
238
Well, this is one of the tough calls that a Judge has to make here. You try to get a jury impartial but under the old legal maxim that it is important that justice not only be done but that justice appears to have been done, if the public is to accept the verdict of the jury it has got to be done with the public feeling that the jury is absolutely fair and impartial and properly selected, properly qualified and they are not in any way approached by anyone about any feature. That they honor their admonitions and they don't discuss the case. (emphasis added).
239
While McQueen may be partially correct that the substance of her conversations dealt with her ability to impose the death penalty, this does not insulate her from being removed for violating the court's admonition.
240
The next issue is whether this dismissal offends any constitutional provision. It does not. As the trial judge pointed out, McQueen does not have a constitutional right to have a particular person sit as a juror. He merely has the right to have a particular class of persons on the jury and the right to exclude certain individuals. McQueen's entire argument in this matter is built on a false premise. He claims that the real reason Winkler was dismissed was because of her reluctance to impose the death penalty. Yet the record, when read in its entirety, amply demonstrates that the reason she was dismissed was because she admitted that she was present when conversations about the case took place and never honored her admonition to report these matters to the judge. The tendentious (and selective) recitation of facts offered by McQueen simply does not bear up to scrutiny. Once the false premise is removed, there is no basis for concluding that a constitutional violation occurred. In fact, all of the cases cited by McQueen bear on the issue of improperly dismissing a juror who merely expressed reluctance to impose the death penalty, not on dismissing a juror who violated an admonition of the court. Similarly, those cases cited for the proposition that a judge need not dismiss a juror for technical violations simply miss the question in this case. That question is: "May a judge dismiss a juror for those technical violations?" Certainly a judge may.
241
The essence of McQueen's argument is that the judge really did not dismiss Winkler for the reason he gave, violating the court's admonition, but instead for being opposed to the death penalty.6 A fair reading of the record in its entirety makes it abundantly clear that the judge felt she violated his admonition. McQueen is unable to offer a single case that holds that it is a violation of the United States Constitution for a state trial court judge to demand adherence to the letter of the law by jurors sitting in a capital case.
242
Even to the extent that McQueen is correct in his appraisal of the situation, it is not clear that any constitutional violation occurred. McQueen was not entitled to have Winkler on his jury. He was entitled to have a group of persons with certain characteristics on his jury. Once the jury is qualified, any combination of twelve of the fourteen jurors is as valid as any other. Therefore, even if McQueen could prove that Winkler was wrongly dismissed, he still could not prove that any harm resulted, since all of the remaining thirteen jurors were equally qualified to serve on the panel.
243
McQueen's failure to present any evidence that the record does not fairly support the conclusion that Winkler violated the court's admonition, as well as his failure to present a persuasive constitutional basis for his claim absent this factual evidence, requires us to affirm the district court's decision denying relief on this issue. We also reject McQueen's claim that his attorney was ineffective for failing to pursue this matter since to do so would have been futile. It is not ineffective assistance to fail to raise erroneous claims. Similarly, we reject the claim that the jurors should have been polled as to the effect of the dismissal of Winkler to ascertain the level of "contamination" by these proceedings. Doing so would have only ensured that the entire jury was contaminated to the greatest possible degree. Therefore, the judge's decision not to do so was well within his discretion.
C. Voir Dire
244
McQueen alleges that he was not permitted to explore certain areas during voir dire of the prospective jurors. Although the transcript of voir dire is well over 800 pages, McQueen now claims that this was insufficient. Specifically, he claims that he was forbidden to ask questions related to intoxication as a mitigating factor, questions related to the range of penalties available, and a host of other questions.
245
"A trial court commits reversible error if, by unduly restricting voir dire, it substantially impairs the peremptory challenge right." United States v. Johnson, 584 F.2d 148, 155 (6th Cir.1978), cert. denied, 440 U.S. 918, 99 S.Ct. 1239, 1240, 59 L.Ed.2d 469 (1979). However,
246
[t]he Constitution does not always entitle a defendant to have questions posed during voir dire specifically directed to matters that conceivably might prejudice veniremen against him. Voir dire "is conducted under the supervision of the court, and a great deal must, of necessity, be left to its sound discretion." This is so because the "determination of impartiality, in which demeanor plays such an important part, is particularly within the province of the trial judge." Thus, the State's obligation to the defendant to impanel an impartial jury generally can be satisfied by less than an inquiry into a specific prejudice feared by the defendant.
247
Ristaino v. Ross, 424 U.S. 589, 594-95, 96 S.Ct. 1017, 1020-21, 47 L.Ed.2d 258 (1976) (citations, quotations, and note omitted) (court not required to ask a question directed specifically toward racial prejudice where court asked general bias question). We review the court's decision for abuse of discretion. United States v. Anderson, 562 F.2d 394, 397 (6th Cir.1977).
1. Alcohol and drug use
248
McQueen asserts that he was not permitted to explore with the jurors their attitudes toward drug and alcohol intoxication as a mitigating circumstance. This claim simply does not comport with the facts. The sole intoxication-related question excluded by the judge was the following "Under our situation of the law of drugs and alcohol, sometimes it can be used to mitigate the punishment, reduce the crime. Could you agree with that; understand how that could be?" The judge correctly refused to allow this question on the grounds that it implicated a legal standard.
249
However, McQueen's counsel was able to ask several other questions that probed the jurors' attitudes toward alcohol. These included:
250
I want to ask all of you, are there any of you so adverse to alcohol or drugs that the mere fact that a person took a drink or smoked a joint, that mere fact would make you against them? You all may be against it but that fact should it come out would not make you find against a man, just because he did it? None of you are so adverse to that two things that you couldn't take that into consideration?
251
* * * * * *
252
Do you think that the use of drugs or alcohol could influence a person to do some act they otherwise would not do? You think it could?
253
(J.A. 2043-44, 2046).
254
Similarly, Burnell's attorney was able to ask the following open-ended questions:
255
Mr. Curry, how do you feel about the use of alcohol?
256
* * * * * *
257
How do you feel about the problem of the problem drinker?
258
* * * * * *
259
Are you aware that some people mix alcohol and drugs together to get high? ... How do you feel about that?
260
(J.A. 2144, 2146, 2147).
261
McQueen had the opportunity to obtain helpful information with respect to the jurors' views of intoxication as a mitigating factor.
2. Penalty range questioning
262
McQueen also claims that he was not afforded the opportunity to question witnesses adequately on their attitude toward the death penalty and whether they would impose it in every circumstance. This claim is equally unpersuasive. McQueen concedes in his brief that the jurors were qualified as to the entire range of penalties, but now argues that sometimes "this is not always enough." However, reviewing the record discloses that each juror was asked whether the juror could accept and impose any penalty within the specified range after a determination of guilt had been made.
263
McQueen argues that the trial court erred in failing to ask the jurors the following questions proposed by counsel for co-defendant: "Would you inflict the death penalty in all murders?"; "In what kinds of cases do you think the death penalty is warranted?"; and "Do you believe the death penalty is a deterrent?" McQueen contends that there were no careful questions on this subject to ensure that the jurors could consider a life sentence along with a death sentence. According to McQueen, the only questioning done was a rote recital of whether the juror could consider all possible penalties. McQueen relies on Morgan v. Illinois, 504 U.S. 719, 112 S.Ct. 2222, 119 L.Ed.2d 492 (1992), where the Supreme Court held that asking prospective jurors whether or not they could follow the law was not equivalent to asking them whether or not they would automatically vote to impose the death penalty regardless of the facts. Id. at 733-36, 112 S.Ct. at 2232-34.
264
In the present case, the defense was given the opportunity to determine whether the jurors would consider all possible penalties. For instance, McQueen's counsel asked one juror:
265
[T]he way I understand it, you are stating to the Court that you are willing to consider all of the penalties under the law which could be penitentiary or death penalty or life or a number of years. That if the defendant McQueen is found guilty, you will consider all of those penalties....
266
(J.A. 1740). McQueen's counsel asked another juror:
267
[Y]ou would consider all of the penalties as instructed you by the Court. You would consider life or a term of years as well? ... Now, if you were convinced in this case that the death penalty is not the appropriate penalty, could you maintain that stand and agree on a lesser sentence....?
268
(J.A. 1744). Thus, the defense was given an ample opportunity to ask questions that would elicit the same information as asking whether a juror would always impose the death penalty. The questions the defense wished to ask concerning when the death penalty is warranted and whether it is a deterrent are irrelevant to the issue of whether a juror would consider penalties other than death in this case. Thus, they were properly excluded.
269
A person who answers that he will consider every possible penalty, specifically including life imprisonment and a term of years (as the examples above illustrate), is by virtue of that answering disclaiming the intent to impose the death penalty in every case. There are no magic words in these circumstances. Here the questions and answers disclose that the jurors were ready to consider each of the penalties that could be imposed, and that they were not predisposed to give only death or to act with leniency. It would be a game of semantics, not law, to conclude that the failure to phrase a question in a specific way is fatal where other questions are equally illuminating.7
3. Other areas
270
The other areas of excluded juror inquiry that McQueen claims warrant reversal simply do not merit discussion. Even a cursory review reveals that McQueen (and his co-defendant's attorney) had ample opportunity (and did in fact) explore extensively the nature and effect of any pre-trial publicity on the jurors. Similarly, McQueen was able to explore the jurors' attitudes on the presumption of innocence. It is ironic for him to claim otherwise, when part of his claim with respect to the voir dire of Leo Johnson is that he was not dismissed for cause for allegedly misunderstanding the presumption of innocence.
271
McQueen's claims with respect to the voir dire of the jury panel do not merit reversal. In each instance, he was given ample opportunity to explore those topics that he felt were important to his case. The judge, in excluding certain specific questions, did not unconstitutionally restrict the defendants' opportunity to conduct voir dire.
V
272
McQueen presents a host of other issues that he claims warrant reversal of his death sentence. We do not agree. Normally, these issues would not warrant discussion. However, the unique status of a capital case makes it appropriate to mention our reasons for rejecting them. McQueen claims that the following purported errors entitle him to reversal of his death sentence: prosecutorial misconduct; the trial court's refusal to direct the jury that his intoxication was a mitigating factor; the jury's alleged speculation about parole; the failure of the trial court and the jury to render written findings as to the existence of mitigating circumstances; the alleged illegal search of McQueen's trailer by police officers; the "prejudicial" testimony of the victim's father; and the failure of the trial court to exercise discretion in sentencing McQueen to death. McQueen also attacks the Kentucky death penalty statute, claiming that it violates the Constitution, that it operates in an arbitrary and freakish manner, and that the sentence of death is disproportionate to other sentences in Kentucky given for crimes of a similar or greater magnitude. Finally, McQueen claims that the district court's alleged failure to rule on his motions for an evidentiary hearing and other forms of relief denied him due process. After careful review of each of the alleged claims of error, we have concluded that they do not warrant reversal.
1. Prosecutorial misconduct
273
McQueen raises a group of issues concerning the propriety of certain actions taken by the prosecutor at trial. Specifically, McQueen argues that the prosecutor violated his rights by improperly rebutting his mitigating evidence, that the prosecutor (with the judge's permission) wrongly introduced evidence of his two prior criminal convictions, and that the prosecutor engaged in outright misconduct during several of his arguments. None of these contentions have merit.
274
McQueen's myriad allegations present waived claims, claims relating to state evidentiary law, and claims that simply fail to demonstrate the requisite level of misconduct to warrant reversal. They were properly rejected by the district court and do not warrant individual discussion, with one exception. McQueen claims that the prosecutor improperly commented on his silence during the penalty phase, a violation of the Fifth Amendment. This court cannot review this issue because it has been waived. It is well settled that habeas relief is only available for those matters that have been preserved by being presented on direct appeal to the relevant state court. McQueen has failed to raise this claim on direct appeal or in his motion for post-conviction relief. It is hornbook law that such claims can only be presented in the face of procedural default by demonstrating to a federal court the requisite elements of cause and prejudice. McQueen has failed to do so in this case. His claim that the issue is preserved because Kentucky conducts a plenary review of the entire case is misguided. Preservation of an issue by a defendant is a requirement before habeas is appropriate. Under McQueen's argument, a defendant need not preserve any issue for habeas review.
275
We think it is now beyond peradventure that this is not the proper meaning of federal habeas corpus review of state convictions. The Supreme Court has made it amply clear that federal courts are courts of limited jurisdiction with limited powers of review. The scope of that jurisdiction and review is governed not by a state court's ad hoc remark that it conducts a plenary review, but by the conduct of the defendant and the state court. In the instant case, this issue was never raised in a state forum by the defendant nor addressed on the merits by any state court. As such, it is not properly preserved for federal habeas review.
276
2. The failure of the trial court to render a directed verdict on intoxication
277
McQueen claims that the evidence presented at trial required the trial court to render a directed verdict in favor of McQueen on the mitigating circumstance of intoxication. Specifically, McQueen claims that the trial judge should have directed the jury that the evidence establishing his intoxication was so conclusive that the jury was required to consider the factor as established. This argument is both factually and legally inadequate.
278
Factually, there was ample room for a judge to conclude that there was sufficient conflicting evidence that the jury could determine the issue either way. McQueen correctly notes that no one disputes that he spent the day of the murder drinking and taking drugs. Nonetheless, the degree of his intoxication was disputed, with the testimony of witnesses (including experts) both supporting his position and opposing it. Such disputes are traditionally the province of the jury as fact finder.
279
Legally, McQueen's most pressing problem is that there is no authority that a directed verdict can ever be granted during the penalty phase of a capital trial. Specifically, there is no evidence that Kentucky law considers it appropriate, and there is no case holding that the United States Constitution requires (or even allows) directed verdicts on mitigating circumstances. Kentucky is not a "balancing" state with respect to capital sentencing. In Kentucky, a jury can refuse to give the death penalty as an act of mercy, even if there are no mitigating circumstances, or it can impose it even in the presence of a mitigating circumstance, so long as the defendant is "death qualified" by the presence of one statutory aggravating factor. Therefore, even a directed verdict on the issue of intoxication would not per se exclude the possibility of the jury recommending the death sentence.
280
3. The jury speculated on the possibility of parole
281
McQueen claims that the jury's unsolicited question to the judge about parole demonstrates that the jury considered parole in their deliberation and that such a consideration was improper. This argument is also factually and legally inadequate. Specifically, the jury's question did not ask about the possibility of parole versus the death penalty. Instead, it asked about the difference between two different terms of years, life imprisonment and 100 years. There is no evidence that the question was even being posed with respect to McQueen, since his accomplice was also part of the penalty phase of the trial.
282
Similarly, there is no legal basis for McQueen's claim. The answer given by the judge, that consideration of parole was improper, was agreed to by both parties. The matter was never raised on direct appeal and only given fleeting mention in the appeal from the denial of the state post-conviction petition. Therefore, the district court concluded that the matter was waived for habeas review. Even assuming that the matter was not waived, there is no support for the proposition that any jury question about parole implicates a federal constitutional standard.
283
4. The judge and jury's failure to prepare written findings
284
McQueen claims that the Constitution requires a judge and jury to prepare written findings regarding the mitigating circumstances presented at the penalty phase of the trial. There is no case from any federal court that supports this proposition. The Fourth Circuit specifically rejected this claim in Rook v. Rice, 783 F.2d 401, 407 (4th Cir.1986), where it held that "the failure of the trial court to require the jury to list mitigating circumstances does not rise to the level of a constitutional violation." We see no reason to adopt a contrary position.
285
5. The purported illegal search of the trailer
286
McQueen claims that the search of his trailer, which turned up the proceeds of the crime and the murder weapon, violated his Fourth Amendment rights. Specifically, McQueen claims that those searches based on consent given by his girlfriend are illegal. McQueen had ample opportunity to present this claim before the trial court. The court heard the various witnesses and concluded that McQueen's girlfriend lived in the trailer and therefore had the authority to authorize the search. This conclusion is factually sound, and thus does not warrant reversal.
287
Legally, it is well settled that McQueen is precluded from presenting a Fourth Amendment claim (even if he tries to bootstrap it into the Eighth Amendment) in a habeas action, under the Supreme Court's clear holding in Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976). There is no precedent for McQueen's claim that a different rule should apply because this is a death penalty case. In fact, the Supreme Court has specifically rejected the idea that procedural bars that apply in other cases do not apply in capital cases. See, e.g., Smith v. Murray, 477 U.S. 527, 538-39, 106 S.Ct. 2661, 2668-69, 91 L.Ed.2d 434 (1986).
288
6. The allegedly prejudicial testimony of the victim's father
289
McQueen claims that the testimony of Rebecca O'Hearn's father at the trial was prejudicial and amounted to a violation of the Fourteenth Amendment. Like many of his other claims, this one fails both factually and legally. McQueen's argument that the testimony of the victim's father, which amounted to fifteen questions covering two of the almost 1,800 pages of transcript, was unconstitutionally prejudicial is implausible. Almost all of the questions related to establishing the victim's date of birth, her reasons for working at the Minit Mart, and other pertinent information. The testimony cannot be characterized as hysterical, nor does it even mention McQueen's name.
290
Furthermore, this issue is waived. McQueen's arguments in the state court relied solely on state law. McQueen never mentioned any Fourteenth Amendment claim and therefore, as the district court noted, has waived it. McQueen has never offered any evidence that demonstrates the necessary cause and prejudice required to excuse procedural default in a habeas action.
7. Jury Cross-Section issue
291
McQueen claims that the jury at his trial did not represent a fair cross-section of the community. The only specific claim warranting discussion is that "young people" were under-represented in the Madison County jury venire. This Circuit has rejected the idea that "young people" or "young adults" are a distinctive group for purposes of a fair cross-section analysis. Ford v. Seabold, 841 F.2d 677 (6th Cir.1988). This is the position of every circuit that has addressed this issue and this panel cannot unilaterally alter it.
292
8. The trial judge failed to exercise discretion
293
McQueen claims that the trial judge did not properly exercise his discretion in sentencing him to death. A fair reading of the judge's comments will not support such an allegation. The judge discussed a pre-trial report that he had ordered prepared, though not required to do so by law. The judge discussed McQueen's background, the crime, and McQueen's conduct while incarcerated. Finally, the judge concluded by noting that making this decision was "the most difficult thing certainly I've ever done as a judge and I've been a judge for 14- 1/2 years." Furthermore, Judge Chenault stated that "This has been the most traumatic experience of my professional life...."
294
Only after these comments did he state that "I feel it's my duty to accept the verdict. I think it would be irresponsible on my part not to under the circumstances of this case." McQueen claims that this last comment demonstrates that the judge automatically imposed the death penalty. However, when viewed in light of the entire sentencing process and the comments that preceded it, this reading is unreasonable. There is no evidence that the judge failed to exercise his discretion or that he discharged his duty in a manner inconsistent with his role in the sentencing process.
295
9. Kentucky's death penalty statute is unconstitutional
296
McQueen claims that the Kentucky death penalty statute is unconstitutional. However, Kentucky's death penalty statute is modeled after the Georgia death penalty statute. The Georgia statute has consistently been held to be constitutional by the Supreme Court. See Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976); Zant v. Stephens, 462 U.S. 862, 103 S.Ct. 2733, 77 L.Ed.2d 235 (1983); McCleskey v. Kemp, 481 U.S. 279, 107 S.Ct. 1756, 95 L.Ed.2d 262 (1987). This issue does not warrant reversal.
297
10. Kentucky's death penalty statute operates in an arbitrary discriminatory and freakish manner
298
McQueen presents a hodge-podge of claims about the functioning of the Kentucky death penalty statute. The primary claim appears to be that the death penalty is disproportionately applied to blacks in the State of Kentucky. The argument has two flaws. First, McQueen is a white male accused of murdering a white female. Under these conditions, it is doubtful that McQueen's claim that the operation of Kentucky's death penalty statute is racially biased has anything other than an academic relevance to this case. Similarly, the evidence offered by McQueen amounts to the same kind of statistical studies that the Supreme Court found insufficient in McCleskey v. Kemp, 481 U.S. 279, 297, 107 S.Ct. 1756, 1769-70, 95 L.Ed.2d 262 (1987).
299
11. The sentence of death is disproportionate to other sentences in Kentucky for crimes of similar or greater magnitude
300
There is no federal constitutional requirement that a state appellate court conduct a comparative proportionality review. Pulley v. Harris, 465 U.S. 37, 50-51, 104 S.Ct. 871, 879-80, 79 L.Ed.2d 29 (1984). Nonetheless, the Kentucky Supreme Court conducted such a review and found that the sentence was not disproportionate to the crime committed. McQueen provides no factual or legal basis for reversing this determination. McQueen partially misapprehends the issue. It is not simply whether other people have received the death penalty for crimes similar to McQueen's; it is also whether McQueen's death sentence is disproportionate to McQueen's crime. The death penalty is required by the Constitution to be an individualized sanction based on both the nature of the crime and the criminal. McQueen received such an assessment. That the decision was adverse does not make it unconstitutional.
301
12. The district court denied Harold McQueen due process when it failed to rule on, much less grant or deny, McQueen's various motions for matters such as evidentiary hearings and discovery
302
Contrary to McQueen's initial assertion that the district court failed to rule on his various motions, the district court's order of September 30, 1991 states: "These motions were considered and decided when the case was reassigned to the undersigned. In overruling the petitioner's objections to the Magistrate's report and recommendation, the Court overlooked overruling these motions for the record." Therefore, it is clear that the motions were denied, on the record, by the district court.
303
The decision to deny these motions was factually and legally appropriate. During the thirteen months between the filing of the habeas petition and the issuance of the magistrate's report, McQueen did not file any motions. As Kentucky notes, McQueen considered the record, developed at trial and in a state post-conviction proceeding, to be sufficient until the magistrate rendered an unfavorable ruling. While making a legal argument that he is entitled to the various types of relief sought by his motions, McQueen is unable to point out what additional facts would have been developed that are not already in the record. There is no claim of innocence (and none would be plausible), the attempt to interrogate the judge and jury is clearly misguided, and, absent some issue warranting the relief sought by McQueen, there is no per se right to the various hearings and expert fees sought, where they would not develop evidence relating to McQueen's post-conviction constitutional claims. The Supreme Court has repeatedly admonished lower courts that habeas proceedings are not intended to be retrials.
VI
304
Appeal No. 94-6116--Denial of Rule 60(b) motion
305
After the district court denied McQueen's habeas petition, McQueen attempted to amend his petition by filing various motions and appeals, each of which failed. These attempts, described in Section I of this opinion, culminated in McQueen's filing of a motion under Rule 60(b), Fed.R.Civ.P., in the district court, which was denied. The district court refused to reach the merits of the motion, holding that the motion amounted to a successive petition and that the respondent properly claimed an abuse of the writ. The district court properly denied this motion on that ground and, like the district court, we refuse to address the approximately sixty additional issues raised by McQueen. It is now well settled that a successive petition will be considered an abuse of the writ where such a claim is made by the respondent and where the petitioner cannot show cause and prejudice.
306
The leading case on this issue remains McCleskey v. Zant, 499 U.S. 467, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991). In McCleskey, the Supreme Court held that abuse of the writ exists when a petitioner fails to raise or otherwise present a claim in his initial petition. Abuse of the writ occurs regardless of whether the failure is from a deliberate choice or from inexcusable neglect. McCleskey, 499 U.S. at 489-91, 111 S.Ct. at 1467-69. The test for determining whether there has been abuse of the writ is the same as the issue of procedural default described in Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). The procedure to be followed was clearly defined in McCleskey:
307
... When a prisoner files a second or subsequent application, the government bears the burden of pleading abuse of the writ. The government satisfies this burden if, with clarity and particularity, it notes petitioner's prior writ history, identifies the claims that appear for the first time, and alleges that petitioner has abused the writ. The burden to disprove abuse then becomes petitioner's. To excuse his failure to raise the claim earlier, he must show cause for failing to raise it and show prejudice therefrom as those concepts have been defined in our procedural default decisions. The petitioner's opportunity to meet the burden of cause and prejudice will not include an evidentiary hearing if the district court determines as a matter of law that petitioner cannot satisfy the standard.
308
Id. at 494, 111 S.Ct. at 1470 (emphasis added).
309
In his Rule 60(b) motion, McQueen raised broad allegations of constitutional violations, including ineffective assistance of counsel on appeal (an allegation apparently lodged against another member of the Department of Public Advocacy, McQueen's current attorneys) and of some form of organic brain damage (first noticed in 1993, six years after the petition for habeas was filed). Respondent asserted that these allegations amounted to an abuse of the writ and therefore should be stricken.
310
McQueen advances two primary arguments in attacking the district court's ruling on appeal. First, he claims that he was never given notice that the judge was "inclined" to find an abuse of the writ. That is because there is no such requirement. As McCleskey makes clear, once the respondent has pleaded abuse of the writ, the burden is on McQueen to come forward and show both cause and prejudice with respect to those claims that had not been raised in the initial habeas petition. The court did not act sua sponte and therefore, so long as McQueen had notice of this claim (as he did by virtue of the respondent's brief, which claimed abuse of the writ in lieu of addressing the merits of the motion), there is no burden on the district court to publicize its "inclination."
311
The second claim, at its essence, is that this is not really a successive petition. This claim is both legally and factually implausible. McQueen is advancing new claims never included in the initial petition. These claims are being advanced after a decision on the merits has been rendered with respect to the petition itself. In fact, the claims are being made in a motion reserved for use after a decision has been rendered. We agree with those circuits that have held that a Rule 60(b) motion is the practical equivalent of a successive habeas corpus petition and therefore is subject to a cause and prejudice analysis. See Blair v. Armontrout, 976 F.2d 1130, 1134 (8th Cir.1992), cert. denied, 508 U.S. 916, 113 S.Ct. 2357, 124 L.Ed.2d 265 (1993); Lindsey v. Thigpen, 875 F.2d 1509, 1511-12, 1515 (11th Cir.1989); Landano v. Rafferty, 897 F.2d 661, 668 (3rd Cir.1990); Jones v. Murray, 976 F.2d 169, 172 (4th Cir.1992); Clark v. Lewis, 1 F.3d 814, 825-26 (9th Cir.1993); Williams v. Whitley, 994 F.2d 226, 230 n. 2 (5th Cir.1993); Bonin v. Vasquez, 999 F.2d 425, 426 (9th Cir.1993).
312
Therefore, once it is determined that a Rule 60(b) motion is the practical equivalent of a successive habeas petition, the issue is whether McQueen has met his cause and prejudice burden. McQueen never made a colorable attempt to prove such cause and prejudice in the district court, though it was amply clear that this was one of the arguments advanced by the respondent. McQueen's claim that the district court must tip its hand as to its opinion on the merits of the claim of abuse of the petition simply finds no support in the law. The district court's decision denying the Rule 60(b) motion as an abuse of the writ was correct.
VII
313
We hold that all of McQueen's claims of error are without merit, and his conviction and sentence are therefore AFFIRMED.
314
KEITH, Circuit Judge, concurring in part and dissenting in part.
315
Although I concur in a substantial portion of the majority opinion, I must dissent with respect to McQueen's ineffective assistance of counsel claim and his claim that the trial court refused to allow a Morgan inquiry on voir dire.
A. Ineffective Assistance of Counsel
316
A careful search of the record will reveal that McQueen's attorney, Jerome Fish ("Fish"), did not provide adequate counsel as guaranteed by the Sixth Amendment. Fish's most glaring mistakes were: (1) his reliance upon the counsel of McQueen's co-defendant; (2) his failure to conduct a sufficient investigation into McQueen's background; and (3) his failure to effectively prepare his own expert witness before placing him on the stand.
317
It is well established that where a defendant demonstrates that an actual conflict of interest has adversely affected his lawyer's performance, he has stated a claim for ineffective assistance of counsel. Cuyler v. Sullivan, 446 U.S. 335, 344, 100 S.Ct. 1708, 1716, 64 L.Ed.2d 333 (1980). Additionally, where there exists an actual conflict of interest, prejudice is to be presumed. Strickland v. Washington, 466 U.S. 668, 692, 104 S.Ct. 2052, 2067, 80 L.Ed.2d 674 (1984). In Burger v. Kemp, 483 U.S. 776, 783, 107 S.Ct. 3114, 3120, 97 L.Ed.2d 638 (1987), the Supreme Court found that appointing two partners from the same law firm to represent co-indictees in their respective trials created potential conflicts with respect to both clients. The Court noted that the risk of prejudice is even greater when both lawyers cooperate with one another in the planning and conducting of trial strategy, and when the co-indictees are tried together. Id. at 786, 107 S.Ct. at 3122; Sullivan, 446 U.S. at 347, 100 S.Ct. at 1718.
318
In the instant case, it is clear that Fish's failure to act independently of John Lackey ("Lackey"), counsel for McQueen's half brother Burnell, gave rise to an actual conflict, which rendered Fish ineffective as counsel for McQueen. It is undisputed that Fish believed that he and Lackey were partners, in a trial where both defendants were jointly tried. Indeed, Fish testified that he and Lackey functioned as "co-counsel," and that he shared his trial strategies with Lackey.1
319
However, Lackey had a quite different view of the circumstances. Lackey testified that he pursued a deliberate strategy to paint McQueen as a sinister character--responsible not only for the death of the victim but also for the corruption of his client, Burnell.2 Lackey noted,
320
considering the circumstances of the trial ... I had to pretty much lay as much blame as I could on the codefendant Mr. McQueen ... I tried to show that ... in both ... the penalty phase and the guilt and innocence phase that we should not treat these two people alike. That there were a great many mitigating circumstances for Burnell and, of course, I didn't argue that McQueen had none, but the obvious implications were there.
321
In the face of Lackey's strategy to lay as much blame as possible on McQueen, Fish did nothing but assist Lackey. Lackey stated,
322
[Fish] pretty much let me have my lead in making the decisions in the trial ... our pattern was pretty much I would tell Jerry what I was going to do after I did them. And he'd say, okay, sounds all right, and I'll join in.
323
When Fish was subsequently asked whether he was concerned about collaborating so closely with Lackey, a man who was trying to lay as much blame as possible on his client, he responded "[n]o, I didn't find any conflict there at all really." Fish's inability, even after the trial, to recognize the inherent conflict of interest that existed between McQueen and Burnell is inexplicable.
324
An apt example will serve to further illustrate the extent of Fish's prejudicial and deficient performance. For instance, after Fish told Lackey that McQueen would not take the stand, Lackey planned to use this information to his client's advantage by implicating McQueen as the trigger man with full knowledge that McQueen would not have the opportunity to rebut his insinuations through direct testimony. Lackey later testified about this strategy:
325
Early on we saw that there was a fair possibility that Keith Burnell might want to testify in the case. And I wanted him to testify. And I'd understood from [Fish] that McQueen would not be taking the stand. And I could perceive then that there would be a very serious problem of summation of not--of everything I would say on summation would have to very directly implicate the codefendant and he would not have had an opportunity to have taken the stand. And I could see problems with--I didn't really know what the rule was for an attorney commenting on a codefendant not taking the stand. Of course, I know that a prosecution attorney cannot do that. But I wasn't sure what the rule was for a codefendant's attorney making that comment ... I felt, that at least indirectly, there would have to be the sort of comment by myself implicating McQueen.
326
(emphasis added).
327
The majority believed that Lackey's statement was a "garbled account of a theory [he] hoped to pursue." However, Lackey testified that he actually implemented a trial strategy designed to "put the gun in the hands" of McQueen. In his closing argument, he not only reminded the jurors to think of the two defendants separately but also commented that "as far as the homicide, you cannot link Keith Burnell up to what this man [McQueen] did. You remember his remarks that he made about not leaving any witnesses. They were not made in Burnell's presence." Lackey buttressed these remarks by describing to the jury past instances of McQueen's violent behavior3 and reminding them that Burnell was "immature" and "easily led." Fish, in his characteristically oblivious fashion, did not notice or object to Lackey's attacks upon his client. On the contrary, Fish responded by telling the jurors that his "co-counsel gave a beautiful summary" of the case and that he did not have that much to add. In concluding his summation, Fish reminded the jury to heed the words of Lackey.
328
Thus, while Lackey was functioning as a co-prosecutor, Fish was unwittingly assisting him. There can be no doubt that Fish's reliance prejudiced McQueen.4 In my view, this reliance alone would have been sufficient to render Fish ineffective. However, Fish compounded this mistake by refusing to investigate McQueen's background and failing to interview his own expert witness before placing him on the stand.
329
In Burger, 483 U.S. at 791-95, 107 S.Ct. at 3124-26, the Supreme Court affirmed the dismissal of an ineffective assistance claim because the attorney was sufficiently knowledgeable of the defendant's family history; interviewed all potential witnesses; and refused to put a psychologist on the stand after having obtained a report from the psychologist that was unfavorable to his client. In such a case, the Court ruled, the attorney's performance did not "undermine[ ] confidence in the adversarial process...." Id. at 788, 107 S.Ct. at 3123.
330
Unfortunately, Fish did not perform any of the tasks outlined by the Supreme Court in Burger as indicative of sound legal representation.5 He failed to investigate McQueen's background even though such an investigation would have revealed that McQueen had had a troubled childhood and had been addicted to drugs and alcohol for a long time.6 McQueen's past drug and alcohol addiction may have influenced the jury to impose a life sentence instead of the death penalty.7 See, e.g., Kordenbrock v. Scroggy, 919 F.2d 1091, 1107 (6th Cir.1990) (noting that a jury could use a psychiatrist's report chronicling the defendant's intoxication as a mitigating factor on the issue of the death penalty).
331
It is clear that a client's counsel has a duty to make reasonable investigations on behalf of his client or at least to make reasonable determinations that investigations are not necessary. See Strickland v. Washington, 466 U.S. 668, 691, 104 S.Ct. 2052, 2066, 80 L.Ed.2d 674 (1984). From the record it is apparent that Fish did not do enough work to even make a reasonable decision as to whether an investigation into McQueen's background should have been conducted. His failure to investigate, because he did not believe an investigation "was that great of a thing," cannot be deemed a reasonable decision under the circumstances. See Sims v. Livesay, 970 F.2d 1575, 1579-81 (6th Cir.1992) (holding that the failure to adequately investigate mitigating and exculpatory evidence is a denial of effective assistance of counsel).
332
In addition, Fish also failed to prepare his expert witness Martin Gebrow ("Gebrow") who testified at the sentencing phase of the trial. The record discloses that Fish spoke only briefly with Gebrow prior to Gebrow's testimony, and that Fish was not even certain if Gebrow had in fact performed an evaluation of McQueen. Fish did not acquire (or even request) from Gebrow an evaluating report on McQueen and admitted that the only statement Gebrow made to him concerning McQueen was that McQueen was "just one of these asses ... you know what I mean, just bad." Predictably, Gebrow went on to testify that McQueen was a "sociopath."
333
In this, a capital case, with his client in jeopardy of receiving the death penalty, Fish spent only a few minutes with his own expert witness and failed to weigh the devastating impact of that witness' testimony. The prejudicial effect of Gebrow's testimony is best summed up by Lackey, who stated, "I just almost went through the chair. I was just so shocked to hear that from McQueen's own witness." Had Fish adequately prepared Gebrow, he would have realized that Gebrow should not have been called as a witness.
334
The issue here is not of McQueen's guilt, or the horror of his crime, but whether he received effective counsel. I submit that due to Fish's reliance on Lackey, his failure to investigate McQueen's background, and his failure to prepare Gebrow for sentencing, McQueen did not receive adequate counsel as required by the Sixth Amendment.
B. Morgan Inquiry
335
Finally, I also believe that McQueen was denied a sufficient opportunity, as required by Morgan v. Illinois, 504 U.S. 719, 112 S.Ct. 2222, 119 L.Ed.2d 492 (1992), to effectively voir dire the prospective jurors. In Morgan, a defendant sentenced to death challenged a trial court's refusal to ask potential venirepersons whether they would automatically impose the death penalty in all instances. Id. at 723, 112 S.Ct. at 2226. The trial court refused to ask the question because it believed that it had been asked in a "different vein substantially in that nature." Id. The Supreme Court reversed and found that the defendant should have been allowed to inquire into whether potential jurors were predisposed to impose the death penalty where they found the defendant guilty of murder. Id. The Supreme Court reasoned that because a defendant could challenge for cause any prospective juror who would automatically impose the death penalty, a defendant had a right to make a specific inquiry into whether a prospective juror would impose the death penalty in all murder cases. Id.
336
In the instant case, the majority found that the jurors were indirectly questioned about their propensity to automatically impose a death sentence since they were asked whether they would consider imposing every possible penalty and a life sentence was one of the possible penalties. However, the majority's argument is reminiscent of the one rejected by the Supreme Court in Morgan.8 Morgan clearly distinguished between asking jurors general questions--i.e., questions about whether they would consider a range of penalties--and asking jurors specific questions designed to ascertain their disposition towards imposing the death penalty if they found the defendant guilty of murder. Id. at 729, 112 S.Ct. at 2229-30. The question that was asked in this case--"would the jury consider all penalties under the law?"--is exactly the type of "follow the law" question that was explicitly rejected in Morgan. Id. at 734-35, 112 S.Ct. at 2232-33. Consequently, under the parameters of Morgan, McQueen's counsel should have been allowed to inquire directly as to whether the jurors would automatically impose the death penalty if they found McQueen guilty of murder. See United States v. McCullah, 76 F.3d 1087, 1113 (10th Cir.1996) (noting that Morgan is satisfied where each juror was asked whether "he would recommend against the death penalty if the law and the evidence justified it and [where] counsel [was allowed] to elicit information on jurors' views toward mitigating circumstances and toward automatic imposition of the death penalty").
337
Thus, for the foregoing reasons, I must respectfully dissent. As stated above, counsel's egregious errors in combination with the trial court's refusal to allow a Morgan inquiry on voir dire, denied the defendant his fundamental right to a fair trial as guaranteed by the Sixth Amendment.
*
Judge Keith would grant rehearing for the reasons stated in his dissent
1
McQueen does not advance any claim of actual innocence. The Kentucky Supreme Court has characterized the case against him as overwhelming
2
McQueen makes much of this opinion and presents it as if it was said in court. It was not. The mere fact that Gebrow thought little of McQueen does not mean that putting him on the stand was per se ineffective. To the contrary, Fish had a duty to get a candid opinion from the only expert willing to testify on behalf of his client
3
McQueen does not dispute that Fish searched for and was unable to uncover any character witnesses from the community
Fish found and called non-family witnesses at the penalty stage: Reverend Johnson, the minister who testified to McQueen's conversion in prison, and Reverend Koenig, the death row chaplain, who was produced at Fish's personal expense. He also specifically investigated unsuccessfully other possible character witnesses:
I tried to find witnesses in Berea who would testify in Harold's behalf. I could not find that.... I could not find a teacher. I could not find a minister. I could not find a businessman in Berea that I knew or I could find.... I brought the death row minister up here, which I paid for out of my pocket, ... to help me in the penalty phase because I could not find character witnesses for Harold and I did look.
(J.A. 3543)
Fish's tactical judgment that, under the circumstances, presenting these witnesses to a Madison County jury was better than following Lackey's suggestion to "call his mother and have her get up there and cry for the jury" (J.A. 3592) did not constitute ineffective assistance of counsel, especially in light of the discussion infra, at pp. 1314-15.
4
Every court that has reviewed this issue has found that there is no evidence that McQueen was not informed of his right to testify and that the conclusion of the trial court is reasonable. McQueen simply ignores this and instead relies on misstatements of fact and selective and out of context quotations from the various lower court opinions
5
This assumes that the judge did not believe the officer's version of the conversation, which makes it clear that she was present and discussed the facts of the case
6
To the extent that McQueen is willing to argue that Winkler was opposed to the death penalty he is too clever by half. There is no way to conclude anything about her feelings on the death penalty unless McQueen concedes that the conversations occurred, in which case she clearly violated the admonition. Similarly, to the extent those conversations accurately convey her feelings, her ironclad refusal to impose the death penalty is in itself sufficient grounds for dismissal, as is the fact that such feelings reveal that her answers during voir dire were disingenuous
7
Clearly, many of the jurors were asked the exact question proposed by the defense, since juror Winkler was asked specifically whether the death penalty was deserved in every murder case. See page 1322, supra
1
Not only did Fish often refer to Lackey as his co-counsel but on direct examination he answered many of the questions posed to him in the first person plural. The majority would like to believe that Lackey also shared relevant information with Fish. However, the record indicates otherwise. For example, Fish relied upon Lackey not only for pretrial motions and trial motions but also to interview witnesses for the guilt phase of the trial. There is no indication that Lackey relied upon Fish to help him defend Burnell in any way
2
As a matter of fact when Lackey was asked by Burnell's father to represent both his son (Burnell) and step-son (McQueen), he declined commenting that their interests were mutually antagonistic
3
Lackey told the jury that McQueen had threatened to kill another individual on the same weekend that the robbery had taken place and that he had picked a fight with another individual for "no reason at all."
4
The majority argues that McQueen was not prejudiced because Fish did not compromise McQueen's interest. However, the majority ignores the message of Strickland--namely, that prejudice is to be presumed where, as in this case, there exists an actual conflict of interest. Strickland, 466 U.S. at 692, 104 S.Ct. at 2067
5
The following testimony reveals that Fish did not do any investigation into McQueen's background:
App. Counsel: Prior to the trial did you discuss with Mr. McQueen his background?
Fish: I think I probably did, but I knew Harold before this trial.
App. Counsel: Okay. What did you know about him?
Fish: I knew Harold there in Berea where I lived and where he lived at the time. Knew of him and so forth.
App. Counsel: Did you know anything about his childhood?
Fish: No. I did not. About his childhood, no.
App. Counsel: Okay. Did you know anything about his relationships with his family?
Fish: No.
App. Counsel: Did you talk to Harold about his history of involvement with drugs?
Fish: I think, I'm not sure I talked with him about it, but I was aware of it. Because Harold used to smoke marijuana in my mother's restaurant. My mother pointed it out to me and I went one time and asked Harold to leave the restaurant. I was aware of his use of drugs from just knowing personally.
App. Counsel: But did you--did you take any type of history from him in relation to his drug involvement?
Fish: No. I did not see any--no I did not do that.
App. Counsel: Or did you talk to him about any treatment that he may have had in the past for his drug involvement?
Fish: I don't think so.
App. Counsel: So did you attempt to obtain any records or talk to any doctors in relation to any treatment that Mr. McQueen may have had for his drug involvement?
Fish: No.
App. Counsel: Were you aware that he had any treatment for drug involvement--
Fish: No.
App. Counsel:--prior to--
Fish: No.
App. Counsel: Don't you think it was important to determine that since your mitigating factor at the penalty phase was intoxication?
Fish: I did not apparently think it was that important. I didn't think, apparently, as I knew Harold that he was not as strung out on drugs or apparently as I knew him, knew he smoked pot, like I say, in my mother's restaurant, but apparently as I recall, I didn't think it was that great a thing. So I guess that's the reason, you know, did not look further into it myself.
6
McQueen's appellate counsel discovered that McQueen was the product of two alcoholic and abusive parents, and that his mother drank while she was pregnant with him. McQueen was sent to live with his grandparents because his parents abdicated their parental responsibilities. When McQueen's mother remarried, McQueen went to live with them. At the age of ten his step-father encouraged him to drink beer and whiskey. McQueen was later sent to a juvenile home where he witnessed the rape of one of the juveniles. The home was later closed because of widespread child abuse. McQueen dropped out of school in the ninth grade and eventually joined the army where he was introduced to the daily use of heroin and hashish. From then on, McQueen was either intoxicated, under the influence of drugs, in state hospitals attempting to overcome his addiction, or in prison
7
Interestingly, Fish did not do any investigation of McQueen's drug and alcohol addiction even though he asserted to the Court at sentencing that McQueen was incapable of forming the necessary intent for murder because of his alcohol intoxication
8
The majority argues that "the defense was given an ample opportunity to ask questions that would elicit the same information as asking whether a juror would always impose the death penalty." They further argue that a "person who answers that he will consider every possible penalty ... is by virtue of that answering disclaiming the intent to impose the death penalty in every case." In Morgan, a very similar argument was made. The appellees contended that a person who takes an oath to follow the law is also indicating their intent not to apply the death penalty in all circumstances. The Supreme Court rejected this argument, finding that each defendant should be allowed to inquire directly as to each juror's view on the application of the death penalty. See Morgan, 504 U.S. at 736, 112 S.Ct. at 2233 ("[The defendant] was entitled, upon his request, to inquiry discerning those jurors who, even prior to the State's case in chief, had predetermined the terminating issue of his trial, that being whether to impose the death penalty.")
| {
"pile_set_name": "FreeLaw"
} |
564 F.2d 600
184 U.S.App.D.C. 115
Stellv.Chesley
76-1348
United States Court of Appeals,District of Columbia Circuit.
9/30/77
1
D.C.D.C.
AFFIRMED
| {
"pile_set_name": "FreeLaw"
} |
631 F.2d 356
UNITED STATES of America, Appellee,v.John LANHAM, III, Appellant.UNITED STATES of America, Appellee,v.William TROY, William P. Trolinger, III, and April L.Jacobs, Appellants.
Nos. 79-5057, 79-5058.
United States Court of Appeals,Fourth Circuit.
Argued July 10, 1980.Decided Oct. 10, 1980.
Barry Wolf, Alexandria, Va. (John F. Mark, Lowe, Mark, Moffitt, Barton & Ford, Alexandria, Va., on brief), for appellant Trolinger.
John Kenneth Zwerling, Alexandria, Va. (Jonathan Shapiro, Zwerling & Shapiro, Alexandria, Va., on brief), for appellant, Lanham.
James M. Lowe (Lowe, Mark, Moffitt, Barton & Ford, Alexandria, Va., on brief), for appellant Troy.
Marvin D. Miller, Alexandria, Va., on brief, for appellant Jacobs.
Myron L. Wolfson, Towson, Md., on brief, for appellants.
Kurt L. Schmoke, Asst. U. S. Atty., Baltimore, Md. (Russell T. Baker, Jr., U. S. Atty., Catherine C. Blake, Asst. U. S. Atty., Baltimore, Md. on brief), for appellee.
Before WINTER, MURNAGHAN and ERVIN, Circuit Judges.
PER CURIAM:
1
Lanham, Troy, Trolinger and Jacobs appeal the government's dismissal without prejudice of the indictments against them, contending that the dismissal should have been with prejudice. We find that a dismissal without prejudice is not immediately reviewable and we therefore dismiss the appeals.
2
Our action is based on the Supreme Court's decision in Parr v. United States, 351 U.S. 513, 76 S.Ct. 912, 100 L.Ed. 1377 (1956). In Parr, the accused obtained a transfer of the indictment against him to another division within the same district on grounds of local prejudice. After defeating the transfer by obtaining a new indictment in another district, the government successfully moved for a Rule 48(a) dismissal1 of the original indictment; the accused appealed. The Fifth Circuit dismissed the appeal on the ground that the order appealed from lacked the requisite finality under 28 U.S.C. § 1291. The Supreme Court, on certiorari, agreed, and alternatively held that even if the order's finality was assumed, it was still unappealable because Parr was not legally aggrieved and hence had no standing to appeal.
3
The Parr Court reasoned that in a criminal case, final judgment means conviction and sentence. A dismissal without prejudice is clearly neither, and the order being interlocutory, "its review must await the conclusion of the 'whole matter litigated' between the Government and the petitioner ...." 351 U.S. at 518, 76 S.Ct. at 916. The Court indicated that the appropriate time to review a dismissal is after reindictment and conviction:
4
(I)f petitioner preserves the point, he will certainly be entitled to have the (original indictment's) dismissal reviewed upon an appeal from a judgment of conviction under the (second) indictment. To hold this order "final" at this stage of the prosecution would defeat the long-standing statutory policy against piecemeal appeals.
5
Id. at 519, 76 S.Ct. at 916.
6
In the alternative, the Court determined that, even if the dismissal order was final, Parr had no standing to appeal as he was not legally aggrieved: "(o)nly one injured by the judgment sought to be reviewed can appeal, and ... petitioner has not been injured by (the prosecution's) termination in his favor." Id. at 516-17, 76 S.Ct. at 915. The Court grounded this determination on its decision in Lewis v. United States, 216 U.S. 611, 30 S.Ct. 438, 54 L.Ed. 637 (1910), in which it held that the accused was not aggrieved by entry of a nolle prosequi against him; he therefore had no standing to appeal:
7
It thus appears that this is an appeal by a person indicted for crime from an order of the court releasing and discharging him from further prosecution under the indictment. (Lewis) could not complain until he was made to suffer (citation), and when discharged from custody he is not legally aggrieved and therefore cannot appeal.
8
216 U.S. at 612, 30 S.Ct. at 439.
9
The dismissal in the instant case is indistinguishable from the one in Parr : it is not final within the meaning of 28 U.S.C. § 1291 and it does not leave Lanham, Troy, Trolinger and Jacobs aggrieved in such a way as to grant them standing to appeal. Parr mandates dismissal of these appeals.2
10
APPEALS DISMISSED.
1
Fed.R.Crim.P. 48(a) provides that "The Attorney General or the United States attorney may by leave of court file a dismissal of an indictment, information or complaint and the prosecution shall thereupon terminate. Such a dismissal may not be filed during the trial without the consent of the defendant."
2
The Fifth Circuit has also read Parr to preclude appellate jurisdiction over a Rule 48(a) dismissal. See United States v. Azarte, 545 F.2d 481 (5th Cir. 1977)
| {
"pile_set_name": "FreeLaw"
} |
517 F.2d 1405
U. S.v.Tedder
75-1491
UNITED STATES COURT OF APPEALS Sixth Circuit
7/23/75
1
M.D.Tenn.
AFFIRMED
| {
"pile_set_name": "FreeLaw"
} |
51 So.3d 1128 (2009)
BRYAN E. HILL
v.
MELISSA I. HILL.
No. 2071074.
Court of Civil Appeals of Alabama.
April 28, 2009.
DECISION WITHOUT PUBLISHED OPINION
Dismissed on motion of appellant.
| {
"pile_set_name": "FreeLaw"
} |
COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-11-00468-CV
PHILIP GREGORY BYRD, LUCY APPELLANTS
LEASING CO., LLC, AND PGB AIR,
INC.
V.
VICK, CARNEY & SMITH LLP, APPELLEES
CANTEY HANGER LLP, AND
NANCY ANN SIMENSTAD
----------
FROM THE 17TH DISTRICT COURT OF TARRANT COUNTY
----------
OPINION
----------
This is an appeal from the trial court‟s final judgment incorporating a partial
summary judgment and an order of dismissal. We reverse and remand in part
and affirm in part.
Background
Appellant Philip Gregory Byrd and appellee Nancy Ann Simenstad were
divorced in Parker County, Texas, in August 2008; the judge of the 415th District
Court signed an agreed decree on August 11, 2008 and a decree nunc pro tunc
on November 17, 2008. At different times during the divorce proceedings,
appellees Vick, Carney & Smith LLP and Cantey Hanger LLP represented
Nancy. In August 2010, Philip, Lucy Leasing Co., LLC, and PGB Air, Inc. sued
appellees, bringing claims arising from appellees‟ alleged actions during and
after the divorce proceedings. Lucy Leasing and PGB Air were companies
formed by Philip before the divorce; a majority of the “right, title, and interest” in
both companies was awarded to Philip in the agreed decree.1 Appellants
brought claims for aiding and abetting under family code section 42.003 (child
custody interference), conspiracy, fraud, conversion, defamation, unfair debt
collection practices, intentional infliction of emotional distress (IIED), unjust
enrichment, and violations of the temporary orders and final decree.
On January 27, 2011, Cantey Hanger filed a motion to dismiss and motion
for summary judgment on all of appellants‟ claims. Vick Carney filed a motion for
summary judgment, or in the alternative a motion to dismiss, in March 2011.
Nancy filed a pro se motion to dismiss and for summary judgment.
1
The interest in the companies was not confirmed as Philip‟s separate
property; instead, all “right, title, and interest” in both companies was divided
between the parties in the agreed decree. Nothing in the record shows the
ownership structure of these companies.
2
Appellants filed a second amended petition in May 2011, in which they
removed their section 42.003 child custody interference allegation from their
aiding and abetting claim and removed their claims regarding violation of the
decree and temporary orders. On June 3, the trial court heard the summary
judgment motions and granted the motions of Cantey Hanger and Vick Carney
on all of appellants‟ claims. The trial court denied Nancy‟s motion, however.
Nancy filed a second motion to dismiss and for summary judgment, which
the trial court ultimately granted, dismissing all of appellants‟ claims against
Nancy and making all of the orders final and appealable. See Lehmann v. Har-
con Corp., 39 S.W.3d 191, 195 (Tex. 2001).
Points on Appeal
Appellants bring nine points. In their first five points, they contend the trial
court erred by concluding it had no jurisdiction over their claims against Nancy for
fraud, conspiracy, conversion, defamation, and IIED. In their sixth through ninth
points, they contend that the trial court erred by granting summary judgment for
Cantey Hanger on their claims for fraud, conspiracy, aiding and abetting, and
IIED. Although appellants‟ notice of appeal indicates the intent to appeal the
summary judgment for Vick Carney, appellants‟ prayer asks this court to reverse
only the summary judgment for Cantey Hanger and the order dismissing the
claims against Nancy. Therefore, we will review only the orders for Cantey
Hanger and Nancy. See Malooly Bros., Inc. v. Napier, 461 S.W.2d 119, 121
3
(Tex. 1970); Murphy v. Gruber, 241 S.W.3d 689, 700 (Tex. App.––Dallas 2007,
pet. denied).
Motion to Dismiss
Appellants did not challenge the trial court‟s dismissal of their unjust
enrichment claim; thus, we will review the propriety of the dismissal order as to
their claims for fraud, conspiracy, conversion, defamation, and IIED only.
Nancy‟s motion contends that because appellants‟ claims are based on the
final decree––and thus are more properly brought in an enforcement action––
they must be brought in the divorce court. According to Nancy, all of the claims
against her are based on appellants‟ allegations that she failed to comply with the
property division in the decree and that she failed to comply with the decree‟s
provisions regarding possession of and access to the couple‟s children.
Although Nancy characterizes the suit as an enforcement action,2
appellants, by their claims, do not seek to enforce the provisions of the decree;
rather, they seek damages based on alleged wrongful conduct by Nancy during
and after the divorce proceedings. See James v. Easton, 368 S.W.3d 799, 802–
04 (Tex. App.––Houston [14th Dist.] 2012, pet. denied) (holding that claims
against opposing litigant for wrongful conduct in lawsuit need not be brought in
2
See Tex. Const. art. V, § 8; Tex. Gov‟t Code Ann. § 24.008 (West 2004);
see also Tex. Fam. Code Ann. § 9.001 (West 2006) (“A party affected by a
divorce decree . . . may request enforcement of that decree by filing a suit to
enforce as provided by this chapter in the court that rendered the
decree.”), § 9.002 (“The court that rendered the decree of divorce or annulment
retains the power to enforce the property division as provided in Chapter 7.”).
4
the suit in which the conduct occurs and can be the basis of an independent tort).
Appellants‟ fraud and conspiracy claims are based on their allegations that
Nancy conspired with Cantey Hanger to falsify an airplane bill of sale after the
divorce and that she withdrew large amounts of money from a PGB bank account
knowing she did not have the authority to do so. The conversion claims are
likewise based on Nancy‟s alleged withdrawal of money from Lucy Leasing and
PGB‟s bank account. The defamation and IIED claims are based on alleged
actions occurring after the decree. These are not claims attempting to enforce
the terms of the decree. See Fernander v. Fernander, No. 03-08-00222-CV,
2010 WL 1814672, at *3 (Tex. App.––Austin May 7, 2010, no pet.) (mem. op.);
Solares v. Solares, 232 S.W.3d 873, 878 (Tex. App.––Dallas 2007, no pet.).
We conclude and hold that Nancy‟s claims are not enforcement claims for
which the divorce court has exclusive, continuing jurisdiction3 and, thus, that the
trial court erred by granting the motion to dismiss on that ground.4 We sustain
appellants‟ first through fifth issues.
3
See Chavez v. McNeely, 287 S.W.3d 840, 844–45 (Tex. App.––Houston
[1st Dist.] 2009, no pet.) (holding that sections 9.001 and 9.002 do not provide
divorce court with exclusive jurisdiction even over enforcement actions).
4
We do not address the summary judgment part of Nancy‟s motion
because the trial court, by dismissing her claims based on her jurisdictional
arguments, did not rule on the motion.
5
Summary Judgment for Cantey Hanger
Appellants challenge the trial court‟s summary judgment for Cantey
Hanger on their fraud, conspiracy, aiding and abetting, and IIED claims only.
Therefore, we will review the propriety of the summary judgment on those claims
only.
Standard of Review
We review a summary judgment de novo. Travelers Ins. Co. v. Joachim,
315 S.W.3d 860, 862 (Tex. 2010). We consider the evidence presented in the
light most favorable to the nonmovant, crediting evidence favorable to the
nonmovant if reasonable jurors could, and disregarding evidence contrary to the
nonmovant unless reasonable jurors could not. Mann Frankfort Stein & Lipp
Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). We indulge every
reasonable inference and resolve any doubts in the nonmovant‟s favor. 20801,
Inc. v. Parker, 249 S.W.3d 392, 399 (Tex. 2008). A defendant who conclusively
negates at least one essential element of a cause of action is entitled to
summary judgment on that claim. Frost Nat’l Bank v. Fernandez, 315 S.W.3d
494, 508 (Tex. 2010); see Tex. R. Civ. P. 166a(b), (c). The defendant is required
to meet the plaintiff‟s case as pleaded to demonstrate that the plaintiff cannot
prevail. Cook v. Brundidge, Fountain, Elliott & Churchill, 533 S.W.2d 751, 759
(Tex. 1976).
6
Applicable Facts
Appellants alleged in their second amended petition that Cantey Hanger
and Nancy falsified a bill of sale for a Piper Seminole No. N21113 owned by Lucy
Leasing to show that Nancy was a manager of Lucy Leasing and had authority to
transfer ownership of the airplane. According to appellants, Cantey Hanger and
Nancy did so to shift tax liability for the airplane sale to Lucy Leasing. Appellants
also alleged that Cantey Hanger “purposefully failed to notify [Philip] and the
[trial] Court of their changes to the Final Decree to Divorce so that the Court
would grant the Motion for Judgment Nunc Pro Tunc and effectively change the
division of debts past the date allowed for modification of the Decree.”
Appellants do not challenge summary judgment on the second allegation, only
the first relating to alleged falsification of the airplane bill of sale, which is the
basis of their fraud, conspiracy, and aiding and abetting claims.
Specifically, appellants alleged as their aiding and abetting claim that
Defendant CANTEY HANGER assisted Defendant
SIMENSTAD to commit fraud in the sale of aircraft belonging to
Plaintiff LUCY. Defendant CANTEY HANGER aided Defendant
SIMENSTAD by falsifying the bill of sale for the aircraft listing
Defendant SIMENSTAD as a manager of Plaintiff LUCY and having
Defendant SIMENSTAD sign as a manager of LUCY. Defendant
CANTEY HANGER further assisted Defendant SIMENSTAD to
evade tax liability for her sale of the aircraft and to shift the tax
liability to Plaintiff LUCY.
Their conspiracy claim is that
Defendant CANTEY HANGER conspired with Defendant
SIMENSTAD to complete a fraudulent bill of sale (a federal
document) for an airplane awarded to her in the Decree by signing
7
as “Nancy Byrd” and listing her title as “Manager” of Plaintiff LUCY,
even though Defendant CANTEY HANGER and SIMENSTAD were
aware that Defendant SIMENSTAD was never an officer, owner or
manager of Plaintiff LUCY and that she changed her last name back
to “Simenstad.” Defendants CANTEY HANGER and SIMENSTAD
did so to fraudulently avoid tax liability, shifting it to Plaintiff LUCY.
Finally, under their fraud cause of action, they claimed that
Defendants CANTEY HANGER and SIMENSTAD, with the intent to
avoid paying taxes and with the intent to shift tax liability to Plaintiff
LUCY, falsified an aircraft bill of sale (a federal document) and
refused to properly change the registration of the aircraft. Defendant
SIMENSTAD was not allowed by law to sell the aircraft directly to a
purchaser on behalf of Plaintiff LUCY.
Cantey Hanger moved for summary judgment on the fraud, aiding and
abetting, and conspiracy claims on the ground that it had no duty to Philip as it
was not in privity with him in the divorce, that it was immune from liability for
actions taken in its representation of Nancy in the divorce, and that for those
reasons its alleged actions were not fraudulent as a matter of law. 5 According to
Cantey Hanger, all of the alleged actions it took were in the course of
5
In its “Reply In Support Of Motion . . . For Summary Judgment,” Cantey
Hanger contended that as a matter of law it could not have committed fraud in
the sale of the aircraft because it was awarded to Nancy in the divorce.
Additionally, Cantey Hanger contended that appellants “did not take any action in
reliance on the alleged „false bill of sale.‟” But Cantey Hanger did not specifically
amend its motion for summary judgment to raise additional grounds in its reply.
Therefore, we do not consider its additional arguments in that document as
additional grounds for summary judgment. See, e.g., Reliance Ins. Co. v.
Hibdon, 333 S.W.3d 364, 378 (Tex. App.––Houston [14th Dist.] 2011, pet.
denied) (op. on reh‟g) (“A movant is not entitled to use its reply to amend its
motion for summary judgment or to raise new and independent summary-
judgment grounds.”); Garcia v. Garza, 311 S.W.3d 28, 36 (Tex. App.––San
Antonio 2010, pet. denied).
8
representing Nancy in the divorce suit.6 As evidence, Cantey Hanger attached
the decree, the decree nunc pro tunc, and affidavits of two of its attorneys.
Importantly, Cantey Hanger did not allege no-evidence grounds in its motion for
summary judgment.
In the part of the agreed decree entitled, “Division of Marital Estate,” Philip
was awarded “[a]ll right, title, and interest in PGB Air, Inc. and Lucy Leasing Co.,
LLC, except as specifically set forth in Section IX(B)(4)” of the decree. That
section awards Nancy as her separate property three airplanes: the Piper
Seminole No. N21113, a Piper Seminole number N2950A, and an aircraft
numbered N2816R.7 That section also states that Philip “shall not remove any
part of said planes or otherwise alter their condition.”
The decree ordered each party to execute––and the attorneys for the
nonsignatory parties to draft––documents to transfer ownership of the airplanes
to Nancy within ten days of the date of the decree. The decree states that Nancy
is not liable for any encumbrance on the airplanes, but it further provides that
Nancy is responsible for any ad valorem taxes, “liens, assessments, or other
charges due or to become due on the personal property awarded to” her. The
6
Cantey Hanger raised other grounds for summary judgment directed
specifically at the enforcement claims, which appellants dropped from their
second amended petition; therefore, we do not address those grounds.
7
Two other planes were awarded to Philip in the “Division of Marital Estate”
section of the agreed decree: a Cessna No. 7295E and a Cessna No. 3340S;
nothing in the record indicates in whose name those planes were registered or
titled.
9
decree also ordered that each party should file 2007 and 2008 income taxes
individually and would be entitled to 100 percent of any refund received. Philip
admitted that he agreed to the terms of the August 2008 decree.
The November 17, 2008 decree nunc pro tunc contains most of the same
provisions as the August 2008 decree.8
In one of the affidavits, an attorney averred that he represented Nancy in
the divorce, post-judgment enforcement proceedings, and Byrd‟s personal
bankruptcy proceeding. He also stated that “[a]ll actions taken by Cantey Hanger
with respect to Plaintiffs were made in the course and scope of representing”
Nancy. He further averred that “Plaintiff Byrd and his two defunct business
entities, Lucy Leasing Co., LLC and PGB Air, Inc., have never had an attorney-
client relationship with Cantey Hanger but have always been adverse to Cantey
Hanger‟s former client,” Nancy. The other attorney averred that she represented
Nancy in the divorce and that all actions taken by the firm were in the course and
scope of representing Nancy.
Appellants attached to their summary judgment response an affidavit from
Philip in which he stated that Nancy had never been an “owner, officer, manager
or director of Lucy Leasing or PGB Air.” He further averred as follows:
8
Philip disputes that the decree nunc pro tunc merely corrected a clerical
error; however, because he did not challenge the summary judgment as to his
allegations related to the entry of the decree nunc pro tunc, we will not address
the dispute. See Malooly Bros., Inc. v. Napier, 461 S.W.2d 119, 121 (Tex. 1970);
Murphy v. Gruber, 241 S.W.3d 689, 700 (Tex. App.––Dallas 2007, pet. denied).
10
Nancy . . . sold one of the airplanes that was awarded to her in
the Divorce Decree. Cantey Hanger was to draft the documents to
effectuate the transfer of the airplane for me to sign on behalf of
Lucy Leasing. I never received the transfer documents for me to
sign. Later, I found out that Nancy . . . had sold the plane directly to
another purchaser. She signed the bill of sale as “manager” of Lucy
Leasing when she was never a manager of Lucy Leasing and I was
the sole manager of Lucy Leasing. By doing this, she made Lucy
Leasing the seller of the aircraft to the purchaser and responsible for
sales tax. Neither she nor Cantey Hanger ever transferred the
airplane to Nancy . . . . And they did not complete the registration for
the airplane when they sold it. The aircraft is still improperly
registered to Lucy Leasing to date [May 26, 2011].
Nothing in the record indicates in whose name the other two planes were
registered or titled at the time of the divorce or summary judgment proceeding.
Appellants also produced a bill of sale for the Piper Seminole No. N21113
dated November 11, 2009. The trial court struck the bill of sale on Cantey
Hanger‟s hearsay objection. Because appellants do not challenge the trial
court‟s ruling on Cantey Hanger‟s objections, we may not consider the bill of sale.
See Kaufman v. Islamic Soc’y of Arlington, 291 S.W.3d 130, 137 n.15 (Tex.
App.––Fort Worth 2009, pet. denied).
Applicable Law
Texas law authorizes attorneys to “practice their profession, to advise their
clients, and to interpose any defense or supposed defense, without making
themselves liable for damages.” Kruegel v. Murphy, 126 S.W. 343, 345 (Tex.
Civ. App.––Dallas 1910, writ ref‟d); see Renfroe v. Jones & Assocs., 947 S.W.2d
285, 287 (Tex. App.––Fort Worth 1997, writ denied). The purpose behind this
well-established rule is to allow an attorney to fulfill his duty and zealously
11
represent his clients without subjecting himself to the threat of liability. Dixon Fin.
Servs., Ltd. v. Greenberg, Peden, Siegmyer & Oshman, P.C., No. 01-06-00696-
CV, 2008 WL 746548, at *7 (Tex. App.––Houston [1st Dist.] Mar. 20, 2008, pet.
denied) (mem. op. on reh‟g). An attorney who could be held liable for statements
made or actions taken in the course of representing his client would be forced
constantly to balance his own potential exposure against his client‟s best interest.
Alpert v. Crain, Caton & James, P.C., 178 S.W.3d 398, 405 (Tex. App.––Houston
[1st Dist.] 2005, pet. denied). Such a result would act as a severe and crippling
deterrent to the ends of justice because a litigant might be denied a full
development of his rights. Dixon Fin. Servs., Ltd., 2008 WL 746548, at *7.
To promote zealous representation, courts have held that an attorney has
“qualified immunity” from civil liability, with respect to nonclients, for actions taken
in connection with representing a client in litigation. Alpert, 178 S.W.3d at 405.
This qualified immunity generally applies even if conduct is wrongful in the
context of the underlying lawsuit. Id.; Renfroe, 947 S.W.2d at 287–88. For
example, a third party has no independent right of recovery against an attorney
for filing motions in a lawsuit, even if frivolous or without merit, although such
conduct is sanctionable or contemptible as enforced by the statutory or inherent
powers of the court. Alpert, 178 S.W.3d at 405. Courts have refused to
acknowledge an independent cause of action in such instances “because making
motions is conduct an attorney engages in as part of the discharge of his duties
in representing a party in a lawsuit.” Id. Under the same reasoning, an attorney
12
for an opposing party may not be held liable for fraud merely for making
representations to the opposing party in litigation that further the best interests of
his own clients. E.g., Chu v. Hong, 249 S.W.3d 441, 446 & n.19 (Tex. 2008);
McCamish, Martin, Brown & Loeffler v. F.E. Appling Interests, 991 S.W.2d 787,
794 (Tex. 1999). If an attorney‟s conduct violates his professional responsibility,
the remedy is public, not private. Renfroe, 947 S.W.2d at 287.
This rule of qualified immunity focuses on the type of conduct in which the
attorney engages rather than on whether the conduct was meritorious in the
context of the underlying lawsuit. Id. at 288. “[I]t is the kind––not the nature––of
conduct that is controlling.” Dixon Fin. Servs., Ltd., 2008 WL 746548, at *7; see
Taco Bell Corp. v. Cracken, 939 F. Supp. 528, 532–33 (N.D. Tex. 1996) (mem.
op. and order). Thus, an attorney cannot be held liable to a third party for
conduct that requires “the office, professional training, skill, and authority of an
attorney.” Dixon Fin. Servs., Ltd., 2008 WL 746548, at *7 (quoting Miller v.
Stonehenge/Fasa-Texas, JDC, L.P., 993 F. Supp. 461, 464 (N.D. Tex. 1998)
(order)). Incorrect, meritless, and even frivolous conduct is not actionable if it
satisfies this standard. Id.
An attorney‟s protection from liability is not boundless, however. Id. at *8.
An attorney can be held liable by a third-party for actions that are not part of the
discharge of his duties to his client. See Alpert, 178 S.W.3d at 406; Bradt v.
West, 892 S.W.2d 56, 71 (Tex. App.––Houston [1st Dist.] 1994, writ denied). If a
lawyer participates independently in fraudulent activities, his action is “foreign to
13
the duties of an attorney.” Alpert, 178 S.W.3d at 406; see Poole v. Houston &
T.C. Ry. Co., 58 Tex. 134, 137 (1882). In other words, the law does not provide
absolute immunity for every tort committed by a lawyer that may be tangentially
related to his professional role or which may occur during litigation. See Bradt,
892 S.W.2d at 71–72; see also Miller, 993 F. Supp. at 464. By way of extreme
example, an attorney who assaults the opposing party or lawyer during trial could
be held liable for that act. See Bradt, 892 S.W.2d at 72.
“An attorney who personally steals goods or tells lies on a client‟s behalf
may be liable for . . . fraud in some cases.” Chu, 249 S.W.3d at 446 (emphasis
added); see McCamish, Martin, Brown & Loeffler, 991 S.W.2d at 793–94 (noting
that the privity requirement prohibits a third party from suing an attorney for legal
malpractice but not other torts, such as negligent misrepresentation); Likover v.
Sunflower Terrace II, Ltd., 696 S.W.2d 468, 472 (Tex. App.––Houston [1st Dist.]
1985, no writ) (holding that “[a]n attorney is liable if he knowingly commits a
fraudulent act that injures a third person, or if he knowingly enters into a
conspiracy to defraud a third person” in the course of representing his client). To
be held so liable for conspiracy, the attorney must have agreed to the injury to be
accomplished, not merely the conduct ultimately resulting in injury. Chu, 249
S.W.3d at 446.
Analysis
Here, Cantey Hanger‟s preparation of a bill of sale to facilitate transfer of
an airplane awarded to its client in an agreed divorce decree was conduct in
14
which an attorney engages to discharge his duties to his client. See Dixon Fin.
Servs., Ltd., 2008 WL 746548, at *8. But as pled by appellants, the conduct
complained of is the intentional misrepresentation of Nancy‟s status in the bill of
sale to a third party as a “Manager” of Lucy Leasing for the purpose of unlawfully
relieving Nancy of tax liability for the sale and shifting that tax liability to Lucy
Leasing. The focus of our analysis is on the kind––not the nature––of the
attorney‟s alleged conduct. Id. at *8; Renfroe, 947 S.W.2d at 288. Although the
preparation of a bill of sale to transfer an airplane is not conduct “foreign to the
duties of an attorney,” the intentional and knowing inclusion of false information
in a bill of sale to assist a client in avoiding tax liability is. Cf. Estate of
Stonecipher v. Estate of Butts, 686 S.W.2d 101, 103 (Tex. 1985); Likover, 696
S.W.2d at 472. But cf. Dixon Fin. Servs., Ltd., 2008 WL 746548, at *9 (“Even
when taken as true and construed broadly, Dixon Financial‟s petition alleges that
the underlying purpose of the communications was for the attorneys to secure
satisfaction of their clients‟ arbitration award.”)
The alleged conduct here did not occur in an adversarial context vis a vis
Nancy and Lucy Leasing. The subsequent sale of the airplane to a third party
after it had already been awarded to Nancy in the agreed decree was not
required by, and had nothing to do with, the divorce decree.9 Because of the
9
For the same reason, Cantey Hanger‟s alternative claim that only the
divorce court had jurisdiction over appellants‟ claims fails. See, supra, at 4–5.
We note that Cantey Hanger represented Nancy in a post-divorce suit against
one of Philip‟s divorce attorneys and his law firm for the attorney‟s alleged
15
summary judgment standard of review, we are not concerned with whether
appellants proved or even provided evidence of their allegations regarding the bill
of sale because Cantey Hanger did not raise that issue in its motion for summary
judgment. See, e.g., Delgado v. Combs, No. 07-11-00273-CV, 2012 WL
4867600, at *2 (Tex. App.––Amarillo Oct. 15, 2012, no pet.) (mem. op.). Instead,
we must address the narrow issue of whether Cantey Hanger is immune as a
matter of law for its actions as alleged by appellants. Nat’l City Bank of Ind. v.
Ortiz, Nos. 14-10-01125-CV, 14-10-01262-CV, 2013 WL 2120812, at *9 n.4 (Tex.
App.––Houston [14th Dist.] May 16, 2013, no pet.) (op. on reh‟g); Brocail v.
Detroit Tigers, Inc., 268 S.W.3d 90, 109 (Tex. App.––Houston [14th Dist.] 2008,
pet. denied), cert. denied, 558 U.S. 877 (2009). Under the reasoning of the
above cases, such alleged actions, if true, would not shield an attorney from
liability simply because he or she undertook those actions in the course of
representation of a client. Cf. Toles v. Toles, 113 S.W.3d 899, 912 (Tex. App.––
Dallas 2003, no pet.) (holding that similar argument by defendants––that they
could not be liable because their actions were taken during representation of
client––was not sufficient to support summary judgment on claim for aiding and
abetting, breach of fiduciary duty, and conspiracy).
negligence during the divorce. In the suit, which was filed in the 96th District
Court of Tarrant County, Nancy alleged that the attorney and Southside
Bancshares negligently allowed Philip to obtain and cash a check consisting of
community funds, knowing that Philip had no intention of giving Nancy her share
of the money.
16
Accordingly, whether the allegations are true or not––and we must
consider them true for purposes of reviewing the summary judgment10––the
alleged actions are outside the scope of representation of a client and, thus, the
trial court should not have granted summary judgment on the fraud, conspiracy,
and aiding and abetting claims for that reason. We conclude and hold that the
trial court erred by granting summary judgment for Cantey Hanger on the specific
grounds raised in its motion as to appellants‟ fraud, conspiracy, and aiding and
abetting claims.11 We sustain appellants‟ sixth through eighth points.
Also in appellants‟ second amended petition, Philip alleged as facts
supporting his IIED claim (1) that Cantey Hanger and Nancy used the couple‟s
children as “bait” by making Philip wait to pick them up at Nancy‟s house while a
process server was on the way, (2) that Cantey Hanger and Nancy contacted his
family, friends, and business contacts for the purpose of defaming Philip by
telling them he had a sexually transmitted disease to cause him emotional
distress and collect money from him, and (3) that they both lied to the couple‟s
children by telling them that he did not pay child support and did not care about
them. Cantey Hanger moved for summary judgment on this claim on the
following ground in addition to the immunity ground: “Plaintiff‟s [IIED] cause of
10
Our discussion of these issues is dictated by the standard of review, and
should not be considered a commentary on the viability of appellants‟ claims on
other grounds, especially considering that appellants, in their briefing in this
court, accuse Cantey Hanger and Nancy of “[t]he commission of a crime.”
11
Our holding is limited to these very narrow grounds.
17
action is precluded by the laundry list of other alleged causes of action brought
by Plaintiffs and, therefore, should be disposed of by summary judgment.” 12
As a matter of law, the first allegation––that Cantey Hanger assisted
Nancy in using the children as “bait” by advising her to make Philip wait while a
process server was on the way––is not actionable because Cantey Hanger‟s
advice was made during the course of representing Nancy in the divorce, and
attempting to obtain service of process is conduct in which an attorney must
necessarily engage. See Dixon Fin. Servs., Ltd., 2008 WL 746548, at *8.
Philip‟s second and third allegations are related to conduct occurring both
during and after the divorce. Cantey Hanger contends that other causes of
action alleged in the second amended petition preclude an IIED action. IIED is a
gap-filler tort, “judicially created for the limited purpose of allowing recovery in
those rare instances in which a defendant intentionally inflicts severe emotional
distress in a manner so unusual that the victim has no other recognized theory of
redress.” Hoffmann-La Roche Inc. v. Zeltwanger, 144 S.W.3d 438, 447 (Tex.
12
In its reply to appellants‟ summary judgment response, Cantey Hanger
also states that (1) a cause of action for IIED is barred because an attorney is
supposed to attempt to obtain service at times when a party is known to be or
suspected to be likely to appear; therefore, such actions were not extreme and
outrageous, (2) because the petition itself does not allege that Cantey Hanger
told anyone about the sexually transmitted disease and if it did, it was not done
so maliciously and with knowing falsity, the allegation cannot support an
allegation of IIED, and (3) and because the allegations regarding the children are
not extreme and outrageous and unsupported by admissible evidence, they are
barred. Cantey Hanger did not move for a summary judgment on these grounds,
however, so the trial court could not––and we cannot––consider them. See, e.g.,
Reliance Ins. Co., 333 S.W.3d at 378; Garcia, 311 S.W.3d at 36.
18
2004). When the gravamen of a complaint is covered by another common-law or
statutory tort, IIED is not available. Id.
Philip included the second and third allegations as grounds supporting his
defamation claims, and the gravamen of those allegations is that Philip was
defamed as a result. Thus, IIED is not available to Philip as a cause of action
against Cantey Hanger, and the trial court did not err by granting summary
judgment for Cantey Hanger on that cause of action. See id. at 448; Draker v.
Schreiber, 271 S.W.3d 318, 323 (Tex. App.––San Antonio 2008, no pet.). We
therefore overrule appellants‟ ninth point.
19
Conclusion
Having sustained all of appellants‟ first through eighth points, we reverse
the trial court‟s order dismissing the fraud, conspiracy, conversion, defamation,
and IIED claims against Nancy, and we reverse the trial court‟s summary
judgment for Cantey Hanger on the fraud, conspiracy, and aiding and abetting
claims only. We remand this case to the trial court for further proceedings on
those claims only. We affirm the remainder of the summary judgment for Cantey
Hanger, the remainder of the dismissal order for Nancy, and the summary
judgment for Vick Carney.13
TERRIE LIVINGSTON
CHIEF JUSTICE
PANEL: LIVINGSTON, C.J.; GARDNER and MEIER, JJ.
GARDNER, J., filed a concurring and dissenting opinion.
DELIVERED: August 1, 2013
13
See Jacobs v. Satterwhite, 65 S.W.3d 653, 665–66 (Tex. 2001).
20
| {
"pile_set_name": "FreeLaw"
} |
856 A.2d 606 (2004)
Alonzo T. BOYKINS, Appellant,
v.
UNITED STATES, Appellee.
No. 02-CO-1454.
District of Columbia Court of Appeals.
Argued December 9, 2003.
Decided August 19, 2004.
*607 Donald L. Dworsky for appellant.
Donnell W. Turner, Assistant United States Attorney, with whom Roscoe C. Howard, Jr., United States Attorney, and John R. Fisher and Chad Sarchio, Assistant United States Attorneys, were on the brief, for appellee.
Before RUIZ, GLICKMAN and WASHINGTON, Associate Judges.
GLICKMAN, Associate J.
Appellant Alonzo T. Boykins contends that he received an illegal sentence following his plea of guilty to possession with intent to distribute cocaine in violation of former D.C.Code § 33-541(a)(1).[1] The trial court imposed a sentence of twenty-seven years of imprisonment with five years of supervised release, and suspended all but three months of incarceration and two years of supervised release. The court chose not to impose a period of probation in connection with the suspended portion of Boykins's prison term, based on its view that the United States Parole Commission would be supervising Boykins and could re-incarcerate him if he violated the conditions of his release for up to twenty-six years and nine months, the entire unexecuted portion of his sentence. Boykins contends that his sentence is illegal because only the court can require him to serve his unexecuted "backup" time, and then only through the mechanism of a revocation of probation. Although the trial court rejected this argument, the government concedes that, since the court did not place Boykins on probation, the balance of his prison sentence is a nullity because it cannot be executed under any circumstances, not even if Boykins violates the conditions of his supervised release. The government argues, however, that while the trial court misconstrued the relevant sentencing statutes and imposed a sentence that does not accomplish the court's objectives, the sentence is not for those reasons an illegal one.
We agree with the government. It is undisputed that the trial court was authorized to impose a sentence of twenty-seven years' imprisonment plus five years of supervised release for the offense to which Boykins pleaded guilty.[2] By the express terms of D.C.Code § 16-710(a) (2001), the court had the discretionary authority to "suspend the execution of a portion" of its sentence "for such time and upon such terms" as the court deemed appropriate.[3] A term of supervised release *608 constitutes part of a court's "sentence" and thus falls within the ambit of § 16-710(a). See Jones v. United States, 669 A.2d 724, 727 (D.C.1995) (noting in case of federal offender that supervised release is part of the sentence because it is designated by the sentencing judge). The trial court therefore was authorized to suspend all but three months of Boykins's incarceration and all but two years of his supervised release. The period of supervised release began "on the day" Boykins's three months of incarceration ended. D.C.Code § 24-403.01(b)(5) ("The term of supervised release commences on the day the offender is released from imprisonment....").
In suspending part of Boykins's sentence, the trial court was not obligated to impose a period of probation. Section 16-710(a) states that "[i]n each case of the imposition of sentence and the suspension of the execution thereof, or the imposition of sentence and the suspension of the execution of a portion thereof, the court may place the defendant on probation under the control and supervision of a probation officer." D.C.Code § 16-710(a) (emphasis added). The word "may" means that whether or not to place a defendant on probation is a matter committed to the court's sentencing discretion. See Houston v. United States, 592 A.2d 1066, 1067, 1067 n. 2 (D.C.1991). The trial court acted within its authority, therefore, in declining to include a term of probation in the sentence it imposed on Boykin.
We conclude that Boykins's sentence is a legal one. It is not, however, the sentence that the trial court thought it would be. As the court recognized, an offender on supervised release is "subject to the authority of the United States Parole Commission until completion of the term of supervised release." D.C.Code § 24-403.01(b)(6). If the offender violates the conditions of his release, the Parole Commission may institute a revocation proceeding and return the offender to prison. But the period of imprisonment that the Commission may order following revocation of supervised release is statutorily limitedin the case of Boykins, to a period of "not more than 3 years...." D.C.Code 24-403.01(b)(7)(B).[4] Contrary to what the trial court thought, the Parole Commission does not have the authority, in the event it were to revoke Boykins's supervised release, to require him to serve his entire suspended prison term of twenty-six years and nine months.
If the trial court had placed Boykins on probation following his release from his three months of imprisonment, the court itself would have retained oversight over his compliance with the conditions of his probation. In that case, the court would have had the power to "revoke the order of probation and cause the rearrest of the probationer and ... require him to serve the sentence ... originally imposed ... or any lesser sentence." D.C.Code § 24-304(a) (2001). But since the court decided not to impose a term of probation, it has no jurisdiction to require Boykins to serve the unexecuted portion of *609 his prison term, even if Boykins does violate conditions of his release. In effect, Boykins's backup time is, as the parties before us say, a "nullity"; realistically speaking, he received a sentence of three months imprisonment followed by two years of supervised release.[5]
Although the trial court predicated its sentence in this case on an erroneous interpretation of the law, the sentence itself was legal and we therefore cannot remand for the court to resentence Boykins so as to make his backup time meaningful. As the government acknowledges, to do that would be to increase Boykins's sentence in violation of the Double Jeopardy Clause. See Smith v. United States, 687 A.2d 581, 583 (D.C.1996) (recognizing the "general rulepremised on double jeopardy concernsthat, once a defendant begins serving a sentence, the sentence may not lawfully be increased").
Appellant's sentence is
Affirmed.
NOTES
[1] The statute has been recodified as D.C.Code § 48-904.01 (2001).
[2] Under D.C.Code § 24-403.01(b-1) (Supp.2004), the trial court could impose a term of imprisonment not to exceed the statutory maximum term of thirty years (see former D.C.Code § 33-541(a)(2)(A), recodified as D.C.Code § 48-904.01(a)(2)(A) (2001)) less the three year term of imprisonment authorized upon revocation of supervised release (see D.C.Code § 24-403.01(b)(7)(B)), or twenty-seven years. Under D.C.Code § 24-403.01(b)(2)(A), the trial court was authorized, and in fact required, to impose a five-year term of supervised release.
[3] The first sentence of § 16-710(a) provides that "in criminal cases in the Superior Court of the District of Columbia, the court may, upon conviction, suspend the imposition of sentence or impose sentence and suspend the execution thereof, or impose sentence and suspend the execution of a portion thereof, for such time and upon such terms as it deems best, if it appears to the satisfaction of the court that the ends of justice and the best interest of the public and of the defendant would be served thereby."
[4] "An offender whose term of supervised release is revoked may be imprisoned for a period of ... (B) Not more than 3 years, if the maximum term of imprisonment authorized for the offense is 25 years or more, but less than life and the offense is not specifically designated as a Class A felony...." D.C.Code § 24-403.01(b)(7)(B). Possession with intent to distribute cocaine is not a Class A felony. See D.C.Code § 48-904.01.
[5] We note that the District of Columbia Advisory Commission on Sentencing circulated a July 15, 2002, memorandum to Superior Court Judges, Assistant United States Attorneys, and members of the Defense Bar, in which it addressed the proper way to impose a split sentence, among other "problems regarding the implementation of determinate sentences in the District of Columbia." The Commission's memorandum advises as follows:
Split sentences continue to pose problems in the new regime. A split sentence must have these elements: an imposed prison sentence, an imposed period of supervised release, suspension of some, but not all, of the prison time, suspension of all of the supervised release term, and an imposed period of probation, not to exceed 5 years, to follow release from the unsuspended portion of the prison time.
To impose a legal split sentence, the court should impose the prison sentence it wants the defendant to serve if probation is later revoked and impose the amount of supervised release that it must impose with that prison sentence. Then the court should suspend the amount of prison time it wants to suspend and suspend all the supervised release time. The court should then set an appropriate term of probation. The court must impose a term of supervised release because the law says that every felony sentence must be followed by an adequate period of supervised release. The court must suspend the imposed term of supervised release when it is imposing a split sentence because the felony sentence will not be completely served and the supervised release will not begin unless and until probation is revoked and the defendant serves the unsuspended portion of the original prison sentence (or some lesser sentence, if the judge chooses to reduce it upon revocation). If the supervised release were not suspended, it would run concurrently with the probation and the court and the United States Parole Commission would both have jurisdiction in the same case at the same time. If the defendant violated, for example by testing positive for drugs, then anomalous results could occur with the judge deciding not to revoke probation but to order the defendant into an inpatient treatment program and the United States Parole Commission deciding to revoke supervised release and to send the defendant to prison.
| {
"pile_set_name": "FreeLaw"
} |
03/18/2020
IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs February 3, 2020
IN RE DAVID S. ET AL.
Appeal from the Juvenile Court for Campbell County
No. 2018-JC-213 Amanda Sammons, Judge
___________________________________
No. E2019-01190-COA-R3-PT
___________________________________
This is an appeal from a termination of parental rights case. In terminating the parental
rights of the children’s father, the trial court found that two grounds for termination had
been properly established: abandonment by failure to provide a suitable home and
persistent conditions. The trial court also determined that it was in the children’s best
interest to terminate the father’s parental rights. In addition to terminating the father’s
rights, the trial court terminated the parental rights of the children’s mother. On appeal,
we conclude that considerations of fundamental due process require us to vacate that
portion of the final order terminating the rights of the mother. We also conclude that one
of the grounds relied upon for terminating the father’s parental rights, persistent
conditions, must be vacated due to the trial court’s failure to consider all required
elements of the statutory ground. The termination of the father’s parental rights is
otherwise affirmed, however, for the reasons stated herein.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court Affirmed in
Part; Vacating in Part and Remanded
ARNOLD B. GOLDIN, J., delivered the opinion of the court, in which JOHN W.
MCCLARTY, J. joined. W. NEAL MCBRAYER, J., filed a separate opinion concurring in
part and dissenting in part.
Timothy K. Jones, Knoxville, Tennessee, for the appellant, David S.
Herbert H. Slattery, III, Attorney General and Reporter; Kathryn A. Baker, Senior
Assistant Attorney General, for the appellee, Tennessee Department of Children’s
Services.
OPINION
BACKGROUND AND PROCEDURAL HISTORY
David S.1 (“Father”) is the father of the children who are the subject of this appeal.
Cecilia S. (“Mother”) is the children’s mother. Although this opinion addresses the
propriety of the trial court’s termination as to both parents, the majority of our factual
presentation herein will be tailored to Father. As explained below, the termination of
Mother’s parental rights must be vacated due to important due process concerns. The
sufficiency of any factual allegations against her, therefore, are not properly before us at
this juncture.
The Department of Children’s Services (“the Department”) initially became
involved in this case in the summer of 2016. In alleging that the children at issue were
dependent and neglected following its initial investigation into their care, the Department
outlined as follows in its “Petition for Restraining Order and No Contact Order with Ex
Parte Order,” which was filed on August 24, 2016:
1. That it is upon your Petitioner’s information and belief that the above-
named children are dependent and neglected within the meaning of T.C.A.
37-1-102(b)(12).
2. That there is a danger of immediate harm to the children due to said
dependency and neglect, specifically, it is alleged that a CPS investigation
was initiated on 7/6/2016 with allegations of drug exposed child and
environmental neglect. During the course of this investigation, it was
discovered that [Father] had developed a friendship with [Dillion B.]
[Father] and [Dillion B.] came to the DCS office in LaFollette on 8/19/16
with [Father] seeking help having his utilities reconnected. [Dillion B.]
revealed on this date that he was planning to assist [Father] with childcare
while [Father] works a 3rd shift job. Dillion stated that he was not living in
the home with [Father] and his children at that time because the utilities
were not on, but he was assisting the mother. . . . with taking care of the
children at night at her home. Dillion stated he had not watched the
children alone for more than 2 or 3 hours at a time, usually while [the
mother] and her boyfriend . . . went to the store. Dillion stated he last
watched the children alone a week earlier on Friday or Saturday.
[Father] confirmed to CPSI that Dillion was planning to assist with
1
This Court has a policy of protecting children’s identities in parental termination cases.
Therefore, when appropriate, we will present certain names by their initials.
-2-
childcare when the utilities were turned on. [Father] stated that he was
aware that Dillion had been staying with [the mother] during the evenings
and had been helping take care of the children.
CPSI Gaylor met with [Father] and Dillion together at DCS office, and
Dillion stated he had recently pled guilty to statutory rape of a 13 year old
girl in Sevierville. There have been previous DCS cases involving Dillion
as an alleged perpetrator. In one of those cases, Dillion was named as the
father of a child with a 14 year old girl with intellectual disabilities. Dillion
was not substantiated in that case due to the age of the victim. In 2010
Dillion plead guilty to Rape of a Child and was placed on probation.
Due to the previous legal and CPS history, DCS is requesting that
[Dillion B.] be prohibited from having any contact with [the children]. It is
in the best interest of the children that a restraining order and/or no contact
order be immediately entered to protect said children.
3. That it is in the best interest of said children and the public that this
proceeding be brought and that said children be made wards of this Court.
On August 31, 2016, the Campbell County Juvenile Court (“the Juvenile Court”)
entered a “Temporary Bench Order of Custody,” finding probable cause that the children
were dependent and neglected. Therein, the Juvenile Court ordered that the children
should be placed in the temporary custody of the Department and expressly noted that
Father had agreed to this placement.2 According to the order, although Father had
reported that he was made aware that Dillion B. was a threat to the children, he had still
allowed Dillion B. to be around them.
Following an adjudicatory hearing, on October 26, 2016, the Juvenile Court found,
by clear and convincing evidence, that the children were dependent and neglected. The
court’s order provided that the children were to remain in the Department’s custody, and
Father was required to, among other things, submit to a psychosexual evaluation.
Although Father complied with aspects of permanency plans that were created for
him in this case, a number of serious concerns remained and/or manifested following the
children’s removal from his care. Acute concerns existed as to Father’s continued drug
use, the suitability of his home, and alleged incidents of violence between him and other
family members. We will endeavor to briefly outline some of these concerns here.
2
The Juvenile Court also contemporaneously entered a separately styled “Preliminary Hearing
Order,” wherein it held that (1) probable cause had been shown to justify the children’s removal and (2)
Father had agreed that the children should be placed in the Department’s custody.
-3-
Prior to the children’s removal in 2016, Father pled guilty to misdemeanor
domestic assault against the children’s mother. Although Father was sentenced to
probation in connection with this incident, additional allegations of violence were
forthcoming. Notably, Father was charged with domestic assault on a second occasion in
July 2018, against his own father. The second charge was dismissed, however, following
his father’s death. Concerns for violence also existed specifically in relation to the
children. As related at the eventual termination trial in this matter, Father’s oldest child
had informed a foster care worker that Father had punched and pushed him.
Notwithstanding the long-standing concern for violence evidenced by these accounts,
Father never completed a required batterer’s intervention program.
As previously detailed, the Department’s initial involvement in this matter was
precipitated by, among other things, allegations of drug use. Unfortunately, the period
following the children’s removal was marked by multiple instances of drug struggles that
confirmed the seriousness of the initial allegations. For instance, Father’s own
admissions and the results of his drug screens revealed as follows:
Father admitted to using THC3 three days prior to a September 2016 drug screen.
Father tested positive for amphetamine and methamphetamine on November 29,
2016.
Father tested positive for methamphetamine on December 16, 2016.
Father tested positive for THC on January 4, 2017.
Father tested positive for amphetamine and methamphetamine on February 6,
2017.
Father tested positive for amphetamine and methamphetamine on April 21, 2017.
Father tested positive for methamphetamine on May 3, 2017.
Father tested positive for bupronephrine, methamphetamine, and opiates on June
15, 2017.
Father tested positive for THC on June 26, 2017.
Father tested positive for methamphetamine on July 28, 2017.
Father tested positive for THC on August 4, 2017.
Father tested positive for THC on August 28, 2017.
Father tested positive for amphetamine and methamphetamine on September 12,
2017.
Although Father left rehab in October 2017 and subsequently maintained negative
drug screens for about a year thereafter, his drug usage ultimately recommenced. On
October 4, 2018, Father tested positive for methamphetamine. On November 30, 2018,
3
“THC is a marijuana metabolite that is stored in fat cells and can be detected in the body up to
thirty days after smoking marijuana.” Interstate Mech. Contractors, Inc. v. McIntosh, 229 S.W.3d 674,
677 (Tenn. 2007).
-4-
he tested positive for THC, and the following month, on December 21, 2018, he refused
to be drug screened. On April 4, 2019, Father tested positive once more for THC.
Mental struggles on the part of Father clearly accompanied—and evidently in part
fueled—his drug struggles. When testifying at the eventual termination trial about the
period before he went to rehab and his usage of methamphetamine, Father remarked as
follows: “Honestly I was just trying to kill myself.” He stated that he had been trying to
“kill the pain” and admitted that he had again “slipped up” when his grandmother died.
Father was diagnosed with bipolar disorder and schizophrenia as an adult.
Father’s housing situation remained a concern on several fronts. During one home
visit in the fall of 2016, Father’s home was found to be generally dirty and had a bed bug
infestation. Moreover, in May 2017, Father’s yard was filled with used needles, and he
even admitted to picking up a vial of “dope” there. Father attributed the presence of
these items on his property to others. Concerns also existed as to Father’s desire to have
his mother reside with him, as he had been removed from his own mother’s care by the
Department when he was a child. Moreover, at the time of the termination trial in this
matter, evidence revealed that Father’s home was unsafe for the children. Among other
things, there was a hole in the floor right inside the front door.
Following the Department’s filing of a September 2018 petition to terminate
Mother and Father’s parental rights, the Juvenile Court held a multi-day final hearing in
this case over dates in April and June 2019. In July 2019, the Juvenile Court entered an
order terminating both parents’ parental rights. As to Father specifically, although the
court did not find that the Department had proven all of the grounds set forth in the
September 2018 petition, it held that two grounds had been properly proven by clear and
convincing evidence. First, the Juvenile Court concluded that Father had failed to
provide a suitable home for the children after reasonable efforts by the Department. See
Tenn. Code Ann. § 36-1-113(g)(1); Tenn. Code Ann. § 36-1-102(1)(A)(ii). Second, the
Juvenile Court held that the ground of persistent conditions had been adequately proven.
See Tenn. Code Ann. § 36-1-113(g)(3). The Juvenile Court further determined that the
termination of Father’s parental rights was in the children’s best interest. This appeal
followed.
STANDARD OF REVIEW
“A biological parent’s right to the care and custody of his or her child is among the
oldest of the judicially recognized liberty interests protected by the due process clauses of
the federal and state constitutions.” In re M.L.P., 228 S.W.3d 139, 142 (Tenn. Ct. App.
2007). “Although this right is fundamental and superior to claims of other persons and
the government, it is not absolute.” In re J.C.D., 254 S.W.3d 432, 437 (Tenn. Ct. App.
2007). “It continues without interruption only as long as a parent has not relinquished it,
abandoned it, or engaged in conduct requiring its limitation or termination.” In re M.J.B.,
140 S.W.3d 643, 653 (Tenn. Ct. App. 2004). In Tennessee, “[w]ell-defined
-5-
circumstances exist under which a parent’s rights may be terminated.” In re Roger T.,
No. W2014-02184-COA-R3-PT, 2015 WL 1897696, at *6 (Tenn. Ct. App. Apr. 27,
2015). Pursuant to the Tennessee Code, parties who have standing to seek the
termination of a parent’s parental rights must prove two things. They must first prove at
least one of the statutory grounds for termination. In re J.C.D., 254 S.W.3d at 438 (citing
Tenn. Code Ann. § 36-1-113(c)(1)). Second, they must prove that termination of parental
rights is in the child’s best interests. Id. (citing Tenn. Code Ann. § 36-1-113(c)(2)).
Because the decision to terminate a parent’s parental rights has “profound
consequences,” trial courts must apply a higher standard of proof in deciding termination
cases. In re M.L.P., 228 S.W.3d at 143. “To terminate parental rights, a court must
determine that clear and convincing evidence proves not only that statutory grounds exist
but also that termination is in the child’s best interest.” In re Valentine, 79 S.W.3d 539,
546 (Tenn. 2002) (citing Tenn. Code Ann. § 36-1-113(c)). “Clear and convincing
evidence is evidence that eliminates any substantial doubt and that produces in the fact-
finder’s mind a firm conviction as to the truth.” In re M.A.B., No. W2007-00453-COA-
R3-PT, 2007 WL 2353158, at *2 (Tenn. Ct. App. Aug. 20, 2007). This heightened
burden of proof “minimizes the risk of erroneous decisions.” In re M.L.P., 228 S.W.3d at
143.
Due to the heightened burden of proof required under the statute, we must adapt
our customary standard of review. In re Audrey S., 182 S.W.3d 838, 861 (Tenn. Ct. App.
2005). “First, we must review the trial court’s specific findings of fact de novo in
accordance with Tenn. R. App. P. 13(d).” In re M.J.B., 140 S.W.3d at 654. “Second, we
must determine whether the facts, either as found by the trial court or as supported by the
preponderance of the evidence, clearly and convincingly establish the elements required
to terminate a biological parent’s parental rights.” Id.
DISCUSSION
Mother’s Parental Rights
Although only Father has appealed from the judgment of the Juvenile Court,
considerations of due process and fundamental fairness require us to address the manner
in which Mother’s parental rights were terminated. See In re Stormie M., No. M2015-
02336-COA-R3-PT, 2016 WL 5025999, at *8 (Tenn. Ct. App. Sept. 15, 2016)
(concluding that fundamental fairness required the appellate court to address the manner
in which a putative father’s rights had been terminated); see also In re Z.J.S., No. M2002-
02235-COA-R3-JV, 2003 WL 21266854, at *4-8 (Tenn. Ct. App. June 3, 2003) (vacating
a termination order as to certain respondents when the record evidenced that the method
selected to provide notice was not reasonably designed to provide notice). Specifically,
we observe that there is no assurance in this record that Mother had proper notice of the
termination proceeding. Moreover, the record reveals that she was never properly served.
-6-
Pursuant to our rules of appellate procedure, we retain the discretion to consider issues
other than those specifically presented for our review when necessary to prevent injury to
the interests of the public or prejudice to the judicial process. See Tenn. R. App. P. 13(b).
Service of a biological parent is not a perfunctory act but has constitutional
implications. In re Z.J.S., 2003 WL 21266854, at *6. Due process demands that
defendants be given notice “that is reasonably calculated, under all the circumstances, to
inform the defendants of the pending action.” Id. The present termination case was filed
in Juvenile Court, and as such, the default rule under current Tennessee law is that
service of process “shall be pursuant to the Tennessee Rules of Civil Procedure.” Tenn.
Code Ann. § 36-1-117(m)(2). Pursuant to the Tennessee Rules of Civil Procedure,
service upon defendants outside the state may be made “in any manner prescribed by the
law of the state in which service is effected for an action in any of the courts of general
jurisdiction in that state.” Tenn. R. Civ. P. 4.05. Although the Department ostensibly
attempted to rely on this rule inasmuch as it attempted to serve Mother by substituted
service in Illinois, the attempted service was, as will be explained below, ineffective.
At the opening of the trial in this matter, Mother was not present. As a discussion
emerged over Mother’s absence, an attorney with the Department represented that
Mother had been served and tendered evidence thereof as an exhibit. In attempting to
explain to the court how the service was valid, the Department’s counsel argued as
follows:
[W]e pulled up the Illinois law stating about service. If you can serve it
upon an individual defendant, it shall be made by, one, leaving a copy of
the summons with the defendant personally; two, by leaving a copy at the
defendant’s place of abode with some person of the family or a person
residing there of the age 13 or upwards, and informing that person of the
contents of the summons, provided the officer or other person making
service shall also send a copy of the summons in a sealed envelope with
postage fully prepaid and addressed to the defendant at his or her usual
place of abode.
It is clear to this Court that counsel was alluding to the following provision from Illinois
law:
§ 2-203. Service on individuals.
(a) Except as otherwise expressly provided, service of summons upon an
individual defendant shall be made (1) by leaving a copy of the summons
with the defendant personally, (2) by leaving a copy at the defendant’s
usual place of abode, with some person of the family or a person
residing there, of the age of 13 years or upwards, and informing that
-7-
person of the contents of the summons, provided the officer or other
person making service shall also send a copy of the summons in a
sealed envelope with postage fully prepaid, addressed to the defendant
at his or her usual place of abode, or (3) as provided in Section 1-2-9.2 of
the Illinois Municipal Code with respect to violation of an ordinance
governing parking or standing of vehicles in cities with a population over
500,000. The certificate of the officer or affidavit of the person that he or
she has sent the copy in pursuance of this Section is evidence that he or she
has done so. No employee of a facility licensed under the Nursing Home
Care Act, the Specialized Mental Health Rehabilitation Act of 2013, the
ID/DD Community Care Act, or the MC/DD Act shall obstruct an officer
or other person making service in compliance with this Section. An
employee of a gated residential community shall grant entry into the
community, including its common areas and common elements, to a
process server authorized under Section 2-202 of this Code who is
attempting to serve process on a defendant or witness who resides within or
is known to be within the community. As used in this Section, “gated
residential community” includes a condominium association, housing
cooperative, or private community.
735 Ill. Comp. Stat. Ann. 5/2-203(a) (emphasis added) (internal footnote omitted).
Although this provision allows for substituted service, Illinois law is clear that in
the case of substituted service, there must be “strict compliance with every requirement
of the statute authorizing such substituted service, since the same presumption of validity
that attaches to a return reciting personal service does not apply to substituted service.”
State Bank of Lake Zurich v. Thill, 497 N.E.2d 1156, 1162 (Ill. 1986). In elaborating on
this notion, the Illinois Supreme Court explained that there must be an affirmative
indication of compliance with the requirements of substituted service:
[W]here personal jurisdiction is based upon substituted service of a
summons, the return or affidavit of service must affirmatively state (1) that
a copy of the summons was left at the usual place of abode of the defendant
with some person of the family of the age of 13 years or upwards, (2) that
such family member was informed of the contents of the summons, and (3)
that the officer or other authorized person making service sent a copy of the
summons in a sealed envelope with postage fully prepaid, addressed to the
defendant at his usual place of abode.
Id.
Here, a discussion at trial between the Juvenile Court and counsel for the
Department involved a number of shared statements suggesting that there were, in fact,
-8-
affirmative indications of compliance. The court remarked at one point, for example, that
on October 13, 2018, “Ryan McCollum served the summons and the complaint on the
defendant at her abode.” Moreover, counsel for the Department remarked that the
process server “sent [Mother a copy of the summons] in a prepaid envelope, postage
prepaid.” Both of these statements are not supported by the record, and neither the return
nor the accompanying affidavit of service reflects strict compliance with the requirements
in Illinois for substituted service.
Although both the return and affidavit of service contain the word “abode,” there is
no affirmative indication that the service address was Mother’s “usual place of abode” as
opposed to an abode of the substituted recipient. Moreover, although there is a notation
on the affidavit of service that something was “mailed” and a further representation that
the process server “[w]ent to Post office and got a new address,” there is no affirmative
writing sufficiently stating that the process server sent “a copy of the summons in a
sealed envelope with postage fully prepaid, addressed to the defendant at his or her usual
place of abode.” There is not even a clear indication that whatever was sent was
addressed to Mother. The identified “Recipient Name” appearing on the line above the
“mailed” notation is “Terrell Evans,” a purported acquaintance of Mother’s.4 Although
the Illinois provision provides that “[t]he certificate of the officer or affidavit of the
person that he or she has sent the copy in pursuance of this Section is evidence that he or
she has done so,” 735 Ill. Comp. Stat. Ann. 5/2-203(a), the affidavit contains no
certification by the process server that he sent a copy of the summons pursuant to the
provision. When considering this and the fact that there is no affirmative indication
otherwise of strict compliance appearing, we conclude that the purported service on
Mother was invalid. As explained below, however, even assuming strict compliance with
the manner of service had been demonstrated, there remains another significant problem
with the summons purportedly given to Mother in this case.
At trial, when the Juvenile Court inquired into how the termination hearing had
been set, the following colloquy ensued between the court and counsel for the
Department:
[Department counsel]: This was set back at the initial hearing, which was
on November 28th, and at that time, parents were appointed counsel, and
the Department sent notice of today’s hearing to all counsel since they were
appointed to represent the parents.
The Court: So in October 2018, before we came on November 28th, she
wouldn’t have been given today’s court date for a hearing, but she was
given what date? What day was she given when she was served?
4
At trial, the Department represented that Mr. Evans was Mother’s boyfriend. In the affidavit of
service, the process server stated that Mr. Evans “said he was related to her.”
-9-
[Department counsel]: It would be the initial permanency hearing, so
November 28, 2018. That would be the notice that she was given, because
that was the initial TPR hearing.
The Court: And she failed to appear on that date?
[Department counsel]: Correct. And she was appointed[5] counsel at that
time[.]
The record does not support the above contention regarding notice. Rather, insofar
as the record admits, Mother was not provided any date regarding the initial hearing.
Namely, we observe that the summons issued in reference to Mother specifically reads as
follows: “If you fail to file your answer within the time provided by law, or in the
alternative appear in court on the date set, a judgment will be taken against you for the
relief demanded in the Petition.” The referenced Page 2 on Mother’s summons, which
ostensibly contained the date of the hearing, is absent from the copy contained in this
record.
In light of the absence of a date included in the summons,6 the absence of proper
service on Mother, and Mother’s eventual absence at trial, we fail to see how the
termination of her parental rights can presently stand. Fundamental fairness dictates that
the termination of her parental rights be vacated and, as to her, that the case be remanded
for further proceedings. Certainly, the Department is permitted to pursue the termination
of Mother’s parental rights upon remand upon providing Mother her appropriate due
process protections including service of process and proper notice of the proceedings.
In addition to the concerns discussed above, we also have concern about the
manner in which Mother’s appointed counsel performed his duties in this case. At a trial
date in April 2019, Mother’s counsel made the following comments:
I have had no contact with my client honestly, Judge[.]
....
I’ve not heard a peep from her[.]
....
5
The order appointing counsel and setting the final termination hearing was not sent to Mother
based on the included certificate of service, which incidentally contains no certification signature.
Appointed counsel’s name is, however, listed.
6
We do not intend to suggest in any way that Father’s summons was deficient in this respect. It
was not.
- 10 -
I have had no contact with her whatsoever.
When asked by the Juvenile Court if he had made any effort to contact Mother by
sending her a letter to the address where service had been attempted on her at Mr.
Evans’s address in Illinois, Mother’s appointed counsel indicated that he had not done so:
At this point, Judge, I mean, I had not, because I had not seen that she had
been -- I had not noted in the file where service was, so I didn’t have a valid
address for her. I’ve never had one throughout the entire proceeding. I will
say that I did not have that.
(emphasis added). This is troubling. Although we have held herein that the attempted
service on Mother was invalid, we have serious concern that counsel did not even attempt
to contact Mother at an address that he should have known was being relied upon by the
Department for establishing service. Counsel’s comments reflect that he had not given
Mother or the case file any serious attention.
When the termination trial was subsequently reconvened in June 2019, Mother’s
appointed counsel was not even present. According to the guardian ad litem’s statement
to the Juvenile Court, Mother’s counsel was in a “very unusual and personally difficult
situation” in another county. She stated that she “didn’t want all of his business on this
record.” When the Juvenile Court asked if this representation meant that Mother’s
counsel would not be able to attend the proceedings, counsel for the Department
indicated that was correct, stating, “He won’t be able to come.”
The transcript reveals that the guardian ad litem then showed the Juvenile Court an
image on her phone, an image purportedly depicting an envelope that Mother’s appointed
counsel had allegedly attempted to send to Mother after the original trial setting. No
representation was made on the record at the continued hearing before the Juvenile Court
as to what communication this alleged envelope contained,7 and it appears that whatever
was sent was undeliverable. The Juvenile Court then asked those present if Mother’s
counsel was asking to withdraw through the guardian ad litem, counsel for the
Department, and counsel for Father. The guardian ad litem did not agree with this,
instead stating that, “Well, I think his first request was for a continuance.” The court then
proceeded, however, to ask if anyone wanted to “argue against [Mother’s counsel’s]
motion to withdraw that’s been made through these other attorneys.” In the face of no
objections to a motion that had not actually been made at this hearing,8 the Juvenile
7
The transcript suggests that Mother’s appointed counsel was directed, by a text message sent by
the guardian ad litem during trial, to file the alleged envelope as a late-filed exhibit. Insofar as we are able
to tell, this never occurred. Even if this envelope had been filed, it is unclear how that would be
dispositive of our present review and change our conclusion that the termination of Mother’s rights must
be vacated in this appeal.
8
Mother’s appointed counsel had requested to withdraw at the original trial setting, but that
- 11 -
Court ruled that it would allow Mother’s appointed counsel to withdraw. The
presentation of proof then continued without Mother or her appointed attorney present.
Interestingly, the termination order does not speak of this purported withdrawal. Rather,
the order references a prior denial of a motion to withdraw that Mother’s counsel had
made at the original trial setting. Moreover, the final termination order’s certificate of
service lists counsel for Mother, not Mother, even though the court proceeded with the
trial having ruled that Mother’s counsel would be allowed to withdraw without having
made a motion to do so, in absentia.
Regardless of the lack of cohesion between the court’s order and its actions at
9
trial, the manner in which Mother’s case was handled at trial is both odd and of grave
concern. Mother’s appointed counsel did not renew any request to withdraw and, insofar
as the transcript reveals from the hearsay comments of the guardian ad litem, would have
merely requested a continuance. Yet, the court treated a motion to withdraw as having
been made through those other parties present, with no indication that Mother had
received any notice of such a request. We need not belabor our concern about this matter
any further in light of the service issues already detailed above, but suffice it to say, there
would be a fundamental fairness concern here as well even if proper service had been
achieved.
Father’s Parental Rights
Having determined that the Juvenile Court’s decision to terminate Mother’s
parental rights should be vacated, we now shift our attention to Father. In the “Statement
of the Issues” section of his appellate brief, Father raises the following for our review:
particular request was denied.
9
On the one hand, the court proceeded on paper as if Mother’s appointed counsel was still of
record. On the other hand, it proceeded at the final trial setting having ruled that said counsel could
withdraw. As an aside, notwithstanding the litany of concerns we have detailed herein surrounding
service on Mother and her notice of the proceedings, there would still be a potential concern on appeal
even if she had actively participated at trial. The notice of appeal that was filed did not list Mother (or her
appointed counsel) on the certificate of service, nor was the guardian ad litem listed. Under the rules of
appellate procedure, the notice of appeal should “include a list of the parties upon whom service of notice
of docketing of the appeal is required.” Tenn. R. App. P. 3(f). This Court’s internal computer records do
not list Mother as a party to the appeal, and thus, she would not have received any of the orders entered
by this Court during the pendency of the appeal. Father’s brief purports to have been sent to “all
counsel,” whereas the Department’s brief omits Mother and Mother’s appointed counsel from the
certificate of service. In any event, even assuming Mother had been served and participated at trial and
somehow had notice of Father’s brief, there does not appear to be any indication that Mother had notice
of an appeal during the pendency of the period where the appellate record was prepared. The fact that
Mother did not file a notice of appeal would not be dispositive even assuming she had been served and
participated at trial. See Tenn. R. App. P. 3(h) (providing that “upon the filing of a single notice of appeal
. . . issues may be brought up . . . by any party”).
- 12 -
I. Whether the trial court erred by finding that statutory grounds for termination
existed as to Father.
II. Whether the trial court erred by finding that termination was in the children’s
best interest.
His brief then goes on to specifically challenge both grounds for termination found
against him by the Juvenile Court, in addition to criticizing the court’s best interest
determination. We observe that even if Father’s brief had been less comprehensive in
scope, our review could not be. As the Tennessee Supreme Court has made clear, in
order to help “ensure that fundamental parental rights are not terminated except upon
sufficient proof, proper findings, and fundamentally fair procedures,” we are required to
review the trial court’s findings as to each ground for termination and as to whether
termination is in the children’s best interest. See In re Carrington H., 483 S.W.3d 507,
525-26 (Tenn. 2016) (“[I]n an appeal from an order terminating parental rights the Court
of Appeals must review the trial court’s findings as to each ground for termination and as
to whether termination is in the child’s best interests, regardless of whether the parent
challenges these findings on appeal.”).
Abandonment by Failure to Establish a Suitable Home
Pursuant to Tennessee Code Annotated section 36-1-113(g)(1), “[a]bandonment
by the parent or guardian, as defined in § 36-1-102” may constitute a ground for
termination. In turn, the referenced section of 36-1-102 contains several distinct statutory
meanings of abandonment. As is relevant here, the pertinent definition of abandonment
is specifically located at Tennessee Code Annotated section 36-1-102(1)(A)(ii) and reads
as follows:
(a) The child has been removed from the home or the physical or legal custody of a
parent or parents or guardian or guardians by a court order at any stage of
proceedings in which a petition has been filed in the juvenile court alleging that a
child is a dependent and neglected child, and the child was placed in the custody
of the department or a licensed child-placing agency;
(b) The juvenile court found, or the court where the termination of parental rights
petition is filed finds, that the department or a licensed child-placing agency made
reasonable efforts to prevent removal of the child or that the circumstances of the
child’s situation prevented reasonable efforts from being made prior to the child’s
removal; and
(c) For a period of four (4) months following the physical removal, the department or
agency made reasonable efforts to assist the parent or parents or the guardian or
guardians to establish a suitable home for the child, but that the parent or parents
or the guardian or guardians have not made reciprocal reasonable efforts to
- 13 -
provide a suitable home and have demonstrated a lack of concern for the child to
such a degree that it appears unlikely that they will be able to provide a suitable
home for the child at an early date. The efforts of the department or agency to
assist a parent or guardian in establishing a suitable home for the child shall be
found to be reasonable if such efforts equal or exceed the efforts of the parent or
guardian toward the same goal, when the parent or guardian is aware that the
child is in the custody of the department[.]
Tenn. Code Ann. § 36-1-102(1)(A)(ii).
In connection with this ground for termination, it should be noted that the concept
of a home’s suitability is not a narrow one limited solely to consideration of the physical
structure of the parent’s residence. Indeed, as this Court recently explained:
“A suitable home ‘requires more than a proper physical living location.’”
In re Navada N., 498 S.W.3d 579, 595 (Tenn. Ct. App. 2016)
(quoting In re Hannah H., No. E2013-01211-COA-R3-PT, 2014 WL
2587397, at *9 (Tenn. Ct. App. June 10, 2014)). A suitable home requires
“[a]ppropriate care and attention ... to the child.” In re Matthew T., No.
M2015-00486-COA-R3-PT, 2016 WL 1621076, at *7 (Tenn. Ct. App. Apr.
20, 2016). The home must also “be free of drugs and domestic
violence.” In re Hannah H., 2014 WL 2587397, at *9.
In re Josiah T., No. E2019-00043-COA-R3-PT, 2019 WL 4862197, at *7 (Tenn. Ct.
App. Oct. 2, 2019).
Upon our review of the record, the evidence supports the conclusion that this
ground was properly established by clear and convincing evidence. First, we observe that
the children were removed from Father’s care upon the filing of a petition alleging that
they were dependent and neglected, and further, we note that they were placed in the
custody of the Department. See Tenn. Code Ann. § 36-1-102(1)(A)(ii)(a). In fact, the
record shows that Father actually agreed that the children should be placed in the
Department’s custody. Second, we observe that, incident to the children’s removal, the
removing court found that reasonable efforts had been made to prevent the need for
removal. See Tenn. Code Ann. § 36-1-102(1)(A)(ii)(b).
As for the efforts made in the four-month period after removal,10 the record
reveals that, notwithstanding substantial support from the Department, Father did not
10
In this case, the Juvenile Court looked to this particular window of time. Although there
certainly was no error in the Juvenile Court’s decision to focus on the four-month period immediately
after the children’s removal, we observe that the focus of a court’s inquiry under this ground need not be
strictly limited to that time period. See In re C.M., No. E2018-02108-COA-R3-PT, 2019 WL 3812421, at
*8 n.2 (Tenn. Ct. App. Aug. 14, 2019).
- 14 -
establish a suitable home. Although there is proof that Father made some efforts to
improve himself personally during the period, namely in regard to certain required
assessments, testimony from the Department also indicated that it was towards the end of
the four-month period that he actually started to do “things that he needed to do.”
Moreover, the evidence was clear that Father did not have a suitable home for the
children during the period despite a myriad of efforts from the Department. Father did
not disagree that the Department had given him support following the children’s removal,
and he was actually somewhat effusive in his praise of Mindy Hall, the foster care worker
assigned to the family following the children’s removal. Father testified that he “ended
up loving [Ms. Hall] . . . to death” and claimed that she helped him a lot, when he “gave
her a chance.”
Having reviewed the evidence, we can see why Father spoke so favorably of Ms.
Hall. Ms. Hall stated that she had regular contact with Father, set up supervised phone
calls for him on weekend nights in order to accommodate his schedule, and also arranged
for visitation “after hours.” In specifically elaborating on the support the Department
gave Father to assist him in providing the children with a suitable home, Ms. Hall
testified as follows:
I gave him information as to where he could go and get his assessments
completed. We set up PSGs for parenting education, because he was
fearful, when the children first came in, about making mistakes as a parent,
and he wanted that help, so we set that up for him. There were times that I
would make a binder for him, I would print out months of calendars and I
would write in dates, visits, things to that nature, things he needed to do. I
would put all the important documents in this binder for him, as far as his
perm plan, highlight these things. I would research apartment buildings for
him, houses for rent in the area for him. We even looked some in Anderson
County for housing options, and I would research these. I would write
down the phone numbers, I would give them to him, and he was to follow
through as far as that went.
Father’s home, however, remained a concern. Ms. Hall testified that it “was not
appropriate.” In October 2016, she completed a home visit and observed a bed bug
infestation. In her testimony, Ms. Hall described the home as “generally dirty” and also
remarked that there were safety concerns. According to her, Father also had issues with
electricity and utilities. Whereas the Department put in for homemaker services for
Father, Ms. Hall testified that the problems in his home were never fixed as far as she
was aware. Moreover, transcending concerns as to the physical suitability of the home,
concerns also existed as to Father’s personal state. Indeed, Father testified positive for
illegal drugs throughout the four-month period following removal. The trial court was
not without basis in concluding that, regarding his efforts to improve his home and
personal condition, Father had demonstrated “a lack of concern for his children to such a
- 15 -
degree that it is unlikely he will be able to provide a suitable home for the children at an
early date.”
In light of the above discussion, we conclude that this ground for termination was
supported by clear and convincing evidence. Further, we observe that the record actually
shows that Father’s failure to establish a suitable home persisted long after the four-
month period discussed by the trial court. As previously detailed, although Father did
eventually establish clean drug screens for a time during the pendency of this matter, this
apparent progress soon waned. In months leading up to trial, Father tested positive for
drugs on several occasions, and concerns persisted as to the physical condition of his
home, which had a hole in the floor right inside the door. Moreover, concerns existed as
to Father’s desire to live with his mother, from whose custody Father had been removed
when he was a child amidst allegations of sexual abuse. Testimony also revealed that
after Father completed a psychosexual assessment, it had been recommended that his
children not be returned to his care. Further, notwithstanding the concerning history of
allegations of domestic violence at the hands of Father, he never completed the batterer’s
intervention program required of him. As we have already noted, a suitable home
requires more than just an appropriate physical structure. See In re Josiah T., 2019 WL
4862197, at *7. Here, of course, there were concerns not only as to the physical
suitability of Father’s home, but also as to his ability to provide appropriate care. Having
reviewed this ground for termination, we turn our attention to the remaining ground
found by the Juvenile Court to terminate Father’s parental rights.
Persistent Conditions
Tennessee Code Annotated section 36-1-113(g)(3) outlines the ground for
termination commonly known as “persistence of conditions.” When the termination
petition was filed in this matter, the ground applied when:
The child has been removed from the home or the physical or legal custody
of a parent . . . for a period of six (6) months by a court order entered at any
stage of proceedings in which a petition has been filed in the juvenile court
alleging that a child is a dependent and neglected child, and:
(i) The conditions that led to the child’s removal still persist, preventing the
child’s safe return to the care of the parent . . . or other conditions exist that,
in all reasonable probability, would cause the child to be subjected to
further abuse or neglect, preventing the child’s safe return to the care of the
parent . . . ;
(ii) There is little likelihood that these conditions will be remedied at an
early date so that the child can be safely returned to the parent . . . in the
near future; and
(iii) The continuation of the parent . . . and child relationship greatly
- 16 -
diminishes the child’s chances of early integration into a safe, stable, and
permanent home[.]
Tenn. Code Ann. § 36-1-113(g)(3)(A). The purpose behind this ground “is to prevent the
child’s lingering in the uncertain status of foster child if a parent cannot within a
reasonable time demonstrate an ability to provide a safe and caring environment for the
child.” In re D.C.C., No. M2007-01094-COA-R3-PT, 2008 WL 588535, at *9 (Tenn. Ct.
App. Mar. 3, 2008).
Having reviewed the Juvenile Court’s order, we are compelled to vacate this
ground for termination. In relevant part, we observe that the Juvenile Court’s order reads
as follows as it pertains to this ground:
The conditions that led to the children being in foster care persist to
this day. [Father] is still testing positive for illegal substances, does not
have a suitable home for the children, and continues to incur new criminal
charges. Continuation of the parent/child relationship greatly diminishes
the children’s chances of being placed into a safe and stable permanent
home.
As should be evident, the Juvenile Court failed to make specific findings regarding each
of the elements applicable to the persistence of conditions ground. Namely, the
“likelihood that [the persistent conditions] will be remedied at an early date so that the
child can be safely returned to the parent . . . in the near future” is wholly unexamined.
Tenn. Code Ann. § 36-1-113(g)(3)(A)(ii). The consideration of potential remediation is
an express requirement under this ground. See In re Aaron E., No. M2014-00125-COA-
R3-PT, 2014 WL 3844784, at *9 (Tenn. Ct. App. Aug. 4, 2014) (“[T]he trial court is
required to consider the likelihood that the conditions will be remedied such that the child
can be safely returned to the parent in the near future.”); In re Hannah H., No. E2013-
01211-COA-R3-PT, 2014 WL 2587397, at *11 (Tenn. Ct. App. June 10, 2014) (noting
that the persistence of conditions ground also requires the court to find that there is little
likelihood of remediation at an early date).
We have previously vacated a trial court’s reliance on this ground when the
likelihood of remediation was not subject to any finding in the order of termination. As
we explained:
The absence of appropriate findings supporting this ground for termination
is not a trivial concern. With respect to termination cases, the trial court is
specifically directed by statute to “enter an order that makes specific
findings of fact and conclusions of law.” Tenn. Code Ann. § 36-1-113(k).
Because the trial court did not make specific findings regarding each of the
elements applicable to the persistence of conditions ground, we are
- 17 -
compelled to vacate the termination order with respect to this ground for
termination as to both parents and, as to Father, remand for the preparation
of appropriate findings of fact and conclusions of law as required by
statute. See State v. C.H.K., 154 S.W.3d 586, 591 (Tenn. Ct. App. 2004)
(vacating ground of abandonment finding under Tennessee Code Annotated
section 36-1-102(1)(A)(iv) and remanding for findings when the trial
court’s order failed “to set forth any findings which show either that C.H.K.
was incarcerated on July 18, 2002, the date D.C.S. filed its petition
instituting termination proceedings, or that she was incarcerated during all
or part of the four months immediately preceding that date”). Further
findings as to Mother on this ground for termination are unnecessary given
our ultimate disposition herein, which includes our affirmance of the
termination of her parental rights.
In re Mickeal Z., No. E2018-01069-COA-R3-PT, 2019 WL 337038, at *13 (Tenn. Ct.
App. Jan. 25, 2019) (internal footnote omitted).
Given the absence of all findings requisite to support this ground for termination,
we hereby vacate the persistence of conditions ground. Because our ultimate disposition
herein includes an affirmance of the termination of Father’s parental rights, however, we
need not remand for further findings as to Father. Having determined that the record
clearly and convincingly established the ground for termination of abandonment by
failing to provide a suitable home, we now turn to a consideration of the children’s best
interests.
Best Interests
When at least one ground for termination has been properly established against a
parent, this Court shifts its focus to whether termination of the parent’s parental rights is
in the child’s best interests. “Because not all parental conduct is irredeemable,
Tennessee’s termination of parental rights statutes recognize the possibility that
terminating an unfit parent’s parental rights is not always in the child’s best interest.” In
re Jacobe M.J., 434 S.W.3d 565, 573 (Tenn. Ct. App. 2013). As such, “[w]hen at least
one ground for termination of parental rights has been established, the petitioner must
then prove, by clear and convincing evidence, that termination of the parent’s rights is in
the child’s best interest.” Id. at 572.
When conducting a best interests analysis, conflicts between the interests of the
parent and child are to be resolved in “favor of the rights and best interest of the child.”
Id. at 573 (citing Tenn. Code Ann. § 36-1-101(d)). The best interests analysis “must be
viewed from the child’s, rather than the parent’s, perspective.” White v. Moody, 171
S.W.3d 187, 194 (Tenn. Ct. App. 2004). In Tennessee, the General Assembly has
codified a list of nine non-exclusive factors that trial courts are to consider when
- 18 -
conducting a best interests inquiry in termination cases. These factors are as follows:
(1) Whether the parent or guardian has made such an adjustment of
circumstance, conduct, or conditions as to make it safe and in the child’s
best interest to be in the home of the parent or guardian;
(2) Whether the parent or guardian has failed to effect a lasting adjustment
after reasonable efforts by available social services agencies for such
duration of time that lasting adjustment does not reasonably appear
possible;
(3) Whether the parent or guardian has maintained regular visitation or
other contact with the child;
(4) Whether a meaningful relationship has otherwise been established
between the parent or guardian and the child;
(5) The effect a change of caretakers and physical environment is likely to
have on the child’s emotional, psychological and medical condition;
(6) Whether the parent or guardian, or other person residing with the parent
or guardian, has shown brutality, physical, sexual, emotional or
psychological abuse, or neglect toward the child, or another child or adult
in the family or household;
(7) Whether the physical environment of the parent’s or guardian’s home is
healthy and safe, whether there is criminal activity in the home, or whether
there is such use of alcohol, controlled substances or controlled substance
analogues as may render the parent or guardian consistently unable to care
for the child in a safe and stable manner;
(8) Whether the parent’s or guardian’s mental and/or emotional status
would be detrimental to the child or prevent the parent or guardian from
effectively providing safe and stable care and supervision for the child; or
(9) Whether the parent or guardian has paid child support consistent with
the child support guidelines promulgated by the department pursuant to §
36-5-101.
Tenn. Code Ann. § 36-1-113(i). “Ascertaining a child’s best interests does not call for a
rote examination” of these factors, and “depending upon the circumstances of a particular
child and a particular parent, the consideration of one factor may very well dictate the
outcome of the analysis.” In re Audrey S., 182 S.W.3d at 878.
- 19 -
In analyzing the children’s best interests and in concluding that clear and
convincing evidence supported termination, the Juvenile Court made several findings,
including the following:
Father had not made a change in his conduct or circumstances that would make it
safe for the children to go home.
Father had not made a change in his conduct, circumstances, or lifestyle to make it
safe for the children to go home, notwithstanding reasonable efforts by the
Department.
A change of caretakers and physical environment of the children would have a
detrimental effect on the children.
Father continued to abuse drugs.
Father’s home was not healthy or safe. Father’s home had a large hole in the
floor. Father lived with his mother who was accused of sexual abuse, causing
Father to be removed from her home when he was a child.
Father’s emotional state would be detrimental to the children.
Having reviewed the record transmitted to us on appeal, we agree with the
Juvenile Court that the termination of Father’s parental rights was in the children’s best
interests. Father continues to struggle with drugs, and despite the seriousness of the
issue, he evidently refuses to accept personal responsibility. In this regard, we observe
that he testified at trial as follows: “I’m testing positive for stuff that I ain’t been doing.”
The Juvenile Court orally remarked upon the conclusion of trial that it did not
question the sincerity of Father’s love for the children, but obviously, it found that the
children’s best interests weighed in favor of termination. We agree. Much time has
passed, and yet, at the time of trial, which was well over two years after the children’s
removal, Father was in no position to take care of the children. Among other things,
Father’s home remained problematic, he had never completed the required batterer’s
intervention program, and, as noted, he continued to use drugs. In contrast to the picture
surrounding Father, the children were doing well in a pre-adoptive foster home and
reportedly wanted to be adopted. The children’s current foster mother indicated that the
children had been in her home for over half a year. She testified that the children were
bonded to her and vice versa, and according to her, the children called her “Mom.” She
stated that if Father’s rights were terminated, she would want to adopt the children.
According to Emily Ford, the foster care worker for the children at the time of trial, the
children were “very bonded to the foster parents.” Ms. Ford opined that a change of
caretakers and physical environment would be detrimental to the children’s emotional
and psychological conditions. The children deserve permanency at this point, and, as to
Father, the totality of the circumstances clearly and convincingly weighs in favor of the
termination of his parental rights.
- 20 -
CONCLUSION
The termination of Mother’s parental rights is hereby vacated, and as to her, this
case is remanded for such further proceedings as may be necessary and consistent with
this opinion. Although we vacate the Juvenile Court’s reliance on the persistence of
conditions ground for terminating Father’s parental rights, the termination of Father’s
parental rights is otherwise affirmed for the reasons stated herein.
_________________________________
ARNOLD B. GOLDIN, JUDGE
- 21 -
| {
"pile_set_name": "FreeLaw"
} |
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 10-14451 ELEVENTH CIRCUIT
Non-Argument Calendar MAY 31, 2011
________________________ JOHN LEY
CLERK
D.C. Docket No. 1:08-tp-20072-DLG-1
UNITED STATES OF AMERICA,
llllllllllllllllllllllllllllllllllllllll Plaintiff-Appellee,
versus
GERARDO PENDAS,
llllllllllllllllllllllllllllllllllllllll Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(May 31, 2011)
Before TJOFLAT, CARNES and KRAVITCH, Circuit Judges.
PER CURIAM:
Gerardo Pendas appeals the sentence imposed upon revocation of his
supervised release, 18 U.S.C. § 3583(e)(3). Because we conclude that Pendas’s
sentence is reasonable, we affirm.
In 2004, Pendas pleaded guilty to conspiracy to distribute drugs and illegal
use of a communications facility and was sentenced to 72 months’ imprisonment
to be followed by 5 years of supervised release. In 2007, Pendas began his term of
supervised release.
In 2008, the district court revoked Pendas’s supervised release after Pendas
pleaded guilty to conspiracy to possess with intent to distribute cocaine. The
undisputed guidelines range for the violation was 24 to 30 months’ imprisonment.
The government requested that the sentence run consecutive to the 97-month
sentence Pendas received in the conspiracy case. Pendas requested the sentences
run concurrently.
The district court considered the parties’ statements and the advisory
guideline range, and sentenced Pendas to 24 months’ imprisonment to run
consecutively to the 97-month term imposed for the drug conspiracy offense.
Pendas now appeals, challenging the reasonableness of his sentence.
A sentence imposed upon revocation of supervised release is reviewed for
reasonableness. United States v. Sweeting, 437 F.3d 1105, 1106-07 (11th Cir.
2
2006). “[A] sentence may be reviewed for procedural or substantive
unreasonableness.” United States v. Ellisor, 522 F.3d 1255, 1273 (11th Cir. 2008).
We review both the procedural and substantive reasonableness of a sentence for an
abuse of discretion. Id. at 1273 n.25.
In reviewing whether a sentence is reasonable, we must ensure, first, that
the district court did not commit a significant procedural error, “such as failing to
calculate (or improperly calculating) the Guidelines range, treating the Guidelines
as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based
on clearly erroneous facts, or failing to adequately explain the chosen sentence.”
Gall v. United States, 552 U.S. 38, 51 (2007). “[T]he sentencing judge should set
forth enough to satisfy the appellate court that he has considered the parties’
arguments and has a reasoned basis for exercising his own legal decisionmaking
authority.” United States v. Agbai, 497 F.3d 1226, 1230 (11th Cir. 2007) (citation
and quotation omitted). But the district court need not discuss or explicitly state
on the record each § 3553(a) factor. United States v. Scott, 426 F.3d 1324, 1329
(11th Cir. 2005). “Rather, an acknowledgment by the district judge that he or she
has considered the § 3553(a) factors will suffice.” United States v. Amedeo, 487
F.3d 823, 832 (11th Cir. 2007) (quotation omitted).
3
“The review for substantive unreasonableness involves examining the
totality of the circumstances, including an inquiry into whether the statutory
factors in § 3553(a) support the sentence in question.” United States v. Gonzalez,
550 F.3d 1319, 1324 (11th Cir. 2008). “[T]he party who challenges the sentence
bears the burden of establishing that the sentence is unreasonable in the light of
both [the] record and the factors in section 3553(a).” United States v. Talley, 431
F.3d 784, 788 (11th Cir. 2005). We will vacate a sentence only if “left with the
definite and firm conviction that the district court committed a clear error of
judgment in weighing the § 3553(a) factors by arriving at a sentence that lies
outside the range of reasonable sentences dictated by the facts of the case.” United
States v. Irey, 612 F.3d 1160, 1190 (11th Cir. 2010) (en banc), cert. denied, __
S.Ct. __ (2011).
When sentencing a defendant upon revocation of supervised release under
18 U.S.C. § 3583(e), a district court must consider the sentencing factors set forth
in 18 U.S.C. § 3553(a): (1) the nature and circumstances of the offense and the
history and characteristics of the defendant; (2) the need for the sentence imposed
to afford adequate deterrence to criminal conduct, to protect the public from
further crimes of the defendant, and to provide the defendant with training,
medical care, or correctional treatment; (3) the Sentencing Guidelines’ range; (4)
4
pertinent Sentencing Commission policy statements; (5) the need to avoid
unwarranted sentencing disparities among similarly situated defendants with
similar records; and (6) the need to provide restitution to victims. See 18 U.S.C. §
3583(e). The sentence imposed must be sufficient, but not greater than necessary,
to comply with the purposes set forth in § 3553(a)(2). 18 U.S.C. § 3553(a).
We have consistently held that the policy statements in Chapter Seven are
merely advisory and not binding, but the district court is nevertheless required to
consider them. United States v. Silva, 443 F.3d 795, 799 (11th Cir. 2006). When
the court imposes a sentence upon revocation, “the court should sanction primarily
the defendant’s breach of trust . . . [and] the sanction for the violation of trust
should be in addition, or consecutive, to any sentence imposed for the new
conduct.” U.S.S.G., ch. 7, pt. A, comment. (n.3(b)); see also U.S.S.G. § 7B1.3(f)
(“[a]ny term of imprisonment imposed upon the revocation of probation or
supervised release shall be ordered to be served consecutively to any sentence of
imprisonment the defendant is serving,” even if the sentence being served resulted
from the same offense that constituted the basis for the revocation of supervised
release).
On review, we conclude that the district court did not abuse its discretion by
imposing a sentence to run consecutively to Pendas’s 97-month sentence, and the
5
sentence imposed was both procedurally and substantively reasonable. The court
considered and adequately weighed the § 3553(a) factors. It was not an abuse of
discretion for the court to give more weight to the guideline’s suggestion that
Pendas’s sentence run consecutive because Pendas was not being sentenced for the
violating offense but rather for his breach of trust. Accordingly, we affirm.
AFFIRMED.
6
| {
"pile_set_name": "FreeLaw"
} |
11 Cal.Rptr.3d 392 (2004)
116 Cal.App.4th 1318
The PEOPLE, Plaintiff and Respondent,
v.
Michael BAIRD, Defendant and Appellant.
No. B166017
Court of Appeal, Second District, Division 5
March 22, 2004
Review Denied June 9, 2004
Janice Wellborn, under appointment by the Court of Appeal, San Francisco, for Defendant and Appellant.
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Mary Sanchez, Supervising Deputy Attorney General, and Steven D. Matthews, Supervising Deputy Attorney General, for Plaintiff and Respondent.
MOSK, J.
INTRODUCTION
Defendant and Appellant Michael Baird appeals from an order finding him in violation of probation and executing a sentence that previously had been imposed and suspended on condition that he comply with the terms of probation. We affirm.
*393 BACKGROUND
In October 2000, as part of a plea bargain, defendant entered a plea of no contest to two counts: a violation of Penal Code[1] section 664/288.2, subdivision (b) (attempted offense of sending harmful matter with the intent of seducing a minor), and a violation of section 311.2, subdivision (d) (section 311.2(d)) (distributing to a minor or possessing with the intent to distribute to a minor matter depicting a minor engaged in or simulating sexual conduct). As part of the plea agreement, defendant acknowledged that he would receive a sentence of three years, four months.[2] That sentence was imposed and its execution suspended, and the trial court placed defendant on probation under certain terms. Because defendant's offenses involved sending improper materials over the Internet to someone he thought was a minor, one of the terms of his probation was that defendant "not associate with and stay away from the internet and all computers." Another term required defendant to cooperate with his probation officer on a plan for counseling.
In late 2002, defendant's probation officer received reports from defendant's therapist indicating that defendant had missed therapy appointments and had not paid for his sessions. The probation officer thereafter conducted a probation search of defendant's home. During this search, the officer observed a computer in the living room and found many computer-related items in defendant's bedroom. Defendant's brother, with whom defendant lived, told the probation officer that the computer was his, the brother's, and that the computer had Internet access.
The trial court conducted a probation violation hearing, at which the probation officer and defendant testified. The court found that defendant was in violation of probation. Specifically, the court found that defendant had a computer in his home and that he had access to that computer. The court ordered defendant to serve the previously imposed sentence of three years and four months in state prison. Defendant filed a timely appeal from that order.
DISCUSSION
We appointed counsel to represent defendant on this appeal. After examination of the record, counsel filed an opening brief asking this court to review the record independently in accordance with People v. Wende (1979) 25 Cal.3d 436, 158 Cal.Rptr. 839, 600 P.2d 1071. We gave notice to defendant that counsel had failed to find any arguable issues and that defendant had 30 days within which to submit by brief or letter any contentions of issues he wished this court to consider.
Defendant submitted a letter in which he raised numerous contentions, most of which were waived for failure to object in the trial court, not timely raised (because they relate to the imposition of the sentence in October 2000 (see People v. Chagolla (1984) 151 Cal.App.3d 1045, 1049, 199 Cal.Rptr. 181 [when a sentence is imposed but execution is stayed, the sentence becomes a final judgment if no appeal is taken])), or not supported by the record on *394 appeal. There is, however, one issue for which we requested additional briefing: whether the sentence for a violation of section 311.2(d) is governed by section 311.9, subdivision (a) (section 311.9(a)). Section 311.9(a) provides for punishment as a misdemeanor for any first-time violation of section 311.2 or 311.5, except a violation of section 311.2, subdivision (b).[3] Section 311.2(d), on the other hand, provides that a violation of that subdivision (d) which is applicable here is a felony.
Defense counsel argues in defendant's supplemental letter brief that there is statutory ambiguity regarding the proper sentence for a first-time violation of section 311.2(d), and that that ambiguity must be resolved in favor of defendant. (Citing In re Atiles (1983) 33 Cal.3d 805, 812, 191 Cal.Rptr. 452, 662 P.2d 910, overruled on other grounds in People v. Bruner (1995) 9 Cal.4th 1178, 40 Cal.Rptr.2d 534, 892 P.2d 1277; People v. Overstreet (1986) 42 Cal.3d 891, 896, 231 Cal.Rptr. 213, 726 P.2d 1288.) Defendant contends he should be sentenced in accordance with section 311.9(a), i.e., as a misdemeanor. The Attorney General argues that a violation of section 311.2(d) must be punished as a felony because that provision was enacted after section 311.9(a) was enacted and therefore section 311.2(d) prevails "as the last expression of the legislature's will." (Quoting In re Duncan (1987) 189 Cal.App.3d 1348, 1364-1365, fn. 11, 234 Cal.Rptr. 877.) We hold that a violation of section 311.2(d) must be punished as a felony, i.e., under section 18, rather than under section 311.9(a).
Defendant is correct that ambiguous penal statutes ordinarily must be construed in favor of criminal defendants. (People v. Simon (1995) 9 Cal.4th 493, 517, 37 Cal.Rptr.2d 278, 886 P.2d 1271.) But that rule of statutory construction "applies only when some doubt exists as to the legislative purpose in enacting the law." (In re Pedro T. (1994) 8 Cal.4th 1041, 1046, 36 Cal.Rptr.2d 74, 884 P.2d 1022.) The legislative history of section 311.2(d) and of the related provisions makes clear that the Legislature intended that a violation of section 311.2(d) be punished as a felony, rather than as a misdemeanor under section 311.9(a).
In 1961, the Legislature added Chapter 7.5 Obscene Matter to Title 9 of Part 1 of the Penal Code. (Stats.1961, c. 2147, pp. 4427-4429, § 5.) That chapter included the original version of section 311.2 (there were no subdivisions), which version prohibited the preparation, publication, exhibition, or distribution of obscene matter. All of the crimes described in Chapter 7.5 as originally enacted were misdemeanors for all first-time offenses, and the punishment for the various offenses described in the chapter was set forth in section 311.9. Section 311.9(a) provided misdemeanor punishment for any first or second violation of section 311.2, and felony punishment for subsequent violations. (Id. at pp. 4428-4429.)
*395 In 1977, section 311.2 was amended to add subdivision (b), which prohibited the preparation, publication, exhibition, or distribution of child pornography (i.e., obscene matter depicting a person under the age of 18 engaging in or simulating sexual activity) for commercial consideration; section 311.2 as it was originally enacted became subdivision (a). (Stats.1977, c. 1061, p. 3201, § 1.) The amended statute provided that a violation of subdivision (b) of section 311.2 was a felony punishable by imprisonment in state prison for two, three, or four years. As part of the same act, section 311.9(a) also was amended to provide that the punishment it specified for violations of section 311.2 did not apply to violations of subdivision (b) of section 311.2. (Id. at p. 3202, § 2.)
Section 311.2 was amended again in 1984 to add subdivisions (c) and (d) to prohibit the non commercial distribution or exhibition of, or possession with the intent to distribute or exhibit, child pornography. (Stats.1984, c. 1489, pp. 5214-5215, § 1.) Under subdivision (c), if the child pornography is distributed or exhibited to, or possessed with the intent to distribute or exhibit to a person 18 years old or older, the offense is a misdemeanor and is punished as set forth in that subdivision.[4] (Id. at p. 5214.) Subdivision (d) expressly makes the offense a felony if the child pornography is distributed or exhibited to, or possessed with the intent to distribute or exhibit to a person under the age of 18. (Id. at pp. 5214-5215.) Section 311.9(a) was not amended at the time subdivisions (c) and (d) of section 311.2 were added, or at any time thereafter. The Legislative Counsel's Digest of the bill that added subdivisions (c) and (d) to section 311.2 describes the effect of this addition as follows: "The bill would apply the prohibition [set forth in subdivision (b)] where the conduct is done without regard to obscenity or commercial consideration, where minors under age 17 are depicted, with specified punishment depending on whether the person to whom the matter is distributed or exhibited is an adult or a minor." (Legis. Counsel's Dig., Sen. Bill No. 968, Stats. 1984 (1983-1984 Reg. Sess.) Summary Dig., p. 536, italics added.)
There is no doubt that the purpose of the legislation adding subdivisions (c) and (d) to section 311.2 was to prohibit the noncommercial distribution or exhibition of child pornography, to punish that conduct more severely than the conduct described in subdivision (a) of section 311.2, and to punish the distribution or exhibition of such matter to a minor more severely than the distribution or exhibition to an adult. Because section 311.2, subdivisions (c) and (d) were added in 1984, after section 311.9(a) was last amended, and because the later-enacted provisions "`give[ ] undebatable evidence of an intent to supersede the earlier'" punishment provision (i.e., section 311.9(a)) (People v. Bustamante (1997) 57 Cal.App.4th 693, 699, 67 Cal.Rptr.2d 295) with respect to violations of subdivisions (c) and (d) of section 311.2, we hold that the punishment for a violation of section 311.2(d) is governed by the felony punishment provision, section 18, rather than by section 311.9(a).
DISPOSITION
The judgment is affirmed.
We concur: TURNER, P.J., and ARMSTRONG, J.
NOTES
[1] All further statutory references are to the Penal Code unless otherwise indicated.
[2] In the written plea, which defendant signed, defendant acknowledged that he would be sentenced to a three year, eight month term in prison. At the hearing in which the trial court accepted defendant's plea and imposed the sentence, the trial court noted that the correct sentence was three years, four months, computed as follows: the high term of three years on the violation of section 311.2(d), and a consecutive four months (one-third the midterm of one year) on the violation of section 664/288.2, subdivision (b).
[3] Section 311.9(a) provides: "Every person who violates Section 311.2 or 311.5, except subdivision (b) of Section 311.2, is punishable by fine of not more than one thousand dollars ($1,000) plus five dollars ($5) for each additional unit of material coming within the provisions of this chapter, which is involved in the offense, not to exceed ten thousand dollars ($10,000), or by imprisonment in the county jail for not more than six months plus one day for each additional unit of material coming within the provisions of this chapter, and which is involved in the offense, such basic maximum and additional days not to exceed 360 days in the county jail, or by both such fine and imprisonment. If such person has previously been convicted of any offense in this chapter, or of a violation of Section 313.1, a violation of Section 311.2 or 311.5, except subdivision (b) of Section 311.2, is punishable as a felony."
[4] The punishment set forth in section 311.2, subdivision (c) is different than the punishment set forth in section 311.9(a) for violations of other misdemeanor provisions of section 311.2. Subdivision (c) provides for imprisonment in county jail for up to one year, a fine not to exceed $2,000, or both.
| {
"pile_set_name": "FreeLaw"
} |
307 B.R. 310 (2003)
In re Fred STEINBERG and Phanvika Steinberg, Debtors.
Monterey Mushrooms, Inc.; Hollar and Greene Produce Company, Inc; and Northwest Choice, Inc., Plaintiff,
v.
Fred Steinberg, Debtor/Defendant.
Bankruptcy No. 03-30417-BKC-PGH, Adversary No. 03-3099-BKC-PGH-A.
United States Bankruptcy Court, S.D. Florida.
December 2, 2003.
*311 Robert C. Furr, Boca Raton, FL, Craig I. Kelley, West Palm Beach, FL, for Debtors.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
PAUL HYMAN, JR., Bankruptcy Judge.
THIS MATTER came before the Court for trial on September 19, 2003 upon the *312 Complaint to Determine Dischargeability of Debt originally filed by Monterey Mushrooms, Inc. ("Monterey"), Hollar and Greene Produce Company, Inc. ("Hollar and Greene") and Northwest Choice, Inc. ("Northwest"). The Court, having reviewed the pleadings, having heard the testimony of the witnesses, having reviewed the exhibits admitted into evidence, having heard the argument of counsel and being otherwise being fully advised in the premises, enters the following findings of fact and conclusions of law pursuant to Rule 7052 of the Federal Rules of Bankruptcy Procedure.
FINDINGS OF FACT
Fred Steinberg ("Debtor") and his wife, Phanvika Steinberg filed a voluntary petition for relief under Chapter 11 of Title 11, United States Code ("Bankruptcy Code") on January 28, 2003. Pursuant to §§ 1107 and 1108 of the Bankruptcy Code, Mr. and Mrs. Steinberg continued to operate their business and manage their properties as debtors-in-possession. On or about April 7, 2003, Monterey, Hollar and Greene and Northwest filed a complaint to determine the dischargeability of Mr. Steinberg's debts to them (the "Complaint"). Subsequently on June 27, 2003, Northwest voluntarily dismissed its claims against the Debtor.
Debtor is the president and sole shareholder of Express Business Funding, Inc. ("Express"), which is also a Debtor-in-Possession in a Chapter 11 proceeding currently pending in the United States Bankruptcy Court for the Southern District of Florida under Case No. 03-30416-BKC-PGH. Express is a financing company that purchases accounts receivable at a discounted fee. On August 9, 2000, Express and Preferred Fresh Foods ("Preferred Fresh") entered into an agreement entitled the "Accounts Receivable Purchase and Sale Agreement" (the "Factoring Agreement"). Pursuant to the Factoring Agreement, Preferred Fresh would submit its outstanding receivables to Express, which would advance 80% of the receivable amount to Preferred Fresh. Express would then collect the receivables from Preferred Fresh's customers, deduct a fee and remit the balance to Preferred Fresh. The Factoring Agreement was executed by the Debtor, who was the President and sole shareholder of Express and Sime Dijan ("Dijan"), the then-President and sole shareholder of Preferred Fresh. During the first three months of the companies' relationship, Express provided funding to Preferred Fresh pursuant to the Factoring Agreement.
At some point between August and October 2000, the Debtor and Express were informed by certain creditors of Preferred Fresh that Preferred Fresh had breached the statutory trust arising under the Perishable Agricultural Commodities Act, 7 U.S.C. § 499e ("PACA"). Those creditors are not a party to the current action ("Non-party Creditors"). The attorneys for the non-party creditors demanded that Express repay accounts receivable that had been previously purchased and collected so that Preferred Fresh would have the available cash to fund its operations and pay the non-party creditors. Alternatively, the attorneys for the non-party creditors advised Express that they could immediately terminate Preferred Fresh's business operations and obtain repayment from Express of all sums previously paid by Preferred Fresh to Express. In essence, Express was faced with the choice of either allowing Preferred Fresh to close its doors, resulting in a loss to Express of over $400,000.00 or returning funds to Preferred Fresh so that it could pay the non- party creditors.
*313 After the Debtor obtained Preferred Fresh's financial information, he decided that Express would provide lending to Preferred Fresh in order to keep the company operating rather than simply providing funds under the Factoring Agreement. The goal of the Debtor was to keep Preferred Fresh operating long enough for it to repay the funds lent by Express, as well as the funds advanced pursuant to the Factoring Agreement.
In October 2000, the Debtor took control of the majority interest of Preferred Fresh in exchange for Express providing lending to Preferred Fresh. Dijan and Preferred Fresh's accountant, Steve Bens ("Bens") remained responsible for customers, sales, purchasing and day-to-day operations. At that time, the Debtor also took physical possession of Preferred Fresh's corporate record book which included its stock certificates. At the Debtor's direction, Dijan executed the stock certificates of Preferred Fresh and turned them over to the Debtor. Subsequently, also at the Debtor's direction, Express employee, Chris Bannon ("Bannon") filled out the stock certificates using information provided by the Debtor. As reflected on the stock transfer ledger, 20% of the stock remained with Dijan, 60% was transferred to the Debtor and 20% was given to Bannon as incentive for his assistance in turning Preferred Fresh into a profitable business. One month later, Bannon transferred his shares to the Debtor.
After the transfer of the Preferred Fresh stock to the Debtor, he began speaking with Dijan and Bens on a weekly basis regarding the financial condition of Preferred Fresh and he was provided with the company's monthly financial reports. Although Dijan and Bens began referring to the Debtor as the "Chairman," there is no evidence to indicate that this was reported to the Florida Secretary of State. Nor did the Debtor attend any of the Board of Directors meetings for Preferred Fresh.
From October 2000 through early 2002, Express continued to collect all of Preferred Fresh's accounts receivable to pay down its loans. In order for Preferred Fresh to pay its bills, the Debtor continued to authorize lending by Express to Preferred Fresh.
In an effort to increase the available capital to finance the operations of Preferred Fresh, while also attempting to minimize the balance on the loans extended by Express to Preferred Fresh, the Debtor began to solicit investors into Preferred Fresh. In November and December 2000, Milo and Michelle Seidl ("the Seidls") and Mark and Deanna Steinberg ("the Steinbergs"), who are not related to the Debtor, purchased stock of Preferred Fresh. The checks from both purchases were made payable to the Debtor and the stock certificates were signed by the Debtor individually. However, the $25,000.00 payment from the Steinbergs was not deposited into the Debtor's personal checking account but rather was used as a credit against the outstanding loan receivable due to Express from Preferred Fresh by depositing the check into the Express account. Likewise, the $50,000.00 payment from the Seidls was also deposited into the Express account for the same purpose.
The Debtor never had signatory authority on any bank accounts of Preferred Fresh, nor did he receive funds from Preferred Fresh. Express received funds due to it in connection with the factoring relationship with Preferred Fresh, but did not receive any other funds from Preferred Fresh. The Debtor never signed any documents on behalf of Preferred Fresh including, but not limited to, vendor agreements and performance contracts. Furthermore, the Debtor did not receive *314 compensation or any other funds from Preferred Fresh.
Although Preferred Fresh's PACA license identifies the Debtor as the Chairman of the Board of Directors of Preferred Fresh and the owner of more than ten percent (10%) of its outstanding stock, the Debtor testified that he has never seen the license, nor did he participate in the submission of the application and the documents required to obtain the license.
From March 23, 2001 through May 9, 2002, Monterey and Hollar and Greene sold perishable agricultural commodities in the amount of $59,208.80 to Preferred Fresh. Those sales were subject to PACA and are the basis of the matter at hand.
CONCLUSIONS OF LAW
The Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1334(b) and 28 U.S.C. § 157(b). This is a core proceeding under 28 U.S.C. § 157(b)(2)(I).
A. Individual Liability under PACA
The PACA statute regulates trading in agricultural commodities such as fruits and vegetables. PACA establishes a statutory trust for the benefit of sellers and suppliers. The trust arises the moment perishable goods are delivered by the seller. Morris Okun, Inc. v. Harry Zimmerman, Inc., 814 F.Supp. 346, 348 (S.D.N.Y.1993). Liability under the PACA statute "attaches first to the licensed commission merchant, dealer or broker of the perishable agricultural commodities. If, however, the assets of the licensed commission merchant, dealer or broker are insufficient to satisfy the PACA liability, then others may be held secondarily liable if they had some role in causing the corporate trustee to commit the breach of trust. . . . [I]ndividual shareholders, officers or directors of a corporation who are in a position to control trust assets, and who breach their fiduciary duty to preserve those assets may be held personally liable under PACA." Golman- Hayden, Inc. v. Fresh Source Produce, Inc., 217 F.3d 348, 351 (5th Cir.2000); Sunkist Growers, Inc. v. Fisher, 104 F.3d 280, 283 (9th Cir.1997).
The test for individual liability involves two factors: 1.) "whether the individual's involvement with the corporation was sufficient to establish legal responsibility" and 2.) "whether the individual in failing to exercise any appreciable oversight of the corporations' management, breached a fiduciary duty owed to PACA creditors." Golman-Hayden, 217 F.3d at 350 (citing Shepard v. K.B. Fruit and Vegetable, Inc. 868 F.Supp. 703, 706 (E.D.Pa.1994)).
In the instant case, Monterey and Hollar and Green failed to show that the Debtor's involvement with Preferred Fresh was sufficient to establish legal responsibility. As such, this Court concludes that the Debtor should not be held individually liable for the debts of that corporation. The evidence presented at trial indicated that the goal of the Debtor was to keep Preferred Fresh operating long enough for it to repay both the funds lent by Express and the funds advanced pursuant to the Factoring Agreement. It was Dijan and Bens who remained responsible for customers, sales, purchasing and day-to-day operations. The Debtor never had signatory authority on any bank accounts of Preferred Fresh, nor did he receive a salary from the corporation. In addition, the Debtor never signed any documents on behalf of Preferred Fresh such as vendor agreements and performance contracts.
While there was an issue raised as to whether the Debtor was ever an officer or director of Preferred Fresh, the evidence presented failed to convince the Court that *315 he was. Although Dijan and Bens referred to the Debtor as "Chairman," this was not reported to the Florida Secretary of State on the 2001 Annual Report of Preferred Fresh. Rather, Dijan was the only individual listed as an officer and director of Preferred Fresh on both that report and the stock certificates of Preferred Fresh. Furthermore, Dijan and Bens both testified that the Debtor had never been an officer or director of Preferred Fresh and they had only referred to him as the "Chairman" as an honorary title because he was responsible for their funding through Express. The only document that identified the Debtor as the Chairman of the Board of Directors of Preferred Fresh and the owner of more than ten percent (10%) of its outstanding stock was Preferred Fresh's PACA license. However, the Debtor testified that he has never seen the license, nor did he participate in the submission of the application and the documents required to obtain the license.
In sum, this Court finds that the evidence presented at trial was insufficient to show that the Debtor participated in the day-to-day management and control of Preferred Fresh. Accordingly, Monterey and Hollar and Greene failed to satisfy the first factor of the test for individual liability and therefore, the Court concludes the Debtor should not be held individually liable for the debts of Preferred Fresh.
B. Dischargeability under 11 U.S.C. § 523(a)(4)
Monterey and Hollar and Greene have sought a denial of the Debtor's discharge under 11 U.S.C. § 523(a)(4). That section of the Bankruptcy Code excepts from discharge any debt for fraud or defalcation while acting in a fiduciary capacity, embezzlement or larceny. To establish a claim of nondischargeability based on fraud or defalcation pursuant to § 523(a)(4), a creditor must prove by a preponderance of the evidence that: 1.) a fiduciary relationship existed between the parties and 2.) the Debtor is guilty of defalcation or fraud while acting in his fiduciary capacity. Grogan v. Garner, 498 U.S. 279, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991), In re Pieper, 119 B.R. 837, 839 (Bankr.M.D.Fla.1990). Thus, in order for Monterey and Hollar and Greene to prevail under § 523(a)(4), they must not only prove that the Debtor owed them a fiduciary duty, but also that the Debtor was guilty of a wrongful act of fraud or defalcation while acting in his fiduciary capacity. As discussed above, the evidence presented at trial was insufficient to show that the Debtor participated in the day-to-day management and control of Preferred Fresh. Therefore, this Court finds that no fiduciary relationship existed between the parties in this dispute.
Furthermore, this Court finds that Monterey and Hollar and Greene have failed to establish that the Debtor is guilty of a wrongful act of fraud or defalcation. "Defalcation" is defined as a "misappropriation of trust funds in any fiduciary capacity and failure to properly account for such funds." In Re Zois, 201 B.R. 501, 506 (Bankr.N.D.Ill.1996) (quoting In Re Harper, 150 B.R. 416, 419 (Bankr.E.D.Tenn.1993)). Monterey and Hollar and Greene have not presented sufficient evidence of any wrongful act of fraud or defalcation. The Debtor testified that Express continued to fund Preferred Fresh both as a factor and as an ordinary lender despite Preferred Fresh's escalating inability to repay the debt. In fact, Express only stopped funding when it no longer had the available funds and had to terminate its own business operations. There was no testimony or other evidence presented that the Debtor individually received *316 any funds at all from Preferred Fresh, or that Express received any funds from Preferred Fresh other than in the ordinary course as a factor. A sale of accounts receivable through a commercially reasonable factoring agreement does not violate the PACA trust. Boulder Fruit Express & Heger Organic Farm Sales v. Transportation Factoring, Inc., 251 F.3d 1268 (9th Cir.2001).
Other than the receipt of funds through the factoring of the Preferred Fresh accounts receivable, there was no allegation raised which would imply an improper use of the Preferred Fresh funds by the Debtor or Express or any other act of wrongdoing by either the Debtor or Express. As a result, there was no evidence presented to indicate any kind of wrongdoing by the Debtor. Accordingly, it is appropriate for the Court to find that any debts of the Debtor to Monterey and Hollar and Greene are dischargeable.
CONCLUSION
The Court finds that Monterey and Hollar and Greene have failed to show that the Debtor's involvement with Preferred Fresh was sufficient to establish legal responsibility. As such, the Debtor should not be held individually liable for the debts owed by Preferred Fresh. Furthermore, the Court finds that no fiduciary relationship existed between the parties in this dispute and the evidence presented at trial was insufficient to establish that the Debtor is guilty of a wrongful act of fraud or defalcation. Therefore, the Court concludes that it is appropriate to hold that the debts of the Debtor to Monterey and Hollar and Greene are dischargeable.
ORDER
The Court, having reviewed the pleadings, having heard the testimony of the witnesses, having reviewed the exhibits admitted into evidence, having heard the argument of counsel and being otherwise being fully advised in the premises, does hereby:
ORDER AND ADJUDGE that:
1. Judgment shall be entered for the Defendant.
2. The Court reserves jurisdiction to award the Defendant actual costs associated with this adversary proceeding.
3. Pursuant to Federal Rule of Bankruptcy Procedure 9021, a separate Final Judgment will be entered in the above-referenced adversary proceeding contemporaneously herewith.
| {
"pile_set_name": "FreeLaw"
} |
456 So.2d 67 (1984)
Carl HALL a/k/a Lord Divine Allah
v.
Gregory P. THOMAS.
83-578.
Supreme Court of Alabama.
September 14, 1984.
*68 Carl Hall, pro se.
W.J. McDaniel and William G. Gantt of McDaniel, Hall, Parsons, Conerly, Scott & Lusk, Birmingham, Walter R. Byars of Steiner, Crum & Baker, Montgomery, for appellee.
PER CURIAM.
Carl Hall appeals pro se from a summary judgment in favor of appellee, Gregory Thomas. We affirm.
Hall sued Thomas, who was previously Hall's attorney, for malpractice in connection with Thomas's representation of Hall in a criminal case. Hall alleges that Thomas generally failed to adequately prepare and present a defense and that Thomas deprived Hall of a jury trial by telling Hall that he was not entitled to one.
Hall had been charged with escape under Code 1975, § 14-8-42. Hall was serving time for murder at the time of his escape. He was convicted in a nonjury trial on the escape charge and sentenced to three months to be served "consecutively with" his prior sentence.[1] After the trial court was informed of the mistake concerning Hall's right to a jury trial, the court granted Hall a new trial before a jury, and appointed new counsel. Hall was convicted and given the same sentence as before. Hall then filed the present malpractice suit.
Thomas moved for dismissal of the suit or, in the alternative, for summary judgment. He filed affidavits and other documents showing that Hall suffered no damage as a result of what Thomas admitted was a mistake on his part in telling Hall he was not entitled to a jury trial. The trial court found as a matter of law that Hall had suffered no damage as a consequence of the alleged negligence of Thomas and granted summary judgment.
A claim for malpractice requires a showing that in the absence of the alleged negligence the outcome of the case would have been different. Mylar v. Wilkinson, 435 So.2d 1237 (Ala.1983). The documents filed in support of Thomas's motion show without dispute that Thomas's alleged negligence in no way damaged Hall. He was convicted and given the same sentence in the jury trial as he had previously received. Hall's affidavit filed in opposition to the motion for summary judgment reiterates his claim that he was damaged but does not specify how. In his brief on appeal, Hall contends he was damaged because Thomas could have taken some steps to have the charges dismissed after the presentation of the state's case because the state failed to prove Hall had previously been convicted and sentenced. Regardless of whether there is merit in Hall's new contention, this new theory cannot be raised on appeal for the first time in an attempt to gain reversal of the summary judgment. Engel Mortgage Co. v. Triple K Lumber Co., 56 Ala. App. 337, 321 So.2d 679 (Ala.Civ.App.1975).
AFFIRMED.
TORBERT, C.J., and MADDOX, JONES, SHORES and BEATTY, JJ., concur.
NOTES
[1] We are unsure whether the trial judge actually meant the new sentence should run consecutively to or concurrently with Hall's prior sentence.
| {
"pile_set_name": "FreeLaw"
} |
[Cite as NVR, Inc. v. Centerville, 2016-Ohio-6960.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
NVR, INC. :
:
Plaintiff-Appellant : C.A. CASE NO. 27021
:
v. : T.C. NO. 15CV5505
:
CITY OF CENTERVILLE, et al. : (Civil Appeal from
: Common Pleas Court)
Defendants-Appellees :
:
...........
OPINION
Rendered on the ___23rd___ day of _____September_____, 2016.
...........
MICHAEL P. McNAMEE, Atty. Reg. No. 0043861 and GREGORY B. O’CONNOR, Atty.
Reg. No. 0077901, 2625 Commons Blvd., Beavercreek, Ohio 45431
Attorneys for Plaintiff-Appellant
SCOTT A. LIBERMAN, Atty. Reg. No. 0058432 and STEVEN E. BACON, Atty. Reg. No.
0059926 and CRISTINA NEUMAN, Atty. Reg. No. 0092643, One South Main Street,
Suite 1590, Dayton, Ohio 45402
Attorneys for Defendants-Appellees
.............
FROELICH, J.
{¶ 1} NVR, Inc., d.b.a. Ryan Homes, appeals from a judgment of the Montgomery
County Court of Common Pleas, which sustained a motion by the City of Centerville to
dismiss NVR’s administrative appeal. Centerville had denied NVR’s preliminary
-2-
development plan for a particular parcel of land, and NVR filed an administrative appeal
pursuant to R.C. Chapter 2506. In its motion to dismiss NVR’s appeal, the city argued
that the appeal was untimely, and that the court of common pleas therefore lacked subject
matter jurisdiction. The trial court agreed.
{¶ 2} For the following reasons, the judgment of the trial court will be reversed.
I. Facts and Procedural History
{¶ 3} It appears from the record that there have been multiple attempts to develop
the property that is at issue in this appeal, which is an approximately 33-acre parcel of
land on East Alex Bell Road in Centerville. We will discuss this history only insofar as it
is relevant to this appeal.
{¶ 4} NVR filed a preliminary development plan with the City of Centerville in May
2015. In June 2015, the planning commission voted to approve the plan, subject to eight
conditions. However, on September 21, 2015, the Centerville City Council voted to
reverse the approval in its entirety. On September 25, 2015, the Centerville Clerk of
Council mailed a letter to NVR, informing it of the City Council’s action on the preliminary
development plan.
{¶ 5} On October 19, 2015, the Centerville City Council adopted the minutes of
its September 21, 2015 meeting. On October 20, NVR filed its notice of administrative
appeal in the court of common pleas. This notice was served on the city on October 26,
2015.
{¶ 6} On November 16, 2015, NVR filed a petition for writ of mandamus in the trial
court, arguing that the city council did not have authority to modify or reverse the decision
of the planning commission with respect to approval of a preliminary or final development
-3-
plan, that the city council’s actions precluded NVR from submitting -- and the planning
commission from approving -- a final development plan, and that NVR did not have an
adequate remedy at law.
{¶ 7} On November 25, 2015, the petition for writ of mandamus (Case No. 2015
CV 6026) and the administrative appeal (Case No. 2015 CV 5505) were consolidated by
the court of common pleas.
{¶ 8} On January 6, 2016, Centerville filed a Civ.R. 12(B)(1) motion to dismiss
NVR’s administrative appeal for lack of subject matter jurisdiction, because NVR had not
timely perfected its administrative appeal. Specifically, Centerville asserted that it mailed
its decision denying the preliminary development plan on September 25, 2015, which
began the 30-day appeal period set forth in R.C. 2505.07, and that NVR notified the city
of its appeal on October 26, 2015, more than 30 days later. Centerville asserted that the
trial court lacked subject matter jurisdiction to hear the appeal because NVR failed to
comply with the statutory requirements for an administrative appeal.
{¶ 9} On February 9, 2016, the trial court filed a “Decision, Order, and Entry”
sustaining Centerville’s motion to dismiss for lack of subject matter jurisdiction. The
court concluded that city council’s September 25, 2015, letter to NVR had been a final
order and that NVR had failed to perfect its appeal within 30 days of that order. The
decision contained a Civ.R. 54(B) certification that it was a final appealable order and that
there was no just reason for delay; it did not address the writ of mandamus.
{¶ 10} NVR raises one assignment of error on appeal, which challenges the trial
court’s conclusion that it lacked subject matter jurisdiction. NVR challenges the trial
court’s conclusions in several respects, arguing that 1) the September 25, 2015, letter
-4-
from the Clerk of Council informing it of the city council’s decision was not a final order,
2) the letter “was not an order at all,” 3) the 30-day deadline for commencing an appeal
was extended by the fact that the 30th day fell on a Sunday, and 4) the date on which the
letter was mailed did not start the 30-day appeal period.
II. Standard for Appellate Review of an Administrative Decision
{¶ 11} When an appellate court reviews a common pleas court’s decision
regarding an administrative order, the appellate court uses two distinct standards of
review. On a question of fact, an appellate court’s review is limited to an abuse of
discretion; however, on a question of law, an appellate court’s review is de novo. Key
Ads, Inc. v. Dayton Bd. of Zoning Appeals, 2014-Ohio-4961, 23 N.E.3d 266, ¶ 13 (2d
Dist.), citing Lamar Outdoor Advertising v. Dayton Bd. of Zoning Appeals, 2d Dist.
Montgomery No. 18902, 2002 WL 1349600, * 2 (June 21, 2002) and Ohio Dept. of
Commerce, Div. of Real Estate v. DePugh, 129 Ohio App.3d 255, 261, 717 N.E.2d 763
(4th Dist.1998).
III. If the 30th Day for Filing an Administrative Appeal is a Sunday, is the
Deadline Extended?
{¶ 12} We begin with NVR’s argument that, if the September 25, 2015, letter were
the city’s final order, NVR’s filing of a notice of appeal on October 26 was timely.
{¶ 13} “The filing of a notice of appeal under R.C. 2505.04 is essential to vest the
common pleas court with jurisdiction over an administrative appeal.” Harris v. City of
Akron Hous. Appeals Bd., 9th Dist. Summit No. 21197, 2003-Ohio-724, ¶ 8, citing
Chapman v. Housing Appeals Bd., 9th Dist. Summit No. 18166, 1997 WL 537651 (Aug.
13, 1997). An appeal from an administrative board must be perfected within 30 days
-5-
after the entry of the final order. R.C. 2505.07. In this case, assuming that the Clerk’s
letter constituted the final order, the 30th day fell on a Sunday, October 25, 2015; the
appeal was filed with the clerk of the trial court on October 20, and notice was served on
the city on October 26, 2015.
{¶ 14} There are several authorities for the proposition that, where a period in
which to perform an action is set forth by statute, and the final day of the period falls on a
Sunday, the action can be performed on the following business day. Most importantly,
R.C. 1.14 states: “The time within which an act is required by law to be done shall be
computed by excluding the first and including the last day; except that, when the last day
falls on Sunday or a legal holiday, the act may be done on the next succeeding day that
is not Sunday or a legal holiday.” See also McCormick v. Wellston Bd. of Zoning
Adjustment, 4th Dist. Jackson No. 463, 1982 WL 3561, * 1 (Oct. 18, 1982) and Seaway
Taverns, Inc. v. Bd. of Liquor Control, 82 Ohio Law Abs. 19, 163 N.E.2d 186, 187 (10th
Dist.1959) (both applying R.C. 1.14 to an appeal pursuant to R.C. Chapter 2505).
{¶ 15} Centerville argues that R.C. 1.14 does not apply to extend the deadline for
filing an appeal because such “flexibility” is not included in R.C. 2505.07. We disagree
with Centerville’s view of the interplay between the statutes. The fact that another
statute, such as R.C. 2505.07,1 does not expressly repeat the language of R.C. 1.14 does
not mean that the manner of calculating time set forth in R.C. 1.14 does not apply. For
example, many cases have held that the computation method set forth in R.C. 1.14
1 R.C. 2505.07 states, in its entirety, “After the entry of a final order of an administrative
officer, agency, board, department, tribunal, commission, or other instrumentality, the
period of time within which the appeal shall be perfected, unless otherwise provided by
law, is thirty days.”
-6-
applies to the calculation of the statute of limitations, notwithstanding that statutes setting
forth limitation periods do not specifically incorporate R.C. 1.14. See, e.g., Ritz v. Brown,
61 Ohio App.3d 65, 70, 572 N.E.2d 159 (3d Dist.1989) (holding that R.C. 1.14 is
applicable to the computation of a limitations period); Haynes v. George Ballas Buick-
GMC Truck, 6th Dist. Lucas No. L-89-168, 1990 WL 210413, * 14 (Dec. 21, 1990)
(“computation of the statute of limitations period is controlled by R.C. 1.14”); Timson v.
Gillings, 10th Dist. Franklin No. 74AP-438, 1975 WL 181240, * 1 (Mar. 25, 1975) (“Ohio
statutes are clear that, when an act must be done within a certain period, one excludes
the first day and includes the last day unless a Sunday or holiday intervenes as the last
day”); Green v. U.S.A. Energy Consultants, 8th Dist. Cuyahoga No. 50942, 1986 WL
11053, * 3 (Sept. 18, 1986); Mokrytzky v. Super Sys., Inc., 8th Dist. Cuyahoga No. 87929,
2007-Ohio-404, ¶ 10. See also Cox v. Dayton Pub. Schools Bd. of Edn., Ohio Sup. Ct.
Slip Opinion No. 2016-Ohio-5505, ¶ 19 (where statute requires delivery of notice of a
motion to vacate, modify, or correct an arbitration award within a designated time period,
“[w]e measure the start and end point of the [period] by applying relevant provisions of
the Revised Code and the Rules of Civil Procedure governing service of motions,” and
citing R.C. 1.14 and Civ.R. 6(A).)
{¶ 16} R.C. 1.14 is dispositive, so we need not address the parties’ argument
about App.R. 14(A). However, some rules of court also potentially support the
conclusion that a deadline that falls on a Sunday is calculated to end on the next business
day.
{¶ 17} R.C. 2505.03(A) and (B) provide:
(A) Every final order, judgment, or decree of a court and, when provided by
-7-
law, the final order of any administrative officer, agency, board, department,
tribunal, commission, or other instrumentality may be reviewed on appeal
by a court of common pleas, a court of appeals, or the supreme court,
whichever has jurisdiction.
(B) Unless, in the case of an administrative-related appeal, Chapter 119. or
other sections of the Revised Code apply, such an appeal is governed by
this chapter and, to the extent this chapter does not contain a relevant
provision, the Rules of Appellate Procedure. * * *
(Emphasis added.)
{¶ 18} App.R. 14(A) states that, when a filing deadline falls on a Sunday, a party
may complete the action in question on the following business day; Civ.R. 6(A) also states
that, when a deadline falls on a Saturday, Sunday, or legal holiday, “the period runs until
the end of the next day which is not a Saturday, Sunday, or legal holiday.” The Civil Rules
“prescribe the procedure to be followed in all courts of this state,” unless, by their nature,
they are clearly inapplicable. Civ.R. 1(A) and (C). Centerville suggests that court rules
apply to court proceedings, and not administrative ones, unless specific statutes or
regulations require them to apply to administrative proceedings; however, an
administrative appeal to the court of common pleas is a court proceeding. See, e.g.,
SP9 Ent. Trust v. Brauen, 3d Dist. Allen No. 1-14-03, 2014-Ohio-4870, ¶ 40; Moffett v.
Salem City School Dist. Bd. of Educ., 7th Dist. Columbiana No. 2003CO7, 2003-Ohio-
7007, ¶ 24.
{¶ 19} Centerville also argues that NVR is not permitted to rely on such
“procedural” rules “to try to expand the jurisdiction of” the trial court “for the first time on
-8-
appeal,” and that NVR waived any argument related to the calculation of the deadline by
failing to raise it in the trial court. Centerville asserts that the trial court was not
“presented with the opportunity to consider whether R.C. 1.14 or Appellate Rule 14(A)
can extend the deadline to perfect an administrative appeal,” because, in the trial court,
NVR’s argument focused on the finality of the September 25 letter. We disagree.
{¶ 20} The applicability of R.C. 1.14 (or even, if pertinent, App.R. 14(A) and/or
Civ.R. 6(A)) are questions of law, as is a trial court’s dismissal of a claim for lack of
subject-matter jurisdiction, all of which we review de novo. An appellate court is
permitted to recognize error in a trial court’s application of the rules or dismissal of a claim
for lack of subject matter jurisdiction, regardless of whether such arguments were raised
in the trial court. See Engelhart v. Hamilton Cty. Bd. of Commrs., 1st Dist. Hamilton No.
C-150639, 2016-Ohio-4935, ¶ 6, citing In re T.J.B., 1st Dist. Hamilton No. C-130725,
2014-Ohio-2028, ¶ 7 (related to de novo review of dismissal for lack of subject matter
jurisdiction).
{¶ 21} “A defect in subject-matter jurisdiction cannot be waived or forfeited and
may, therefore, be raised at any time.” Engelhart at ¶ 6, citing State v. Mbodji, 129 Ohio
St.3d 325, 2011-Ohio-2880, 951 N.E.2d 1025, ¶ 10; State v. Wilson, 73 Ohio St.3d 40,
46, 652 N.E.2d 196 (1995) (“The issue of a court’s subject matter jurisdiction cannot be
waived. A party’s failure to challenge a court’s subject matter jurisdiction cannot be used,
in effect, to bestow jurisdiction on a court where there is none.”); State ex rel. Kline v.
Carroll, 96 Ohio St.3d 404, 2002-Ohio-4849, 775 N.E.2d 517, ¶ 27 (“invited error” is a
branch of the waiver doctrine and is also inapplicable to an attack on the subject matter
jurisdiction); Vilk v. Dinardo, 8th Dist. Cuyahoga No. 103755, 2016-Ohio-5245, ¶ 10 (“the
-9-
question of a court’s subject matter jurisdiction can be raised at any time -- even after
judgment or on appeal”); Leist v. Mad River Twp. Bd. of Trustees, 2d Dist. Clark No.
[2015]-CA-86, 2016-Ohio-2960, ¶ 6 (issues related to subject matter jurisdiction cannot
be waived and may be raised sua sponte by an appellate court). See also United States
v. Cotton, 535 U.S. 625, 630, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002) (because subject-
matter jurisdiction goes to the power of the court to adjudicate the merits of a case, it “can
never be forfeited or waived”); Rote v. Zel Custom Mfg, LLC, 816 F.3d 383, 392 (6th
Cir.2016) (holding that jurisdictional arguments not raised in the district court are not
waived on appeal). Although most cases addressing this issue deal with an alleged lack
of subject matter jurisdiction, whereas NVR’s argument here asserts the existence of
subject matter jurisdiction, we apply the doctrine of waiver equally to both sides of an
argument.
{¶ 22} Furthermore, even assuming that an argument as to the presence of a trial
court’s subject matter jurisdiction could be waived, an appellate court would be permitted
to recognize plain error in a trial court’s erroneous determination that it lacked such
jurisdiction. Although the recognition of plain error is rare in civil cases, it may be
appropriate where the error in question, such as an erroneous denial of subject matter
jurisdiction, “seriously affects the basic fairness, integrity, or public reputation of the
judicial process, thereby challenging the legitimacy of the underlying judicial process
itself.” Cavins v. S & B Health Care, Inc., 2015-Ohio-4119, 39 N.E.3d 1287, ¶ 115 (2d
Dist.), quoting Goldfuss v. Davidson, 79 Ohio St.3d 116, 679 N.E.2d 1099 (1997),
syllabus.
{¶ 23} Goldfuss held that plain error should not be applied in a civil case where
-10-
the Appellant did not object to certain jury instructions; in fact, counsel indicated that the
proposed instruction was “a hundred percent correct.” Goldfuss at 119. Unlike
Goldfuss, the issue in this case is not that NVR failed to argue to the trial court that the
court had jurisdiction, but rather that it did not explicitly argue one of the reasons why the
court did have jurisdiction. Moreover, issues related to jurisdiction are qualitatively
different from issues related to jury instructions, admissibility of evidence, and the like,
where a party’s acquiescence might reasonably factor into a court’s decision.
{¶ 24} Our duty is to address NVR’s assignment of error that the trial court erred
in determining it did not have jurisdiction, i.e., the statutory or constitutional power to
adjudicate the case; a court either has or does not have that power, as a matter of law.
Controversies should be decided, whenever possible, on their merits.
{¶ 25} We also note that to interpret R.C. 2505.07’s 30-day filing deadline as
Centerville suggests would actually shorten the period in which a notice of appeal must
be filed – requiring, for example, a party to treat Friday as the deadline when the 30th day
falls on a weekend, since there would be no way to make service on a weekend or holiday.
Although Centerville has argued that a deadline cannot be “extended” by other statutes
or court rules, it has cited no supported for its interpretation of the calculation so as to
shorten the period for filing, and we are aware of none.
{¶ 26} The parties do not dispute that the 30th day following the mailing of the city
council’s decision on September 25 was October 25, a Sunday. Under these
circumstances, pursuant to R.C. 1.14, NVR was permitted to file its notice of appeal the
next day that was not a Saturday, Sunday, or legal holiday. If the September 25, 2015
letter were a final order, NVR’s appeal from that order was not filed beyond the 30 days
-11-
permitted by statute. Moreover, if the final order were issued at a later date (i.e., on
October 19, when the minutes of the September 21 meeting were adopted, as NVR
contends in part of its brief), the October 26, 2015, notice of appeal was even “more”
timely and effective.
{¶ 27} NVR’s other assignments are moot. Regardless of whether the final order
were the September 25 letter or the October 19 adoption of the minutes from the city
council’s prior meeting, the October 26 notice of appeal conferred the trial court with
subject matter jurisdiction.
{¶ 28} The assignment of error is sustained.
IV. Conclusion
{¶ 29} The judgment of the trial court will be reversed, and the matter will be
remanded for further proceedings.
.............
WELBAUM, J., concurs.
HALL, J, concurring:
I agree that R.C. 1.14 applies to extend the final day to file the administrative
appeal from Sunday, October 25, 2015, to the following Monday, and therefore the appeal
was timely. I also agree that R.C. 114 is dispositive of the issues on appeal. I write
separately to emphasize that I do not believe either the Civil Rules or the Appellate Rules
apply to extend the time for an administrative appeal. In my opinion, reference to those
rules should not be interpreted as an inference that they apply here.
.............
-12-
Copies mailed to:
Michael P. McNamee
Gregory B. O’Connor
Scott A. Liberman
Steven E. Bacon
Cristina Neuman
Hon. Mary Katherine Huffman
| {
"pile_set_name": "FreeLaw"
} |
Subsets and Splits
No community queries yet
The top public SQL queries from the community will appear here once available.