Datasets:

parameterlab
/

scaling_mia_the_pile_00_FreeLaw

Dataset card Data Studio Files Files and versions Community

Split (3)

train · 169k rows

text stringlengths 1 1.21M	meta dict
39 Wn. App. 489 (1984) 693 P.2d 724 THE STATE OF WASHINGTON, Respondent, v. FRED ELBERT HUNSAKER, Appellant. No. 5849-2-III. The Court of Appeals of Washington, Division Three. December 20, 1984. 490 Fred Elbert Hunsaker, pro se, and Melvin H. Champagne, for appellant (appointed counsel for appeal). Donald C. Brockett, Prosecuting Attorney, and Patricia Thompson, Deputy, for respondent. GREEN, A.C.J. Defendant, Fred Hunsaker, was charged with and convicted on two counts of indecent liberties involving two female children. His appeal essentially presents the issue of whether the children were competent to testify. We find they were competent and affirm the convictions. Between January 1982 and April 1982, the defendant's wife operated a day care center in the family home at Cheney, Washington. Both children were cared for during this period. The children, J.S. and B.W., were 4 1/2 years old and 2 1/2 years old, respectively, at the time of the incidents. Trial in these matters did not occur until J.S. was 5 1/2 and B.W. was 3 1/2. At trial, the parents of both children testified as to the dates and times when their children were in the Hunsaker household. In addition, the parents testified to nightmares, unexplained vomiting, and rashes observed in the pubic area, all corroborative of the testimony of the two girls as to what had occurred. The defendant's son, whose competence was never challenged, also testified that he had pulled his father off the top of one of the victims at the Hunsaker house. During her testimony before the jury, J.S. used anatomically correct dolls. With these dolls, she illustrated her testimony that the defendant touched her on the vagina with "his peter." The defendant testified on his own behalf and denied any sexual contact with either victim. The jury convicted him on both counts of indecent liberties. Mr. Hunsaker contends the children were too young to 491 testify, were not competent to testify, and that the judge should have stricken their testimony. Before allowing the jury to hear their testimony, the trial court followed the approved and accepted practice of conducting a competency hearing for each child out of the presence of the jury. [1] It is clear that a child is not disqualified as a witness as a matter of law[1] by reason of youth; rather, intelligence is the proper standard used to determine the competency of a child witness. State v. Allen, 70 Wn.2d 690, 424 P.2d 1021 (1967); ER 601; CrR 6.12. In State v. Allen, supra at 692, the court said: The true test of the competency of a young child as a witness consists of the following: (1) an understanding of the obligation to speak the truth on the witness stand; (2) the mental capacity at the time of the occurrence concerning which he is to testify, to receive an accurate impression of it; (3) a memory sufficient to retain an independent recollection of the occurrence; (4) the capacity to express in words his memory of the occurrence; and (5) the capacity to understand simple questions about it. The determination of the witness's ability to meet the requirements of this test and the allowance or disallowance of leading questions (State v. Davis, 20 Wn.2d 443, 446, 147 P.2d 940 (1944)), rest primarily with the trial judge who sees the witness, notices his manner, and considers his capacity and intelligence. These are matters that are not reflected in the written record for appellate review. Their determination lies within the sound discretion of the trial judge and will not be disturbed on appeal in the absence of proof of a manifest abuse of discretion. 492 State v. Ridley, 61 Wn.2d 457, 378 P.2d 700 (1963), and authorities cited. The record reflects both counsel and the court examined the children at the competency hearing. A close examination of the testimony reveals two children intelligent beyond their tender years.[2] A careful reading of the record does not indicate the trial court abused its discretion in determining the children were competent or in admitting into evidence their testimony. State v. Johnson, 96 Wn.2d 926, 639 P.2d 1332 (1982); State v. Woodward, 32 Wn. App. 204, 646 P.2d 135 (1982). We have examined the issues raised by Mr. Hunsaker in his pro se brief and find them to be essentially the same as argued by his appellate counsel, albeit in somewhat different form. For the reasons set out above, his contentions are without merit. 493 The convictions are affirmed. McINTURFF and THOMPSON, JJ., concur. NOTES [1] In our research of recent reported decisions in this jurisdiction, the youngest competent witness appears to be 4 1/2. State v. Tuffree, 35 Wn. App. 243, 666 P.2d 912 (1983). Although the United States Supreme Court said in Wheeler v. United States, 159 U.S. 523, 524, 40 L.Ed. 244, 16 S.Ct. 93 (1895), that "no one would think of calling as a witness an infant only two or three years old," that quote is only dictum and must surely be questioned today in light of the age of that decision. In 1895, public education for all ages was the exception rather than the rule. The younger witness in the instant appeal, B.W., attended preschool and the benefits of early contact with the school system is exhibited by her testimony as set out in footnote 2. [2] B.W., 3 1/2, testified in pertinent part at the competency hearing: Q How old are you, [B]? A Three and a half. Q Three and a half? When is your birthday? A June 19, 1979. ... Q What is your address? A 5722 Fickett Lane. ... Q Do you go to school at all? A Yeah. Q What type of school is it, or do you know? A Preschool. Q What are you learning in preschool? A Songs. Q Can you sing us a song here? A Yeah. Q Would you? A (Singing) "Three little monkeys jumping on a bed, one fell off and bumped his head, Mama called the doctor and the doctor said no more monkeys jumping on the bed." When B.W. was brought back into court in the presence of the jury, she again gave her correct name, address, age, birthdate, and, in addition, sang the same song and recited the ABC's with four mistakes.	{ "pile_set_name": "FreeLaw" }
292 S.W.3d 593 (2009) STATE of Missouri, Respondent, v. Shannon L. WALZ, Appellant. No. WD 69662. Missouri Court of Appeals, Western District. September 22, 2009. Susan L. Hogan, Kansas City, MO, for appellant. Shaun J. Mackelprang, and John M. Reeves, Jefferson City, MO, for respondent. Before ALOK AHUJA, P.J., JAMES M. SMART, JR., LISA WHITE HARDWICK, JJ. Order PER CURIAM: Shannon Walz appeals his conviction for second-degree statutory rape, section 566.034 RSMo, for which he was sentenced *594 to ten years' imprisonment. Judgment affirmed pursuant to Rule 30.25(b).	{ "pile_set_name": "FreeLaw" }
MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Jul 09 2015, 9:31 am Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case. ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Kurt A. Young Gregory F. Zoeller Nashville, Indiana Attorney General of Indiana Chandra K. Hein Deputy Attorney General Indianapolis, Indiana IN THE COURT OF APPEALS OF INDIANA Joshua Woodson, July 9, 2015 Appellant-Defendant, Court of Appeals Cause No. 49A04-1410-CR-475 v. Appeal from the Marion Superior Court Cause No. 49F18-1204-FD-24015 State of Indiana, Appellee-Plaintiff. The Honorable David Hooper, Judge Pro-Tem Barnes, Judge. Court of Appeals of Indiana \| Memorandum Decision 49A04-1410-CR-475\| July 9, 2015 Page 1 of 5 Case Summary [1] Joshua Woodson appeals his conviction for Class D felony operating a vehicle while suspended as an habitual traffic violator. We affirm. Issue [2] Woodson raises one issue, which we restate as whether the trial court properly denied his motion for a mistrial. Facts [3] Woodson was an habitual traffic violator, and he was aware that his driving privileges were suspended. On April 11, 2012, Officer Marc Klonne of the Indianapolis Metropolitan Police Department saw a vehicle at a gas station, ran the license plate, and discovered that the owner, Woodson, was an habitual traffic violator. Officer Klonne then saw Woodson get in the vehicle and begin to pull forward. Officer Klonne stopped Woodson and arrested him. [4] The State charged Woodson with Class D felony operating a vehicle while suspended as an habitual traffic violator. During Officer Klonne’s deposition, he testified that Woodson’s vehicle did not move. At Woodson’s jury trial, Officer Klonne testified that Woodson’s vehicle pulled forward a couple of feet. The State questioned Officer Klonne about the discrepancy between his trial testimony and his deposition testimony. Officer Klonne acknowledged the discrepancy, stated that before the deposition he had very briefly reviewed the probable cause affidavit, and stated that before his trial testimony he had reviewed the report at length. Officer Klonne testified that his trial testimony Court of Appeals of Indiana \| Memorandum Decision 49A04-1410-CR-475\| July 9, 2015 Page 2 of 5 was “based off the probable cause statement.” Tr. p. 56. Woodson objected to the officer’s testimony, and the trial court stated: “Ladies and gentlemen I’m going to strike . . . ask you not to consider what he’s basing anything on, um, he has talked about what he reviewed, but he is not to testify as to what’s in any documents. I will let him give what his testimony is today.” Tr. p. 56. After a discussion between the trial court and the parties, the trial court also said, “All right, again, I’ve given the jury instruction to disregard the officer’s statement about anything in a report or probable cause.” Id. at 57. [5] At some point during the trial, the parties and the trial court had an off-the- record discussion, and Woodson requested a mistrial. The trial court later allowed Woodson to make a record of the request. Woodson argued that “the officer testified that his testimony today was based on his PC which is basically saying what his PC said. Um, that’s obviously not under the rules of evidence, not admissible. Um, we think that that is . . . it calls for a mistrial and that the, the instruction not to consider it is not sufficient to correct the prejudice.” Id. at 80. The trial court denied Woodson’s mistrial request, and the jury found him guilty as charged. Woodson now appeals. Analysis [6] Woodson argues that the trial court erred by denying his mistrial request. A trial court is in the best position to evaluate whether a mistrial is warranted because it can assess first-hand all relevant facts and circumstances and their impact on the jury. Ramirez v. State, 7 N.E.3d 933, 935 (Ind. 2014). We Court of Appeals of Indiana \| Memorandum Decision 49A04-1410-CR-475\| July 9, 2015 Page 3 of 5 therefore review denial of a motion for mistrial only for abuse of discretion. Id. Reversal is required only if the defendant demonstrates that he was so prejudiced that he was placed in a position of grave peril. Inman v. State, 4 N.E.3d 190, 198 (Ind. 2014). “The gravity of the peril turns on the probable persuasive effect of the misconduct on the jury’s decision, not on the degree of impropriety of the conduct.” Id. [7] Relying on Indiana Evidence Rule 803(8) and Tate v. State, 835 N.E.2d 499, 508 (Ind. Ct. App. 2005), trans. denied, Woodson argues that the probable cause affidavit was inadmissible. Woodson contends that, even though the probable cause affidavit was not admitted into evidence at his trial, “its contents were placed before the jury.” Appellant’s Br. p. 7. According to Woodson, the trial court’s admonishment regarding Officer Klonne’s testimony was insufficient to cure any prejudice. Woodson argues that “[t]he probable impact of Klonne vouchsafing his own testimony by referring to his police report cannot be understated.” Id. [8] The State points out that the probable cause affidavit was not admitted at trial and that, pursuant to Indiana Evidence Rule 612, witnesses are entitled to use documents to refresh their memory. Further, the trial court admonished the jury to disregard the reference to the document, and such admonishments are presumed to cure any error. See Johnson v. State, 901 N.E.2d 1168, 1173 (Ind. Ct. App. 2009) (“[W]here the trial court adequately admonishes the jury, such admonishment is presumed to cure any error that may have occurred.”). We agree with the State. We further note that Woodson has failed to demonstrate Court of Appeals of Indiana \| Memorandum Decision 49A04-1410-CR-475\| July 9, 2015 Page 4 of 5 that he was so prejudiced by Officer Klonne’s brief reference to the probable cause affidavit that he was placed in a position of grave peril. The jury was aware of Officer Klonne’s earlier testimony and the difference in his trial testimony and was entitled to judge his credibility. See, e.g., Roland v. State, 501 N.E.2d 1034, 1038 (Ind. 1986) (holding that a “brief statement by the police officer did not place Appellant in the grave peril required for a mistrial”). Woodson failed to demonstrate that Officer Klonne’s mention of the probable cause affidavit had a probable persuasive effect on the jury’s decision. The trial court properly denied Woodson’s motion for a mistrial. Conclusion [9] The trial court properly denied Woodson’s motion for a mistrial. We affirm. [10] Affirmed. Riley, J., and Bailey, J., concur. Court of Appeals of Indiana \| Memorandum Decision 49A04-1410-CR-475\| July 9, 2015 Page 5 of 5	{ "pile_set_name": "FreeLaw" }
621 F.2d 152 UNITED KLANS OF AMERICA and Knights of the Ku Klux Klan,Inc., Plaintiffs-Appellants,v.James L. McGOVERN, former special agent in charge,Birmingham office of Federal Bureau ofInvestigation, et al., Defendants-Appellees. No. 78-3034. United States Court of Appeals,Fifth Circuit. July 9, 1980. John Edmond Mays, Decatur, Ala., for plaintiffs-appellants. J. R. Brooks, U.S. Atty., Henry I. Frohsin, Asst. U.S. Atty., Birmingham, Ala., Edward Christenberry, Robert E. Kopp, Katherine S. Gruenheck, Patricia G. Reeves, U.S. Dept. of Justice, Civil Div., App. Staff, Washington, D.C., for defendants-appellees. Appeal from the United States District Court for the Northern District of Alabama. Before THORNBERRY, ANDERSON and THOMAS A. CLARK, Circuit Judges. PER CURIAM: 1 The United Klans of America, Knights of the Ku Klux Klan (hereinafter referred to as Klan or KKK), filed a complaint on August 26, 1977, against Clarence M. Kelley, individually and in his official capacity as Director of the Federal Bureau of Investigation, James L. McGovern, former special agent in charge of the Birmingham office of the FBI, and others (hereinafter collectively referred to as FBI). The complaint alleged violation of the Klan's First, Fourth and Fifth Amendment rights resulting from the FBI's counterintelligence program (COINTELPRO), which was designed to expose, disrupt and otherwise neutralize certain organizations, including the Klan. The district court, 453 F.Supp. 836, granted the FBI's motion for summary judgment, holding that the action was barred by the applicable Alabama one-year statute of limitations. The Klan appeals. We affirm. 2 There is no federal statute of limitations applicable to this constitutionally based civil suit. We therefore look to the law of Alabama, the forum state, to determine the appropriate statute of limitations.1 See, e. g., Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 462, 95 S.Ct. 1716, 1721, 44 L.Ed.2d 295 (1975); McNeal v. Paine, Webber, Jackson & Curtis, Inc., 598 F.2d 888, 891 & n. 4 (5th Cir. 1979); Cox v. Stanton, 529 F.2d 47, 50 (4th Cir. 1975). The parties agree that the pertinent Alabama statute of limitations provides for a one-year limitations period. Ala. Code § 6-2-39(a)(5) (1975).2 The COINTELPRO activities which form the basis of the Klan's complaint allegedly occurred between 1960 and 1972. The complaint was filed on August 26, 1977. Thus, unless the statute of limitations was somehow tolled at least until August 26, 1976, this action is barred. The Klan claims that the statute was tolled until October 13, 1976, the date it first received documents from the Department of Justice concerning COINTELPRO's KKK related activities.3 Until then, the Klan contends, the FBI fraudulently concealed its cause of action.4 We disagree. 3 Fraudulent concealment tolls the statute of limitations. To rely on this tolling doctrine, "plaintiff must show that the defendants concealed the conduct complained of, and that he failed, despite the exercise of due diligence on his part, to discover the facts that form the basis of his claim." In re Beef Industry Antitrust Litigation, 600 F.2d 1148, 1169 (5th Cir. 1979).5 " 'Once plaintiff is on inquiry that it has a potential claim, the statute can start to run.' " Prather v. Neva Paperbacks, Inc., 446 F.2d 338, 341 (5th Cir. 1971). In this case, a combination of factors lead us to conclude that in the exercise of due diligence, plaintiff should have known that it had a potential claim against the FBI prior to August 26, 1976. 4 First, on November 18, 1974, then Attorney General William Saxbe held a press conference at which he revealed the existence of the COINTELPRO program to the public. At the conference, Saxbe distributed a Department of Justice press release which indicated that "White Hate" groups were a target of the COINTELPRO program.6 The release summarized the techniques used by COINTELPRO against White Hate groups,7 techniques which the Department of Justice conceded, in some instances, to be "abhorrent in a free society." In oral remarks at the conference, Saxbe spoke specifically about FBI counterintelligence activities against the Klan. He said that some of these activities may have been improper. 5 The Attorney General's press conference was attended by the three major networks, the wire services, and many of the leading newspapers in the country. On the following day, November 19, 1974, articles reporting the substance of the press conference appeared in at least two newspapers with a circulation in the Northern District of Alabama, Western Division, where this suit was filed. One of these articles expressly named the KKK as a COINTELPRO target. Where events receive such widespread publicity, plaintiffs may be charged with knowledge of their occurrence. See In re Beef Industry Antitrust Litigation, 600 F.2d at 1169-71; Smith v. Nixon, 606 F.2d 1183, 1190 n. 42 (D.C.Cir.1979), petition for cert. filed, 48 U.S.L.W. 3404 (Dec. 7, 1979) (No. 79-882). 6 Second, the report of a United States Senate inquiry into the COINTELPRO program was published in April, 1976, over fifteen months before this suit was filed. Select Committee to Study Governmental Operations, Intelligence Activities and the Rights of Americans, S.Rep. No. 94-755, 94th Cong., 2d Sess. (1976). The report catalogs COINTELPRO's operations concerning the Klan; it cites evidence of FBI involvement in, among other things, wire tapping, thefts, and break-ins directed at the Klan, and the use of Klan members' federal tax returns to discredit the organization. Id. at Book II, pp. 93, 105, 110 & n. 526. The Klan is chargeable with knowledge of the Senate report. See In re Beef Industry Antitrust Litigation, 600 F.2d at 1170 ("Plaintiffs are chargeable with knowledge of the contents of public records."). "(T)he congressional proceedings should have aroused (plaintiff's) suspicions, and its failure to investigate further at that time was not the exercise of due diligence required in order to employ the fraudulent concealment doctrine to avoid the bar of the statute of limitations." Dayco Corp. v. Goodyear Tire & Rubber Co., 523 F.2d 389, 394 (6th Cir. 1975). 7 Third, a year and two days prior to the day this action was brought, the president of the plaintiff corporation, Robert Shelton, was notified by the Department of Justice that he may have been affected by the COINTELPRO program. Letter from Michael E. Shaheen, Jr., Counsel, U.S. Dept. Justice, Office of Professional Responsibility, hand delivered by a U.S. Marshal, to Robert Shelton on August 24, 1976. 8 We conclude that the Klan should have known of its potential claim against the FBI before August 26, 1976. The judgment of the district court holding that the Klan's action is time barred is, therefore, 9 AFFIRMED. 1 Although we look to Alabama law for the appropriate statute of limitations, federal law controls the determination of when the cause of action accrues. E. g., Lavellee v. Listi, 611 F.2d 1129, 1130 (5th Cir. 1980); Azalea Meats, Inc. v. Muscat, 386 F.2d 5, 8 (5th Cir. 1967) 2 Ala.Code § 6-2-39(a)(5) applies to "Actions for any injury to the person or rights of another not arising from contracts and not (otherwise) specifically enumerated . . . ." 3 These documents were requested by Robert Shelton, president of the plaintiff corporation, on September 17, 1976 4 The government concedes that the statute of limitations did not commence running in 1972, the year the Klan alleges that the FBI terminated its COINTELPRO operations against the Klan. However, the government argues that tolling ended on November 18, 1974, when then Attorney General Saxbe held a press conference, see infra, disclosing the COINTELPRO program to the public. The government's position was adopted by the district court 5 In the Beef Industry case, plaintiffs urged application of the fraudulent concealment doctrine to toll the statute of limitations. The district court rejected their plea and granted summary judgment for defendants. On appeal, we held that while plaintiffs knew or should have known of facts "calculated to excite inquiry," summary judgment was improper because there existed a genuine factual issue as to whether plaintiffs, through the exercise of due diligence, would have discovered adequate ground for filing suit. 600 F.2d at 1170-71. Beef Industry differs materially from the instant case. The facts in that case did not show that defendants ended their concealment of plaintiffs' claim prior to the commencement of the limitations period. Here, however, defendants have conclusively shown that more than one year before the Klan filed suit, the government lifted the veil of secrecy covering the COINTELPRO program. Unlike the situation in Beef Industry, it is clear that the Klan would have discovered evidence supporting their claim by the exercise of due diligence 6 The press release did not name the organizations regarded by the FBI as "White Hate" groups. The district court took judicial notice that the Klan was such a group; accordingly, the court held that the Klan should have known that it was a COINTELPRO target. We find it unnecessary to reach the matter of judicial notice in order to charge the Klan with knowledge that it was a COINTELPRO target. As discussed in the text below, during the press conference, Attorney General Saxbe specifically referred to the Klan in discussing COINTELPRO's activities; a Senate report published in April, 1976, not only stated that the Klan was a target of COINTELPRO, it described in detail many of the most disruptive activities employed by COINTELPRO against the Klan; and, on August 24, 1976, the president of the plaintiff corporation received a letter from the Department of Justice informing him that he may have been affected by COINTELPRO. These facts should have put the Klan on notice that it was a COINTELPRO target 7 The press release stated that COINTELPRO's activities involving White Hate groups included, for example, sending anonymous or fictitious materials to members or groups designed to create dissension and cause disruption within the groups; leaking non-public information to media sources, especially investigative material, for the purpose of exposing the nature, aims and membership of the various groups; use of informants to disrupt a group's activities by sowing dissension and exploiting disputes; informing employers, credit bureaus, and creditors of members' activities in order to adversely affect their employment status or credit standing; informing or contacting businesses or persons with whom members had economic dealings of members' activities for the purpose of adversely affecting their economic interests; interviewing or contacting members for the purpose of letting them know that the FBI was aware of their activity and also in an attempt to develop them as informants; establishing sham organizations designed to send out material to disrupt the groups; informing family or others of radical or immoral activity; reproducing a group leader's signature stamp; and, obtaining tax returns of members of a group. These activities, together with those described in the Senate report, see text infra, comprise at least in general terms, the bulk of the activities challenged in the Klan's complaint	{ "pile_set_name": "FreeLaw" }
630 F.3d 1108 (2011) UNITED STATES of America, Appellee, v. Obell Xavier VANOVER, Appellant. United States of America, Appellee, v. Barbara Jane Vanover, Appellant. Nos. 09-3571, 09-3599. United States Court of Appeals, Eighth Circuit. Submitted: April 13, 2010. Filed: January 13, 2011. 1110 Gregory Thomas Racette, argued, Nicholas W. Platt, on the brief, Des Moines, IA, for appellant Obell Xavier Vanover. Patrick H. Payton, argued, Des Moines, IA, for appellant Barbara Jane Vanover. Mary Clare Luxa, AUSA, argued, Des Moines, IA, for appellee. Before RILEY, Chief Judge, COLLOTON and BENTON, Circuit Judges. PER CURIAM. Obell "Butch" Vanover and Barbara "Barb" Vanover, husband and wife, appeal their drug trafficking and firearm convictions. The Vanovers allege there is insufficient evidence to support their convictions and the district court[1] crafted an erroneous jury instruction. Butch also argues 1111 the district court erred in denying his motion to suppress. We affirm. I. BACKGROUND When viewed in the light most favorable to the jury's verdicts and accepting all reasonable inferences in support thereof, see, e.g., United States v. Bordeaux, 570 F.3d 1041, 1047 (8th Cir.2009), the facts are these: A. Detective Wagner Investigates the Vanovers Detective Mesha Wagner serves on the Mid-Iowa Narcotics Enforcement (MINE) task force, a cooperative effort among federal, state, and local law enforcement agencies in Central Iowa. The MINE task force focuses on illegal narcotics interdiction in Des Moines and its suburbs. In August 2007, an anonymous tipster informed Detective Wagner the Vanovers were selling and using methamphetamine in their Des Moines home. In October 2007, Detective Wagner searched the Vanovers' curbside garbage. In the Vanovers' trash, Detective Wagner found letters addressed to the Vanovers, Ziploc baggies with torn corners (so-called "corner baggies"), and a small jeweler's baggy containing methamphetamine residue. As expert witnesses would later attest at the Vanovers' trial, drug dealers commonly package small quantities of illegal narcotics in baggies similar to those found in the Vanovers' garbage. B. Unrelated Investigation Leads to the Vanovers On December 19, 2007, members of the MINE task force were conducting surveillance of Debra Dale in a then-unrelated investigation. Law enforcement officers suspected Dale was selling methamphetamine. One officer gave a confidential informant (CI) $540 to buy a quarter ounce of methamphetamine from Dale. The officer also put a secret listening device on the CI. The CI went to Dale's house and tried to buy methamphetamine from her. Dale told the CI she needed to use the $540 to buy the methamphetamine from her supplier. Dale took the $540, left the CI at her house, and drove away. Law enforcement officers, including Detective Wagner, followed Dale to the Vanovers' home while the CI waited at Dale's house. Dale went into the Vanovers' home to buy the methamphetamine. Barb was home, but Butch was not. Barb took Dale to the master bathroom, opened a drawer, and they discussed how much methamphetamine Dale needed. Dale asked for a quarter ounce. Barb took some methamphetamine, a scale, and baggies out of the drawer. Because there was not enough methamphetamine in the drawer for the relatively large quantity Dale had requested, Barb told Dale to wait. Barb then went to the Vanovers' garage to obtain more methamphetamine. Shortly thereafter, Barb returned to the bathroom with another baggie of methamphetamine. Barb sold Dale a quarter ounce of methamphetamine in a baggie for $540. Barb then gave Dale a small "bonus" of methamphetamine in a second baggie for arranging the sale with the CI. Dale left and drove towards her home. Several blocks away from the Vanovers' home, law enforcement officers stopped Dale for a minor traffic violation. The law enforcement officers asked Dale for permission to search her person, and Dale consented. The officers found the two baggies of methamphetamine in Dale's brassiere. Dale admitted she had just bought the methamphetamine from Barb. C. Raid of the Vanovers' Home Later that afternoon, Detective Wagner obtained a warrant to search the Vanovers' 1112 home. Around 4:50 p.m., ten MINE task force members executed the warrant. Upon arrival, they found a Hispanic man outside the Vanovers' home in a car bearing Nebraska license plates. Officers detained the man while they knocked and announced their presence. Barb answered the door and let the officers inside the home. The officers brought the man inside and assembled all persons, including a large number of children,[2] into the Vanovers' living room. 1. Miranda Warnings Around 5:00 p.m., Detective Wagner read Barb her Miranda[3] rights. Barb indicated she understood her Miranda rights and waived her right to remain silent. Detective Wagner took Barb upstairs to a bathroom and interviewed her. At first, Barb insisted there were no illegal narcotics in the home and she did not deal drugs, but admitted she used methamphetamine. Eventually, however, Barb admitted she had sold methamphetamine "in the past" and there was a small quantity of methamphetamine in one of the bathrooms. When the interview concluded, Detective Wagner brought Barb downstairs into the living room. Butch then arrived home from work. Officers handcuffed Butch, escorted him to the living room, and sat him down on a couch next to Barb and the unidentified Hispanic man. Officer Justin Song, a MINE task force member from the Ankeny Police Department, then read Miranda warnings aloud to all three suspects as they sat on the couch. Butch verbally acknowledged to Officer Song that he understood his Miranda rights and agreed to an interview. Deputies Lonnie Peterman and Tom Griffiths, MINE task force members from the Polk County Sheriff's Office, led Butch down to the basement where they interviewed him for about an hour. Detective Wagner came downstairs mid-interview, and Butch then admitted he had recently started selling methamphetamine and there was methamphetamine in the home. Butch insisted he did not use methamphetamine. 2. Search of the Vanovers' Home Members of the MINE task force searched the Vanovers' home. In the garage, officers found four Ziploc bags containing 119 grams of a mixture or substance containing methamphetamine. The four bags of methamphetamine were found inside a large plastic bag atop a shelf. In the basement, officers found empty Ziploc baggies with the number "1,000" written on them. In the master bathroom, task force members found unused Ziploc baggies, a Ziploc baggie with a mixture or substance containing 6.55 grams of methamphetamine in it, and several corner baggies in the trash. Scattered around the master bedroom, officers found Barb's purse, which contained .4 grams of a mixture or substance containing methamphetamine inside a Ziploc baggie, and envelopes addressed to the Vanovers, including an utility bill addressed to Butch. Within a dresser in the master bedroom, officers found .51 grams of a mixture or substance containing methamphetamine, a digital scale, and related drug paraphernalia. In the Vanovers' bed in the master bedroomlodged between the mattress and the box springofficers found (1) a High Point Model C9 9 mm Luger pistol; (2) unused Ziploc baggies; and (3) four Ziploc baggies containing a total of $4,000 in cash. The High Point was fully operational, loaded with Remington Peters 9 mm ammunition, 1113 and placed near the edge of the head of the bed. In a safe in the master bedroom, officers found a Taurus PT-22.22 caliber pistol, .22 and .38 ammunition, 12-gauge shotgun slugs, some Ziploc baggies with white residue inside, a scale, a 100-gram weight, a small spoon, and other drug paraphernalia. Including the methamphetamine found in Dale's brassiere, officers found a total of 142 grams of mixtures or substances containing methamphetamine attributable to the Vanovers during their investigation. The law enforcement officers never found the $540 the CI gave Dale to buy the quarter ounce of methamphetamine from Barb. Further, a fingerprint expert who examined the firearms and ammunition did not find the Vanovers' fingerprints. The expert did find the fingerprints of two unidentified persons on the High Point's magazine. There is no evidence either firearm had been fired. The Taurus firearm was not functional. D. Prior Proceedings In September 2008, a grand jury returned a seven-count superseding indictment against the Vanovers. Only Counts 1 through 5 are relevant to this appeal.[4] Count 1 charged the Vanovers with conspiracy to distribute methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), and 846. Count 2 charged the Vanovers with distribution of methamphetamine, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C), and 18 U.S.C. § 2. Count 3 charged the Vanovers with possession with intent to distribute methamphetamine, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B), and 18 U.S.C. § 2. Count 4 charged the Vanovers with "Use or Carry [sic] a Firearm in Furtherance to [sic] a Drug Crime," in violation of 18 U.S.C. § 924(c)(1)(A)(i). Count 5 charged Butch with being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). In June 2009, the district court held a three-day jury trial on the superseding indictment. The jury found the Vanovers guilty as charged in Counts 1 through 5. In response to a series of interrogatories, the jury also found the Vanovers conspired to distribute, distributed, and possessed with intent to distribute "at least 50 grams of a mixture and substance containing methamphetamine." The district court sentenced Butch to 420 months of imprisonment and Barb to 181 months of imprisonment. The Vanovers appeal. II. DISCUSSION Before our court are six issues, which fall into three categories. The first category consists of Butch's arguments concerning the denial of his motion to suppress. The second category includes the Vanovers' arguments regarding the sufficiency of the evidence to support their various convictions on Counts 1 through 5. The third category is comprised of the Vanovers' arguments about the district court's marshalling instruction for Count 4. A. Motion to Suppress 1. Standard of Review Our standard of review is narrow with respect to Butch's appeal of the denial of his motion to suppress. Although we review the district court's ultimate legal conclusions de novo, we review the district court's factual findings for clear error. 1114 See United States v. Ingram, 594 F.3d 972, 976 (8th Cir.2010). We "will affirm the district court's denial of a motion to suppress evidence unless it is unsupported by substantial evidence, based on an erroneous interpretation of applicable law, or, based on the entire record, it is clear a mistake was made." United States v. Munoz, 590 F.3d 916, 920 (8th Cir.2010) (quoting United States v. Hogan, 539 F.3d 916, 921 (8th Cir.2008)). 2. Legal Framework In Miranda, the Supreme Court created prophylactic procedural rules that must be followed before a custodial interrogation commences to ensure the Fifth Amendment's mandate that "[n]o person... shall be compelled in any criminal case to be a witness against himself," U.S. Const. amend. V. See Miranda, 384 U.S. at 444, 86 S.Ct. 1602. The Supreme Court held a suspect in custody "must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed." Id. In general, any statements elicited from a suspect in violation of these rules are inadmissible in the government's case-in-chief. See Stansbury v. California, 511 U.S. 318, 322, 114 S.Ct. 1526, 128 L.Ed.2d 293 (1994) (per curiam). Further, in order for a confession obtained during a custodial interrogation to be admissible at trial, the government must show the defendant knowingly, voluntarily, and intelligently waived his Miranda rights. See Miranda, 384 U.S. at 479, 86 S.Ct. 1602. 3. Analysis i. First Issue: Did Detective Song read Butch his Miranda rights? Butch argues the district court clearly erred in finding Detective Song read Butch his Miranda rights and, as a consequence, should have suppressed the incriminating statements Butch made in the basement. Butch highlights various minor inconsistencies in the law enforcement officers' testimony at his suppression hearing. Butch lodges a credibility challenge, opining the district court should have (1) credited Butch's testimony that no law enforcement officer read Miranda rights to him; (2) credited Barb's testimony that she never saw Butch until after he came out of the basement; and (3) discredited the law enforcement officers' testimony that Detective Song read the Miranda warnings to Butch. Butch's argument is not well taken. "A credibility determination made by a district court after a hearing on the merits of a motion to suppress is `virtually unassailable on appeal.'" United States v. Frencher, 503 F.3d 701, 701 (8th Cir.2007) (quoting United States v. Guel-Contreras, 468 F.3d 517, 521 (8th Cir.2006)). We do not detect clear error in the district court's credibility findings. The district court was forced to choose between the testimony of the Vanovers or the law enforcement officers, and the district court credited the testimony of the officers. Substantial evidence supports the district court's finding that Detective Song read Butch his Miranda rights. Detective Song and Deputy Peterman each testified Detective Song read Butch his Miranda rights in the Vanovers' living room and Butch then acknowledged he understood such rights. On cross-examination, Deputy Peterman emphatically stated, "There's no question in my mind that it occurred because I was there." While there were some inconsistencies among the officers' storiesespecially regarding the timing and sequence of the events inside the Vanovers' home during the execution of the search warrantthe district court noted 1115 these inconsistencies in a thoroughly written order. The district court aptly pointed out (1) the officers, as professionals experienced with high-stress environments, would ordinarily remember the facts better than nervous suspects; (2) Miranda warnings are routine; and (3) the officers had less incentive to lie than the Vanovers. ii. Second Issue: Did the district court err in finding Butch waived his Miranda rights? Butch opines "there was certainly police coercion" in his interrogation and concludes the district court erred in finding he voluntarily, knowingly, and intelligently waived his Miranda rights. Butch argues his statements do not pass muster under 18 U.S.C. § 3501(b), which purports to set forth factors a finder of fact should consider when deciding whether a Miranda waiver is valid. Section 3501(b) provides: The trial judge in determining the issue of voluntariness shall take into consideration all the circumstances surrounding the giving of the confession, including (1) the time elapsing between arrest and arraignment of the defendant making the confession ..., (2) whether such defendant knew the nature of the offense... of which he was suspected at the time of making the confession, (3) whether or not such defendant was advised or knew that he was not required to make any statement and that any such statement could be used against him, (4) whether or not such defendant had been advised prior to questioning of his right to the assistance of counsel, and (5) whether or not such defendant was without the assistance of counsel when questioned and when giving such confession. The presence or absence of any of the above-mentioned factors to be taken into consideration by the judge need not be conclusive on the issue of voluntariness of the confession. In accordance with the implicit assumption of the parties, we assume without deciding the district court was required to weigh the § 3501(b) factors. Cf. Dickerson v. United States, 530 U.S. 428, 431, 120 S.Ct. 2326, 147 L.Ed.2d 405 (2000) (discussing § 3501(b) and stating "Miranda and its progeny ... govern the admissibility of statements made during custodial interrogation"). Even so, the district court did not clearly err when it found Butch voluntarily, knowingly, and intelligently waived his Miranda rights. Once again, Butch attacks the district court's credibility findings even though such findings are "`virtually unassailable on appeal.'" Frencher, 503 F.3d at 701 (quoting Guel-Contreras, 468 F.3d at 521). For example, Butch points us to his own testimony that (1) Detective Griffiths told Butch, "if you talk to me, I can probably help you out"; (2) Detective Song did not read Butch the Miranda warnings; and (3) Butch was cowed into confessing because he lacked experience with interrogations. The district court did not credit Butch's testimony, and the court's credibility findings were not clearly erroneous. Detective Wagner testified she never promised Butch any type of leniency or threatened him. Deputy Peterman and Deputy Griffiths testified no one made any promises of leniency to Butch. When asked whether he made such a promise, Deputy Griffiths stated: [A]bsolutely not. I never make that type of a statement to anybody. I'm not a judge. I'm not an attorney. I'm a police officer. I can't make promises like that to anyone. It is undisputed Butch has a long criminal history and is not unfamiliar with law enforcement officers. Further, as the district court recognized, Butch admitted Detective Griffiths told him before the interrogation 1116 that he "was in trouble for the guns and drugs that were found" in the house. Butch thus knew the nature of the subject offenses. Under the totality of the circumstances, there is substantial evidence to support the district court's finding that Butch voluntarily, knowingly, and intelligently waived his Miranda rights. The officers holstered their firearms after securing the premises; no one raised their voices or argued; Butch was not under the influence of alcohol or any narcotics; and the officers wore plain clothes. Although handcuffed and without counsel during the interview, Butch was in his own home. Deputy Peterman testified Butch was "calm, nice, pleasant, concerned." Detective Wagner testified Butch was "very calm" and there was no tension or conflict in the air. Officer Song testified "[t]here wasn't anything specific about [Butch's] demeanor that would indicate ... he was under any kind of emotional distress." Deputy Griffiths testified Butch was "relaxed." Interestingly, Butch knew Deputy Griffiths from their days selling cars together at a Des Moines car dealership in the 1970s. Deputy Griffiths knew Butch well enough to call him "Butch" and not "Obell." Butch replied, "hi, Tom." The record adequately reflects the officers gave Butch Miranda warnings, and Butch waived his rights by thereafter answering the officers' questions. B. Sufficiency of the Evidence 1. Legal Standard With respect to the Vanovers' various sufficiency of the evidence arguments, we view the evidence in the light most favorable to the jury's verdicts, draw all reasonable inferences in favor of those verdicts, and reverse "only if no reasonable jury could have found [the Vanovers] guilty beyond a reasonable doubt." United States v. Butler, 594 F.3d 955, 964 (8th Cir.2010). "[O]ur role is not to reweigh the evidence or to test the credibility of the witnesses," because "`[q]uestions of credibility are the province of the jury.'" United States v. Dugan, 238 F.3d 1041, 1045 (8th Cir.2001) (quoting United States v. Chavez, 230 F.3d 1089, 1091 (8th Cir. 2000)). 2. Analysis i. Third Issue: Is there sufficient evidence to support Butch's drug trafficking convictions? Butch appears to concede, if the district court did not err in failing to suppress his incriminating statements, sufficient evidence supports his drug trafficking convictions. Because the district court did not err in denying suppression, Butch's sufficiency argument is a non-starter. In any event, sufficient evidence supports Butch's drug trafficking convictions on Counts 1, 2, and 3. See 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), 841(b)(1)(C), and 846. Even if we ignore Butch's incriminating statements in the basementarguably explicit confessions to distribution of methamphetamine and possession with intent to distribute methamphetamineother evidence in the record is sufficient to establish Butch's guilt.[5] Butch's home was filled with indicia of drug dealing, including a relatively large quantity of methamphetamine, weapons, drug paraphernalia, and $4,000 in cash. Detective Griffiths explained methamphetamine is a powerful 1117 narcotic and 142 grams of a mixture or substance containing methamphetamine is "definitely" a distribution amount. Detective Griffiths described how firearms, Ziploc baggies, scales, and the other paraphernalia further the drug trade. Dale testified she and her husband bought methamphetamine from the Vanovers at least fifty times between 2005 and 2007, in amounts ranging from a quarter of a gram (in exchange for $20-$25), a gram ($80-$100), and a quarter of an ounce ($250-$540).[6] Dale characterized the Vanovers as working together to sell their methamphetamine. For example, immediately before the methamphetamine sale resulting in their arrests, Butch made arrangements over the telephone for Dale to buy methamphetamine from Barb. Dale testified the Vanovers' methamphetamine business was so successful that, on several occasions, Dale had to wait in line behind as many as five to ten other methamphetamine buyers at the Vanovers' home. Onterio Taylor testified, while incarcerated with Butch after Butch's arrest, Butch admitted arranging the methamphetamine sale to Dale and told Taylor the unidentified Hispanic man was Butch's supplier. The Hispanic man had fronted Butch the methamphetamine, and had come to the Vanovers' home to collect $4,000the exact amount of cash found underneath the Vanovers' mattress. Although Butch contends Dale's testimony was untrustworthy because, among other things, (1) she is a confessed methamphetamine addict; (2) she was not cooperating with the MINE task force on December 19, 2007; and (3) law enforcement officers never recovered the $540, the jury apparently found Dale's testimony to be credible. We will not disturb the jury's verdicts. See Dugan, 238 F.3d at 1045 (leaving credibility questions for the jury); see also United States v. Gaona-Lopez, 408 F.3d 500, 505 (8th Cir.2005) ("[W]e do not sit as [a] second jury, and we are completely [u]nwilling to usurp the jury's unique role in judging the credibility of witnesses. The jury is free to believe the testimony of any witness in its entirety, or to reject that testimony as untrustworthy." (quotations omitted)). ii. Fourth Issue: Is there sufficient evidence to support Butch's felon in possession of a firearm conviction? Sufficient evidence supports Butch's felon in possession of a firearm conviction. To convict Butch under 18 U.S.C. § 922(g)(1), as set forth in Count 5, the government was required to prove: "`(1) [Butch] had previously been convicted of a crime punishable by a term of imprisonment exceeding one year; (2) [Butch] knowingly possessed a firearm; [and] (3) the firearm [was] in or ... affected interstate commerce.'" United States v. Claybourne, 415 F.3d 790, 795 (8th Cir. 2005) (quoting United States v. Maxwell, 363 F.3d 815, 818 (8th Cir.2004)). Butch only challenges the second element. In denying Butch's motion for judgment of acquittal, the district court observed "[t]he case is a little thin on the knowledge" element, but held a reasonable jury could find Butch knowingly possessed the High Point underneath his mattress. The district court did not err. It is not fatal that, as Butch stresses, there is no direct evidence he possessed the firearm, because proof of joint constructive possession is sufficient to sustain a conviction under 1118 § 922(g)(1). Id. "`Constructive possession... is established if the person has dominion over the premises where the firearm is located, or control, ownership, or dominion over the firearm itself.'" Id. at 795-96 (quoting United States v. Boykin, 986 F.2d 270, 274 (8th Cir.1993)). Here, a reasonable jury could find Butch knowingly possessed the High Point with Barb jointly under a constructive possession theory: (1) Butch lived in the home in which the firearm was found; (2) Butch slept on the bed in which the firearm was hidden; (3) documents addressed to Butch were found in the same bedroom as the firearm; and (4) Butch admitted to Taylor he owed $4,000 to his methamphetamine supplier, and the firearm was hidden next to $4,000 in cash. As Detective Griffiths testified at trial, drug dealers commonly use firearms for intimidation and protection. Butch, a confessed drug dealer, was more likely to possess a firearm and, as a consequence, use a firearm to protect his methamphetamine, cash, and family. See, e.g., Boykin, 986 F.2d at 274 (holding there was sufficient evidence to support § 922(g)(1) conviction, where firearms were seized in the defendant's master bedroom, including one between the mattress and box spring, a room the defendant shared with his wife). iii. Fifth Issue: Is there sufficient evidence to support the Vanovers' convictions for possessing a firearm in furtherance of a drug trafficking crime? Butch and Barb each argue the evidence was insufficient to support their § 924(c) convictions. Count 4 alleged Butch and Barb "knowingly and intentionally possess[ed] one or more firearms, including [the] High Point ... and ammunition, in furtherance of to [sic][the] drug trafficking crime[s set forth in Counts 1 through 3]."[7] "To secure a conviction under [18 U.S.C.] § 924(c)(1)(A), the government must present evidence from which a reasonable juror could find a `nexus' between the defendant's possession of the charged firearm and the drug crime, such that this possession had the effect of `furthering, advancing or helping forward' the drug crime." United States v. Sanchez-Garcia, 461 F.3d 939, 946 (8th Cir.2006) (citation omitted). "Accordingly, evidence that the defendant simultaneously possessed drugs and a firearm, standing alone, would not warrant submitting the charge to the jury." Id. (citation omitted). "Instead, the jury must be able to infer that the defendant's possession of the firearm facilitated the drug crime, through evidence that the firearm was used for protection, was kept near the drugs, or was in close proximity to the defendant during drug transactions." Id. at 946-47 (citation omitted). United States v. Rush-Richardson, 574 F.3d 906, 909 (8th Cir.2009). Sufficient evidence exists from which a reasonable jury could find the Vanovers each, "in furtherance of [a felony drug trafficking crime], possesse[d]" the High Point. 18 U.S.C. § 924(c)(1)(A). As previously indicated, sufficient evidence shows Butch constructively possessed the firearm jointly with Barb. The same analysis applies with equal, if not greater, force to Barb. Barb lived in the same home as Butch and slept in the same bed, and mail addressed to Barb was found near the High Point. Barb also sold Dale 1119 methamphetamine in an adjoining bathroom next to the concealed firearm, and admitted she knew about the High Point. The remaining element is whether there is sufficient evidence from which a reasonable jury could find the Vanovers each possessed the High Point in furtherance of a drug trafficking crime. The evidence is sufficient. As we have repeatedly recognizedand as an expert witness testified at the Vanovers' trialdrug dealers such as the Vanovers often use firearms for personal protection, intimidation, and to safeguard drugs and cash. See, e.g., Boykin, 986 F.2d at 274. Here, the High Point was placed underneath a mattress in close proximity to a large quantity of cash and packaging materials and in the same room as methamphetamine, ammunition, and drug paraphernalia. The High Point was placed near the edge of the bed for easy access. In other cases, we have found sufficient evidence to support § 924(c) convictions under less damning circumstances. See, e.g., Rush-Richardson, 574 F.3d at 910 (holding sufficient evidence supported a § 924(c) conviction, where the defendant resided in the home in which firearms were found "in a closet in the bedroom across the hallway from [the defendant's] bedroom where cocaine was found" and "in the kitchen, fifteen to twenty feet away from the bedrooms, with drug trafficking paraphernalia and a baggie with cocaine residue"); United States v. Sanchez-Garcia, 461 F.3d 939, 942-44, 946-47 (8th Cir.2006) (holding there was sufficient evidence to support a § 924(c) conviction, where the firearm was identified to be the defendant's, an expert witness testified to the link between drug dealing and firearms, and "saleable quantities of drugs and drug packaging paraphernalia" were found in a kitchen adjacent to a bedroom where the firearm was found on a closet shelf). The evidence is even stronger with respect to Barb, because Dale testified that Barb sold Dale methamphetamine in the adjacent master bathroom. C. Jury Instruction 1. Standard of Review The Vanovers criticize the district court's use of Instruction 20. Because the Vanovers did not object to this instruction in the district court, we review only for plain error. See Rush-Richardson, 574 F.3d at 910. To show plain error, the Vanovers must establish (1) there is an "error"; (2) the error is "clear or obvious, rather than subject to reasonable dispute"; (3) the error "affected [the Vanovers'] substantial rights, which in the ordinary case means" it "affected the outcome of the district court proceedings"; and (4) "the error seriously affect[s] the fairness, integrity or public reputation of judicial proceedings." United States v. Marcus, ___ U.S. ___, 130 S.Ct. 2159, 2164, 176 L.Ed.2d 1012 (2010) (quoting Puckett v. United States, ___ U.S. ___, 129 S.Ct. 1423, 1429, 173 L.Ed.2d 266 (2009)). With respect to the third element, an error only affects substantial rights if it is prejudicial, i.e., the defendant proves there is "a reasonable probability that, but for [the error claimed], the result of the proceeding would have been different." United States v. Dominguez Benitez, 542 U.S. 74, 82, 124 S.Ct. 2333, 159 L.Ed.2d 157 (2004) (quotation omitted). The Vanovers must "satisfy the judgment of the reviewing court, informed by the entire record, that the probability of a different result is sufficient to undermine confidence in the outcome of the proceeding." Id. at 83, 124 S.Ct. 2333 (quotation omitted). 2. Sixth Issue: Does Instruction 20 require reversal? Under 18 U.S.C. § 924(c)(1)(A), a defendant is subject to a mandatory minimum 1120 five-year sentence of imprisonment if he or she (1) used or carried a firearm "during and in relation to" a drug trafficking crime or (2) possessed a firearm "in furtherance of" a drug trafficking crime. The superseding indictment charged the Vanovers under the second prong of § 924(c). In Instruction 20 tracking Eighth Circuit Model Criminal Jury Instruction 6.18.924C (2007), which was later amended the district court defined "in furtherance of" as follows: The phrase "possessed in furtherance of" means the firearm must have some purpose or effect with respect to the crime of conspiracy to distribute methamphetamine, distribution of methamphetamine or possession of methamphetamine with the intent to distribute; its presence or involvement cannot be the result of accident or coincidence. The firearm must facilitate or have the potential to facilitate the offense of conspiracy to distribute methamphetamine, distribution of methamphetamine or possession of methamphetamine with the intent to distribute[.] In United States v. Kent, 531 F.3d 642 (8th Cir.2008), we concluded that a materially similar instruction was erroneous. We reasoned that such a definition of "possession in furtherance of" was almost identical to the Supreme Court's definition of "in relation to." Id. at 654-55. Because this court had concluded in a prior case that "in furtherance of" is a slightly higher level of participation than "during and in relation to," see United States v. Gamboa, 439 F.3d 796, 810 (8th Cir.2006), we concluded that an instruction modeled on Eighth Circuit Model Criminal Jury Instruction 6.18.924C (2007) was erroneous because it "would allow the jury to convict on the lesser finding of `in relation to.'" 531 F.3d at 655. We nonetheless affirmed the conviction, because the defendant did not challenge the jury instruction in the district court or on appeal, and leaving the conviction in place under those circumstances would not seriously affect the fairness, integrity or public reputation of judicial proceedings. Id. at 656-57. It was unnecessary for the Kent opinion to decide whether the error affected the defendant's substantial rights, a question that the panel thought was "close." Id. at 656. (A later decision that cites this dictum in reaching a holding in the subsequent decision, see Rush-Richardson, 574 F.3d at 912, does not convert the dictum in Kent to a holding in Kent. Kent was decided on the fourth prong of plain-error analysis, plain and simple. Cf. post at 1122-23.) Since then, we have decided four more cases involving similar erroneous jury instructions based on the former model instruction for § 924(c). In each case, the defendant failed to object at trial, but raised the error on appeal, and we considered the instruction under a plain-error standard of review. In two cases, we reversed convictions, holding that the erroneous instruction affected the defendant's substantial rights and that the error seriously affected the fairness, integrity, or public reputation of judicial proceedings. Rush-Richardson, 574 F.3d at 910-13; United States v. Brown, 560 F.3d 754, 766-68 (8th Cir.2009). In two more recent decisions, we held that the erroneous jury instruction did not affect the substantial rights of the defendant, given the strength of the evidence in those cases and the narrow circumstances in which a firearm would be possessed "during and in relation to" drug trafficking but not "in furtherance of" drug trafficking. United States v. Mashek, 606 F.3d 922, 931-32 (8th Cir. 2010); United States v. Coleman, 603 F.3d 496, 501-02 (8th Cir.2010). While the concurring opinion finds it "not surprising" that these precedents are "irreconcilable," and characterizes them as "a tangle of conflicting prior panel opinions," post at 1121 1125, we believe they can and should be harmonized. The Mashek and Coleman panels both discussed Rush-Richardson, which in turn discussed Brown, and we presume that the later panels followed the prior panel rule in good faith. Where, as here, there is a reasonable basis to reconcile decisions that have come before, that is the proper course for a panel of a multi-member court. We think the evidence against the Vanovers is comparable to the evidence in Mashek and Coleman, and that the error in this case did not affect the substantial rights of the Vanovers. In Mashek, police found loaded firearms in the defendant's house in the same room with methamphetamine manufacturing equipment and surveillance equipment. 606 F.3d at 932. In Coleman, police seized a loaded firearm and distribution quantities of cocaine and ecstasy from a glove box directly in front of the defendant in a vehicle. 603 F.3d at 501. In this case, police found a loaded High Point pistol under a mattress in the Vanovers' bedroom, positioned near the edge of the bed for easy access, in the same room with a saleable quantity of drugs, $4000 in cash, packaging materials, a scale, and other drug paraphernalia, and adjacent to a room in which Barbara sold methamphetamine. Under those circumstances, we see no reasonable probability that the outcome would have been different if the jury had been instructed correctly on the meaning of "in furtherance." The evidence here is stronger than in Rush-Richardson and Brown, where we held that a comparable instructional error affected a defendant's substantial rights. In Rush-Richardson, the seized firearms were located in different rooms from measurable quantities of drugs one in a bag in a bedroom closet and two others in a bag on top of kitchen cabinets. 574 F.3d at 912. (The opinion in Rush-Richardson made much of the absence of fingerprints on the firearms, id., but none of these five cases involved evidence of the defendant's fingerprints, so the point is immaterial when comparing the cases.) In Brown, one seized firearm was found along with a large amount of cash and a scale in a vehicle belonging to the defendant, but the gun and vehicle were stored at a warehouse, there is no indication that the gun was loaded, and the only controlled substance found in the vicinity was a small amount of marijuana. 560 F.3d at 761. Another firearm was found with 35 pounds of marijuana, a bullet proof vest and ammunition, but this gun was located in a storage unit rented by a co-conspirator, rather than by the defendant, and there is no indication that it was loaded.[8]Id. The inference that the defendant in Brown possessed these firearms "in furtherance of" a drug trafficking offense, while strong enough to convince some that the instructional error should have been deemed harmless, see post at 1123-24, was not as powerful as the inference in this case, 1122 where the defendants kept a loaded and readily-accessible pistol in their bedroom with saleable drugs, drug trafficking material, and a substantial amount of cash. We therefore conclude that the Vanovers have failed to demonstrate a plain error warranting relief. III. CONCLUSION The judgment of the district court is affirmed. RILEY, Chief Judge, concurring in part and concurring in the judgment. I respectfully disagree with the majority's analysis of the sixth issue. The majority sidesteps United States v. Kent, 531 F.3d 642 (8th Cir.2008), rewrites United States v. Brown, 560 F.3d 754 (8th Cir. 2009), and ignores much of United States v. Rush-Richardson, 574 F.3d 906 (8th Cir.2009). I. Majority's Analysis A. Kent The majority does not recount the facts of Kent, saying "[i]t was unnecessary for the Kent opinion to decide whether the error affected the defendant's substantial rights, a question that the panel thought was `close.'" Ante at 1120. The majority implies the facts of Kent are irrelevant to the case before us. I disagree. The defendant in Kent was arrested with two bags of crack cocaine and a firearm on his person. See Kent, 531 F.3d at 647. A loaded firearm, cash, crack cocaine, and men's clothing were later found in Kent's 16-year-old girlfriend's bedroom. Id. In dicta, the Kent court opined it was "a close question" whether the defendant had proven sufficient prejudice to warrant plain-error relief. Id. at 656 (Benton, J., author). For the reasons set forth in Part II.B. below, I believe Kent's "close question" statement was ill-considered. Subsequent panels "might have gone in a different direction" and declined to adopt Kent's dicta as precedent. See Rush-Richardson, 574 F.3d at 913 (Colloton, J., concurring). See also Passmore v. Astrue, 533 F.3d 658, 661 (8th Cir.2008) (noting a panel need not follow dicta, defined as "[a] judicial comment made while delivering a judicial opinion, but one that is unnecessary to the decision in the case and therefore not precedential"). But that is not what happened. What began as Kent's "close question" dictum became the law of the circuit, a polestar in the prejudice determination. See, e.g., Rush-Richardson, 574 F.3d at 912 (majority opinion) ("The evidence here is relatively weaker ... compared to the evidence presented in Kent, where we said the evidence presented a `close question'.... Thus, ... we are convinced, in light of our statement in Kent and our holding in Brown, the evidence in Rush-Richardson's case suggests Rush-Richardson's substantial rights were affected.").[9] The majority effectively strips Kent of its precedential force. See Drake v. Scott, 812 F.2d 395, 400 (8th Cir.1987) ("One panel of this Court is not at liberty to disregard a precedent handed down by another panel."). See also Eisner v. Macomber, 252 U.S. 189, 205, 40 S.Ct. 189, 64 L.Ed. 521 (1920) ("And what we have quoted from the opinion in that case cannot be regarded as obiter dictum, it having furnished the entire basis for the conclusion 1123 reached."); Darr v. Burford, 339 U.S. 200, 225-26, 70 S.Ct. 587, 94 L.Ed. 761 (1950) (Frankfurter, J., dissenting) ("The disclosure of the reasoning by which a conclusion is reached cannot remotely be deemed dictum. A decision implies the process of reasoning which requires it."). If it was a "close question" whether the defendant in Kent suffered prejudice, then there is prejudice warranting plain-error relief in the case at bar. Although the evidence against the Vanovers is strong, neither Barb nor Butch was caught as "red handed" as the defendant in Kent, who was caught with a firearm and distribution-quantity drugs on his person.[10] B. Brown In Brown, a .38 caliber revolver, ammunition, a scale, $16,000 in cash, and a small amount of marijuana were seized from the defendant's vehicle stored at a warehouse. See Brown, 560 F.3d at 761. A semi-automatic rifle, ammunition, and 35 pounds of marijuana were found in a storage unit leased by one of the defendant's co-conspirators. Id. at 767-68. The Brown court reasoned the "evidence might support a finding that Brown possessed these firearms, but ... would not support a finding that Brown used or carried them." Id. at 768 (emphasis in original). Brown concluded the defendant's substantial rights were affected and reversed. See id. It strains reason to conclude the evidence on the "in furtherance of" element of the Vanovers' § 924(c)(1)(A) convictions is materially stronger than the evidence discussed in Brown, such that reversal was warranted in Brown, but not here. This is not to say I agree with Brown, or that I am able to reconcile Brown with some of our most recent cases in this area of the law. See infra Part II.A. My point is, if reversal was appropriate in Brown, then reversal probably is appropriate here. The majority attempts to distinguish Brown on its facts, averring that the presence of a tight nexus among a loaded firearm, distribution-quantity drugs, and each defendant tips the balance in the case at bar toward affirmance. The majority emphasizes "there is no indication" the two firearms at issue in Brown were loaded. Ante at 1121. On the other hand, there is no indication the two firearms in Brown were unloaded either. Neither the Brown court, the parties, the witnesses, nor the district court made any mention of whether the firearms were loaded or unloaded in that case. Because the loaded or unloaded state of the firearms was a question the Brown court left open, it could not have been relevant to its holding. The parties and lawyers in Brown may be surprised to learn an outcome-determinative factor in their case was the absence of any indication in the record that the firearms were loaded. The majority's analysis, which recasts Brown's holding by answering an unasked question about that case, is inconsistent with the traditional principles of stare decisis 1124 underlying our common law jurisprudence. See Cooper Indus., Inc. v. Aviall Servs., Inc., 543 U.S. 157, 170, 125 S.Ct. 577, 160 L.Ed.2d 548 (2004) ("Questions which merely lurk in the record, neither brought to the attention of the court nor ruled upon, are not to be considered as having been so decided as to constitute precedents." (quoting Webster v. Fall, 266 U.S. 507, 511, 45 S.Ct. 148, 69 L.Ed. 411 (1925))). In effect, the majority overrules Brown, adhering to the logic of K.N. Llewellyn, The Bramble Bush 63 (1930) ("Every case lays down a rule, the rule of the case. The express ratio decidendi is prima facie the rule of the case, since it is the ground upon which the court chose to rest its decision. But a later court can reexamine the case and ... through examination of the facts ... narrow the picture of what was actually before the court and can hold that the ruling made requires to be understood as thus restricted. ... And when you find this said of a past case you know that in effect it has been overruled."). I do not agree with Brown, but I cannot distinguish it.[11] "[T]he life of the law consists to a very large extent in the guidance both of officials and private individuals by determinate rules which ... do not require from them a fresh judgment from case to case." H.L.A. Hart, The Concept of Law 135 (2d ed. 1994). Here, the predictability of the law suffers as the majority's creative distinction leaves practitioners wondering what will happen in the next case. See Payne v. Tennessee, 501 U.S. 808, 827, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991) ("Stare decisis ... promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process."). The statute does not require the firearm be loaded to establish the "in furtherance of" element. See 18 U.S.C. § 924(c)(1)(A). But the majority's decision today will lead future panels to view the presence of a loaded firearm near distribution-quantity drugs as an outcome-determinative factor in the prejudice analysis, drifting away from the statutory language. C. Rush-Richardson In Rush-Richardson, 574 F.3d at 906, we adhered to Kent and Brown and reversed another § 924(c) conviction on plain-error grounds. In so holding, we explicitly relied on the facts that (1) "the government presented no definitive evidence of Rush-Richardson's fingerprints on, or physical evidence connecting Rush-Richardson to, the firearms," (2) "[o]ne fingerprint was discovered on one firearm, and that fingerprint was not Rush-Richardson's," and (3) the prosecutor's closing argument emphasized the erroneous definition of "in furtherance of" in the jury instructions. Id. at 912.[12] The majority ignores or labels as "immaterial" these three important parts of Rush-Richardson's holding, which all militate 1125 in favor of reversal of the Vanovers' convictions. Ante at 1121. In the Vanovers' case, forensic analysis revealed fingerprints on the High Point's magazine, but those fingerprints did not belong to either Butch or Barb. In her closing argument, the prosecutor stated: [P]art of the instruction that the judge has given you is that the government need only prove that the firearm had the potential to facilitate. We don't have to prove that either [of the defendants] pointed that gun at Debra Dale on December 19th, but what we do have to show you is that the firearm was present, both of them knew that the firearm was present and that they had control over that firearm. In not weighing the absence of the Vanovers' fingerprints, the presence of unidentified fingerprints, or the prosecutor's closing argument, the majority ignores Rush-Richardson's holding that these three facts are relevant and weigh in favor of reversal. In effect, the majority today lends precedential force, not to the Rush-Richardson majority's opinion, but to the concurrence in Rush-Richardson, which disapproved of the majority's reliance on fingerprint evidence. See Rush-Richardson, 574 F.3d at 914-15 (Colloton, J., concurring) (arguing "the absence of fingerprints and physical evidence does not in my view materially advance Rush-Richardson's showing that the mistaken jury instruction affected his substantial rights on the `in furtherance' element"). II. What to Do A. Conflicting Prior Panel Decisions When the full precedential force of Kent, Brown, and Rush-Richardson is recognized, our precedents in this narrow area of the law do not squeeze into the analytical boxes in which the majority attempts to place them. Brown, for example, is irreconcilable with United States v. Mashek, 606 F.3d 922 (8th Cir.2010), and United States v. Coleman, 603 F.3d 496 (8th Cir. 2010). This is not surprising, because neither the Mashek opinion nor the Coleman opinion mentions Brown.[13] We now are faced with a tangle of conflicting prior panel opinions. Under this circuit's prior panel rule, when two or more previous panel decisions conflict, a subsequent panel is free to follow the decision which is more persuasive and faithful to the law. See Williams v. NFL, 582 F.3d 863, 879 n. 13 (8th Cir.2009), cert. denied, ___ U.S. ___, 131 S.Ct. 566, 178 L.Ed.2d 413 (2010). Elsewhere I have expressed my disagreement with this formulation of the prior panel rule, joining the dissent in Williams v. NFL, 598 F.3d 932, 934-35 (8th Cir.2009) (Colloton, J., dissenting from denial of rehearing en banc) (characterizing this circuit's prior panel rule as "peculiar" and fostering unpredictability in the law). But we may follow that rule here. B. Analysis After weighing our conflicting precedents, I conclude Mashek and Coleman are more persuasive and faithful to the law than Kent and Brown. Plain-error relief is not warranted here. There is only a slight difference between the "during and in relation to" and "in furtherance of" standards. See United States v. Gamboa, 439 F.3d 796, 810 (8th Cir.2006). The Supreme Court has observed that plain-error review should be "circumscribed," that is, a power to be exercised "sparingly." Jones v. United States, 527 U.S. 373, 389, 119 S.Ct. 2090, *1126 144 L.Ed.2d 370 (1999). "It is the rare case in which an improper instruction will justify reversal of a criminal conviction when no objection has been made in the trial court." Henderson v. Kibbe, 431 U.S. 145, 154, 97 S.Ct. 1730, 52 L.Ed.2d 203 (1977). This case does not present one of the narrow circumstances in which the firearm reasonably could have been possessed "during and in relation to" drug trafficking, but not "in furtherance of" drug trafficking, or the rare case in which our circumscribed plain-error power justifies the reversal of the Vanovers' convictions. The evidence against the Vanovers is strong. The High Point was next to a large quantity of cash and drug packaging materials, in the same room as methamphetamine, ammunition, and drug paraphernalia, and near the edge of the bed for easy access. Dale testified Barb sold Dale methamphetamine in an adjacent master bathroom. I would not exercise our discretion to notice any plain error. See Weems, 217 U.S. at 362, 30 S.Ct. 544. III. CONCLUSION I fully concur in the opinion of the court with respect to the first through fifth issues. With respect to the sixth issue, I concur in the judgment only. NOTES [1] The Honorable James E. Gritzner, United States District Judge for the Southern District of Iowa. [2] Barb was operating an in-home daycare. [3] Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). [4] Count 6 charged Butch with witness tampering, in violation of 18 U.S.C. § 1512(b)(1). After four hours of deliberations, the jury announced it was "deadlocked" on Count 6, but had reached verdicts as to the remaining counts. The district court declared a mistrial as to Count 6 only, and the government has declined to retry that count. Count 7 was a forfeiture provision. [5] In his closing argument to the jury, Butch's attorney conceded Butch was selling methamphetamine at the time of his arrest. Butch's attorney only argued the government had not established the drug quantities alleged in the superseding indictment. In Counts 1 and 3, the government alleged Butch was responsible for at least 50 grams of a mixture or substance containing methamphetamine. [6] Dale reported the Vanovers sometimes accepted clothing, jewelry, furniture, and other merchandise in lieu of cash. Dale explained she and her husband went "curbing over in the rich area" of Des Moines and picked up abandoned garbage items to later trade to the Vanovers for methamphetamine. [7] Count 4 also charged Butch and Barb with possessing the Taurus in furtherance of felony drug trafficking crimes, but the district court dismissed such allegations at the conclusion of the government's case-in-chief because it was undisputed the Taurus was not functional. [8] Despite the government's obvious incentive to highlight evidence of a loaded firearm in a § 924(c) prosecution, the government's brief in Brown never asserted that these firearms were loaded, while it did report that a different count of conviction involved a "loaded.357 Magnum firearm." See Brief of Appellee at 16, 32, 44, Brown, 560 F.3d 754. The issue here, moreover, is not whether the panel in Brown thought it important that the firearms were loaded or unloaded, cf. post at 1123-24, but whether subsequent panels may legitimately view that factor as a basis for distinguishing Brown from a case in which loaded firearms strengthen the argument for harmlessness. The concurrence ironically asserts that our comparison of the facts of these cases is "inconsistent with the traditional principles of stare decisis underlying our common law jurisprudence," post at 1123-24, while at the same time charging that we follow what Karl Llewellyn described as "the orthodox doctrine of precedent." K. Llewellyn, The Bramble Bush on Our Law and Its Study 72 (1960). [9] The Rush-Richardson panel was unanimous on this point. See Rush-Richardson, 574 F.3d at 913 (Colloton, J., concurring) ("If a comparable instruction created a `close' question ... in Kent, and crossed the threshold in Brown... then it seems to follow that Rush-Richardson's substantial rights were affected. ... Our cases might have gone in a different direction ... but I ultimately agree with the disposition of this case in light of Brown and Kent."). [10] In Weems v. United States, 217 U.S. 349, 362, 30 S.Ct. 544, 54 L.Ed. 793 (1910), the Supreme Court held the plain-error "rule is not altogether controlled by precedent," but "confers a discretion that may be exercised at any time, no matter what may have been done at some other time." See also 21 C.J.S. Courts § 207 ("[T]he discretionary decision of an appellate panel to notice plain error is totally ad hoc, and a decision by one particular panel on one particular occasion to do so is not binding on subsequent panels, even when similar subject matter seems involved."). The majority's unstated premise that stare decisis applies in the plain-error context seems doubtful in light of Weems. For present purposes, however, I assume, as does the majority, that precedent controls our decision to grant or deny plain-error relief. If our review were totally ad hoc, I would deny plain error relief for the reasons stated in Part II.B. below. [11] The majority says "there is a reasonable basis [here] to reconcile [these] decisions," which "is the proper course for a panel of a multi-member court." Ante at 1121. While I agree with the rule, I disagree that there is a reasonable basis here for reconciliation. The majority reconciles the decisions by ignoring the precedent of Kent, creating an unsupported, never discussed "fact" distinction in Brown and declaring the reasoning held material by the majority opinion in Rush-Richardson now "immaterial." Such reconciliation, in my view, does not comport with the doctrine of stare decisis. Cf. Battaglia v. United States, 303 F.2d 683, 686-87 (2d Cir. 1962) (Friendly, J., concurring). [12] Similarly, in reversing, the Brown court remarked "the government's closing argument exacerbated the error in the instructions." Brown, 560 F.3d at 768. [13] The parties did not bring Brown, Mashek, or Coleman to our attention. Mashek and Coleman were decided after oral argument.	{ "pile_set_name": "FreeLaw" }
United States Court of Appeals FOR THE EIGHTH CIRCUIT ___________ No. 07-3404 ___________ United States of America, * * Appellee, * * Appeal from the United States v. * District Court for the * Northern District of Iowa. Larry Dean Fry, * * [UNPUBLISHED] Appellant. * ___________ Submitted: April 22, 2008 Filed: April 25, 2008 ___________ Before WOLLMAN, RILEY, and GRUENDER, Circuit Judges. ___________ PER CURIAM. Larry Dean Fry (Fry) appeals the sentence the district court1 imposed after revoking his supervised release. On appeal, Fry argues the revocation-hearing evidence was insufficient to support the district court’s finding that Fry had committed an assault. After carefully reviewing the record, we affirm. We conclude the district court did not clearly err in finding by a preponderance of the evidence that Fry had violated the conditions of his supervised release. See 1 The Honorable Linda R. Reade, Chief Judge, United States District Court for the Northern District of Iowa. United States v. Carothers, 337 F.3d 1017, 1019 (8th Cir. 2003) (stating the government’s burden of proof and the clear-error review standard). Although the district court did not engage in the balancing required by this court’s precedent before admitting hearsay evidence of the alleged assault at the revocation hearing, see United States v. Reynolds, 49 F.3d 423, 426 (8th Cir. 1995) (explaining, before admitting hearsay evidence at revocation hearing, the court must balance defendant’s constitutional right to confront a witness against the government’s explanation for why confrontation is undesirable or impractical), the evidence appears to be admissible under that test, see United States v. Martin, 371 F.3d 446, 448 (8th Cir. 2004) (concluding the hearsay evidence offered by the government is admissible if the evidence is sufficiently reliable and the government has a reasonably satisfactory explanation for not producing the witness). Even if the evidence were not properly admitted, we conclude any error was harmless, given the evidence of other supervised release violations. See Fed. R. Crim. P. 52(a) (“Any error, defect, irregularity, or variance that does not affect substantial rights must be disregarded.”). We grant counsel’s motion to withdraw, and we affirm. ______________________________ -2-	{ "pile_set_name": "FreeLaw" }
In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 19-0243V UNPUBLISHED MONICA LONDONO, Chief Special Master Corcoran Petitioner, Filed: July 27, 2020 v. Special Processing Unit (SPU); SECRETARY OF HEALTH AND Damages Decision Based on Proffer; HUMAN SERVICES, Tetanus Diphtheria acellular Pertussis (Tdap) Vaccine; Shoulder Respondent. Injury Related to Vaccine Administration (SIRVA) Leah VaSahnja Durant, Law Offices of Leah V. Durant, PLLC, Washington, DC, for petitioner. Ryan Daniel Pyles, U.S. Department of Justice, Washington, DC, for respondent. DECISION AWARDING DAMAGES1 On February 12, 2019, Monica Londono filed a petition for compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.,2 (the “Vaccine Act”). Petitioner alleges that she suffered a shoulder injury related to vaccine administration (“SIRVA”) as a result of a tetanus-diphtheria-acellular pertussis (“Tdap”) vaccination administered on October 28, 2016. Petition at 1. The case was assigned to the Special Processing Unit of the Office of Special Masters. On July 27, 2020, a ruling on entitlement was issued, finding Petitioner entitled to compensation for SIRVA. On July 24, 2020, Respondent filed a combined Rule 4 report/proffer on award of compensation (“Proffer”) indicating Petitioner should be 1 Because this unpublished decision contains a reasoned explanation for the action in this case, I am required to post it on the United States Court of Federal Claims' website in accordance with the E- Government Act of 2002. 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of Electronic Government Services). This means the decision will be available to anyone with access to the internet. In accordance with Vaccine Rule 18(b), Petitioner has 14 days to identify and move to redact medical or other information, the disclosure of which would constitute an unwarranted invasion of privacy. If, upon review, I agree that the identified material fits within this definition, I will redact such material from public access. 2National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa (2012). awarded $134,793.32 (representing $130,000.00 for pain and suffering and $4,793.32 for past lost earnings). Rule 4/Proffer at 5. In the Rule 4/Proffer, Respondent represented that Petitioner agrees with the proffered award. Id. Based on the record as a whole, I find that Petitioner is entitled to an award as stated in the Rule 4/Proffer. Pursuant to the terms stated in the Rule 4/Proffer, I award Petitioner a lump sum payment of $134,793.32 (representing $130,000.00 for pain and suffering and $4,793.32 for past lost earnings) in the form of a check payable to Petitioner. This amount represents compensation for all damages that would be available under § 15(a). The clerk of the court is directed to enter judgment in accordance with this decision.3 IT IS SO ORDERED. s/Brian H. Corcoran Brian H. Corcoran Chief Special Master 3 Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by the parties’ joint filing of notice renouncing the right to seek review. 2	{ "pile_set_name": "FreeLaw" }
312 Pa. Superior Ct. 557 (1983) 459 A.2d 362 COMMONWEALTH of Pennsylvania, Appellant, v. John MAXWELL. COMMONWEALTH of Pennsylvania, v. John MAXWELL, Appellant. Superior Court of Pennsylvania. Argued May 11, 1982. Filed March 25, 1983. Reargument Denied May 25, 1983. Petition for Allowance of Appeal Denied November 18, 1983. 558 Maxine J. Stotland, Assistant District Attorney, Philadelphia, for Commonwealth, appellant in No. 1760 and appellee in No. 1764. David Hirsh, Dresher, for appellant in No. 1764 and appellee in No. 1760. Before CAVANAUGH, CIRILLO and HOFFMAN, JJ. CAVANAUGH, Judge: This is an appeal from a judgment of sentence of the Court of Common Pleas of Philadelphia County. The relevant facts of the instant case are as follows: Maxwell was arrested and charged with two counts of robbery.[1] Prior to the trial, Maxwell filed a motion pursuant to Pennsylvania Rule of Criminal Procedure 1101 to waive a trial by jury. The request was opposed by the Commonwealth which asserted an absolute right to a jury trial pursuant to 42 559 Pa.C.S.A. § 5104(c). Maxwell's motion was denied. He was subsequently convicted by a jury on both counts of robbery[2] and sentenced to concurrent terms of probation and fined. The Commonwealth then filed a motion to modify sentence, requesting the court to impose a minimum sentence of four years imprisonment upon Maxwell as a repeat offender.[3] Both the Commonwealth and Maxwell have taken appeals; Maxwell from the order denying his request for a non-jury trial and the Commonwealth from the judgment of sentence. The appeals were consolidated in accordance with Pa.R.A.P. No. 2136. The crucial issue in this appeal is Maxwell's contention that the lower court erred in denying his motion for waiver of a jury trial.[4] Maxwell claims the issue before the lower court was not simply whether he should be permitted to waive his right to a jury trial under Pa.R.Crim.P. 1101, but rather the Commonwealth's right to a jury trial under 42 Pa.C.S.A. § 5104(c) in consideration of his rights under Rule 1101. 560 Our review of the record discloses that the conflict raised by Maxwell between the above mentioned rule and statute was directed to the lower court's attention, however, the court did not address this issue. The following excerpt from the notes of testimony is evidence of this point: [Defense Counsel Co-Defendant No. 1]: There is a separate motion entitled motion for trial by judge alone, which has a memo on it which primarily addresses the initial conflict that exists between Rule 1101 of the Supreme Court Rules of Criminal Procedure which determines the defendant's right to waive a jury trial without any inference to the Commonwealth and Section 5104 of Crimes Code. [Defense Counsel Co-Defendant No. 2:] The Judiciary Act purports to give the Commonwealth the same right to a jury trial as the defendant possesses. As this case has come to the system, it having been designated as a career criminal procedure, it is accompanied by the Commonwealth's demand for a jury trial and it was scheduled and routed in connection with both of those. (N.T., 8/25/80 at 89). The lower court's action in this matter and the recent Pennsylvania Supreme Court decision in Commonwealth v. Sorrell, 500 Pa. 355, 456 A.2d 1326 (1982) warrants this court's consideration of this issue. In Commonwealth v. Sorrell, supra, the Pennsylvania Supreme Court held that 42 Pa.C.S.A. § 5104(c) is unconstitutional. As Chief Justice Roberts (then Justice Roberts), writing for the majority, explained: By conferring upon the prosecution an absolute right to jury trial, 42 Pa.C.S.A. § 5104(c) precludes the trial court from exercising the discretion conferred by Rule 1101 in assessing whether a non-jury trial should be permitted. Unlike Rule 1101, which provides for an impartial determination and fosters public accountability on the part of the prosecutor by encouraging him to state his position on the record. 42 Pa.C.S.A. § 5104(c) provides for prosecutorial 561 control of the accused's motion to waive trial by jury without any provision for the prosecutor's accountability through judicial review. . . . In enacting 42 Pa.C.S.A. § 5104(c), a statute inconsistent with an existing rule of criminal procedure, the Legislature exceeded its constitutional authority. As Rule 1101 was validly adopted and amended pursuant to this Court's constitutional authority and obligation to promulgate rules of procedure to govern courts throughout the Commonwealth, 42 Pa.C.S.A. § 5104(c), must be deemed suspended pursuant to Pa. Const.Art. V, 10(c) and declared unconstitutional. (500 Pa. at 361, 456 A.2d at 1328-1329). Thus the court in Sorrell held that 42 Pa.C.S.A. § 5104(c) is not a valid basis for a lower court's denial of a defendant's motion for a non-jury trial. Accordingly we must now direct our attention to Maxwell's argument that the lower court abused its discretion in denying the waiver request in this case. Rule 1101 of the Pennsylvania Rules of Criminal Procedure provides for a waiver of a jury trial: In all cases, the defendant may waive a jury trial with the consent of his attorney, if any, and approval by a judge of the court in which the case is pending, and elect to be tried by a judge without a jury. The judge shall ascertain from the defendant whether this is a knowing and intelligent waiver and such colloquy shall appear on the record. The waiver shall be in writing made a part of the record and shall be in the following form: (emphasis added). The trial court is not constitutionally prohibited from denying a defendant's request to waive a jury trial. Commonwealth v. Correa, 485 Pa. 376, 402 A.2d 1011 (1979); Commonwealth v. Garrison, 242 Pa.Super. 509, 364 A.2d 388 (1976). However, in analyzing whether to grant such a motion the court must exercise its discretion in determining 562 whether to approve the waiver. Commonwealth v. Giaccio, 311 Pa.Super. 259, 457 A.2d 875 (1983); Commonwealth v. Garrison, 242 Pa.Super. at 515, 364 A.2d at 390-391. There are no guidelines contained in Rule 1101 to assist trial courts in exercising their discretionary power when deciding a defendant's motion to waive a jury trial. There is also limited case law in this area; therefore, we must review a trial court's decision in this type on action on a case by case basis. Commonwealth v. Giaccio, supra. In the instant appeal the record does not indicate the reasons for Maxwell's request to waive his right to a jury trial, it does not reflect the Commonwealth's reason for its demand for a jury trial and it is void of any colloquy between the lower court and Maxwell, which is required by Rule 1101. The following testimony indicates that the lower court's sole justification for denying Maxwell's request was for means of judicial economy. The Court: If I were to grant your request, would you ask that I recuse myself? [Defense Counsel Co-Defendant No. 2]: We would ask that you recuse yourself, sir. The Court: I guess you all join in that same request? [Defense Counsel Co-Defendant No. 2]: That is a request. The Court: If I were to grant the motion to allow them to be tried without a jury, my question is, would you ask me to recuse myself? [Defense Counsel Co-Defendant No. 2]: Yes, sir. I think, Judge, by the very nature of the circumstances which brought this case before Your Honor, you have been exposed to the fact there are prior The Court: You don't have to give me any reason. 563 [Defense Counsel Co-Defendant No. 2]: Yes, sir, that would be the request. The Court: And you join in? In other words, you would also ask me to recuse myself? [Counsel for Defendant-Maxwell]: Yes, sir. I might add, we are joining in this motion orally, sir. There is no written motion. The Court: I am aware of that. I am allowing you to join in the motion. My question to you is, if I grant the motion, would you ask me to recuse myself? [Counsel for Defendant-Maxwell]: Yes, sir. The Court: Now, gentlemen, this case is all ready for trial. The Commonwealth is ready and the defendants are ready. If I were to grant the motion, it would mean sending the case back. This case has been assigned to this courtroom and it is anticipated it will take the greater part of a week. That would mean the courtroom would remain idle. I am not sure another case could be sent here. In view of the fact that if I granted your request to send it back, it would leave the courtroom empty for a whole week. I am going to deny your request. Any other motions? (N.T., 8/25/80, at 89-91). While judicial economy is certainly a vital concern of our trial courts, in this instance the court did not have the benefit of the Supreme Court decision in Sorrell[5] declaring 42 Pa.C.S.A. § 5104(c) unconstitutional, nor did it examine and weigh Maxwell's reasons for wanting a non-jury trial against the desire to have the designated jury room occupied by a jury trial rather than reassign the case and seek another jury case. We therefore reverse and remand for a new trial with instructions to the lower court that if Maxwell on re-trial resubmits a motion for waiver of a jury trial the court should proceed in accordance with Rule 1101. Jurisdiction is relinquished. NOTES [1] Act of December 6, 1972, P.L. 1482, No. 334, Sec. 1, as amended by the Act of June 24, 1976, P.L. 425 No. 102, Sec. 1; 18 Pa.C.S.A. § 3701. [2] Maxwell was initially convicted of conspiracy and two counts of robbery, but the trial court arrested judgment on the charge of conspiracy. [3] The Act of November 26, 1978, P.L. 1316, 319, Section 5(a) (following 42 Pa.C.S.A. §§ 2155 and 9721) states: Until sentencing guidelines adopted by the Pennsylvania Commission on Sentencing and relating to the offenses set out in this subsection become effective pursuant to 18 Pa.C.S.A. § 1385 (relating to publication of guidelines for sentencing), when any person is convicted in any court of this Commonwealth of murder of the third degree, voluntary manslaughter, rape, involuntary deviate sexual intercourse, robbery, aggravated assault as defined in 18 Pa.C.S.A. § 2702(a)(1) (relating to aggravated assault) involving the use of a firearm, arson or kidnapping, or of attempt to commit any of these crimes, and when that person has been previously convicted in this Commonwealth, or any of the offenses set forth in this section or their equivalent, the sentencing court shall consider as a guideline in imposing sentence that such person be sentenced to a minimum term of not less than four years imprisonment. Maxwell was convicted of robbery on two previous occasions. [4] We decline to reach the other issues presented in this appeal due to our disposition of this matter. [5] We held our disposition in this case pending the Supreme Court decision in Sorrell.	{ "pile_set_name": "FreeLaw" }
769 F.Supp. 1457 (1991) MIDWEST GRINDING CO., INC., an Illinois corporation, Plaintiff, v. Joshua M. SPITZ, an individual, Aron Grunfeld, an individual, and U.S. Grinding & Fabricating, Inc., an Illinois corporation, Defendants. No. 86 C 6480. United States District Court, N.D. Illinois, E.D. June 20, 1991. Richard J. Jacobson, Weston W. Hanscom, Keck, Mahin & Cate, Chicago, Ill., for plaintiff Midwest Grinding Co., Inc. William L. Kabaker, Cecilia M. Clarke, Schwartz & Freeman, Chicago, Ill., for defendants Joshua M. Spitz, Aron Grunfeld and U.S. Grinding & Fabricating, Inc. MEMORANDUM OPINION AND ORDER ROVNER, District Judge. I. INTRODUCTION In its second amended complaint, plaintiff Midwest Grinding Company, Inc. ("Midwest") alleges that its former employee, defendant Joshua M. Spitz ("Spitz"), and the new corporation which Spitz allegedly helped to form and operate, defendant U.S. Grinding & Fabricating, Inc. ("U.S. Grinding"), violated the federal Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. §§ 1961-68, by among other things, soliciting and servicing customers 1458 of plaintiff's grinding services.[1] In addition to this federal RICO claim, Midwest also alleges, pursuant to Illinois common law, that Spitz breached his fiduciary duties owed to plaintiff and that U.S. Grinding and defendant Aron Grunfeld ("Grunfeld") tortiously interfered with plaintiff's contractual relationships and reasonable business expectations with its grinding customers. As a result, plaintiff requests that the Court order the defendants to account to Midwest for all proceeds from sales by U.S. Grinding and that the Court impose a constructive trust in favor of plaintiff on all such proceeds. Pending before the Court are defendants' motion for summary judgment and motion to strike plaintiff's statement of additional material facts, which plaintiff submitted in conjunction with its opposition to defendants' summary judgment motion. For the reasons stated herein, the Court will grant defendants' motion for summary judgment on plaintiff's RICO claim. The evidence presented by plaintiff in opposition to defendants' motion fails to establish a "pattern of racketeering activity" under the RICO statute. Such a pattern of illegal conduct is an essential element of a RICO claim pursuant to §§ 1962(c) & (d). Because the Court will grant summary judgment in favor of defendants on the RICO claim and because that claim provides the only basis for the Court's jurisdiction over plaintiff's second amended complaint, the Court also will dismiss plaintiff's pendent state law claims without prejudice to a subsequent state court action on those claims. The Court's resolution of the motion for summary judgment makes it unnecessary to address the merits of defendants' motion to strike plaintiff's statement of additional material facts. That motion, therefore, is denied as moot. II. FACTS Plaintiff Midwest is an Illinois corporation engaged in the business of supplying metal grinding services. (Defendants' 12(m) Statement ("Def. 12(m)") ¶ 1.)[2] During 1459 the time period involved in plaintiff's complaint, Spitz, the president and a director of Midwest, owned one-third of that company's outstanding capital stock. (Id. ¶¶ 9-10; see also Plaintiff's Additional Statement of Material Facts ("Pl.Add. 12(n)") ¶ 41.) The other two-thirds of Midwest's stock was owned by Klein Tools, Inc. ("Klein Tools"), a customer of Midwest which purchased the stock in July 1984. (Def. 12(m) ¶ 9; see also id. ¶ 13.) Effective August 11, 1986, Spitz resigned from Midwest and the next day became an employee of defendant U.S. Grinding, an Illinois corporation also engaged in the business of providing metal grinding services. (Id. ¶¶ 10, 24; see also Pl.Add. 12(n) ¶ 42.) The gravamen of plaintiff's complaint is that Spitz, while still employed as an officer and director of Midwest, conspired with others to form U.S. Grinding and that he directed both customers and employees of Midwest to his new corporation. Plaintiff essentially contends that this conduct breached the duties Spitz owed to Midwest by virtue of his positions as an officer and director of that corporation. The competing corporation, U.S. Grinding, was incorporated on January 27, 1986. (Pl.Add. 12(n) ¶ 28; Def. 12(m) ¶ 16.) Plaintiff's evidence gives rise to the reasonable inference that Spitz assisted Grunfeld in the incorporation of U.S. Grinding. (Pl. Add. 12(n) ¶¶ 31-35.) The records of U.S. Grinding show that, since the time of its incorporation, Grunfeld has been the only stockholder, and Grunfeld and his wife Rachel Grunfeld have been the only directors and officers of that corporation. (Def. 12(m) ¶¶ 17, 18.) Although the records show that Spitz has never been an owner, officer, or director of U.S. Grinding, plaintiff's evidence suggests that Spitz was involved in the direction of the company during the time that he was an officer and director of Midwest. (See Def. 12(m) ¶ 19; see also infra at 5-8.)[3] Viewed in the light most favorable to plaintiff, the evidence establishes that the scheme to defraud alleged in the complaint began in December 1985. It was then that Spitz accompanied Grunfeld to Michigan for the purpose of examining grinding machinery to be used by a new corporation which Grunfeld and Spitz had agreed to form. (Pl.Add. 12(n) ¶¶ 14-17; see also Def. 12(m) ¶ 20.) In January 1986, Grunfeld signed a real estate sale contract for property that would be used by U.S. Grinding. (Pl.Add. 12(n) ¶ 21.) He also executed an industrial building lease for the same premises; that lease took effect on March 1, 1986. (Id. ¶ 22.) Although Grunfeld executed these documents on behalf of U.S. Grinding, Spitz also had viewed the property and was involved in negotiating the industrial building lease. (See Pl.Add. 12(n) ¶¶ 23-25, 27.) U.S. Grinding commenced operations in the Spring of 1986. Prior to the time that he left Midwest in August of that year, Spitz was observed entering and exiting U.S. Grinding's business premises on a number of occasions. (Id. ¶¶ 77, 79-80, 82-84, 86-88, 89; see also Def. 12(m) ¶ 23.) In traveling to and from the office of U.S. Grinding, Spitz often used a van owned by Midwest. (Pl.Add. 12(n) ¶ 90; see also id. ¶ 147.) Telephone records indicate that numerous telephone calls were made from U.S. Grinding both to Midwest and to the Spitz residence. (Id. ¶¶ 70-73, 78, 168; see also id. ¶ 69.) On July 14, 1986, a Midwest pickup truck was observed at U.S. Grinding, although it was unclear for what purpose the truck was there. (Id. ¶¶ 76, 206.) Moreover, Spitz made at least one "pickup" 1460 for U.S. Grinding while he was still employed by Midwest. (Id. ¶ 92.) After U.S. Grinding commenced operations, a number of Midwest customers began sending a portion of their grinding work to this new competitor in the industry. With respect to certain customers, this occurred as early as May 1986, while Spitz still was employed by Midwest. The record is replete with factual issues regarding whether Spitz was involved in obtaining some or all of this business for U.S. Grinding. The evidence presented by plaintiff permits the reasonable inference that Spitz, during the time that he was employed by Midwest, participated in the transfer of some or all of this grinding work to defendant U.S. Grinding. (See, e.g., id. ¶¶ 67, 94, 96, 98, 100, 103-24, 125, 127, 129-31, 133-37, 140-42.) Similarly, after Spitz resigned from Midwest, other Midwest customers began to send grinding work to U.S. Grinding. (See id. ¶¶ 138-39.) In June 1986, after Spitz already had been soliciting business for U.S. Grinding, Midwest presumably experienced a decline in its grinding orders. Spitz reported to plaintiff's Board of Directors that the grinding business was in a depressed state and that he had been spending a substantial amount of his time in the field in an effort to obtain new business. (Id. ¶ 207; see also id. ¶¶ 208, 216.) The Midwest customers who began to utilize the services of U.S. Grinding placed orders with that company in one of two wayseither orally (by telephone or in person) or by preparing and mailing to U.S. Grinding a purchase order. (Def. 12(m) ¶ 28.) At times, a customer would place an order verbally and then confirm that order in writing. (Pl. 12(n) ¶ 28.) After U.S. Grinding received an order, it would prepare five copies of an invoice, one of which eventually would be mailed to the customer as a bill for the grinding work performed. (Def. 12(m) ¶ 29.) Plaintiff also presented evidence suggesting that Spitz may have induced other Midwest employees to become involved with U.S. Grinding during the time that they were employed by Midwest. (Pl.Add. 12(n) ¶¶ 56, 201-03; see also Def. 12(m) ¶¶ 31-36.) For example, Dick Harrison and Carolyn Mathewson both were employed by Midwest, both purportedly were involved with U.S. Grinding while still employed by Midwest, and both accepted positions with U.S. Grinding shortly after Spitz did so in August 1986. (Pl.Add. 12(n) ¶ 169, 175, 178-79, 181-83, 184, 187-88, 190-92, 195, 198.) Moreover, in June 1986, Spitz fired or laid off Midwest's entire night shift, which consisted of approximately six men. (Id. ¶¶ 210, 212; cf. id. ¶¶ 213-14.) Certain of these individuals were later employed by U.S. Grinding. (Def. 12(m) ¶¶ 31-36.) On August 12, 1986, Spitz mailed to the Board of Directors of Klein Tool a request that Klein Tool buy his stock in Midwest, effective August 11, 1986. (Pl.Add. 12(n) ¶ 217; see also Def. 12(m) ¶ 9.) In that letter, Spitz neither disclosed the existence of U.S. Grinding nor his involvement with that company. (Pl.Add. 12(n) ¶ 217.) At the time of his resignation, Spitz knew that certain Midwest customers had been sending grinding work to U.S. Grinding. (Id. ¶ 218.) He also knew that certain grinders who once had been employed by plaintiff were now working for U.S. Grinding. (Id.) On the same day that he mailed the above letter, Spitz became an employee of U.S. Grinding. (Id. ¶ 42.) The U.S. Grinding payroll ledgers reflect that, beginning on September 7, 1986, that company paid Spitz a net salary of $775.00 per week. (Id. ¶ 58.) Plaintiff retained an expert to ascertain the measure of its damages. The expert's opinion, as submitted to the Court with the materials on summary judgment, is that Midwest was damaged by defendants' conduct in the following ways: (1) sales lost to U.S. Grinding prior to the date of Spitz' departure from Midwest; (2) sales lost to U.S. Grinding between August 11 and December 31, 1986 as a result of contacts initiated by Spitz while still employed by Midwest; (3) loss of profit margins on sales retained by Midwest during the relevant time period as a result of competition from U.S. Grinding; and (4) compensation paid 1461 to Spitz by plaintiff when Spitz actually was helping to form and to operate U.S. Grinding. (Id. ¶ 228.) Defendants have moved for summary judgment with respect to all of plaintiff's claims, contending that Midwest has failed to establish a genuine issue of material fact as to any of the four counts in its second amended complaint. The Court reaches only the RICO claim. III. ANALYSIS In moving for summary judgment, defendants bear the burden of establishing that there is no genuine issue of material fact and that they are entitled to judgment as a matter of law. New Burnham Prairie Homes, Inc. v. Village of Burnham, 910 F.2d 1474, 1477 (7th Cir.1990); Fed.R.Civ.P. 56(c). The Court must consider the facts and all reasonable inferences drawn therefrom in the light most favorable to the nonmovant, and where there are doubts as to whether a genuine factual dispute exists, the Court must resolve such doubts in favor of Midwest, the nonmoving party. Burnham, 910 F.2d at 1477. However, once the movants have satisfied their initial burden, the nonmovant has the affirmative burden to come forward with evidence demonstrating that there is a genuine issue of material fact which must reach the factfinder. Id.; Baucher v. Eastern Indiana Production Credit Association, 906 F.2d 332, 334 (7th Cir.1990). A disputed fact is material when it is "outcome determinative under the governing law." Whetstine v. Gates Rubber Co., 895 F.2d 388, 392 (7th Cir.1990); see also Shlay v. Montgomery, 802 F.2d 918, 920 (7th Cir.1986). A fact is genuinely in dispute when "`the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'" Whetstine, 895 F.2d at 392 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986)). A. Count IThe RICO Claim. Defendants contend that they are entitled to summary judgment on count I of plaintiff's second amended complaint, which alleges violations of §§ 1962(c) & (d) of the RICO statute, 18 U.S.C. §§ 1962(c) & (d). Section 1962(c) makes it unlawful "for any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise's affairs through a pattern of racketeering activity or collection of unlawful debt." Section 1962(d) makes it unlawful to conspire to violate subsections (a), (b), or (c) of § 1962. Plaintiff's § 1962(c) claim is directed only at defendant Spitz, whereas the § 1962(d) conspiracy claim is aimed at both Spitz and U.S. Grinding. See Midwest, 716 F.Supp. at 1093-94.[4] To establish a violation of § 1962(c), plaintiff must show that Spitz conducted an enterprise through a pattern of racketeering activity. Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 496, 105 S.Ct. 3275, 3285, 87 L.Ed.2d 346 (1985); Hartz v. Friedman, 919 F.2d 469, 471 (7th Cir.1990); Haroco, Inc. v. American National Bank and Trust Co., 747 F.2d 384, 387 (7th Cir.1984), aff'd, 473 U.S. 606, 105 S.Ct. 3291, 87 L.Ed.2d 437 (1985). Plaintiff contends that Spitz conducted U.S. Grinding, the RICO "enterprise" in this instance, through such a pattern of illegal activity. The predicate acts purportedly giving rise to a RICO violation are those of mail fraud; plaintiff contends that Spitz violated the mail fraud statute by devising a scheme to defraud 1462 Midwest and by using the mails for the purpose of executing that scheme. See 18 U.S.C. § 1341; Midwest, 716 F.Supp. at 1092 & n. 1. The mailings at issue are the series of invoices sent by U.S. Grinding to former customers of Midwest, as well as the August 12, 1986 letter from Spitz to Klein Tools in which Spitz requested that Klein Tools purchase his Midwest shares.[5] According to plaintiff, the invoices were instrumental in defendants' scheme to defraud Midwest because they were the vehicle through which U.S. Grinding collected payments from Midwest's former customers. Moreover, the August 12, 1986 letter purportedly furthered the scheme because, in requesting that Klein Tools purchase his Midwest shares, Spitz failed to inform Klein Tools of his involvement with U.S. Grinding, a company that was directly competing with Midwest in the market for grinding services. In the present motion, Spitz advances three independent bases for a grant of summary judgment in his favor on the RICO count. First, Spitz claims that the scheme to defraud was complete when the invoices at issue were mailed to Midwest's former customers and that, therefore, the mailings were not made in furtherance of the scheme to defraud. Second, Spitz argues that plaintiff has failed to establish the requisite "pattern of racketeering activity" in light of the Supreme Court's decision in H.J. Inc. v. Northwestern Bell Telephone Co., 492 U.S. 229, 109 S.Ct. 2893, 106 L.Ed.2d 195 (1989). Finally, Spitz contends that plaintiff has not shown that he conducted or participated in the affairs of U.S. Grinding, the "enterprise" for purposes of plaintiff's RICO claim. Because it finds that plaintiff has failed to establish a pattern of racketeering activity, the Court grants defendants' motion on that ground and will not reach Spitz' alternative arguments. 1. The "Pattern" Requirement. Defendants contend that, even if the Court were to accept plaintiff's argument that the mailing of the invoices constitutes a prohibited predicate act of mail fraud, plaintiff still has not made out a RICO claim because it has not established the requisite pattern of racketeering activity. In advancing this argument, defendants rely primarily on the Supreme Court's decision in H.J. Inc., contending that pursuant to that decision, plaintiff must prove that the racketeering acts occurred over an extended period of time and continue or pose a threat of doing so. (Defendants' Mem., at 6-7.)[6] According to defendants, plaintiff has failed to establish this "continuity" element because the fraudulent scheme alleged by plaintiff occurred at most over a three- to four-month period, and the scheme necessarily ended when Spitz resigned from Midwest. (Id. at 7.) Thus, defendants contend that there is no threat that the allegedly fraudulent conduct will or might continue. In response, Midwest fails to address the possible impact of H.J. Inc., but instead retorts that "[t]he Court has already rejected [defendants'] argument that the facts alleged are insufficient to support the conclusion of a pattern of racketeering activity." (Plaintiff's Mem., at 8.) In light of the Court's earlier decision on the motion to dismiss, plaintiff maintains that "Spitz would be entitled to summary judgment on the pattern point only if Midwest had no evidence to support its allegations." (Id.)[7]1463 Midwest contends that it has produced such evidence and that, therefore, the requisite pattern of racketeering activity has been established. The Court cannot agree. Under H.J. Inc. and subsequent decisions of the Seventh Circuit interpreting the pattern requirement, Midwest has failed to establish the existence of a pattern of racketeering activity. As a result, defendants are entitled to summary judgment on plaintiff's RICO claim. A "pattern of racketeering activity" under the statute "consists of at least two predicate acts of racketeering committed within a ten-year period." Olive Can Co. v. Martin, 906 F.2d 1147, 1150 (7th Cir. 1990); see also 18 U.S.C. § 1961(5). The Supreme Court reaffirmed in H.J. Inc. that two elements are to be considered in analyzing the pattern requirementrelationship and continuity. H.J. Inc., 492 U.S. at 239, 109 S.Ct. at 2900 ("`It is this factor of continuity plus relationship which combines to produce a pattern.'") (Supreme Court's emphasis) (quoting S.Rep. No. 91-617, at 158 (1969)); see also Sedima, S.P.R.L., 473 U.S. at 496 n. 14, 105 S.Ct. at 3285 n. 14; J.D. Marshall International, Inc. v. Redstart, Inc., 935 F.2d 815 (7th Cir.1991); Sutherland v. O'Malley, 882 F.2d 1196, 1203 (7th Cir.1989); Hartz, 919 F.2d at 472; Morgan v. Bank of Waukegan, 804 F.2d 970, 975 (7th Cir.1986); Midwest, 716 F.Supp. at 1094. To establish the requisite pattern of racketeering activity, Midwest must show both "that the racketeering predicates are related, and that they amount to or pose a threat of continued criminal activity." H.J. Inc., 492 U.S. at 239, 109 S.Ct. at 2900 (emphasis in original); see also U.S. Textiles, Inc. v. Anheuser-Busch Cos., 911 F.2d 1261, 1266 (7th Cir.1990); Olive Can Co., 906 F.2d at 1150 ("To establish a pattern, the plaintiff must prove continued criminal activity or a threat of continued activity (the continuity element), and a relationship between the predicate acts (the relationship element)."). In its opinion on defendants' motion to dismiss, the Court held that plaintiff had sufficiently alleged a pattern of racketeering activity. Midwest, 716 F.Supp. at 1094-96. In doing so, the Court relied upon the four factors identified by the Seventh Circuit as relevant to the pattern requirement: "(1) the number and variety of predicate acts and the length of time over which they were committed; (2) the number of victims; (3) the presence of separate schemes; and (4) the occurrence of distinct injuries." Id. at 1094 (quoting Jones v. Lampe, 845 F.2d 755, 757 (7th Cir.1988)); J.D. Marshall, 935 F.2d at 820; see also Morgan, 804 F.2d at 975. Subsequent to the Supreme Court's decision in H.J. Inc., the Seventh Circuit has recognized the continued vitality of these four factors in analyzing the existence of a RICO pattern. See, e.g., Hartz, 919 F.2d at 472; U.S. Textiles, 911 F.2d at 1266. In its earlier opinion, the Court concluded that the allegations in plaintiff's second amended complaint passed the "continuity plus relationship" test. Midwest, 716 F.Supp. at 1095. Addressing the alleged scheme to divert business, employees, and property from Midwest to U.S. Grinding, the Court stated: [t]he factual circumstances alleged in Midwest's complaint with relation to this scheme are not properly characterized as only "one episode of fraud," and the multiple racketeering acts allegedly committed by defendants do not relate to only "one basic transaction." Instead, Midwest's allegations set forth a series of transactions, each of which amounted to a single episode of fraud. Id. The Court concluded that, based upon the allegations in plaintiff's complaint, "[e]ach lost transaction therefore caused Midwest a distinct injury." Id. The Court found that the acts alleged were sufficiently separate in time and place to meet the "continuity" prong of 1464 the test. The acts related to separate transactions, caused numerous distinct injuries, and occurred over a seven-month span. At the same time, the acts are sufficiently related to meet the "relationship" prong of the test. The acts were inflicted upon the same victim, Midwest, involved the same type of fraud, and were committed somewhat closely in time. Id. at 1095-96. Accordingly, the Court found the allegations sufficient to allege a pattern of racketeering activity. Id. at 1096. 2. Relationship. At the summary judgment stage, the Court concludes that the relationship element of the pattern requirement still has been satisfied. The Seventh Circuit has held that predicate acts are related "if the acts `have the same or similar purposes, results, participants, victims, or methods of commission, or otherwise are interrelated by distinguishing characteristics and are not isolated events.'" Hartz, 919 F.2d at 472 (quoting H.J. Inc., 492 U.S. at 240, 109 S.Ct. at 2901); see also J.D. Marshall, 935 F.2d at 820; U.S. Textiles, 911 F.2d at 1267; Sutherland, 882 F.2d at 1204. In its earlier opinion, the Court held that the acts of mail fraud alleged in plaintiff's complaint satisfied the "relationship" test because the "acts were inflicted upon the same victim, Midwest, involved the same type of fraud, and were committed somewhat closely in time." Id. In their motion for summary judgment, defendants do not challenge the existence of a relationship between the predicate acts of mail fraud alleged by plaintiff, and the evidence plainly establishes the existence of such a relationship. The predicate acts involve the same type of misconduct occurring over a relatively short period of time. Moreover, all such acts were undertaken with a common purposeto divert plaintiff's grinding business to U.S. Grinding. See J.D. Marshall, 935 F.2d at 820. Accordingly, the Court finds that the "relationship" element of the pattern requirement has been satisfied. 3. Continuity. Defendants do contend, however, that plaintiff has failed to establish the continuity element. (Defendants' Mem., at 6-7.) In its earlier opinion, the Court found that plaintiff had pleaded facts sufficient to satisfy the continuity element because the acts allegedthe diversion of business in nearly one hundred separate transactions, the diversion of Midwest employees to U.S. Grinding, and the use of Midwest's truck for U.S. Grinding deliveries"related to separate transactions, caused numerous distinct injuries, and occurred over a seven-month span." Midwest, 716 F.Supp. at 1095. Accordingly, the Court found the acts "sufficiently separate in time and place to meet the `continuity' prong of the test." Id. Defendants suggest that H.J. Inc., decided by the Supreme Court after this Court's initial decision in Midwest, changed the rules regarding the "continuity" necessary to establish a RICO pattern. In particular, defendants focus on the Supreme Court's statement in H.J. Inc. that "[p]redicate acts extending over a few weeks or months and threatening no future criminal conduct do not satisfy [the continuity] requirement." 492 U.S. at 242, 109 S.Ct. at 2902; see Defendants' Mem. at 7. It is with good reason that defendants focus on H.J. Inc., for since the Supreme Court's decision in that case, the Seventh Circuit has not found a pattern of racketeering activity to exist in any civil RICO case that has presented the issue. Hartz, 919 F.2d at 472. Rather, in each case decided since H.J. Inc., the Seventh Circuit has concluded "that the necessary continuity was absent." Id. (collecting cases). The Supreme Court held in H.J. Inc. that in order to satisfy the continuity requirement, a RICO plaintiff must establish that "the predicates themselves amount to, or that they otherwise constitute a threat of, continuing racketeering activity.'" H.J. Inc., 492 U.S. at 240, 109 S.Ct. at 2901 (emphasis in original); see also J.D. Marshall, 935 F.2d at 820; U.S. Textiles, 911 F.2d at 1267. Recognizing the difficulty in the abstract of formulating any definitive 1465 test for continuity, the Supreme Court defined the concept as both closed- and openended. "Continuity," the Court held, refers "either to a closed period of repeated conduct, or to past conduct that by its nature projects into the future with a threat of repetition." H.J. Inc., 492 U.S. at 241, 109 S.Ct. at 2902; see also U.S. Textiles, 911 F.2d at 1267; R.E. Davis Chemical Corp. v. Nalco Chemical Co., 757 F.Supp. 1499, 1517 (N.D.Ill.1990) (Rovner, J.) ("the plaintiff must either demonstrate that the defendants have engaged in racketeering activity over a substantial period of time in the past, or that the defendants have embarked upon a course of racketeering activity which threatens to continue into the future."). A "party alleging a RICO violation may demonstrate continuity over a closed period by proving a series of related predicates extending over a substantial period of time;" however, "[p]redicate acts extending over a few weeks or months and threatening no future criminal conduct do not satisfy this requirement." H.J. Inc., 492 U.S. at 242, 109 S.Ct. at 2902.[8] In interpreting and applying this closed-ended test of continuity, the Court is mindful of the Supreme Court's admonition that Congress intended RICO to "reach activities that amount to or threaten long-term criminal activity." H.J. Inc., 492 U.S. at 243 n. 4, 109 S.Ct. at 2902 n. 4; see also P & P Marketing, Inc. v. Ditton, 746 F.Supp. 1354, 1367 (N.D.Ill.1990) (Lindberg, J.).[9] Whether such long-term criminal conduct exists in a particular case requires the Court to carefully examine all facts; the Seventh Circuit has held that "[n]o one factor is determinative" to the continuity analysis. Olive Can Co., 906 F.2d at 1151; see also H.J. Inc., 492 U.S. at 242, 109 S.Ct. at 2902 ("Whether the predicates proved establish a threat of continued racketeering activity depends on the specific facts of each case."). With these principles in mind, the Court turns to the evidence presented by the parties on the current motion. 4. "Continuity" is absent here. After the Supreme Court's decision in H.J. Inc., perhaps the most important of the four factors identified by the Seventh Circuit as relevant to the continuity analysis is the first: the number and variety of predicate acts and the length of time over which they were committed. In the materials presented to the Court on summary judgment, plaintiff has identified numerous instances in which the mails were used to further defendants' purportedly fraudulent scheme. Plaintiff references hundreds of invoices that were mailed by defendants to former Midwest customers in furtherance of their scheme. (See Midwest Mem., at 7 n. 3.) This voluminous number of predicate acts in most circumstances would suggest 1466 the continuity necessary to establish a pattern. In most instances, proof of a significant number of predicate acts will clearly benefit a RICO plaintiff in meeting the pattern requirement. See U.S. Textiles, 911 F.2d at 1268. However, with respect to the type of mail fraud involved here, the sheer number of mailings does not aid plaintiff's cause. The Seventh Circuit recently reaffirmed that it "does not look favorably on relying on many instances of mail and wire fraud to form a pattern." Hartz, 919 F.2d at 473. Instead, the Court of Appeals has indicated that "allegations of mail fraud and wire fraud are unique among predicate acts" because a multiplicity of such acts "`may be no indication of the requisite continuity of the underlying fraudulent activity.'" Id. (quoting Lipin Enterprises v. Lee, 803 F.2d 322, 325 (7th Cir.1986) (Cudahy, J., concurring); see also Ashland Oil, Inc. v. Arnett, 875 F.2d 1271, 1278 (7th Cir.1989) ("the number of [mail and wire fraud] offenses is only tangentially related to the underlying fraud, and can be a matter of happenstance."). These principles have particular application to the present case. The predicate acts identified by plaintiff all involve use of the mails to further defendants' purportedly fraudulent scheme. For the most part, the mailings at issue were invoices sent to former Midwest customers requesting payment for services rendered by U.S. Grinding. Although the number of such invoices may have been great, there was little if any variety in the acts alleged. See Olive Can Co., 906 F.2d at 1151 ("while there were a large number of predicate acts, they were not of great variety.").[10] Instead, U.S. Grinding utilized the mails to invoice all of its customers, both those that may have been wrongfully diverted from Midwest and others that had not been so diverted. Although numerous invoices were involved in the present case, those invoices were largely directed to a limited number of customers. As a result, the number of mailings at issue is only tangentially related to the scope of the underlying fraud.[11] In these circumstances, the Court concludes that the sheer number of invoices does not translate automatically into a pattern of racketeering activity. See Hartz, 919 F.2d at 473. Moreover, and more importantly, although plaintiff suggests that the allegedly fraudulent scheme extended over a nine month period (Plaintiff's Mem., at 8),[12]1467 there is no dispute that the scheme had a definite conclusion and that no threat of continued criminal activity is posed. As presented by plaintiff itself, the "real issue in this case ... is that for about nine months, from December 1985 into August 1986, Spitz secretly competed with Midwest, while remaining the president and a director" of that company. (Plaintiff's Mem., at 8.)[13] Plaintiff does not suggest and has presented no evidence to prove that defendants' conduct continues today or poses a threat of continuing sometime in the future. The reason is clearonce Spitz left plaintiff's employment on August 11, 1986, he was free to compete with plaintiff. The undisputed evidence establishes that Spitz was not bound by any agreement restricting such competition. Once the employer-employee relationship between Midwest and Spitz was terminated, Spitz no longer owed plaintiff the duties of trust and loyalty associated with the positions of an officer and director. Thus, any scheme to defraud Midwest by virtue of his involvement with U.S. Grinding necessarily ended with Spitz' resignation and his subsequent employment with U.S. Grinding. Although Spitz perhaps may be liable under Illinois law for injuries sustained subsequent to the period of his breach (see Vendo Co. v. Stoner, 58 Ill.2d 289, 321 N.E.2d 1 (1974), cert. denied, 420 U.S. 975, 95 S.Ct. 1398, 43 L.Ed.2d 655 (1974)), he was free after the termination of his employment to compete with plaintiff in the market for grinding services. At that point, it was not unlawful for Spitz and U.S. Grinding to solicit Midwest's customers, for competitors regularly engage in such conduct. In short, once Spitz terminated his employment relationship with Midwest, there was no threat that the alleged unlawful conduct would continue. There can be no doubt, therefore, that this is a "closed-ended" case under H.J. Inc. See H.J. Inc., 492 U.S. at 242, 109 S.Ct. at 2902. In a closed-ended case such as this, plaintiff may establish the requisite continuity only by showing "a series of related predicates extending over a substantial period of time." Id. In attempting to make such a showing here, plaintiff is met with (and fails to address) the Supreme Court's admonition in H.J. Inc. that "[p]redicate acts extending over a few weeks or months and threatening no future criminal conduct do not satisfy this requirement." Id. The Seventh Circuit extensively addressed the issue of closed-ended continuity in Olive Can Co. v. Martin, supra. In that case, the plaintiff alleged a RICO violation when the defendants established a sham corporation, concealed the existence of that corporation from plaintiffs, and utilized the corporation to divert funds owed to plaintiffs to one of the individual defendants. 906 F.2d at 1148-49. After five years of discovery, Judge Holderman granted the defendants' motion for summary judgment on the RICO claim, finding that defendants' fraudulent activity "was limited to the last six months of 1983," that the scheme was "closed-ended," and that "there was no threat of continuing racketeering activity." Id. at 1150. The Seventh Circuit affirmed that determination, emphasizing that the fraudulent scheme alleged by the plaintiffs had "a single, short-term goal: giving [the individual defendant] a security interest in the proceeds of the sales of [a corporate defendant] without notifying their secured lender or their trade creditors." Id. at 1152. The Court concluded that [t]he scheme, therefore, had a natural ending with no threat of continued criminal activity. This single scheme was to be short-lived and there is no evidence 1468 that, had the scheme worked, it would have been repeated in the future. There is, therefore, no "specific threat of repetition," nor has there been a showing that the predicate acts are part of the defendants' "regular way of doing business." Id. at 1151 (quoting H.J. Inc., 492 U.S. at 242, 109 S.Ct. at 2902); see also U.S. Textiles, 911 F.2d at 1269 ("identical economic injuries suffered over the course of two years stemming from a single contract were not the type of injuries which Congress intended to compensate via the civil provisions of RICO"); Short v. Belleville Shoe Manufacturing Co., 908 F.2d 1385, 1393 (7th Cir.1990) (four stock transactions within a four- to five-month period do not give rise to a "pattern"); Sutherland, 882 F.2d at 1204-05 (course of conduct extending over a five-month period did not establish the necessary "continuity"). Similarly, in analyzing the RICO pattern requirement in U.S. Textiles, the Seventh Circuit relied upon the decision of the Third Circuit in Marshall-Silver Construction Co. v. Mendel, 894 F.2d 593 (3d Cir.1990). See U.S. Textiles, 911 F.2d at 1268-69. In that case, the Third Circuit examined an allegedly fraudulent scheme in which the defendants threatened to put the plaintiff out of business if they were not paid for certain construction work. Several months later, the defendants carried out their threat by filing a fraudulent bankruptcy petition and generating media publicity to the effect that the plaintiff was insolvent. Marshall-Silver, 894 F.2d at 597. The Third Circuit held that, in the absence of a "more significant societal threat," the RICO statute should not apply to "every garden-variety fraud ... accomplished through a series of wire or mail fraud acts...." Id. Moreover, focusing only on the duration of defendant's scheme, the Court concluded that, "[o]n these facts, the alleged illegal activity posed no threat of additional repeated criminal conduct over a significant period." Id. (emphasis in original). Instead, "the predicate acts themselves were concluded in less than seven months." Id. Under these circumstances, the Third Circuit found the case expressly resolved by the Supreme Court's admonition in H.J. Inc. that "`[p]redicate acts extending over a few weeks or months and threatening no future criminal conduct do not satisfy [the continuity] requirement.'" Id. (quoting H.J. Inc., 492 U.S. at 242, 109 S.Ct. at 2901; see also Kehr Packages, Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1418 (3d Cir.1991) ("an eight-month period of fraudulent activity directed at a single entity does not constitute a pattern, absent a threat of future criminal acts"); Hoffman Electric, Inc. v. Emerson Electric Co., 754 F.Supp. 1070 (W.D.Pa.1991) (dismissing RICO claim where predicate acts occurred at most over a four-month period and "there is no indication of future criminal activity posing a threat to society."). The present case also is similar to a RICO action involving the misappropriation of a company's trade secrets that was dismissed by a Pennsylvania district court last year. See Clement Communications, Inc. v. American Future Systems, Inc., 1990 WL 106762, 1990 U.S.Dist. LEXIS 9165 (E.D.Pa. July 19, 1990). In that case, the district court dismissed the RICO claims and held that the plaintiff's remedy was to seek damages in state court under a misappropriation of trade secret or breach of contract theory. The individual defendants in Clement Communications all were former employees of the plaintiff who then became employees of the defendant American Future Systems ("AFS"). Id. at 1, 1990 U.S. Dist. LEXIS 9165 at 2. While employed by the plaintiff, the individual defendants entered into agreements which prohibited disclosure or use of any of the plaintiff's trade secrets and also restricted the individual defendants from competing with plaintiff for a period of two years after the termination of their employment. Id. at 1, 1990 U.S. Dist. LEXIS 9165 at 2-3. When their employment was terminated, the individual defendants accepted positions with a newly-formed subdivision of AFS, which purportedly was engaged in competition with the plaintiff and was utilizing the plaintiff's trade secrets. The plaintiff alleged that the defendants repeatedly used the mails and wires "to 1469 market, promote and distribute their products and conduct their business" and that such uses were predicate acts under the RICO statute sufficient to establish a pattern of racketeering activity. Id. at 1-2, 1990 U.S. Dist. LEXIS 9165 at 4-5. The plaintiff further alleged that the defendants' pattern of racketeering activity had injured its business through a loss of volume and revenue, and through a concomitant reduction in the value of plaintiff's business. Id. at 2, 1990 U.S.Dist. LEXIS 9165 at 5. The court did not agree, however, that a pattern of racketeering activity had been alleged: it is clear that there was but one alleged scheme to misappropriate the plaintiff's trade secrets, that the scheme took place over a brief period of time, that it had a single victim[plaintiff]and that it was a single, isolated scheme which does not pose a threat of continued criminal activity. Boiled down to its simplest, plaintiff's Complaint alleges that the defendants learned his trade secrets while they were employed by him and that they then left his employ, set up their own company and used his trade secrets to run their business, including but not limited to the publication of a bulletin the same as or identical to [plaintiff's]. Once the defendants left Clement's employ and put his trade secrets to work in their own business, the harm to Clement was done and the scheme ended. There could be no ongoing theft of trade secrets by defendants as they could hardly go back to Clement's employ to steal more. And, since it must be presumed that Clement's trade secrets had a limited business life, the value of any trade secrets stolen by defendants would quickly diminish with time. Thus, defendants have clearly not violated RICO. Rather than a federal court action with potential treble damages, plaintiff's remedy for any alleged wrongdoing is to seek damages from defendants in state court based upon breach of contract and theft of trade secrets. Id. at 6, 1990 U.S.Dist. LEXIS 9165 at 15-16 (emphasis added); see also Sil-Flo, Inc. v. SFHC, Inc., 917 F.2d 1507, 1516 (10th Cir.1990) ("At most, what has been alleged is a business deal gone sour, accompanied by the breach of fiduciary duty and various other torts by the defendants. There certainly is no open-ended threat of future illegal activity."); Cullen v. Paine Webber Group, Inc., 689 F.Supp. 269, 275 (S.D.N.Y.1988) (where the alleged fraud involved defendants' recruitment of plaintiffs in order to capture their client bases, the enterprise had a clear terminating goal, and there was no suggestion that the unlawful conduct would continue). Similarly, the fraudulent scheme involved in the present case had but a single victim plaintiff Midwest. Moreover, the scheme clearly ended at a specific and easily identifiable point in time, and it poses no threat of continued illegal activity. Once Spitz resigned from Midwest, he was under no obligation to refrain from competing with that company. Thus, any scheme necessarily ended with the termination of his employment. Business diverted from Midwest by defendants subsequent to this termination presumably was the result of lawful competition between plaintiff and U.S. Grinding. Absent the existence of a restrictive covenant, nothing prevents an employee from competing with his former employer for a legitimate business advantage. The simple fact that U.S. Grinding retained any customers that may have been wrongfully diverted does not indefinitely extend defendants' scheme. See Biddle Sawyer Corp. v. Charkit Chemical Corp., 1991 WL 60369, 4, 1991 U.S.Dist. LEXIS 4599, 11-12 (S.D.N.Y. Apr. 2, 1991) (dismissing RICO claim based upon diversion of business from the defendant's former employer to present employer). In fact, termination of the scheme in the present case is even more definite than that in Clement Communications, because in the present case, Spitz was not bound by any restrictive covenant or confidentiality agreement that extended beyond the termination of his employment. The individual defendants in Clement Communications, on the other hand, were subject to a two-year non-competition agreement and a broad confidentiality provision. They, *1470 therefore, had obligations and responsibilities to their former employer which extended beyond the term of their employment. Spitz had no such obligations here. Plaintiff's remedy for the alleged breach by Spitz of the duties owed to Midwest during the term of his employment may lie in a state court action for breach of fiduciary duty or tortious interference with business relationships, not in a federal action under the RICO statute.[14] The evidence before the Court simply does not establish the sort of long-term criminal activity to which that statute was directed. See H.J. Inc., 492 U.S. at 243 n. 4, 109 S.Ct. at 2902 n. 4. Instead, this case is more representative of the ordinary business fraud to which the RICO statute and its treble damage provision should have no application. Defendants' conduct did not pose a significant societal threat; it posed a threat to no one but plaintiff itself. Moreover, any such threat is a thing of the past; there is no chance of a recurrence. See J.D. Marshall, 935 F.2d at 821. At its most basic level, this is a purely private business dispute between Spitz and Midwest; moreover, that dispute is occasioned solely by their previously existing business relationship. Congress did not have such a dispute in mind in fashioning the civil treble damage remedy to the federal RICO statute. In the absence of a more significant societal threat, the RICO statute has no application to this dispute. See Marshall-Silver, 894 F.2d at 597. Plaintiff has failed to establish the pattern of racketeering activity necessary to proceed under the federal RICO statute. Accordingly, defendants' motion for summary judgment on count I of the second amended complaint is granted. B. Counts II, III, and IVPendent Claims. Because the Court grants defendants' motion for summary judgment on plaintiff's RICO claim, the Court also will dismiss without prejudice the pendent state law claims for breach of fiduciary duties, tortious interference, and constructive trust and accounting. The only basis for the Court's jurisdiction is the federal question posed by plaintiff's RICO claim. (See Second Amended Compl., at ¶ 5.) Once the Court has disposed of all federal claims in advance of trial, it is appropriate to dismiss the remaining pendent state law claims. See Simkunas v. Tardi, 930 F.2d 1287, 1292 (7th Cir.1991); Olive Can Co., 906 F.2d at 1153. The Seventh Circuit has held that "when the federal claims are disposed of before trial, the state claims should be dismissed without prejudice almost as a matter of course." Baltimore Orioles, Inc. v. Major League Baseball Players Assoc., 805 F.2d 663, 682 (7th Cir.1986), cert. denied, 480 U.S. 941, 107 S.Ct. 1593, 94 L.Ed.2d 782 (1987). Because the Court has disposed of the RICO claim, it will dismiss plaintiff's remaining claims without prejudice. IV. CONCLUSION Defendants' motion for summary judgment on Count I of plaintiff's second amended complaint is granted. Plaintiff has failed to establish the pattern of racketeering activity necessary to maintain a claim under the RICO statute. Because the Court grants summary judgment in favor of defendants on Midwest's only federal claim, the Court dismisses the pendent claims without prejudice. NOTES [1] Defendants earlier had moved to dismiss plaintiff's RICO claim for failure to state a claim. The Court granted the motion in part, dismissing plaintiff's allegations that Spitz and U.S. Grinding had violated §§ 1962(a) & (b) of the RICO statute. Midwest Grinding Co. v. Spitz, 716 F.Supp. 1087, 1090-92 (N.D.Ill.1989). The Court also dismissed plaintiff's allegations against Grunfeld pursuant to §§ 1962(c) & (d). The Court concluded that the allegations of mail fraud leveled against Grunfeld lacked the specificity required by Federal Rule of Civil Procedure 9(b) and that those allegations were insufficient to infer the existence of an agreement between Grunfeld and Spitz to commit mail fraud. Id. at 1093. Similarly, the Court dismissed plaintiff's wire fraud allegations against both Spitz and Grunfeld. Id. The Court, however, denied defendants' motion to dismiss the § 1962(c) claim against Spitz and permitted plaintiff to proceed with this claim. In reaching this conclusion, the Court held, however, that "the only mail fraud violations against Spitz that are pled sufficiently relate to the scheme to defraud Midwest by diverting Midwest's customers to U.S. Grinding." Id. The Court determined that the mail fraud allegations relating to the undercharging of Cardinal Metals, Inc. and the overcharging of Klein Tools, Inc. should be dismissed. Id. Finally, the Court denied defendants' motion to dismiss the § 1962(d) conspiracy claim against Spitz and U.S. Grinding. Id. at 1094. [2] The facts as stated herein are taken from defendants' statement of material facts, plaintiff's response to that statement, and plaintiff's statement of additional material facts. In this recitation of the relevant facts, the Court will cite only to the statements submitted by the parties pursuant to Rules 12(m) and 12(n) of the local rules of this Court. Those citations, however, are intended to include the voluminous materials referenced in the parties' statements to establish the proposed facts. The Court has extensively reviewed these underlying materials. However, for the sake of brevity and convenience, it restricts its citations in this opinion only to the statements submitted pursuant to the local rules. When the facts are in dispute, as they frequently are in this case, the Court, as it must on a motion for summary judgment, considers the facts and all reasonable inferences drawn therefrom in the light most favorable to plaintiff. Defendants have filed a motion to strike the statement of additional material facts submitted by plaintiff. In that motion, defendants challenge the admissibility of the evidence underlying the additional facts put forward in plaintiff's statement. Defendants are correct that only evidence that ultimately would be admissible if offered at trial may be used to resist a motion for summary judgment. See Visser v. Packer Engineering Associates, Inc., 924 F.2d 655, 659 (7th Cir.1991) (en banc); Colan v. Cutler-Hammer, Inc., 812 F.2d 357, 365 n. 14 (7th Cir.1987) ("the court may only consider evidence and statements that would be admissible at trial and that have probative force."), cert. denied, 484 U.S. 820, 108 S.Ct. 79, 98 L.Ed.2d 42 (1987). However, because of its resolution of the motion for summary judgment, the Court finds it unnecessary to reach the merits of defendants' motion to strike. Instead, the Court will assume the appropriateness of all facts offered by plaintiff. Even on the basis of those facts, the Court finds that no pattern of racketeering activity has been established in this case. [3] The parties agree that Spitz never entered into a restrictive covenant or other non-competition agreement with Midwest. (Def. 12(m) ¶ 11; Pl. 12(n) ¶ 11.) Thus, there was no written agreement between Spitz and Midwest that would have prevented him from competing with that corporation or soliciting its customers after the termination of his employment. [4] In its response to defendants' motion, plaintiff requests that the Court reconsider its ruling dismissing the § 1962(d) conspiracy claim against defendant Grunfeld. (Midwest Mem., at 15.) In its earlier opinion, the Court held that plaintiff's allegations were "insufficient to infer that Grunfeld agreed with Spitz to engage in the predicate acts of mail and wire fraud." Midwest, 716 F.Supp. at 1094. Plaintiff subsequently asked the Court to reconsider its ruling dismissing the § 1962(d) conspiracy claim against Grunfeld. In its minute order dated July 3, 1989, the Court denied that request. Now, at the summary judgment stage, the Court again declines to reinstate the RICO conspiracy claim against Grunfeld. A contrary conclusion, however, would not alter the Court's ultimate determination that plaintiff has failed to establish a pattern of racketeering activity in this case. [5] In its earlier opinion, the Court found that "the only mail fraud violations against Spitz that are pled sufficiently relate to the scheme to defraud Midwest by diverting Midwest's customers to U.S. Grinding." Midwest, 716 F.Supp. at 1093. Accordingly, the Court dismissed those mail fraud charges which alleged use of the mails to undercharge Cardinal Metals, Inc. and to overcharge Klein Tools, Inc. Id. [6] H.J. Inc. was decided after this Court's initial decision on defendants' motion to dismiss the RICO count. In its earlier decision, the Court had found that plaintiff had sufficiently alleged a pattern of racketeering activity under the law as it existed prior to H.J. Inc. Midwest, 716 F.Supp. at 1094-96. [7] The Court is mystified that plaintiff has chosen to ignore the intervening Supreme Court decision in H.J. Inc. The decision in H.J. Inc. is the Supreme Court's latest and most important pronouncement on the increasingly important RICO pattern requirement, and the decision has been extensively analyzed by our own Court of Appeals in no less than seven recent decisions. For plaintiff to ignore H.J. Inc. is surprising at best. If plaintiff believed that H.J. Inc. had no impact on whether a RICO pattern has been shown in this case, the Court would have expected plaintiff at least to articulate the basis for its position. As it now stands, the Court must undertake to analyze the impact of H.J. Inc. without the benefit of plaintiff's position on this most important case. [8] Alternatively, a party may establish open-ended continuity "by proving a `specific threat of repetition extending indefinitely into the future' or that the `predicate acts or offenses are part of an ongoing entity's regular way of doing business.'" Olive Can Co., 906 F.2d at 1151 (quoting H.J. Inc., 492 U.S. at 242, 109 S.Ct. at 2902). Plaintiff has not established open-ended continuity in this case. Midwest admits that the conduct at issue ended in August 1986, when Spitz terminated his employment with plaintiff and began working for U.S. Grinding. (See Midwest Mem., at 8.) There is no evidence that the allegedly fraudulent conduct continues today or poses the slightest threat of recurring at some point in the future. Once Spitz resigned from Midwest, he and U.S. Grinding were free to compete with Midwest for grinding customers, thereby ending the scheme alleged by plaintiff. Moreover, plaintiff does not suggest that the acts of mail fraud alleged herein are part of U.S. Grinding's regular way of doing business. As a result, plaintiff also fails that test for openended continuity. Plaintiff's only alternative, therefore, is to establish the closed period of repeated conduct described above. [9] Although the Supreme Court noted in H.J. Inc. that RICO was intended to reach only activities that constitute or threaten long-term criminal activity, the Court declined to adopt a rule limiting the scope of the RICO statute to those activities "characteristic either of organized crime in the traditional sense, or of an organized-crime-type perpetrator, that is, of an association dedicated to the repeated commission of criminal offenses." H.J. Inc., 492 U.S. at 243-44, 109 S.Ct. at 2903. The Court held that any rationale for such an organized crime limitation on the concept of a RICO pattern "finds no support in the Act's text, and is at odds with the tenor of its legislative history." Id. at 244, 109 S.Ct. at 2903; see also Sutherland, 882 F.2d at 1203. [10] In its brief, Midwest asserts that "defendants used the mails for more than just their invoices. They also used the mails to incorporate, to pay for machinery and to offer Spitz's shares in Midwest to Klein Tools." (Plaintiff's Mem., at 7 n. 3.) The Court does not agree with plaintiff's implication that these mailings significantly expand the scope of the mail fraud involved herein. As it did in its earlier opinion, the Court again finds that the heart of plaintiff's claim lies in the alleged diversion of Midwest's customers and employees. See Midwest, 716 F.Supp. at 1095. The use of the mails to incorporate U.S. Grinding and to pay for machinery clearly is linked to the diversion of Midwest's customers. They are part and parcel of the same scheme. However, those mailings were not independently fraudulent, and in terms of having an effect on plaintiff, they are not events of tremendous significance to the fraud alleged herein. With the exception of those mailings and the August 12, 1986 letter from Spitz regarding the proposed sale of his Midwest shares, the primary acts of mail fraud at issue in this casethe mailing of invoices to diverted customerswere nearly identical. The sheer volume of these mailings does not support the existence of a pattern. Cf. Ashland Oil Co., 875 F.2d at 1279 (RICO pattern established where allegations included arson and bankruptcy fraud in addition to mail and wire fraud, the Court of Appeals finding that "proof that the defendants used several unlawful means of achieving the scheme's goal separates this case from ordinary business fraud cases."). [11] In fact, in its brief, Midwest states that it did not produce to the Court all invoices at issue "because they are cumulative and extremely voluminous." (Plaintiff's Mem., at 7 n. 3; see also Plaintiff's Response to Defendants' Motion to Strike ¶ 13 n. 5.) This statement proves the Court's point that the volume of mailings alone does not establish the existence of a RICO pattern. [12] Defendants, on the other hand, contend that the allegedly fraudulent scheme extended only for three to four months. (Defendants' Mem., at 7.) Assuming that the scheme began in December 1985, when Spitz accompanied Grunfeld to Michigan and viewed machinery that eventually would be purchased and utilized by U.S. Grinding, the Court finds that the scheme extended at most over a nine-month period. This finding, however, accords plaintiff the benefit of every possible inference to be drawn from the evidence herein. Although the initial stages of defendants' scheme may have begun in December 1985, the first predicate act of mail fraud directly affecting plaintiff did not occur until April or May of 1986, when defendants successfully diverted certain of plaintiff's customers to U.S. Grinding. The Court, therefore, could just as easily have concluded that the predicate acts of mail fraud extended only over a four- to five-month period. [13] As so stated by plaintiff, the real issue in this case seems to be whether Spitz breached a common law fiduciary duty to Midwest, not whether he engaged in a pattern of racketeering activity under the federal RICO statute. [14] The Court expresses no opinion on whether the evidence currently before the Court is sufficient to establish those common law claims.	{ "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 January 3, 2007 Charles R. Fulbruge III Clerk No. 06-20123 UNITED STATES OF AMERICA Plaintiff - Appellee v. CHARLES EARL SMITH Defendant - Appellant Appeal from the United States District Court for the Southern District of Texas, Houston USDC No. 4:05-CR-212-3 Before KING, HIGGINBOTHAM, and SMITH, Circuit Judges. PER CURIAM:* Defendant-appellant Charles Earl Smith appeals the sentence imposed by the district court upon his convictions for one count of conspiracy to steal mail, in violation of 18 U.S.C. §§ 371 and 1708, and two counts of aiding and abetting in the theft of mail, in violation of 18 U.S.C. §§ 2 and 1708. He argues on appeal that the district court erred by: (1) sua sponte departing from the Sentencing Guidelines range without giving advance notice to * Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. 1 the defense and (2) refusing to treat his four 1999 Texas forgery convictions as “related” sentences under § 4A1.2(a)(2) of the Sentencing Guidelines. For the following reasons, we AFFIRM the sentence imposed by the district court. I. FACTUAL AND PROCEDURAL BACKGROUND Defendant-appellant Charles Earl Smith admitted to stealing outgoing mail from mailboxes to obtain checks on two occasions, once in September 2004 and again in October 2004. His co- defendants, Ronald Gale Thibodeaux and Dezra Omar Duff, also participated in this scheme. After obtaining the checks the defendants would take the checks to a “guy named Rex.” Rex would then take the checks to someone else who would “wash” them and insert new dollar amounts and name either Smith, Duff, or Thibodeaux as the new payee. Then the new payee would cash the check, keeping half and giving half to Rex. Smith, Thibodeaux, and Duff were charged in an indictment with one count of conspiracy to steal mail, in violation of 18 U.S.C. §§ 371 and 1708, and two counts of aiding and abetting each other in the theft of mail, in violation of 18 U.S.C. §§ 2 and 1708. Smith pleaded guilty to the charges. Applying the U.S. Sentencing Guidelines (“U.S.S.G.”), the Presentence Investigation Report (“PSR”) calculated Smith’s total offense level at eight and his criminal history at VI, resulting in an advisory sentencing range of eighteen to twenty-four 2 months’ imprisonment. Smith raised two objections to the PSR. First, Smith objected to the amount of loss attributed to him based on holding him accountable for co-defendants who cashed stolen mail checks before he entered the conspiracy. Second, Smith objected that the four forgery offenses from 1999 should not be counted separately, but rather considered “related” cases under U.S.S.G. § 4A1.2(a)(2). The court granted Smith’s objection to the amount of loss attributed to Smith, which lowered the total offense level to six, with an advisory sentencing range of twelve to eighteen months, but denied the objection relating to the forgery offenses. The district court sentenced Smith to thirty months’ imprisonment on each count to run concurrently. II. DISCUSSION A. Rule 32(h) Notice Smith does not claim that the extent of the departure was unreasonable or that the resulting sentence was unreasonable. Rather, Smith argues that the district court erred by sua sponte departing1 upwardly without any advance notice to the defense, as 1 The briefs for Smith and the government both treat the sentence as a Guidelines sentence, as distinguished from a non- Guidelines sentence, and the government concedes error, see infra, in the failure of the district court to give notice that it was considering an upward departure. Neither party has identified or briefed the question whether, post United States v. Booker, 543 U.S. 220 (2005), the district court is required to give such notice in the case of a Guidelines sentence or a non- Guidelines sentence. Accordingly, we assume, without deciding, 3 required by Rule 32(h) of the Federal Rules of Criminal Procedure. The government concedes that the district court erred by departing from the Sentencing Guidelines without providing advance notice to the parties but contends that the error was harmless. The doctrine of harmless error applies because Smith timely objected to the lack of notice. See United States v. Olano, 507 U.S. 725, 734 (1993). Harmless error, which must be disregarded, is “[a]ny error, defect, irregularity, or variance that does not affect [the] substantial rights” of the defendant. FED. R. CRIM. P. 52(a). “An error affects substantial rights [] if it affects the outcome of the district court proceedings.” United States v. Pineiro, 410 F.3d 282, 285 (5th Cir. 2005) (citing Olano, 507 U.S. at 734; United States v. Akpan, 407 F.3d 360, 377 (5th Cir. 2005); United States v. Munoz, 150 F.3d 401, 413 (5th Cir. 1998)). Smith objected to the lack of notice at sentencing; thus, the burden is on the government to show that the error was harmless and did not affect the sentence received. Id. The government has met its burden. Rule 32(h) states: Before the court may depart from the applicable sentencing range on a ground not identified for departure either in the presentence report or in a party’s prehearing submission, the court must give the parties reasonable notice that it is contemplating such a departure. The notice must specify any ground on which the court is contemplating a that such a notice was required. 4 departure. FED. R. CRIM. P. 32(h). At sentencing, the district judge made clear that he departed upward from the Guidelines range not only because of the nature and circumstances of the offense but also because the shorter sentences Smith received in the past had not adequately deterred Smith from committing additional forgeries and similar crimes. Smith argues that had he been given notice that the district court was considering departing upward from the range based on Smith’s criminal record, then he could have investigated the criminal history of his two co-defendants, who received shorter sentences. However, this evidence would have changed the sentence given by the district judge. Although Thibodeaux did have three felony forgery convictions on his record, those convictions were not as recent as Smith’s and Thibodeaux was in a lower criminal history category.2 Because the district judge stated that he thought the range suggested by the Sentencing Guidelines substantially understated the seriousness of this defendant’s conduct, it is highly unlikely that the district judge would have adjusted Smith’s sentence merely because his co-defendant had three felony convictions for 2 Two of Thibodeaux’s convictions were from 1980, and the other was from 1998. 5 forgery.3 Accordingly, we find that the failure of the district court to give notice of a potential upward departure, if error it was, constituted harmless error. B. “Related” Cases Under U.S.S.G. § 4A1.2(a)(2) Smith claims that the trial court erroneously failed to treat his four prior forgery sentences from 1999 as related under U.S.S.G. § 4A1.2(a)(2) and erroneously assigned separate criminal history points for each. The Sentencing Guidelines provide that, in assessing a defendant’s criminal history points, “[p]rior sentences imposed in related cases are to be treated as one sentence for purposes of § 4A1.1(a),(b), and (c).” U.S.S.G. § 4A1.2(a)(2). The commentary to the U.S.S.G. § 4A1.2 defines “related cases” as follows: Prior sentences are not considered related if they were for offenses that were separated by an intervening arrest (i.e., the defendant is arrested for the first offense prior to committing the second offense). Otherwise, prior sentences are considered related if they resulted from offenses that (A) occurred on the same occasion, (B) were part of a single common scheme or plan or (C) were consolidated for trial or sentencing. U.S.S.G. § 4A1.2, cmt. n.3. Smith’s argument focuses on whether his prior forgery convictions were functionally consolidated for 3 That it is unlikely that the judge would have sentenced Smith to a lesser sentence had Smith presented more detailed descriptions of the co-defendants’ history is underscored by the fact the judge knew that both co-defendants were in lower criminal history categories than Smith. Smith’s argument makes clear that the only new information he would have presented is that Thibodeaux had forgery convictions. 6 trial or sentencing. Generally, we review de novo the district court’s application of the Sentencing Guidelines. See United States v. Villegas, 404 F.3d 355, 359 (5th Cir. 2005). However, the determination whether prior convictions were functionally consolidated for trial or sentencing is a question of fact that is afforded deferential review under the clear-error standard. See Buford v. United States, 532 U.S. 59, 66 (2001). A finding is not clearly erroneous if it is plausible in light of the record as a whole. See Anderson v. City of Bessemer City, North Carolina, 470 U.S. 564, 574 (1985). Smith committed four forgery offenses in January 1999 on different dates, in different locations, against different individuals and banks, with different amounts. He was arrested for all four offenses on the same day. He also received his sentence for all four offenses by the same court on the same date and received one year in jail, to be served concurrently, for each offense. However, there was no formal consolidation order, and the cases had different docket numbers. Smith argues that his prior forgery convictions should be considered consolidated because the requirements under LaPorte v. State, 840 S.W.2d 412 (Tex. Crim. App. 1992), have been met. LaPorte held that in certain situations in which a defendant stands trial for more than one offense in a single proceeding, the lack of formal consolidation will not prevent application of 7 the Texas statute which prohibits consecutive sentencing for consolidated sentences. Id. at 413-14. However, Smith’s argument fails because this court has determined that LaPorte is not dispositive of the consolidation issue for § 4A1.2 purposes. United States v. Fitzhugh, 984 F.2d 143, 147 n.18 (5th Cir. 1993). As part of this argument, Smith also contends that the four forgeries would be considered the same criminal episode pursuant to the Texas Penal Code and that the probation officer conceded this fact in the PSR. But Smith has not supported this argument with facts other than to state that the offenses are part of the same criminal episode because they are repeated commissions of the same offense. The probation officer merely stated that they appear to be part of a common scheme or plan, presumably in light of the fact that all four occurred in the same month and involved similar activity. The PSR does not concede that the cases are related. Rather it cites United States v. Ford and notes that similar offenses are not necessarily part of a common scheme or plan for relatedness purposes. See 996 F.2d 83, 86 (5th Cir. 1993). To be part of a common scheme or plan, there must be evidence that they were jointly planned or that the commission of one would entail the commission of the other. See United States v. Robinson,187 F.3d 516, 520 (5th Cir. 1999) (holding that crimes were related when the defendant planned the commission of the second crime during the course of the first 8 crime). No such evidence exists in this case. The district court’s findings that the forgeries were not consolidated and thus not related is also consistent with Fifth Circuit authority. We have held that in the absence of a formal consolidation order, the listing of multiple offenses in the same criminal information under the same docket number is sufficient to find those offenses were functionally consolidated. See United States v. Huskey, 137 F.3d 283, 288 (5th Cir. 1998). Whether a case was functionally consolidated is less clear when cases have different docket numbers, but cases will not be deemed consolidated just because the defendant was sentenced for each offense on the same day or received identical, concurrent sentences. See United States v. Kates, 174 F.3d 580, 584 (5th Cir. 1999) (holding two drug possession offenses that occurred one week apart were not related even though the defendant was sentenced by the same judge on the same date for each offense and the sentences were concurrent). The district court did not clearly err in concluding that the four prior forgery sentences were unrelated. III. CONCLUSION For the foregoing reasons, we AFFIRM Smith’s sentence. 9	{ "pile_set_name": "FreeLaw" }
544 U.S. 976 CROSBY, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATEDv.BOWATER INCORPORATED RETIREMENT PLAN FOR SALARIED EMPLOYEES OF GREAT NORTHERN PAPER INC. ET AL. No. 04-1081. Supreme Court of United States. April 18, 2005. 1 C. A. 6th Cir. Certiorari denied. Reported below: 382 F. 3d 587.	{ "pile_set_name": "FreeLaw" }
In The Court of Appeals Sixth Appellate District of Texas at Texarkana ______________________________ No. 06-10-00117-CR ______________________________ LEANNA LUNA, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 217th Judicial District Court Angelina County, Texas Trial Court No. CR-28888 Before Morriss, C.J., Carter and Moseley, JJ. Memorandum Opinion by Justice Carter MEMORANDUM OPINION After a putative waiver of the right to appeal, Leanna Luna pled guilty, in an open plea before the 217th Judicial District Court in Angelina County,[1] to two counts of robbery.[2] After signing her waiver and before she pled guilty, Luna had been admonished by the trial court that she had waived the right to appeal anything except matters arising from the sentencing hearing. After her plea and some delay in getting a presentence investigation (PSI) report, the trial court found her guilty and sentenced her to four years’ confinement in this case and two years’ confinement in the companion case. Luna seeks to appeal from her conviction, arguing that her guilty plea was involuntary and that her trial counsel was ineffective. The State cites the waiver of the right to appeal and contests Luna’s substantive arguments on appeal. We affirm the trial court’s judgment because—although (1) Luna’s right to appeal was not waived—(2) the claim that Luna’s plea was involuntary was not preserved, and (3) the record does not demonstrate ineffectiveness by Luna’s trial counsel. Luna’s Right to Appeal Was Not Waived The first question we must address involves the jurisdiction of this Court. The trial court’s certification of Luna’s right to appeal contains a handwritten notation reciting that Luna waived her right to appeal the guilty plea in this case, but that she reserved the right to appeal the punishment proceedings. The facts of this case regarding the waiver of appeal are similar to those in Ex parte Delaney, where the court held the defendant’s waiver to be ineffective when he or she did not know what the punishment would be and the State gave no consideration for the waiver. 207 S.W.3d 794, 795–96 (Tex. Crim. App. 2006). The court held that “simply knowing the range of punishment for the offense is not enough to make the consequences of a waiver known with certainty, because it still does not allay the concern that unanticipated errors may occur at the punishment phase of trial.” Id. at 799.[3] In Ex parte Broadway, the defendant chose to enter an open plea and waive his right to a jury trial in order to ensure that the judge would be able to consider deferred adjudication community supervision with drug treatment, but the State “did not want to consent [to the defendant’s] waiver of a jury trial.” 301 S.W.3d 694, 697–98 (Tex. Crim. App. 2009). The defendant induced the State to consent by waiving his right to appeal. Id. at 698. The court found that that constituted a bargain, distinguishing the case from Delaney, and held “that a defendant may knowingly and intelligently waive his entire appeal as a part of a plea, even when sentencing is not agreed upon, where consideration is given by the State for that waiver.” Id. at 699.[4] The State cites an earlier case for the proposition that a valid, nonnegotiated waiver of appeal will prevent a defendant from appealing any issue without the consent of the trial court. Tex. Code Crim. Proc. Ann. arts. 1.14 (Vernon 2005), 44.02 (Vernon 2006); Monreal v. State, 99 S.W.3d 615, 616 (Tex. Crim. App. 2003). In its argument, the State relies on Monreal, which states, in part: When asked to choose between a rule stating that a waiver of appeal is binding unless and until the defendant files a notice of appeal and a rule stating that a valid waiver of appeal is binding on the defendant and will prevent the defendant from appealing without the consent of the trial court, we have consistently opted for the latter. See Ex parte Dickey, 543 S.W.2d 99; Johnson, 556 S.W.2d 816; Ex parte Tabor, 565 S.W.2d 945. This decision has never been based on whether the defendant received some benefit in exchange for the waiver, but rather on whether, as the rule states, the waiver was voluntary, intelligent, and knowing, and thus valid. See Id.; and also Blanco, 18 S.W.3d 218. Monreal, 99 S.W.3d at 622. The rather important word the State ignores in Monreal is that the waiver must be “valid.” If the waiver is not voluntary, intelligent, and knowing, it cannot be valid. In Monreal, the waiver of appeal was entered after the jury verdict and judgment had been imposed and was therefore unquestionably a valid waiver of appeal. In this case, Luna pled guilty with no plea agreement. After taking Luna’s plea on February 19, 2010, the trial court did not find her guilty, but continued the trial pending receipt of a PSI report. At some point before the plea proceeding, Luna had signed a waiver of right of appeal, as acknowledged by the trial court. During the plea, the court informed Luna that she had given up her right to appeal. The record contains a written waiver of right of appeal, signed by Luna February 19, which contains this language: Having been informed of whatever right to appeal may exist, and having agreed to waive my right to appeal both guilt/innocence and punishment, and after having consulted with my attorney, I hereby voluntarily, knowingly and intelligently waive my right to appeal. As previously noted, the final version of the certification of right of appeal signed by the trial court in this case states that Luna has waived her right of appeal except for punishment issues. The punishment and sentencing hearing was conducted on May 18, 2010. In this case, Luna signed a “waiver” before being sentenced—even before the trial court concluded the guilt portion of the proceeding—and after the court had explained the range of punishment for the offenses. The State made no punishment recommendation. Cf. Delaney, 207 S.W.3d at 799. No negotiated plea agreement existed, and the record does not indicate the existence of any other sort of agreement. See Broadway, 301 S.W.3d at 697. There is nothing in this record to indicate that Luna’s written waiver was bargained for, that any consideration was given by the State for the waiver, or that she knew the consequences of signing the waiver. Under these facts and the analysis endorsed by the Texas Court of Criminal Appeals in Broadway, this waiver could not qualify as being “voluntarily, knowingly, and intelligently” made. The appeal is, therefore, fully before this Court, and we will not limit its scope as suggested by the trial court’s addendum to the certification. The Claim that Luna’s Guilty Plea Was Involuntary Was Not Preserved On appeal, Luna argues that “there is no showing that [she] understood her plea and understood the required elements of the indictment she [pled] to” and, therefore, her plea was involuntary. The State contends that this argument has not been preserved for review. We agree. Luna did not object to the plea proceeding or challenge the voluntariness of her plea of guilty at any time before or after the plea hearing or sentencing hearing. Without a timely objection, motion, or request that the trial court inquire into the voluntariness of her plea, Luna has forfeited her right to complain about the issue on appeal. See Mendez v. State, 138 S.W.3d 334, 339, 350 (Tex. Crim. App. 2004). We overrule this point of error. The Record Does Not Demonstrate Ineffectiveness by Luna’s Trial Counsel Luna also contends that she received ineffective assistance of counsel at trial, pursuant to Strickland v. Washington, 466 U.S. 668 (1984). Luna’s argument is multifarious[5] and risks rejection on that basis alone;[6] but in the interest of justice, we address her complaint as best we can. Luna argues that her trial counsel was ineffective because he: (1) allowed Luna to sign a waiver of appeal; (2) failed to object to the trial court’s certification of her right of appeal as to punishment only; (3) failed to explain to Luna, or prompt the court to explain to her, the elements of the charged offense; (4) failed to object to the PSI report; (5) failed to question the community supervision officer who offered the PSI report; (6) failed to offer evidence regarding Luna’s social history, history of drug use, her need for rehabilitation and treatment, or other evidence to support her request for community supervision. Ineffective assistance of counsel claims are evaluated under the two-part test formulated by the United States Supreme Court in Strickland, requiring a showing of both deficient performance and prejudice. 466 U.S. at 689; Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999); Fox v. State, 175 S.W.3d 475, 485 (Tex. App.—Texarkana 2005, pet. ref’d). First, Luna must show that her counsel’s representation fell below an objective standard of reasonableness.[7] Fox, 175 S.W.3d at 485 (citing Tong v. State, 25 S.W.3d 707, 712 (Tex. Crim. App. 2000)). We indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable, professional assistance, and was motivated by sound trial strategy. See Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). The second Strickland prong requires a showing that the deficient performance prejudiced the defense to the degree that there is a reasonable probability that, but for the attorney’s deficiency, the result of the trial would have been different. Strickland, 466 U.S. at 689; Tong, 25 S.W.3d at 712. Failure to satisfy either part of the Strickland test is fatal. Ex parte Martinez, 195 S.W.3d 713, 730 (Tex. Crim. App. 2006). A Strickland claim must be “firmly founded in the record” and “the record must affirmatively demonstrate” the meritorious nature of the claim.[8] Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005); Thompson, 9 S.W.3d at 813. Under this standard, a claimant must prove that counsel’s representation 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. Here, the record is effectively silent regarding why Luna’s trial counsel took or failed to take the actions Luna complains of on appeal. Where an appellate record is silent as to why trial counsel failed to take certain actions, the appellant has failed to rebut the presumption that trial counsel’s decision was in some way reasonable. See Mata v. State, 226 S.W.3d 425, 431 (Tex. Crim. App. 2007). In this case, there is no record at any level to indicate why counsel chose to take or declined to take any of these actions. The ineffectiveness of counsel is a matter that must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Smith v. State, 51 S.W.3d 806, 812 (Tex. App.—Texarkana 2001, no pet.). In the absence of such a record, and lacking anything that would indicate such completely ineffective assistance as could be shown without such a record, we overrule the point of error. We affirm the judgment. Jack Carter Justice Date Submitted: November 2, 2010 Date Decided: November 16, 2010 Do Not Publish [1]Originally appealed to the Twelfth Court of Appeals, this case was transferred to this Court by the Texas Supreme Court pursuant to its docket equalization efforts. See Tex. Gov’t Code Ann. § 73.001 (Vernon 2005). We are unaware of any conflict between precedent of the Twelfth Court of Appeals and that of this Court on any relevant issue. See Tex. R. App. P. 41.3. [2]The trial court proceeding appealed in this matter bears the trial court’s cause number 28888. In a companion case, trial court cause number 28889, Luna pled guilty to possession of less than one gram of cocaine. That companion appeal bears our cause number 06-10-00118-CR and is being decided at the same time as this case. [3]In Delaney, the court was confronted with only a waiver of an appeal from punishment because, as a final adjudication of guilt following revocation of a deferred adjudication, at that time, the only appealable aspect of the proceeding was punishment. [4]In so finding, the court examined its previous decision in Delaney and strongly questioned whether, be it an open plea or a negotiated plea agreement, a defendant can never know the punishment with certainty. Id. at 697–99 (“the fundamental nature of an open plea is uncertainty”). [5]A point of error is multifarious if it embraces more than one specific ground of error. Mays v. State, 318 S.W.3d 368 (Tex. Crim. App. 2010). [6]See, e.g., Wood v. State, 18 S.W.3d 642, 649 n.6 (Tex. Crim. App. 2000). [7]The presumptions and standards of proof of Strickland apply to the punishment phase as well as to the trial state of criminal proceedings. Wiggins v. Smith, 539 U.S. 510 (2003); Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986). [8]Under normal circumstances, the record on direct appeal will not be sufficient to show that counsel’s representation was so deficient and so lacking in tactical or strategic decision making as to overcome the presumption that counsel’s conduct was reasonable and professional. Mallett v. State, 65 S.W.3d 59, 63 (Tex. Crim. App. 2001); Fuller v. State, 224 S.W.3d 823, 828–29 (Tex. App.—Texarkana 2007, no pet.). In addressing this reality, the Court of Criminal Appeals has explained that appellate courts can rarely decide the issue of ineffective assistance of counsel because the record almost never speaks to the strategic reasons that trial counsel may have considered. The proper procedure for raising this claim is therefore almost always by application for writ of habeas corpus. Freeman v. State, 125 S.W.3d 505, 511 (Tex. Crim. App. 2003); Aldrich v. State, 104 S.W.3d 890, 896 (Tex. Crim. App. 2003).	{ "pile_set_name": "FreeLaw" }
U.S. v. Mitchell IN THE CASE OF UNITED STATES, Appellee v. Claudius L. MITCHELL, Aviation Ordnanceman Second Class U.S. Navy, Appellant No. 98-0248 Crim. App. No. 96-0587 United States Court of Appeals for the Armed Forces Argued December 2, 1998 Decided August 12, 1999 SULLIVAN, J., delivered the opinion of the Court in which COX, C.J., and GIERKE and EFFRON, JJ., joined. CRAWFORD, J., filed a dissenting opinion. Counsel For Appellant: Lieutenant Robert Attanasio, JAGC, USNR (argued). For Appellee: Lieutenant James E. Grimes, JAGC, USNR (argued); Colonel Kevin M. Sandkuhler, USMC, and Commander D. H. Myers, JAGC, USN (on brief); Colonel Charles Wm. Dorman, USMC, and Lieutenant Commander Nancy Blankenship Jones, JAGC, USN. Military Judge: David P. Holcombe THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE PUBLICATION. Judge SULLIVAN delivered the opinion of the Court. In January of 1995, appellant was tried by a general court-martial consisting of officer members at Naval Air Station, Jacksonville, Florida. Contrary to his pleas, he was found guilty of attempted premeditated murder; willful damage to military property; larceny; assault intentionally inflicting grievous bodily injury; 1 and simple assault, in violation of Articles 80, 108, 121, and 128, Uniform Code of Military Justice, 10 USC §§ 880, 908, 921, and 928, respectively. On January 7, 1995, he was sentenced to a dishonorable discharge, 29 years confinement, total forfeitures, and reduction to E-1. On February 20, 1996, the convening authority approved the adjudged sentence, but suspended confinement in excess of 20 years for a period of 20 years from the date sentence was adjudged. The Court of Criminal Appeals affirmed the approved findings and sentence in an unpublished opinion dated April 30, 1997. This Court granted review in this case on July 30, 1998, on the following issue: I WHETHER THE MILITARY JUDGE ERRED BECAUSE HE DENIED APPELLANTS MOTION TO SUPPRESS THE STATEMENT TO CHIEF GRABIEL IN VIOLATION OF APPELLANT'S CONSTITUTIONAL RIGHT TO COUNSEL. We hold that the military judge prejudicially erred when he denied the defense motion to suppress appellants pretrial statements to Aviation Ordnanceman Chief Grabiel and admitted them at this court-martial. United States v. Brabant, 29 MJ 259 (CMA 1989); United States v. Reeves, 20 MJ 234 (CMA 1975); see generally Edwards v. Arizona, 451 U.S. 477 (1981). Appellant was arrested on June 4, 1994, after he allegedly shot his shipmate, Aviation Structural Mechanic (Hydraulics) First Class Darnell Johnson, USN. The parties to this trial stipulated to certain facts pertinent to a defense motion to suppress some incriminating statements made by appellant to Chief Grabiel, his leading petty officer and work supervisor, the next day during a command visit to appellant in the brig. The record of trial states: TC: [Reading] Both counsel have agreed that at approximately 0507, 4 June 1994, Security Department, Naval Air Station, Key West, Florida, received a call reporting shots fired at Barracks Enlisted Quarters 648. That QM2 Robert Bruchsaler, USN, attached to Security Department received a dispatcher call to proceed to BEQ 648. After securing the crime scene QM2 Bruchsaler was directed to advise the accused, who was sitting in the rear seat of a patrol car, his Article 31(b) and counsel rights. That QM2 Bruchsaler sat in the front seat of the papatrol car with the accused in the rear seat and established that the accused was coherent and proceeded to read the accused his Article 31(b) UCMJ and counsel rights from a rights warning card. QM2 Bruchsaler stated that the accused understood his rights and requested counsel. That prior to their meeting with the accused on 5 June 1994, Commander Malinak, Lieutenant Gage, and AOC Grabiel were aware of the fact that the accused was advised on 4 June of his Article 31(b) and counsel rights by Petty Officer Bruchsaler and that he had declined to make a statement and requested counsel. That all questioning by any security personnel ceased after the accused declined to make a statement and requested a lawyer. The Security Department, NAS, Key West, turned the case over to the Naval Criminal Investigative Service, Key West, the same day relaying that the accused request for--relaying the accused request for a lawyer and desire not to make a statement. NCIS did not reread the accused rights nor ask any questions of the accused. TC: The following day, 5 June 1994, QM2 Bruchsaler was assigned to guard the accused while the accused command made preparations for the accused return to the Waterfront Brig, Naval Air Station, Jacksonville, Florida. On 5 June 1994, around 1400, Lieutenant Jeff Gage, United States Navy, Legal Officer of VFA-87; Commander Gregory E. Malinak, spelled M-A-L-I-N-A-K, United States Navy, Executive Officer of VFA-87; and AOC Lawrence Grabiel, United States Navy, Leading Chief Petty Officer of VFA-87, made contact with the accused for the purpose of providing a command health and welfare visit. That Commander Malinak had been informed that Petty Officer Mitchell was refusing to eat even though base security had been offering food. For the purpose of ensuring that the air transportation of the accused from Key West to the Waterfront Brig, NAS, Jacksonville, was successfully completed and for Lieutenant Gage to provide the accused notification of pretrial confinement rights and review process. That the--which is agreed by both parties to admit the actual notification as a stipulation of fact. MJ: Ill make it a part of the stipulation. Has this stipulation of fact been marked as Appellate Exhibit III? TC: Yes, sir. MJ: Thank you. TC: That the executive officer of the accused command requested AOC Grabiel to be present as the accuseds leading chief petty officer and to provide support and a command visit. Lieutenant Gage read verbatim from the notification of pretrial confinement review process work sheet to the accused in the presence of Commander Malinak and AOC Grabiel. The accused acknowledged his rights in writing by requesting a military lawyer for his magistrate hearing and to personally appear before the magistrate. That neither the executive officer or Lieutenant Gage inquired into any facts surrounding the alleged shooting incident nor had they explicitly directed or even talked about that to AOC Grabiel for him to make any such inquiry. After Lieutenant Gage informed the accused of his pretrial confinement rights, he and Commander Malinak left the room. AOC Grabiel talked with the accused inquiring whether he needed anything like cigarettes or anything to eat. TC: After returning with cigarettes and a milk shake, AOC Grabiel asked the accused without informing the accused of Article 31(b) or counsel rights, "Was it worth it?" That the accused did not initiate any questions regarding the shooting incident. In response to this question the accused responded, "The way I wasraised, it was an eye for an eye. He left me in the alley," or words to that effect. Chief Grabiel was not acting on behalf of the Security Department, NAS, Key West---- * * * TC: The next one [sentence] is that the accused when with Chief Grabiel did not initiate any questions regarding the shooting incident. * * * TC: The last stipulation is that the accused was flown from Naval Air Station, Key West, to the Waterfront Brig, NAS, JAX, and that they departed at 2200 that Sunday, 5 June. No evidence was presented at trial to suggest that appellant and Chief Grabiel had any personal contact or friendship outside of military duties. Chief Grabiel was called and testified that his motivation to ask the questions was "out of personal curiosity" about a member of his unit. After the command health and welfare visit, Naval Criminal Investigative Service (NCIS) Agent Lederberg contacted Chief Grabiel, as appellants supervisor, to question him about appellants character. Chief Grabiel voluntarily told NCIS that he spoke with appellant and he signed a statement on June 9 attesting to appellants incriminating answers. In this statement, Chief Grabiel wrote in his own handwriting, "PO2 Mitchell was read his rights by Lt. Gage prior to my questioning him." At trial, defense counsel filed a written motion to suppress those incriminating statements made by appellant in response to Chief Grabiels questions alleging a violation of his Fifth Amendment rights to the presence of counsel during custodial interrogation. The military judge denied the motion in part and granted it in part. He said: At the time of the accuseds statement Chief Grabiel was a chief petty officer on active duty in the United States Navy and in the accuseds direct chain of command; and At the time the chief had no law enforcement duties other than normal duties of every chief petty officer to ensure good order and discipline; and MJ: Three, that on 6 June 1994 when he spoke to the accused the chief was not acting for or at the direction of any law enforcement agent; Four, that at the time the chief asked the question "Was it worth it," he was motivated solely out of personal curiosity; Five, however, Im not satisfied with regard to the questions concerning the "gun" that the chief was strictly motivated out of strictly personal curiosity. I think that was professional and very much akin to law enforcement. Therefore, the references to the gun are suppressed as I told you before references--the answer to the question "Was it worth it?" is not suppressed. Chief Grabiel later testified on the merits to appellants statements. Appellant also testified to the defense of accident and voluntary intoxication. Specifically, he said that he did not intend to injure Petty Officer Johnson; rather he intended to shoot the gun in the air. When asked to explain his "eye for an eye" statement, appellant testified: Petty Officer Johnson really scared me in the alley, and it was my intent to scare him just as bad as he had scared me. I wanted to also bring up the fact that what he had done in the alley, because they had also told me that I couldnt say anything or ask any questions concerning the case. ___ ___ ___ Appellants complaint at trial and on this appeal is that his pretrial statement to Chief Grabiel was "obtained in violation of the bright line rule annunciated by the Supreme Court in Edwards v. Arizona, 451 U.S. 477 (1981)." Final Brief at 3. He further avers that the prosecution failed to show this violation of his right to have counsel at his interrogation was harmless beyond a reasonable doubt. The Government disagrees, and, relying on the decisions of this Court in United States v. Pittman, 36 MJ 404 (1993) and United States v. Jones, 24 MJ 367 (1987), argues that Chief Grabiels personal inquiries were not interrogation and, therefore, not violative of Edwards. Answer to Final Brief at 6. During oral argument, the Government additionally contended that any error under Edwards was harmless beyond a reasonable doubt in view of the overwhelming evidence of appellants guilt. Our starting point in resolving the granted issue is the case law of this Court applying Edwards v. Arizona, supra, in the military justice system. 2 United States v. Brabant, 29 MJ 259; United States v. Goodson, 22 MJ 22 (CMA 1986); United States v. Reeves, 20 MJ 234; see also United States v. Faisca, 46 MJ 276 (1997); United States v. Vaughters, 44 MJ 377 (1996) (applies Edwards in break-in-custody context). These decisions are entirely consistent with the Presidents adoption of this Supreme Court precedent as reflected in Mil. R. Evid. 305(d)(1), (e)(1) and (f). Faisca, supra at 278 n.3. In this light, the particular question before us is whether Chief Grabiels questioning of appellant in custody, after invocation of his rights to counsel, violated Edwards v. Arizona, supra. The Supreme Court in Edwards, 451 U.S. at 484-85, established a rule concerning custodial interrogations. It said: 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 communications, exchanges, or conversation with the police. In Arizona v. Roberson, 486 U.S. 675, 687 (1988), it further recognized that, in applying Edwards, "we attach no significance to the fact that the officer who conducted the second interrogation did not know that respondent had made a request for counsel." Still later, in Minnick v. Mississippi, 498 U.S. 146 (1990), that Court applied Edwards where a county police officer unknowingly interrogated a suspect after he had previously invoked his rights to federal investigators. See also Illinois v. Perkins, 496 U.S. 292, 300 (1990) (Brennan, J., concurring in the judgment). The question before us today concerns the scope of Edwards as applied in a particularly military context. In the past, we have often been asked to decide whether questioning by command authorities constitutes interrogation for the purpose of Miranda, Edwards, or Article 31, UCMJ, 10 USC § 831. See Mil. R. Evid. 305(d)(1)(A), Manual for Courts-Martial, United States (1994 edition) 3 (right to counsel applies when "the interrogation is conducted by a person subject to the code who is required to give warnings under Article 31 . . . .") . Common to these decisions is recognition of the fact that "care must be exercised to prevent the creation of situations where the subordinates sense of loyalty, trust, and confidence in his leader obscures his legal rights under the Constitution and the Uniform Code of Military Justice." Brabant, 29 MJ at 263; see United States v. Beck, 15 USCMA 333, 339, 35 CMR 305, 311 (1965). Analogous issues arise in the civilian context with respect to questioning of suspects in custody by various governmental non-police actors. See United States v. D.F., 63 F.3d 671, 680-84 (7th Cir. 1995) (and cases cited therein), reaffirmed, 115 F.3d 413, 420 (7th Cir. 1997). The Governments basic argument in this case is that Chief Grabiels questioning of appellant was not police interrogation as prohibited in Miranda and Edwards. See generally 1 W. LaFave and J. Israel, Criminal Procedure § 6.10(c) at 542 (1984) ("Miranda does not inevitably apply whenever questions are asked in a custodial setting by a government employee"); United States v. Eide, 875 F.2d 1429, 1434 (9th Cir. 1989); see also United States v. Borchardt, 809 F.2d 1115, 1117 n.4 (5th Cir. 1987). There is no per se rule for delineating when non-police government questioning comes within Miranda; rather the courts have tended to view each case in light of the totality of its circumstances to determine whether impermissive coercion has occurred or continued. See United States v. Morales, 834 F.2d 35, 38 (2d Cir. 1987) (questioning by prison physicians assistant motivated by personal "curiosity" is not interrogation by police); cf. United States v. Webb, 755 F. 2d 382, 389 (5th Cir. 1985) (questioning by prison classification officer not normally attendant to classification procedure is interrogation). We have taken a similar approach where the government questioner is a representative of command. See United States v. Brabant and United States v. Reeves, both supra; see also Commonwealth v. McGrath, 495 A.2d 517, 525-26 (Pa. 1985). Turning initially to the federal civilian cases noted above, we consider appellants case quite similar to United States v. Webb, supra, where a violation of Edwards was determined to have occurred. There a soldier suspected of the murder of his son was advised by FBI agents of his rights under Miranda and asserted his right to counsel. Those agents ceased questioning the suspect and brought him to the El Paso County Jail for purposes of custody. "[T]he classification officer on duty [Simmons] allowed Webb to make a telephone call and then gave him something to eat and drink." The Court then noted: According to Simmons, in order to determine where in the jail population to place Webb, Simmons asked Webb, "[W]hat kind of shit did you get yourself into?" According to Simmons, Webbs surprising reply was: "I murdered my son and buried him in the desert." Id. at 386. In Webb, the Government maintained that Officer Simmons inquiry was simple administrative questioning "attendant to custody" which was exempt from the Supreme "Courts definition of interrogation" in Edwards. The Fifth Circuit rejected this claim and said: The record, however, does not support this position. First, it is undisputed that Simmons knew that Webb had been charged with murder on a federal reservation. Second, the FBI agent that took Webb to the jail testified that he did not inform the classification officer of Webbs prior suicide threat. Third, another classification officer testified that it is not normal procedure to ask a defendant the charge against him since that information was on the booking card. Finally, Simmons testified that he saw his own role as one of helping the FBIs investigation in whatever way he could. Given the facts of this case, we are inescapably led to the conclusion that Simmons question of Webb was not a question normally attendant to custody such that it was not "interrogation." To the contrary, Simmons expressly questioned Webb, and that questioning falls within the Supreme Courts definition of interrogation. Moreover, even if no express questioning was involved, the entire episode, including the reference to a Christian burial, was reasonably likely to elicit an incriminating response, and Simmons should have known that such a response was reasonably likely. This Court holds that Simmons questioning constituted a police-initiated interrogation. Consequently, Webbs jailhouse statements were obtained in violation of Edwards, and should not have been admitted at Webbs trial. 755 F.2d at 389 (footnote omitted). Likewise, Chief Grabiel was appellants work supervisor and military superior who was visiting him in a military jail as part of an official command visitation team which included two commissioned officers. In addition, he was present when those officers advised appellant of his pretrial confinement rights, including his right to counsel, and he exercised that right. Third, he was also aware of the offenses that appellant was suspected of committing and that he had previously exercised his right to counsel to military police. Fourth, Chief Grabiel admitted that he was not a friend of appellant but provided him a milkshake and cigarettes as a part of his command visitation duties. Finally, he admitted that he had command disciplinary responsibility for both appellant and the alleged victim and that his inquiries were partially motivated by his prior disciplinary pronouncements on gun possession within his command. Under the rationale of Webb, Edwards was violated. Our own case law even more clearly supports our conclusion that Edwards was violated in appellants case. First, like Brabant and Reeves, this was a case where a command representative questioned a member of his command while in confinement in a military jail. This circumstance was not present in the two Article 31 warning cases primarily relied on by the Government on this appeal. See Pittman, 36 MJ at 406 (released by Criminal Investigation Command into custody of company commander); Jones, 24 MJ at 368 (under company escort in unit orderly room). Second, unlike Pittman and Jones, the command representative deliberately questioned his subordinate knowing he was suspected of a particular offense and that he had exercised his rights to counsel on two occasions with respect to it. Finally, the record shows the absence of any personal relationship between appellant and Chief Grabiel, and that "military formality was maintained" at all times during this command visit in accordance with its purpose. See Brabant, 29 MJ at 263. In these circumstances we conclude that, despite Chief Grabiels "personal curiosity," the "inherently compelling pressures of the initial interrogation continued to exist for this command meeting." Id. at 263. The second question raised in this case is whether this constitutional error was harmless beyond a reasonable doubt such that we need not set aside appellants convictions on this basis. See generally Arizona v. Fulminante, 499 U.S. 279 (1991); Chapman v. California, 386 U.S. 18, 22-24 (1967). The Supreme Court has placed the burden on the Government "to prove beyond a reasonable doubt that" inadmissible evidence obtained from a violation of the Constitution "did not contribute to the verdict obtained." Id. at 24; see Reeves, supra at 237. It has not done so here. In this regard, we note that appellant was charged with attempted premeditated murder and assault intentionally inflicting grievous bodily injury. He was also charged with several other offenses with specific-intent type elements. Thus, intent was a key issue in this case, and the members had to specifically find that appellant had a specific intent to injure Petty Officer Johnson. Appellant raised the defense of accident when he testified that he never intended to actually shoot Johnson, but rather, he merely planned to scare Johnson by shooting at the ceiling as Johnson opened the door. He further testified that he did not know that he had actually shot Johnson; instead he shot at the door handle to keep Johnson from coming out to attack him further. Thus, the inadmissible evidence on appellants intent to shoot Johnson was clearly pertinent to the critical issue in this case. Furthermore, the Government offered Chief Grabiels testimony as a substantial part of their case-in-chief. During its closing argument, the Government repeatedly referred to appellants statement to his chief as evidence of appellants specific intent to kill. In fact, it characterized that statement as the best evidence of appellants intent to kill. Specifically: Now, probably the biggest statement that the accused made that really shows his intent was, was when he was talking with Chief Grabiel. Now, whats important there, this wasnt the same time all this happened. This was after he had thought about what he had just done, after he had been told that Petty Officer Johnson had been shot by him. After he knew all the facts of this, Chief Grabiel asked him "Was it worth it?" The accused responded "Where I come from its an eye for an eye. He left me in the alley." It shows absolutely no remorse and it shows what he planned to do, he did what he planned to so, and it shows what his motive was. He wouldnt say that if he just had an accident. Thats not the kind of statement you say if you just have an accident, "it was an eye for an eye." He did a deliberate act of shooting Petty Officer Johnson. Thats the only reason why he made that statement. Finally, the Governments argument on harmless error is not persuasive. It contends that the overwhelming evidence of appellants intent to injure, otherwise admitted in this case, negated any prejudice he might have suffered from erroneous admission of his pretrial statements. It particularly notes evidence in the record that appellant drove over 50 miles to retrieve the gun; that he loaded the gun with a round in the chamber; that he did not tell anyone about his merely threatening intentions; and, according to one witness, that an unidentified voice said, "You know youre a dead man" in the hall just prior to the shooting. For error to be found harmless beyond a reasonable doubt, an appellate court must be convinced that there was no reasonable likelihood that the erroneously admitted evidence contributed to the verdict. United States v. Bins, 43 MJ 79, 86-87 (1995). Here, there was other evidence in the record, including appellants testimonial assertion of accident, which challenged the prosecutions circumstantial proof of intent and rendered it less than overwhelming. In light of the highly incriminating nature of appellants pretrial statements, their clear undermining of his trial testimony, and their exploitation by the prosecution, we find a reasonable likelihood of prejudice existed in this case. The decision of the United States Navy-Marine Corps Court of Criminal Appeals is reversed. The findings of guilty and the sentence are set aside. The record of trial is returned to the Judge Advocate General of the Navy. A rehearing may be ordered. FOOTNOTES: 1 This offense was dismissed shortly after findings were announced. (R. 431) 2 The granted issue in this case asks whether appellant was denied his "constitutional right to counsel." The Supreme Court has held that a servicemember has no Sixth Amendment right to counsel at a summary court-martial, which it characterized as a disciplinary proceeding outside the scope of that Amendment. See Middendorf v. Henry, 425 U.S. 25 (1976). Moreover, more recently in Davis v. United States, 512 U.S. 452 (1994), the Supreme Court assumed, but did not decide, whether Miranda v. Arizona, 384 U.S. 436 (1966), and the Fifth Amendment right-to-counsel cases are applicable in trials by general courts-martial. Id. at 457. The parties to this appeal do not dispute applicability of these Fifth Amendment Supreme Court decisions to appellants case and neither do we. See United States v. Goodson, 22 MJ 22 (CMA 1986); United States v. Tempia, 16 USCMA 629, 37 CMR 249 (1967). 3 This version was in effect at the time of trial. The current version is unchanged. CRAWFORD, Judge (dissenting): Appellant testified that in the early morning hours of June 4, he went to the victims room with the intention of pointing a loaded gun "up in front of [appellant]," so that when the victim opened his door, appellant could "cycle the bullets" from the magazine onto the floor. Mitchell testified: Q: What the could you please explain to the members exactly all right, exactly what it is you planned on doing with that firearm in front of that door? A: My plan was to walk up to the door, knock on the door, Petty Officer Johnson would answer the door, and I would cycle the bullets and tell him if he ever hit me again that was going to be him. Q: When you just pointed down at the ground, what did you mean? A: The bullets down on the ground. The visual effect for seeing the bullets pop out of the gun. Q: You thought that would scare him? A: Yes, sir, I did. Appellant and Johnson, who were close friends, had been in a drunken brawl earlier that night, and appellant wanted Johnson to think that he should never hit appellant again because if he did, "he could be shot." He claimed that he did not know that he had loaded a bullet into the chamber and that the gun discharged accidentally. Appellant also testified that after the gun discharged, he continued to shoot at the cipher lock on Johnsons door to keep Johnson from coming out and trying to fight. Testimony from the only other eyewitness to the shooting, Aviation Ordnanceman First Class Hill, appellants supervisor, paints a somewhat different picture of this incident, as follows: Q: How did how was the gun raised up? A: Brought up to his side like this [witness raises arm in shooting motion]. TC: May the record reflect that the witness has indicated the weapon was tilted sideways parallel to the deck. MJ: Very well. Q: Did you see the gun discharge? A: I really cant say on that. I heard it, but I cant say I saw it discharge. Q: Okay. After you saw the accused fire the weapon, what did you do then? A: I looked at him and you know, I asked him what whats going on. Q: Did he respond to you at all? A: He turned on me and looked at me and he said, "I said you dont know me." *** Q: Now after he said that to you, what did you do in response to that? A: Well, I started backing up down the hallway. Q: Okay, by backing up where were you trying to go to? A: Back up to the other passageway where I could go downstairs. Q: What was the next thing that happened while you were backing up? A: Well, as I got to the-the connecting passageway to head downstairs, just as I got through the double doors I heard some more gun shots. This evidence alone casts enormous doubt on appellants defense of accident. In addition, Aviation Support Equipment Technician Third Class Scruggs, who was at the barracks on security duty that night, testified that when appellant came down to the security desk and laid the gun on the counter, "he said, My boy did me bad or something like that." The Government also introduced evidence that appellant drove 29 miles from the bar where appellant and Johnson had scuffled to the house where appellant knew this gun was kept, then drove another 21 miles from that house to Johnsons barracks. Though appellant testified that he was weaving as he drove, that he was able to drive those 50 miles without incident tends to diminish his defense of voluntary intoxication. Furthermore, appellant himself brought out in his testimony that he had previously been to Level 3 alcohol treatment almost 2 years prior to this incident. Furthermore, the Government was able to counter his voluntary-intoxication defense with testimony from an expert in addiction psychology that though his blood alcohol content was high, he may have felt the effects of the alcohol to a lesser extent than would have been expected in someone with a less-developed tolerance. In all, appellant shot seven bullets from the weapon. He had loaded all thirteen bullets that were kept with the gun. Appellant was in the service for 12 years and was "familiar with semi-automatic handguns." In fact, he testified that though he had never fired this particular weapon, he had "fired similar types of weapons." Contrary to the majoritys recital, ___ MJ at (15), the panel found appellant guilty of attempted premeditated murder, willfully damaging military property, larceny of the gun, assault with the intent to inflict grievous bodily harm1, and simple assault on the victims roommate2. Thus, the panel clearly did not believe appellants fantastic story of how this event occurred. Given the overwhelming case the Government presented, I would hold that even if the military judge erred by allowing appellants statement to Chief Grabiel into evidence, such error was harmless beyond a reasonable doubt. See Arizona v. Fulminante, 499 U.S. 279, 306-12 (1991)(harmless error analysis for confession); United States v. Remai, 19 MJ 229 (CMA 1985)(Edwards violations are subject to harmless-error analysis). WAS THERE AN EDWARDS VIOLATION? However, I do not believe that the military judges denial of the defense motion to suppress appellants statement was clearly erroneous. Chief Grabiels testimony at trial was that a day and a half after the shooting, he asked appellant "if it was worth it," and appellant replied, "He left me in an alley and where I come from its an eye for an eye." Appellant explained at trial what he meant by that, as follows: Petty Officer Johnson really scared me in the alley, and it was my intent to scare him just as bad as he had scared me. I wanted to also bring up the fact that what he had done in the alley, because they had also told me that I couldnt say anything or ask any questions concerning the case. The remainder of Chief Grabiels testimony was that appellant was an exemplary worker and a man of "flawless" military character. There is no dispute that appellant had been read his rights and invoked his right to counsel twice before Chief Grabiel spoke with him or that Chief Grabiel was aware of this fact and of the acts with which appellant was charged. The Government used this statement in their closing argument and rebuttal as evidence of appellants motive and intent. The defense explained it away in its closing as meaning "reciprocal treatment. In Petty Officer Mitchells mind that was a scare for a scare. Not a shooting for a scare. In Petty Officer Mitchells mind if it had worked out as planned that would have been an equitable trade, an eye for an eye. Evenness and not escalation was his intent but not by shooting not by shooting." In Edwards v. Arizona, 451 U.S. 477, 484-85 (1981), the Supreme Court held that when 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. (Footnote omitted.) The Supreme Court elucidated the definition of interrogation for Miranda v. Arizona, 384 U.S. 436 (1966), and, hence for Edwards purposes in Rhode Island v. Innis, 446 U.S. 291 (1980). There it was stated: The concern of the Court in Miranda was that the "interrogation environment" created by the interplay of interrogation and custody would "subjugate the individual to the will of his examiner" and thereby undermine the privilege against compulsory self-incrimination. [384 U.S.] at 457-458. The police practices that evoked this concern included several that did not involve express questioning....It is clear that these techniques of persuasion, no less than express questioning, were thought, in a custodial setting, to amount to interrogation. This is not to say, however, that all statements obtained by the police after a person has been taken into custody are to be considered the product of interrogation.... It is clear ... that the special procedural safeguards outlined in Miranda are required not where a suspect is simply taken into custody, but rather where a suspect in custody is subjected to interrogation. "Interrogation," as conceptualized in the Miranda opinion, must reflect a measure of compulsion above and beyond that inherent in custody itself. 446 U.S. at 299-300 (footnote omitted). In this respect, the Court noted that those "words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect" are considered "interrogation." Id. at 301. In a footnote, the Court noted that though the inquiry should focus on the suspects view, it should not entirely exclude consideration of the intent of the police. Id. at 301 and n.7. The intent of the police "may well have a bearing on whether the police should have known that their words or actions were reasonably likely to evoke an incriminating response." Id. at n.7. APPLICATION TO THE MILITARY Applying the Edwards rule, the majority determines that because of the disparity in rank between Aviation Ordnance Chief Grabiel and Aviation Ordnanceman Second Class Mitchell, the "inherently compelling pressures of the initial interrogation continued to exist for this command meeting." __MJ at (15), quoting United States v. Brabant, 29 MJ 259, 263 (CMA 1989). Brabant, a security policeman who had exercised his rights to remain silent and to counsel when he became a suspect in a larceny, was ordered by his supervisor that is, Captain Gathright, who was also the squadron operations officer and acting commander to come into the Captains office at the police station just as Brabants shift was ending. There Brabant made "spontaneous" incriminating statements. Id. at 260-61. This Court determined that these circumstances constituted "the functional equivalent of" an interrogation.3 We admonished that "care must be exercised to prevent the creation of situations where the subordinates sense of loyalty, trust, and confidence in his leader obscures his legal rights under the Constitution and the Uniform Code of Military Justice." Id. at 263. As then-Judge Cox perceptively pointed out in his separate opinion, however, the Courts decision went too far when it characterized the "conversation as an interrogation." Id. at 265 (concurring in part and dissenting in part)(If it is one, "it is the strangest one" he has ever seen as a judge.). His concerns are quite apropos here: Such an expansive and "inflexible application of" the rule could "seriously undermine the important, if not vital, relationship between a company commander and a member of his unit.... This case illustrates once again the traps, pitfalls, and obstacles placed in front of military officials trying in good faith to carry out the responsibilities incumbent upon them." Id. at 265. Judge Cox concluded that "courts can examine the conduct of officials involved and rationally determine whether it constitutes interrogation or the functional equivalent thereof." Id. at 268. The majority also cites United States v. Reeves, 20 MJ 234 (CMA 1985), in support of its holding. In that case, Reeves company commander, Captain Kozak, questioned him at the stockade where his confinement was being processed. Captain Kozak even borrowed a rights warning card and read Reeves his rights before questioning him. Id. at 235. Finding this to be clearly an interrogation, we sent the case back to the lower court for their determination of whether Reeves "initiated" the conversation when Captain Kozak showed up for a regular command visit and whether admission of the evidence was harmless error. Id. at 236-37. On remand, the lower court found that the Government had failed to show that Reeves initiated the conversation or that admission of the statement was harmless error. 21 MJ 768, 769, 770 (ACMR 1985). However, the court expressly rejected the Governments request to determine that Edwards does not apply to military commanders, stating that "such a determination is beyond the scope of the remand in this case." Id. at 768. Furthermore, the court found itself "not persuaded by the facts in this case that [Reeves] company commander was not engaged in a law enforcement function when he interrogated" Reeves. Id. at 769. Given this factual and procedural posture, I do not share the majoritys opinion that this case is supportive of its holding. Furthermore, we have previously found that disparity in rank or supervisory status is not dispositive on this issue. For instance, in United States v. Loukas, 29 MJ 385, 389 n.* (1990), we noted in a footnote: "This Court has implicitly held that a superior in the immediate chain of command of the suspect subordinate will normally be presumed to be acting in a command disciplinary function. However, this presumption is not so broad or inflexible as to preclude a limited exception where clearly justified." (Citations omitted.) Thus, it was not the rank per se which we considered important but the role which the supervisor was in when talking with the suspect or accused, and even that was not dispositive. Additionally, the Court there looked to the "circumstances of the case to determine if what occurred was an interrogation or a request for a statement." Id. at 390 (Cox, J., concurring). ARTICLE 31(b) CHALLENGES Also, our case law on challenges based in Article 31(b) is illustrative of the inquiry we should follow here. Though one is rooted in statute and the other in constitutional proscriptions, the purposes served by Article 31 and the Edwards prophylactic rule are the same, and their inquiries should be as well. The distinguishing feature is that in an Edwards scenario, the questioning is in a custodial setting, but that can easily be accounted for in the inquiry. It should be remembered that Article 31 gave servicemembers protection that their civilian counterparts did not have until the Supreme Court decided Miranda v. Arizona, supra. See United States v. Gibson, 3 USCMA 746, 14 CMR 164 (1954). The Edwards rule is merely a "corollary" to that established by the Court in Miranda. See Arizona v. Roberson, 486 U.S. 675, 681 (1988). In United States v. Duga, 10 MJ 206 (1981), we found that the test for applicability of Article 31 is "whether (1) a questioner subject to the Code was acting in an official capacity in his inquiry or only had a personal motivation; and (2) whether the person questioned perceived that the inquiry involved more than a casual conversation. Unless both prerequisites are met, Article 31(b) does not apply." Id. at 210 (citing United States v. Gibson, supra). In that case, the Court determined that though the questioner was on security police duty when he questioned Duga, his motivation was purely personal. Id. at 211. Also, in that case, the Court noted that the questioner had not been tasked with questioning Duga by the investigative team, just as the military judge found here with regard to Chief Grabiel. The Court in Gibson, 3 USCMA at 752, 14 CMR at 170, referred to this as the "restrictive element of officiality." To interpret the language of Article 31(b) without such a limitation would make communications within the military structure unwieldy and rigid. The Court also noted in United States v. Dandaneau, 5 USCMA 462, 464, 18 CMR 86, 88 (1955): Not every inculpatory statement made by an accused in conversation with another is inadmissible because of a failure to warn him of his rights under Article 31. The prohibition of the Article extends only to statements elicited in the course of official interrogation. It is essential, therefore, to determine whether the question asked by Captain Lucas, when he first met the accused in the squadron office, is, as a matter of law, so clearly official or so demanding of an answer by virtue of his superior rank as to fall within the interdiction of the Uniform Code. (Citation omitted.) Because Captain Lucas had testified in that case that his motivation in conversing with Dandaneau in the squadron office was purely personal, the Court focused on Dandaneaus perception of the conversation. The Court drew an inference from "the informality of the conversation and the place it occurred" that Dandaneau "regarded the encounter as a casual meeting." Id. at 464-65, 18 CMR at 88-89. In United States v. Jones, 24 MJ 367, 369 (1987), this Court found that "neither the fact that the sergeant previously had served as [Jones] platoon sergeant nor that he and [Jones] were serving in the same company at the time of trial caused the sergeants questions to be so "clearly official or so demanding of an answer by virtue of his superior rank" as to transform his personal curiosity into an official inquiry." Similarly, in the case at bar, Chief Grabiels supervisory position should not be enough to transform his personal curiosity into officiality. Furthermore, Jones was in handcuffs and in the presence of his escort when he conversed with the sergeant. 24 MJ at 368. Here, Mitchell was in arguably less custodial circumstances as he does not appear to have been in restraints. Finally, in United States v. Pittman, 36 MJ 404 (CMA 1993), where Pittman had been questioned by his section leader who had been "detailed" as his escort, id. at 406, we held that the application of Article 31(b) depends upon the "nature and circumstances of the conversation. Not all communications by persons subject to the Code constitute an interrogation or amount to requesting a statement from an accused or suspect." Id. at 407. We determined that the military judges admission of the statement was correct based on an inquiry into whether, given the questioners "superior rank" and "official position," the "mere" act of questioning was "equivalent to a command." Id., citing Duga, supra at 209. With this case law as guidance, I would look at the following factors to support a determination that there was no custodial interrogation in violation of Edwards v. Arizona, supra, here: 1. Chief Grabiel was Mitchells supervisor, but so was Petty Officer Hill, whose rating is Aviation Ordnanceman First Class. Mitchell (Aviation Ordnanceman Second Class) made similarly incriminating statements to both of them, which were similarly used by the Government in their case. Both supervisors otherwise spoke highly of Mitchell. There is not a significant disparity between their ranks and appellants, such that appellant would feel compelled to respond to either of them against his better judgment merely because of loyalty or trust. In fact, appellant testified that he had been told not to say anything and that this was an opportunity to tell his side of the story. 2. Chief Grabiel had no extraordinary investigative or disciplinary role here. The military judge in what I consider an excessive abundance of caution excluded another statement made to Chief Grabiel about appellants possession of the gun on base because Chief Grabiel had previously warned his crew against bringing weapons on base. Thus, the military judge ruled that on that point the questioning served something of a professional purpose. Otherwise, Chief Grabiels limited disciplinary functions were not implicated. 3. Along those same lines, the military judge, who had the opportunity to consider his demeanor on the witness stand, found that Chief Grabiels question, "Was it worth it?" was "motivated solely out of personal curiosity." In fact, it may even be said that the question was in many respects rhetorical. He was speaking to appellant as a man for whom, given his testimony at trial, he clearly had great respect, and asking him what could have caused this unexpected variance in his exemplary conduct was a matter of personal interest. 4. Chief Grabiel was there fulfilling his command responsibilities. He had gotten appellant his cigarettes from his personal belongings; he bought appellant a McDonalds milkshake because his bruised jaw made eating difficult; he ensured that appellant had been read his pretrial confinement rights; and he checked on appellants transportation back to Jacksonville. Under these circumstances, I find it hard to believe that appellant perceived this to be a custodial interrogation. 5. Chief Grabiel spoke to appellant on June 5; but he did not sign the statement regarding his conversation until June 9. The fact that Chief Grabiel testified on the motion to suppress that he did not approach the agent with this information makes it crystal clear that Chief Grabiel did not intend to gather evidence against appellant. This is also relevant in the analysis of whether he could have reasonably expected an incriminating response to his question. 6. That Chief Grabiel knew what charges might be brought against appellant is not relevant here. The majority cites this as one similar factor in its analogy to United States v. Webb, 755 F.2d 382, 389 (5th Cir. 1985). However, there the court cited it as evidence that the prison classification officers question was not part of his administrative duties. Here, Chief Grabiels question could not have elicited any information not already in his possession. Thus, I part company with the majority and would hold that the military judge did not err in admitting appellants statement to Chief Grabiel; and that even reluctantly assuming error, I am confident it was harmless beyond a reasonable doubt. FOOTNOTES: 1 This charge was subsequently dismissed as being multiplicious for findings. R. 431. 2 The panel substituted this as a lesser-included offense for the charge of assault with a means likely to inflict grievous bodily harm. 3 As then-Judge Cox observed, "It is interesting to note that appellee has never testified that he felt compelled to incriminate himself." 29 MJ at 265 n.2 (Cox, J., concurring in part and dissenting in part). Home Page \| Opinions & Digest \| Daily Journal \| Public Notice of Hearings	{ "pile_set_name": "FreeLaw" }
379 So.2d 185 (1980) Julian A. PARRISH, Ottis C. Parrish, Ray G. Dennis, and Elsie Dennis, Appellants, v. Thomas SWEARINGTON, Appellee. No. OO-144. District Court of Appeal of Florida, First District. January 29, 1980. Bill A. Corbin, Blountstown, for appellants. Steven Seliger, Tallahassee, for appellee. PER CURIAM. The appellant, Julian A. Parrish a registered real estate broker, and his wife, Ottis C. Parrish, owned, by the entireties, a large tract of land in Calhoun County, Florida. In August of 1977, the appellee, Thomas Swearington, entered into an oral agreement with the appellant, Julian Parrish, to purchase a portion of said land and, pursuant to the agreement, Swearington made a down payment of $240, moved his family onto the property where they have continuously resided, and made monthly payments of $49.78 towards the purchase price. Julian and Ottis Parrish subsequently sold to Ray G. Dennis and Elsie Dennis a large tract of land which included the land occupied by Swearington. The trial judge found that Swearington was entitled to specific performance of his oral agreement and ordered the appellants, Julian A. and Ottis C. Parrish, to execute a writing setting forth the terms of said agreement. It is well-established law in Florida that a husband and wife owning property in an estate by the entireties must join in any conveyance thereof. Neither spouse alone can do anything to alter the tenancy of identifiable property held by the entireties. *186 Although it is true that the estate held by spouses in an estate by the entireties is one per tout et non per my, they are still two owners of the property, and both must join in a conveyance of it and since an estate by the entireties is vested in husband and wife as one person, neither spouse can sell, forfeit or encumber any part of the estate without the consent of the other, nor can one spouse alone lease it or contract for its disposition. 17 Fla.Jur., Husband and Wife, § 27, pp. 86-87. The record before us will not support the circuit judge's finding that "an oral agreement exists between plaintiff and defendants, Julian A. and Ottis C. Parrish ..." There is an absence of competent substantial evidence that Ottis Parrish was a party to, participated in, or was aware of the agreement between her husband and the appellee. The challenged order, if it is to survive, must find support in some theory of law other than joinder of spouses in conveyance of jointly held property. The principle of estoppel may be invoked against a married woman who knowingly permits her husband to manage or control her property, or allows him to deal with it so as to induce others to believe that he is acting as her authorized agent. 17 Fla.Jur. Husband and Wife, § 38. The instant record is not demonstrative of such a relationship however as evidenced by the Parrishes' denial of any such arrangement and the appellee's inability to produce evidence to the contrary: Q. (By Mr. Corbin) Do you have any information to offer the court concerning this alledged (sic) agency agreement between Julian and Otis (sic)? A. (By Swearington) No, sir. Q. You have no other information to supply the court? A. No. Q. Do you have any similar information concerning an agency agreement between Julian Parrish and Jerry C. Parrish? A. No, sir. Q. Do you have any information to offer the court concerning the same type agency agreement between Julian Parrish and Norma B. Parrish? A. No, sir. Q. Do you know anybody that has any information concerning these alledged (sic) agency agreements? A. No, sir. We are unable to find in the present record any competent evidence that will support a finding that Ottis Parrish joined with her husband in an oral agreement to convey jointly owned property. We are also unable to find any basis for departing from the general law of Florida which precludes one spouse from conveying property held by the entireties without the consent of the other spouse. The order is accordingly reversed and the cause is remanded to the circuit judge for further consideration in light of this opinion thereby rendering moot the remaining issues. ERVIN, SHAW and WENTWORTH, JJ., concur.	{ "pile_set_name": "FreeLaw" }
Nebraska Supreme Court Online Library www.nebraska.gov/apps-courts-epub/ 10/18/2019 01:07 AM CDT - 872 - Nebraska Supreme Court A dvance Sheets 303 Nebraska R eports IN RE APPLICATION NO. OP-0003 Cite as 303 Neb. 872 In re A pplication No. OP-0003. TransCanada K eystone Pipeline, LP, et al., appellees and cross-appellees, v. Susan and William Dunavan et al., appellants, Yankton Sioux Tribe of South Dakota and Ponca Tribe of Nebraska, appellees and cross-appellants, and Sierra Club, Nebraska Chapter, et al., appellees. ___ N.W.2d ___ Filed August 23, 2019. No. S-17-1331. 1. Jurisdiction: Appeal and Error. A jurisdictional question which does not involve a factual dispute is determined by an appellate court as a matter of law. 2. Administrative Law: Statutes: Appeal and Error. The meaning and interpretation of statutes and regulations are questions of law for which an appellate court has an obligation to reach an independent conclusion irrespective of the decision made by the court below. 3. Constitutional Law: Due Process. The determination of whether the procedures afforded to an individual comport with constitutional require- ments for procedural due process presents a question of law. 4. Public Service Commission: Appeal and Error. Under Neb. Rev. Stat. § 75-136(2) (Reissue 2018), an appellate court reviews an order of the Nebraska Public Service Commission de novo on the record. 5. Appeal and Error. In a review de novo on the record, an appellate court reappraises the evidence as presented by the record and reaches its own independent conclusions concerning the matters at issue. 6. Administrative Law: Appeal and Error. Where the evidence is in con- flict, the Supreme Court will consider and may give weight to the fact that the agency hearing examiner observed the witnesses and accepted one version of the facts rather than another. 7. Constitutional Law: Public Service Commission. The Nebraska Public Service Commission is an independent regulatory body created by the Nebraska Constitution in article IV, § 20. - 873 - Nebraska Supreme Court A dvance Sheets 303 Nebraska R eports IN RE APPLICATION NO. OP-0003 Cite as 303 Neb. 872 8. Public Service Commission. The determination of what is consistent with the public interest, or public convenience and necessity, is one that is peculiarly for the determination of the Nebraska Public Service Commission. 9. Statutes: Appeal and Error. Statutory language is to be given its plain and ordinary meaning, and an appellate court will not resort to inter- pretation to ascertain the meaning of statutory words which are plain, direct, and unambiguous. 10. Statutes: Legislature: Intent. Components of a series or collection of statutes pertaining to a certain subject matter are in pari materia and should be conjunctively considered and construed to determine the intent of the Legislature, so that different provisions are consistent, har- monious, and sensible. 11. Evidence. Unless an exception applies, only a preponderance of evi- dence is required in civil cases. 12. Trial: Evidence: Proof. The burden of proof is satisfied by actual proof of the facts, of which proof is necessary, regardless of which party intro- duces the evidence. 13. Administrative Law: Pleadings. The rules of pleading are not applied in administrative proceedings as strictly as they are in court proceedings. 14. Administrative Law: Due Process: Notice. Due process requires notice and an opportunity for a full and fair hearing at some stage of the agency proceedings. 15. Notice: Waiver. It is generally held that participation in the hearing waives any defect in the notice. 16. Administrative Law: Appeal and Error. An appellate court will not consider an issue on appeal that was not presented to or passed upon by the administrative agency. 17. Interventions: Final Orders: Appeal and Error. An order denying intervention is a final order for purposes of appeal. 18. Administrative Law: Statutes. Agency regulations properly adopted and filed with the Secretary of State of Nebraska have the effect of statutory law. 19. Rules of Evidence: Hearsay: Statutes. The Nebraska Evidence Rules provide that hearsay is admissible when authorized by the statutes of the State of Nebraska. 20. Legislature: Courts: Evidence. The legislative branch has the right to prescribe the admissibility of certain categories of evidence, but it is solely a judicial function to determine the weight, if any, to be given such evidence. 21. Evidence: Appeal and Error. In a civil case, the admission or exclu- sion of evidence is not reversible error unless it unfairly prejudiced a substantial right of the complaining party. - 874 - Nebraska Supreme Court A dvance Sheets 303 Nebraska R eports IN RE APPLICATION NO. OP-0003 Cite as 303 Neb. 872 22. Interventions: Pleadings. Intervenors can raise only issues that sustain or oppose the respective contentions of the original parties. 23. Interventions: Parties. An intervenor who is not an indispensable party cannot change the position of the original parties or change the nature and form of the action or the issues presented therein. 24. Interventions. An intervenor cannot widen the scope of the issues, broaden the scope or function of the proceedings, or raise questions which might be the subject of litigation but which are extraneous to the controlling question to be decided in the case. Appeal from the Public Service Commission. Affirmed. David A. Domina and Brian E. Jorde, of Domina Law Group, P.C., L.L.O., for appellants. Douglas J. Peterson, Attorney General, L. Jay Bartel, David A. Lopez, and Lynn A. Melson for appellee Nebraska Public Power Service Commission. James G. Powers and Patrick D. Pepper, of McGrath, North, Mullin & Kratz, P.C., L.L.O., for appellees TransCanada Keystone Pipeline, LP, et al. Jennifer S. Baker and Leonika R. Charging, of Fredericks, Peebles & Morgan, L.L.P., for appellee Yankton Sioux Tribe. Brad S. Jolly, of Brad S. Jolly & Associates, for appellee Ponca Tribe of Nebraska. Kenneth C. Winston for appellee Sierra Club, Nebraska Chapter. Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ. Funke, J. The Nebraska Public Service Commission (PSC) granted the application filed by TransCanada Keystone Pipeline, LP (TransCanada), pursuant to the Major Oil Pipeline Siting Act (MOPSA), Neb. Rev. Stat. §§ 57-1401 to 57-1413 (Reissue 2010 & Cum. Supp. 2018), for approval of a major oil pipeline - 875 - Nebraska Supreme Court A dvance Sheets 303 Nebraska R eports IN RE APPLICATION NO. OP-0003 Cite as 303 Neb. 872 route and eminent domain authority. The PSC approved the “Mainline Alternative Route” (MAR), a 36-inch major oil pipe- line and related facilities to be constructed through Nebraska, from the South Dakota border in Keya Paha County, Nebraska, to Steele City, Nebraska. The landowners, two Indian tribes, and the Sierra Club, Nebraska Chapter (Sierra Club), all inter- vened in the proceedings. The landowners appealed, the Indian tribes cross-appealed, and the Sierra Club attempted to appeal from the PSC’s decision. The intervenors raise numerous arguments on appeal. Each of these arguments raises issues of public concern and rep- resents profound, deeply held beliefs. Upon de novo review of the PSC’s decision, we find the matters in controversy are resolved based on the determination of four overarching issues: The first, whether the PSC had jurisdiction to consider TransCanada’s application; the second, whether TransCanada met its burden of proof; the third, whether the PSC properly considered the MAR; and the fourth, whether the intervenors were afforded due process. We answer each of these questions in the affirmative. At the outset, we observe that this appeal comes to us in a completely different legal framework than we confronted in Thompson v. Heineman.1 While both cases involve the statu- tory process for obtaining route approval of an oil pipeline, the issues in this appeal are distinctly different from those in Thompson because here, route approval was sought from the PSC using the MOPSA procedure. In this opinion, we describe the procedures enacted by the Legislature to effectuate pro- ceedings under MOPSA. We discuss the record in detail and show that TransCanada carried its burden of proving that the MAR is in the public interest. We then determine that the errors assigned by the intervenors are without merit. Accordingly, we affirm the PSC’s determination that approval of the MAR is in the public interest. 1 Thompson v. Heineman, 289 Neb. 798, 857 N.W.2d 731 (2015). - 876 - Nebraska Supreme Court A dvance Sheets 303 Nebraska R eports IN RE APPLICATION NO. OP-0003 Cite as 303 Neb. 872 I. BACKGROUND TransCanada is a limited partnership organized in Delaware with its principal place of business in Houston, Texas. In 2008, TransCanada applied for a presidential permit to construct a pipeline across the Canadian border into the United States. The proposed route would have passed through the Nebraska Sandhills at a time when no legal standards existed in Nebraska to constrain an oil pipeline carrier’s right to exercise eminent domain authority.2 In 2011, Gov. Dave Heineman called a special session of the Legislature to enact siting legislation for pipeline routing. 1. Siting Legislation The Legislature enacted MOPSA, 2011 Neb. Laws, L.B. 1, § 2, 1st Spec. Sess., which gave routing authority to the PSC, an independent regulatory body with duly elected officials.3 MOPSA applies to a pipeline with an interior diameter larger than 6 inches that is built to transport petroleum products within, through, or across Nebraska.4 MOPSA requires a major oil pipeline carrier to apply for and obtain routing approval from the PSC before the carrier is authorized to exercise emi- nent domain power pursuant to § 57-1101.5 MOPSA recognized that federal law preempts state regula- tion of safety issues related to oil pipelines and that Nebraska’s laws cannot interfere with the federal government’s uniform standards for pipeline safety, operation, and maintenance.6 Consequently, the Legislature enacted MOPSA to address “choosing the location of the route aside and apart from safety considerations.”7 With MOPSA, the Legislature harnessed 2 See Neb. Rev. Stat. § 57-1101 (Reissue 2010). 3 See, Neb. Rev. Stat. § 32-509 (Reissue 2016); Neb. Rev. Stat. § 75-101(1) (Reissue 2016). 4 § 57-1404(2). 5 See §§ 57-1402(1)(c) and 57-1408(1). 6 § 57-1402(2). 7 See id. - 877 - Nebraska Supreme Court A dvance Sheets 303 Nebraska R eports IN RE APPLICATION NO. OP-0003 Cite as 303 Neb. 872 Nebraska’s remaining sovereign powers with respect to oil pipeline construction, granted the PSC authority to conduct proceedings and decide applications, and determined that “[t]he construction of major oil pipelines in Nebraska is in the public interest of Nebraska . . . .”8 In the same special session, the Legislature enacted 2011 Neb. Laws, L.B. 4, 1st Spec. Sess., which created a sepa- rate procedural avenue for a pipeline carrier to obtain route approval. Independent from the MOPSA process, § 3 of L.B. 4 authorized Nebraska’s Department of Environmental Quality (DEQ) to collaborate with any federal agency for the prep- aration of a supplemental environmental impact statement (SEIS) for oil pipelines within, through, or across Nebraska, in accordance with the review process under the National Environmental Policy Act of 1969, 42 U.S.C. § 4321 et seq. (2012).9 Once completed, the DEQ was to submit the SEIS to the Governor, who then would have 30 days to indicate his or her approval of a route in writing to the relevant federal agen- cies.10 Both L.B. 1 and L.B. 4 were passed with an emergency clause and became effective on the same date, November 23, 2011. On January 18, 2012, the President of the United States denied TransCanada’s permit application. On April 17, 2012, the Legislature passed and the Governor approved 2012 Neb. Laws, L.B. 1161, which amended L.B. 1 and L.B. 4. In its orig- inal form, MOPSA did not apply to TransCanada, because the legislation contained an exemption for a pipeline carrier which had a pending application for a presidential permit.11 L.B. 1161 eliminated that exemption, which led TransCanada to seek to obtain route approval from the PSC under MOPSA.12 8 § 57-1403(3). 9 L.B. 4, § 3(1). 10 L.B. 4, § 3(4). 11 L.B. 1, § 5(2). 12 L.B. 1161, § 4. - 878 - Nebraska Supreme Court A dvance Sheets 303 Nebraska R eports IN RE APPLICATION NO. OP-0003 Cite as 303 Neb. 872 L.B. 1161 amended § 3 of L.B. 4 so that the DEQ could either prepare the SEIS through collaboration with federal agencies, as L.B. 4 originally had provided, or could indepen- dently evaluate a route submitted by a pipeline carrier “for the stated purpose of being included in a federal agency’s or agen- cies’ National Environmental Policy Act review process.”13 This amendment allowed the DEQ to continue to review pos- sible routes for the Keystone XL pipeline project, which the DEQ had ceased reviewing following the President’s denial of TransCanada’s application for permit. In conducting an independent evaluation of a proposed route, L.B. 1161 required the DEQ to hold at least one public hearing, provide opportunities for public review and comment, and analyze “the environmental, economic, social, and other impacts associated with the proposed route and route alterna- tives in Nebraska.”14 The DEQ would then submit its evalu- ation of the pipeline route to the Governor, and the pipeline carrier could then seek the Governor’s approval of the route.15 L.B. 1161 provided that a pipeline carrier’s authorization to exercise eminent domain power expires “[i]f condemna- tion procedures have not been commenced within two years after the date the Governor’s approval is granted or after the date of receipt of an order approving an application under [MOPSA].”16 2. TransCanada Modifies Route In 2012, TransCanada modified the original route, which would have passed through the Nebraska Sandhills, based on recommendations provided by the DEQ. On September 5, 2012, TransCanada filed a supplemental environmental report with the DEQ regarding the “reroute.” The “reroute” avoided 13 Neb. Rev. Stat. § 57-1503(1)(a)(i) (Cum. Supp. 2018). 14 Id. 15 See, § 57-1503(4); § 57-1101 (Cum. Supp. 2018). 16 § 57-1101 (Cum. Supp. 2018). - 879 - Nebraska Supreme Court A dvance Sheets 303 Nebraska R eports IN RE APPLICATION NO. OP-0003 Cite as 303 Neb. 872 the Sandhills and other areas of fragile soils and shallow groundwater identified by the DEQ. On January 3, 2013, the DEQ submitted a final evaluation report to the Governor in accordance with L.B. 1161. On January 22, the Governor approved the “reroute” in a letter to the President and the U.S. Department of State (the Department), asking that the DEQ’s evaluation be included in the federal SEIS report. TransCanada filed condemnation actions, which were later dismissed follow- ing litigation challenging the constitutionality of L.B. 1161. More than 2 years passed after the Governor’s approval of the route, and TransCanada no longer proceeded on that approval. On January 24, 2017, the President invited TransCanada to resubmit its permit application, which TransCanada accom- plished 2 days later. On February 16, TransCanada filed an application with the PSC for approval of a major oil pipeline route. On March 23, the Department granted TransCanada a presidential permit. 3. TransCanada’s A pplication to PSC TransCanada’s application to the PSC sought approval of a route designated as the “Preferred Route” (PR), which was “refined to reflect the recommendations made by the [DEQ] and the Governor’s approval.” The “reroute” submitted to the DEQ in 2012 “was used as the basis for developing the [PR].” The PR is 275.2 miles long and begins at the Nebraska- South Dakota border in Keya Paha County and passes through the Nebraska counties of Keya Paha, Boyd, Holt, Antelope, Boone, Nance, Merrick, Polk, York, Fillmore, and Saline before terminating in Steele City. The application referred to two alternative routes, the MAR and the “Sandhills Alternative Route” (SAR). TransCanada developed each of the three routes with the goal of utiliz- ing the “existing fixed starting point” at the Nebraska-South Dakota border in Keya Paha County, north of Mills, Nebraska, and the “existing fixed ending point” at the pump station in Steele City, which is the end point of the pipeline system already existing in Nebraska, known as Keystone I. Keystone I - 880 - Nebraska Supreme Court A dvance Sheets 303 Nebraska R eports IN RE APPLICATION NO. OP-0003 Cite as 303 Neb. 872 runs north and south through the Nebraska counties of Cedar, Wayne, Stanton, Colfax, Butler, Seward, Saline, and Jefferson. The PR and the MAR run southeastward and were designed to avoid passing through the Sandhills, an ecological region as defined by the DEQ. The PR would run across the southwest corner of Boyd County and then cross the Keya Paha River; enter Holt County crossing the Niobrara River; cross the Elkhorn River in Antelope County, through Boone County; and cross the Loup River in Nance County. The route would then turn and cross the northeastern corner of Merrick County; cross the Platte River; enter Polk County and continue south through York, Fillmore, and Saline Counties; and end in Jefferson County. The PR would parallel Keystone I for 7.3 miles and would require five pump stations. - 881 - Nebraska Supreme Court A dvance Sheets 303 Nebraska R eports IN RE APPLICATION NO. OP-0003 Cite as 303 Neb. 872 The SAR is the route TransCanada initially proposed in 2008. TransCanada’s application stated: “Compared to the [SAR], the overall footprint of the [PR] represents less envi- ronmental impact by avoiding the Sandhills region and mini- mizing impacts to areas with characteristics similar to the Sandhills, including shallow groundwater and fragile soils.” The MAR would “follow the [PR] for 110 miles to just south of the Elkhorn River in Antelope County, then head in a southeasterly direction across Madison and Stanton coun- ties for approximately 43 miles to intercept [Keystone I],” and head south and parallel Keystone I for 97.6 miles, crossing Shell Creek and the Platte River in Colfax County. Based on the DEQ’s recommendation, TransCanada adjusted the route to divert from Keystone I for 29.8 miles to avoid the “Seward County Wellhead Protection Area.” The route then rejoins Keystone I and continues through Saline County to Jefferson County. The MAR would be 5 miles longer than the PR and would require a total of six pump stations. TransCanada stated in the application that it viewed the PR to be superior to the MAR, because the MAR would require a greater total number of acres; increase the crossing of the ranges of federally recognized threatened and endangered spe- cies; increase the crossing of highly erodible soils; increase the crossing of unusually sensitive ecological areas; and increase crossings of perennial streams, railroads, and roads. Despite the MAR’s advantages due to its co-location with Keystone I, TransCanada considered the PR to be more beneficial than the MAR, because the PR was shorter and required one fewer pump station. The application included a reclamation and revegetation plan to fully restore lands disturbed by construction along the route to their preconstruction capabilities. Under the Oil Pipeline Reclamation Act, Neb. Rev. Stat. §§ 76-3301 to 76-3308 (Reissue 2018), TransCanada is responsible for all reclama- tion costs necessary as a result of constructing and operating the pipeline, except to the extent another party is determined - 882 - Nebraska Supreme Court A dvance Sheets 303 Nebraska R eports IN RE APPLICATION NO. OP-0003 Cite as 303 Neb. 872 to be responsible.17 TransCanada intends to revegetate the pipeline right-of-way as near as practicable to preconstruc- tion conditions to ensure equivalent land capability following construction and the establishment of native plant communities along the pipeline. TransCanada represented that it will abide by § 76-3304(3) and keep its reclamation and maintenance obligations until the pipeline is permanently decommissioned or removed. The application specified that the pipeline would be 36 inches in diameter for the entire length of the route. Construction would occur in a linear segmented fashion within a 110-foot- wide construction right-of-way, consisting of a 60-foot tem- porary right-of-way and a 50-foot permanent easement. The width of the construction right-of-way may be decreased or increased to address natural resource or engineering concerns. Moreover, TransCanada stated it will adjust the route “to the extent practicable” to avoid culturally significant sites. In addi- tion to the installation of the pipeline, the PR required the con- struction and operation of permanent aboveground structures, including 5 pump stations and 19 intermediate mainline valves. The pump stations would be built on purchased land ranging from 7 to 17 acres. Each intermediate mainline valve would be constructed within a fenced site, approximately 50 feet by 50 feet, located within the 50-foot-wide easement. TransCanada concluded its application by stating that the PR had been thoroughly evaluated by federal and state agen- cies, was designed to mitigate impacts to natural resources, and ensured minimal impacts to the orderly development and growth of the region. In its prayer for relief, TransCanada requested an order from the PSC that the PR is in the pub- lic interest. 4. Prehearing M atters The PSC published notice of TransCanada’s application in The Daily Record, a legal newspaper in Omaha, Nebraska, on 17 § 76-3304(1). - 883 - Nebraska Supreme Court A dvance Sheets 303 Nebraska R eports IN RE APPLICATION NO. OP-0003 Cite as 303 Neb. 872 February 20, 2017, and set the deadline for formal intervention for March 22. TransCanada filed proof of service of its appli- cation on the agencies listed in § 57-1407(3), as well as proof of notice to Antelope, Boone, Boyd, Fillmore, Holt, Jefferson, Keya Paha, Merrick, Nance, Polk, Saline, and York Counties. TransCanada later filed proof that notice of the application was filed in newspapers of general circulation in those counties. Numerous groups and individuals filed petitions to inter- vene in the proceedings based on property, economic, natural resource, social, cultural, and territorial interests. On March 30, 2017, TransCanada filed objections to certain petitions for intervention, arguing that the asserted legal rights or interests would not be affected due to the narrow scope of the proceed- ings. TransCanada argued that MOPSA does not provide a forum to litigate whether or not a major oil pipeline should be constructed, but instead is limited to the issue of whether or not to approve a particular pipeline route. On March 31, 2017, the hearing officer for the PSC issued an “Order on Formal Intervention Petitions.” The order explained that, under § 57-1408(2), the applicable statutory deadline for the PSC’s decision was “eight months after the issuance of a presidential permit authorizing the construction of the major oil pipeline.” The presidential permit for the pipeline was issued on March 23, which meant that the PSC was required to issue its final decision on the application by November 23. The order stated that the decisions on the petitions for intervention were reached by balancing the strict deadline under MOPSA with the need to produce a complete record and afford all interested parties an opportunity to be heard. The order granted petitions for formal intervention filed by the landowners with no limitations or conditions. The order granted petitions for formal intervention filed by three dif- ferent unions: the Midwest Regional Office of the Laborers International Union of America (LiUNA); the International Brotherhood of Electrical Workers, Local Union No. 265; and the United Association of Journeymen and Apprentices of the - 884 - Nebraska Supreme Court A dvance Sheets 303 Nebraska R eports IN RE APPLICATION NO. OP-0003 Cite as 303 Neb. 872 Plumbing and Pipe Fitting Industry of the United States and Canada, AFL-CIO (UA). The order imposed conditions on the unions’ participation by ordering them to jointly offer testi- mony from one witness at the public hearing, participate in limited discovery, collaborate on cross-examination of up to 1 hour per witness, and submit one joint brief. The order granted petitions for formal intervention filed by the Ponca Tribe of Nebraska (Ponca) and the Yankton Sioux Tribe of South Dakota (Yankton Sioux). Ponca’s peti- tion stated it had a direct interest in the proceedings because the routes pass through its traditional, aboriginal, and federally recognized territory, which contains “historic, cultural, sacred and archaeological natural resources.” Yankton Sioux’s petition stated that the proposed pipeline would “traverse [its] ancestral territory” and that it had an interest in preserving “cultural, spiritual, and historic sites.” The hearing officer found that “neither petition cite[d] a legally cognizable current real prop- erty interest in land encompassing the route,” but noted that § 57-1407(4)(d) requires the PSC “to consider evidence of the social impacts of the project,” and found that evaluating social impacts could encompass cultural, anthropological, and histori- cal issues. The order imposed conditions on the tribes’ petitions similar to those imposed on the unions. The order granted petitions for formal intervention, subject to the same or similar conditions, filed by groups and indi- viduals asserting environmental and natural resource interests, including Bold Alliance and the Sierra Club. The order stated that under MOPSA, the PSC is prohibited from evaluating safety considerations such as “the risk or impact of spills or leaks from the major oil pipeline,” but found that the PSC could appropriately consider issues such as the proposed route’s “environmental impact, soil permeability, distance to groundwater, and impact on plant life and wildlife.” The order on the petitions for intervention concluded with a separate section devoted to addressing the MAR. The order stated that “[MOPSA] requires the [PSC] to consider whether - 885 - Nebraska Supreme Court A dvance Sheets 303 Nebraska R eports IN RE APPLICATION NO. OP-0003 Cite as 303 Neb. 872 any other utility corridor exists that could feasibly and benefi- cially be used for the route of the major oil pipeline,” and that the MAR “partially parallels [Keystone I].” The order there- fore “encourage[d] all parties to provide evidence regarding the feasibility and potential benefits and/or drawbacks of the [MAR].” The order granted each intervenor group permission to call an additional witness and offer accompanying exhibits to provide evidence concerning the MAR. The order noted that the SAR “was previously rejected by Nebraska authorities” and therefore has “already effectively been determined to not be a viable option.” On April 5, 2017, the hearing officer entered a case man- agement order. The order set a prehearing conference for July 31 and announced that a public hearing on TransCanada’s application would commence on August 7 in Lincoln, Nebraska. The order stated that the PSC may hold public meetings “for the purpose of receiving input from the public” and that “[a]ny comments received will be made a part of the permanent record of this proceeding.” All parties were required to submit written testimony in advance and make witnesses available for cross-examination at the public hear- ing. The order stated that “any/all Hearing Officer Orders . . . will apply to and bind all parties, will control the course of the proceedings, and may be modified only by order of the Hearing Officer.” The PSC published notice of the public hearing on TransCanada’s application in The Daily Record newspaper on April 11, 2017. The notice also announced that the PSC would hold a public meeting in Lincoln on April 18. The PSC published notice of its August 7 public hearing in newspapers in counties along the MAR and the PR, and sent letters to the governing bodies of the cities and counties along both routes notifying them that the pipeline route could pass through their jurisdiction and seeking their views on whether that would be in the public interest. The letters indicated that the application was available on the PSC’s website. - 886 - Nebraska Supreme Court A dvance Sheets 303 Nebraska R eports IN RE APPLICATION NO. OP-0003 Cite as 303 Neb. 872 On May 3, 2017, the PSC held a public meeting in York, Nebraska. On May 10, “after careful and thoughtful delibera- tion and reflection of the variety of public comment received by the [PSC] at the [public meeting],” the hearing officer entered an order “[m]odifying [c]ase [m]anagement [p]lan and [i]nter- vention [o]rder.” The order allowed each intervenor group to present testimony from two witnesses, in addition to a “witness regarding the [MAR] as detailed in the [intervention order].” On June 7 and 28 and July 26, 2017, the PSC held addi- tional public meetings in York, O’Neill, Norfolk, and Ralston, Nebraska, respectively, and received over 450 oral and written comments from the public. 5. Public Hearing The PSC held a public hearing on TransCanada’s application from August 7 to 10, 2017, in Lincoln. TransCanada submitted prefiled direct examination testimony from 10 witnesses, pre- sented each witness for cross-examination, and filed rebuttal testimony from 6 witnesses. The landowner intervenors pre- filed testimony from 61 witnesses and offered live testimony from 10 landowners and 1 expert witness. Ponca and Yankton Sioux each presented testimony from one witness. The natu- ral resource intervenors presented testimony from three wit- nesses, and the union groups presented testimony from two witnesses. We provide a summary of the presentation of evidence at the public hearing, along with context added from the thousands of pages of pleadings, exhibits, testimony, and briefs in the record before the PSC. (a) TransCanada Testimony (i) Tony Palmer Tony Palmer is the president of TransCanada Keystone Pipeline GP, LLC, and TransCanada Keystone, LLC, which together own 100 percent of TransCanada, a company orga- nized for the purposes of owning and constructing pipelines which transport crude oil from Canada to the United States. - 887 - Nebraska Supreme Court A dvance Sheets 303 Nebraska R eports IN RE APPLICATION NO. OP-0003 Cite as 303 Neb. 872 Palmer is responsible for development and oversight of the pipeline project. He testified in support of the request for approval of the PR as set forth in the application. Palmer stated the PR was designed by drawing the “shortest footprint . . . from Hardisty, Alberta, to Steele City.” Palmer estimated the initial use of the pipeline would be 20 years, which could be extended to 50 years if it was well maintained. Palmer confirmed that TransCanada is responsible for all reclamation costs associated with the project, unless another party is determined to be responsible. Palmer repre- sented that TransCanada and all affiliated parties will not claim any tax deductions, exemptions, credits, refunds, or rebates under the Nebraska Advantage Act, Neb. Rev. Stat. §§ 77-5701 to 77-5735 (Reissue 2009), and testified that “we do not con- sider selling the route an option.” Palmer stated that based on TransCanada’s studies and the studies conducted by the DEQ and the Department, he considered the PR to be superior to the MAR. (ii) Paul Fuhrer Paul Fuhrer, the project manager for TransCanada USA Services Inc., testified regarding the construction process for the proposed pipeline and pump stations. Fuhrer stated the top of the pipeline will sit a minimum of 4 feet below the surface of land, and a minimum of 25 feet below the surface of a water stream. Each pump station will be placed an aver- age of 55 miles apart and utilize approximately 8 to 10 acres of land, but could utilize up to 17 acres. Shutoff valves will be placed at intervals along the pipeline, based on hydraulics and other factors, and located within a 50-foot-by-50-foot fenced enclosure. Fuhrer testified about the trenching operations designed to provide sufficient width and depth to support the pipeline. The construction and installation of a new pipeline would require segregating topsoil from subsoil 110 feet across, and digging trenches that are approximately 8 feet wide and 7 feet deep. - 888 - Nebraska Supreme Court A dvance Sheets 303 Nebraska R eports IN RE APPLICATION NO. OP-0003 Cite as 303 Neb. 872 (iii) Ernie Goss Dr. Ernie Goss, a professor of economics at Creighton University and the principal of the “Goss Institute,” testified regarding his “socioeconomic” impacts report. Goss concluded that the pipeline project would generate economic activity in Nebraska such as sales, wages, and jobs, and would contribute to the state and local tax bases. He estimated that construction of the pipeline would result in positive state and local tax rev- enue to exceed $264 million through the year 2034. Goss con- cluded that during the 2-year construction period, the project would generate a total of over $890 million in Nebraska, with a labor income of $326.6 million supporting an average of 3,397 jobs per year. He estimated that, during the operations period from 2020 through 2034, there would be an economic impact in Nebraska of $1.2 billion in output/sales, with labor income of $415.5 million supporting an average of 371.7 jobs per year. For property tax purposes, Goss considered the pipeline to be a 15-year asset which would depreciate out, except to the extent that facilities are added, replaced, or maintained. Goss employed an input-output method, a type of applied economics analysis that “tracks the interdependence among various producing and consuming sectors of an economy.” For example, Goss asserted that each $1 million TransCanada spends on construction would create a net economic gain of $286,522 in Nebraska and that each $1 million TransCanada spends on operation would create a net gain of $150,000. Goss used “IMPLAN” software in forecasting the economic impact of the pipeline. IMPLAN combines input-output analysis with regional-specific statistics. Goss stated that IMPLAN is a widely used and accepted multiplier system, but agreed that IMPLAN is limited in its ability to determine whether “jobs or output are new or already existing and are simply being reallocated from other uses.” Goss’ report did not disclose the scope of his engagement, but he stated that he was engaged to update his report, initially published in 2013, to reflect the most current data. He did not - 889 - Nebraska Supreme Court A dvance Sheets 303 Nebraska R eports IN RE APPLICATION NO. OP-0003 Cite as 303 Neb. 872 recall how much he had been paid by TransCanada. He admit- ted the report was not peer reviewed and stated: “The goal was to do a study that made sense to the woman and man on the street . . . .” (iv) Sandra Barnett Sandra Barnett, an environmental specialist for TransCanada Corporation, testified regarding environmental issues. Her tes- timony reiterated TransCanada’s commitment to comply with the Oil Pipeline Reclamation Act and to minimize potential impacts on land areas and natural resources. Barnett admit- ted that for affected cropland, “[t]here would be temporary yield loss during construction and perhaps for a period of time afterward,” but stated that TransCanada will reclaim and revegetate the right-of-way and work with the affected land- owners to return it “as close as we can make it” to preconstruc- tion condition. Barnett stated that if a dispute occurs between TransCanada and a landowner about the postconstruction condition of land, the parties will reach a resolution by consulting the Natural Resources Conservation Service (NRCS), a division of the U.S. Department of Agriculture, or other agencies, and include them in the discussion in order to reach a resolution. Regarding sur- face water resources, Barnett admitted that during construction, there potentially will be temporary degradation to groundwater quality and aquatic habitat, as well as bank stability. (v) John Beaver John Beaver, a project manager, ecologist, and reclama- tion specialist with an environmental services company, has been the senior reclamation specialist and special-status species biologist for the project since 2009. He stated that TransCanada will monitor the condition of the right-of-way during the pipeline’s entire operational life. He admitted that TransCanada’s land surveys and “Construction Mitigation and Reclamation Plan” (CMRP) for Nebraska have not been updated since 2012. - 890 - Nebraska Supreme Court A dvance Sheets 303 Nebraska R eports IN RE APPLICATION NO. OP-0003 Cite as 303 Neb. 872 (vi) Michael Portnoy Michael Portnoy, the president and chief executive officer of an environmental consulting and engineering firm, is the lead hydrologist and project manager for soil permeability and distance-to-groundwater surveys. He has academic degrees in geology, geochemistry, hydrology, and business administration. He testified that there is a wide diversification of soil along the PR; he did not separately study the soil along the MAR. (vii) Dr. Jon Schmidt Dr. Jon Schmidt, vice president of the management con- tractor for the pipeline project, helped prepare TransCanada’s application. He testified the application compared the different routes based on the number of acres disturbed, federally listed threatened and endangered species, amount of highly erodible soils, ecologically sensitive areas, and number of crossings of perennial streams, railroads, and roads. He did not analyze the route referred to as the “I-90 Route,” which would co-locate with the entire length of Keystone I. On cross-examination, Schmidt agreed that the MAR “ha[d] potential environmental benefits due to its co-location with [Keystone I].” He agreed that the PR crosses five Nebraska rivers and the MAR crosses only two rivers, but stated the MAR crosses more “perennial waterbodies.” He agreed that according to a map received in evidence, both the PR and the MAR cross the “Ponca Trail of Tears.” (viii) Meera Kothari Meera Kothari, a professional engineer and manager for TransCanada, helped prepare the section of the application which addressed the possible routes. She agreed that the MAR could “feasibly” and “beneficially” be used in Nebraska. She testified that the MAR’s deviation from Keystone I in Seward County was to “avoid the wellhead protection area based on the feedback from the DEQ” and confirmed that “there are no wellhead protection area issues on either” the PR or the MAR. - 891 - Nebraska Supreme Court A dvance Sheets 303 Nebraska R eports IN RE APPLICATION NO. OP-0003 Cite as 303 Neb. 872 (b) Landowner Intervenors Testimony The PSC heard testimony from the landowners focusing on issues of soil compaction, topsoil loss, wind and water erosion, soil blowouts and slides, adverse impacts to crops based on increased soil temperature, and proximity of pipeline construc- tion to water sources. The landowners also provided expert testimony on the issue of economic impact. (i) Arthur Tanderup Arthur Tanderup owns farmland in Antelope County. He and his wife conduct no-till, irrigated farming and raise corn, native corn, soybeans, and rye. He described his land as highly erodible and testified that construction will interfere with the topsoil and the benefits of no-till farming. (ii) Frank Morrison Frank Morrison owns farmland in Antelope County, where he and his wife produce popcorn, edible beans, and peanuts. The land farmed by Morrison contains 65 irrigation wells. He testified the proposed route runs approximately 11⁄2 miles from his processing facilities and intersects his property almost in half. (iii) Robert Krutz Robert Krutz owns land in Antelope County. He and his wife raise “natural beef,” corn, and soybeans. Krutz testified that the construction could put his natural beef certification at risk, which would affect his market sales. He stated his con- cerns about the continued revegetation of his land which sup- ports his livestock. (iv) Jeanne Crumly Jeanne Crumly owns land in Holt County. She and her husband conduct no-till, irrigated farming and raise corn, soy- beans, hay, and potatoes. She testified that the pipeline will impact erodible and permeable soils. - 892 - Nebraska Supreme Court A dvance Sheets 303 Nebraska R eports IN RE APPLICATION NO. OP-0003 Cite as 303 Neb. 872 (v) Bonny Kilmurry Bonny Kilmurry owns land in Holt County. She and her husband have a cow-calf operation, and they harvest hay from pastureland. Her land contains subirrigated meadows with water close to the surface, as well as highly erodible soils, which she described as being similar to Sandhills land. (vi) Diana Steskal Diana Steskal owns land in Holt County. Steskal owns no-till, irrigated farmland that produces wheat, corn, soybeans, edible beans, and popcorn, and she urged for the protection of the natural resources on her land. (vii) Andy Grier Andy Grier is a manager of a ranch in Holt County. He tes- tified about the pipeline’s crossing of the Niobrara River, the potential soil erosion from land clearing, and the proximity of the pipeline to his ranch’s water supplies. (viii) Robert Allpress Robert Allpress owns ranchland on the eastern border of Keya Paha County. He stated the proposed route will cross through fragile soil that is susceptible to blowouts and slides and that many plants and animals will be endangered. He testi- fied he has observed a bald eagle’s nest and whooping cranes in areas near his property. In addition, he testified that mem- bers of the Ponca and Yankton Sioux have surveyed his prop- erty and have identified “culturally significant sites.” (ix) Dr. Michael O’Hara Dr. Michael O’Hara, an economics professor at the University of Nebraska at Omaha, analyzed the economic impact of the proposed pipeline in Nebraska and reviewed Goss’ socioeconomic report. O’Hara opined that the pipeline would decrease the value of property on the route by approxi- mately 15 percent, and he concluded that the pipeline would - 893 - Nebraska Supreme Court A dvance Sheets 303 Nebraska R eports IN RE APPLICATION NO. OP-0003 Cite as 303 Neb. 872 “reduce the emotional attitude of property owners towards their property.” On cross-examination, he admitted that he did not evaluate the Department’s conclusion that the proj- ect would not have a negative impact on property values and would have a positive economic impact through job creation and earnings. He opined that the project would create few permanent jobs. He disagreed with Goss’ conclusions about the increased property tax revenues generated by the pipeline, but acknowledged that TransCanada will be obligated to pay significant sales and use taxes. (c) Yankton Sioux Testimony Jason Cooke, a member of the Yankton Sioux’s business and claims committee, the executive body of Yankton Sioux, testified the pipeline would cross the tribe’s ancestral territory and would disturb cultural resources. Cooke said he expected that the pipeline would encounter burials, ceremonial areas, historic trails, and food and medicine gathering areas. In addition, he objected to a temporary camp that TransCanada may build for its pipeline workers approximately 40 miles from a Yankton Sioux reservation. Cooke stated that such camps are a source of violence and drugs and that the pipeline workers would be drawn to the tribe’s casino in South Dakota. (d) Ponca Testimony Shannon Wright, the Ponca’s tribal historic preservation officer, stated that the PR and the MAR cross the Ponca Trail of Tears and that construction of either route could damage or destroy historic sites. Wright stated that the MAR would cross near Ponca’s service areas in the Nebraska counties of Boyd, Holt, Madison, Stanton, and Platte. Wright agreed that impacts from construction would be alleviated if TransCanada conducted the cultural surveys identified in the “Programmatic Agreement” (PA) and that there will be time before construc- tion for TransCanada to complete these surveys. - 894 - Nebraska Supreme Court A dvance Sheets 303 Nebraska R eports IN RE APPLICATION NO. OP-0003 Cite as 303 Neb. 872 (e) Natural Resources Intervenors Testimony (i) Dr. Paul Johnsgard Dr. Paul Johnsgard, a University of Nebraska-Lincoln profes- sor emeritus of biological sciences, has extensively researched the biology of whooping cranes. Johnsgard asserted that the pipeline would require placing additional electric transmission lines in the whooping cranes’ central migration path. He agreed that the risk posed by the project is “small.” (ii) Dr. Thomas David Hayes Dr. Thomas David Hayes, the lead scientist and executive director of a nonprofit corporation providing research and technical services on environmental matters, testified the pipe- line project would adversely impact natural resources “due to decreased soil permeability and increased soil compaction in both natural areas and croplands.” He further stated that con- struction would “seriously deplete native prairie.” Comparing the PR and the MAR, Hayes concluded that “the [MAR’s] impact upon federally listed species is significantly less than that of the [PR], primarily due to the [MAR’s] impacting 84.6 fewer miles of whooping crane habitat.” He stated that the application downplays the measurable benefits of co-locating the [MAR]. With 88.3 and 102.2 more miles, respectively, of pipeline and total co-location, compared to the [PR], the [MAR] substantially decreases its overall impact by reworking far more industrially impacted areas and, consequently, reducing impacts to relatively undisturbed land. . . . [I]n this manner, irreparable damage to impor- tant natural resources, including native soils and grass- lands, is proportionally reduced. (iii) Joseph Trungale Joseph Trungale, a consultant specializing in hydrology and instream flows, testified about the physical, chemical, and biological impacts associated with the pipeline’s interac- tion with stream channels. He stated there was insufficient - 895 - Nebraska Supreme Court A dvance Sheets 303 Nebraska R eports IN RE APPLICATION NO. OP-0003 Cite as 303 Neb. 872 information about mitigation of stream channel erosion and that shallow aquifers could be affected. (f) Economic Intervenors Testimony (i) David Barnett David Barnett, an international representative assigned to the pipeline and gas distribution department for UA, testified that UA has worked with TransCanada on several recent projects and that the pipeline project would have a positive economic impact on UA. He estimated that UA could expect 564 jobs for the construction phase of the project. (ii) Bill Gerhard Bill Gerhard, a special representative of LiUNA, testified that the pipeline project would have a positive economic impact on LiUNA and its members. He stated the project would create several different types of energy-related jobs, including pipeline construction and pump station jobs. 6. Closing A rguments In their written closing remarks, the landowner intervenors argued that TransCanada’s application should be denied for failure of proof. The landowners argued in the alternative that the PSC had the power to approve an alternate route, so long as the route followed Keystone I. Bold Alliance and the Sierra Club asserted in their written closing argument that “[the] PSC has the authority to approve or disapprove of each route location by considering the ben- efits and feasibility of each of the proposed routes.” They argued that the PR should be denied, because it has more nega- tive impacts than the MAR, and that the PSC should approve the I-90 Route. Ponca opposed both the PR and the MAR. Yankton Sioux argued about the risks associated with the camps for pipeline workers. The unions urged the PSC’s approval of the applica- tion, because the project would bring jobs and other tangible - 896 - Nebraska Supreme Court A dvance Sheets 303 Nebraska R eports IN RE APPLICATION NO. OP-0003 Cite as 303 Neb. 872 economic benefits to their members and the communities in which they reside and work. 7. PSC’s Order Granting TransCanada’s A pplication On November 20, 2017, the PSC issued an order approving TransCanada’s application, by a 3-to-2 vote, and finding the MAR to be in the public interest. The PSC began its findings by stating that MOPSA limits the PSC’s authority to “a review of the proposed route only. The [PSC] is not to determine whether or not the pipeline project, or the pipeline itself, should be built.” (Emphasis in original.) The PSC further stated, “[T]he Legislature has given the [PSC] the limited responsibility of determining whether the route of the pipeline is in the public interest.” In making its public interest determination, the PSC discussed and analyzed each of the eight factors for consider- ation under § 57-1407(4), which provides: The pipeline carrier shall have the burden to establish that the proposed route of the major oil pipeline would serve the public interest. In determining whether the pipeline carrier has met its burden, the commission shall not eval- uate safety considerations, including the risk or impact of spills or leaks from the major oil pipeline, but the com- mission shall evaluate: (a) Whether the pipeline carrier has demonstrated com- pliance with all applicable state statutes, rules, and regu- lations and local ordinances; (b) Evidence of the impact due to intrusion upon natural resources and not due to safety of the proposed route of the major oil pipeline to the natural resources of Nebraska, including evidence regarding the irreversible and irretrievable commitments of land areas and con- nected natural resources and the depletion of beneficial uses of the natural resources; (c) Evidence of methods to minimize or mitigate the potential impacts of the major oil pipeline to natural resources; - 897 - Nebraska Supreme Court A dvance Sheets 303 Nebraska R eports IN RE APPLICATION NO. OP-0003 Cite as 303 Neb. 872 (d) Evidence regarding the economic and social impacts of the major oil pipeline; (e) Whether any other utility corridor exists that could feasibly and beneficially be used for the route of the major oil pipeline; (f) The impact of the major oil pipeline on the orderly development of the area around the proposed route of the major oil pipeline; (g) The reports of the agencies filed pursuant to sub- section (3) of this section; and (h) The views of the governing bodies of the counties and municipalities in the area around the proposed route of the major oil pipeline. The PSC found that TransCanada had produced sufficient evidence to satisfy the relevant statutory considerations. The PSC gave significant weight to subsection (e), and ultimately approved the MAR rather than the PR based on that subsec- tion. The PSC found that the MAR utilized an existing utility corridor, Keystone I, for approximately 100 miles. The PSC declined to approve the I-90 Route, because TransCanada’s construction permit in South Dakota required crossing into Nebraska in Keya Paha County, and the entry point for the I-90 Route is over 100 miles to the east. The PSC found that “the [PR] fails to take advantage of any opportunity to co-locate with the existing utility corridor represented by Keystone I, and therefore we are unable to con- clude that the [PR] is in the public interest.” The PSC relied on testimony provided by TransCanada’s engineer, Kothari, who stated that the MAR was viable and beneficial. The PSC stated, “We see many benefits to maximizing the co-location of the Keystone XL Pipeline with Keystone I. It is in the pub- lic interest for the pipelines to be in closer proximity to each other, so as to maximize monitoring resources and increase the efficiency of response times.” The PSC further agreed with the intervenors that the MAR impacts fewer miles of endangered species and has other comparative environmental benefits. The - 898 - Nebraska Supreme Court A dvance Sheets 303 Nebraska R eports IN RE APPLICATION NO. OP-0003 Cite as 303 Neb. 872 PSC stated, “[TransCanada] cites the additional [5] miles in length and one . . . additional pumping station as negatives against the [MAR]. However, we feel the benefits of maximiz- ing co-location opportunities and utilizing the existing utility corridor that is . . . Keystone I . . . outweighs these concerns.” The PSC found that the MAR “is in the public interest and shall be approved,” and granted TransCanada’s application. 8. Motions for R econsideration Several parties moved for reconsideration. TransCanada’s motion requested leave to file an amended application “to make the [MAR] [TransCanada’s] [PR].”18 Following oral argument, the PSC denied the motions. The landowner intervenors filed a notice of appeal. We moved the case to our docket on our own motion pursuant to our authority to regulate the caseloads of the appellate courts of this state.19 II. ASSIGNMENTS OF ERROR The landowners assign, restated and consolidated, that (1) the PSC lacked jurisdiction to consider the application, (2) the PSC erred in finding that TransCanada sustained its burden of proof, (3) the PSC erred by approving the MAR, (4) the PSC erred in admitting hearsay evidence under § 57-1407(2) and (3), and (5) the PSC erred in denying the landowners proce- dural due process. The landowners also assert constitutional challenges to various statutes. On cross-appeal, Ponca assigns, restated, that (1) the PSC erred in limiting its participation to social and cultural issues and limiting its witnesses and cross-examination time; (2) the PSC erred in approving the MAR because TransCanada never applied for approval of the MAR, the notice require- ments related to the MAR were not met, and TransCanada did not meet its burden of proof with respect to the MAR; and (3) the PSC erred in limiting its consideration of historic 18 Brief for appellee TransCanada at 11. 19 See Neb. Rev. Stat. § 24-1106 (Cum. Supp. 2018). - 899 - Nebraska Supreme Court A dvance Sheets 303 Nebraska R eports IN RE APPLICATION NO. OP-0003 Cite as 303 Neb. 872 and cultural resources to those covered by the National Historic Preservation Act, 54 U.S.C. § 300101 et seq. (Supp. III 2015). On cross-appeal, Yankton Sioux assigns, restated and con- solidated, that the PSC erred by (1) approving a route which does not serve the public interest, (2) violating Yankton Sioux’s procedural due process and equal protection rights, and (3) applying § 84-912.02 of the Administrative Procedure Act (APA)20 instead of the PSC’s intervention regulations to limit Yankton Sioux’s participation. Yankton Sioux also joins in the errors assigned by the landowner appellants. The Sierra Club filed a brief but did not include any assign- ments of error. III. STANDARD OF REVIEW [1-3] A jurisdictional question which does not involve a factual dispute is determined by an appellate court as a matter of law.21 The meaning and interpretation of statutes and regula- tions are questions of law for which an appellate court has an obligation to reach an independent conclusion irrespective of the decision made by the court below.22 The determination of whether the procedures afforded to an individual comport with constitutional requirements for procedural due process presents a question of law.23 [4-6] Under Neb. Rev. Stat. § 75-136(2) (Reissue 2018), an appellate court reviews an order of the PSC de novo on the record.24 In a review de novo on the record, an appellate 20 Neb. Rev. Stat. §§ 84-901 to 84-920 (Reissue 2014 & Cum. Supp. 2016). 21 In re Grand Jury of Douglas Cty., 302 Neb. 128, 922 N.W.2d 226 (2019). 22 In re Petition of Golden Plains Servs. Transp., 297 Neb. 105, 898 N.W.2d 670 (2017). 23 Cain v. Custer Cty. Bd. of Equal., 298 Neb. 834, 906 N.W.2d 285 (2018). 24 In re Application No. B-1829, 293 Neb 485, 880 N.W.2d 51 (2016); Telrite Corp. v. Nebraska Pub. Serv. Comm., 288 Neb. 866, 852 N.W.2d 910 (2014). See In re Claims Against Pierce Elevator, 291 Neb. 798, 868 N.W.2d 781 (2015). - 900 - Nebraska Supreme Court A dvance Sheets 303 Nebraska R eports IN RE APPLICATION NO. OP-0003 Cite as 303 Neb. 872 court reappraises the evidence as presented by the record and reaches its own independent conclusions concerning the matters at issue.25 When an appellate court makes a de novo review, it does not mean that the court ignores the findings of fact made by the agency and the fact that the agency saw and heard the witnesses who appeared at its hearing.26 Where the evidence is in conflict, the Supreme Court will consider and may give weight to the fact that the agency hearing examiner observed the witnesses and accepted one version of the facts rather than another.27 Lastly, Neb. Ct. R. App. P. § 2-109(D)(1)(d), (e), and (f) (rev. 2014) requires that the brief of an appellant include a separate section for assignments of error, designated as such by a heading, and also requires that the section be located after a statement of the case and before a list of controlling propo- sitions of law.28 When a party fails to follow the rules of the Nebraska Supreme Court, an appellate court may proceed as though the party had failed to file a brief or, alternatively, may examine the proceedings for plain error.29 The Sierra Club attempted to file an appeal in this case, but failed to set forth any assignment of error in its brief. In addi- tion to considering the assignments of error raised by the land- owners, Ponca, and Yankton Sioux, we will consider whether the PSC committed plain error. Plain error is error plainly evident from the record and of such a nature that to leave it 25 Id. 26 See, Law Offices of Ronald J. Palagi v. Dolan, 251 Neb. 457, 558 N.W.2d 303 (1997); Department of Health v. Lutheran Hosp. & Homes Soc., 227 Neb. 116, 416 N.W.2d 222 (1987). 27 Dieter v. State, 228 Neb. 368, 422 N.W.2d 560 (1988). 28 Steffy v. Steffy, 287 Neb. 529, 843 N.W.2d 655 (2014); In re Interest of Jamyia M., 281 Neb. 964, 800 N.W.2d 259 (2011). 29 Steffy v. Steffy, supra note 28. See In re Interest of Jamyia M., supra note 28. - 901 - Nebraska Supreme Court A dvance Sheets 303 Nebraska R eports IN RE APPLICATION NO. OP-0003 Cite as 303 Neb. 872 uncorrected would result in damage to the integrity, reputation, or fairness of the judicial process.30 IV. ANALYSIS [7] The PSC is an independent regulatory body created by the Nebraska Constitution in article IV, § 20.31 The powers and duties of the PSC include the “general control of common carriers as the Legislature may provide by law.”32 The constitu- tional provision creating the PSC must be liberally construed to effectuate the purpose for which the PSC was created, which is to serve the public interest.33 In the absence of specific legisla- tion, the powers and duties of the PSC, as enumerated in the constitution, are absolute and unqualified.34 [8] We have repeatedly said that the determination of what is consistent with the public interest, or public convenience and necessity, is one that is peculiarly for the determination of the PSC.35 “‘[C]ourts must give substantial deference to [the PSC’s] judgment about how best to serve the public interest.’”36 We have made this statement in recognition of the PSC’s status as a constitutional entity, and we have gone as far as to state that the “Supreme Court does not act as an appellate 30 Id. 31 Amend v. Nebraska Pub. Serv. Comm., 298 Neb. 617, 905 N.W.2d 551 (2018). 32 Neb. Const. art. IV, § 20. 33 See Myers v. Blair Tel. Co., 194 Neb. 55, 230 N.W.2d 190 (1975). 34 See State ex rel. State Railway Commission v. Ramsey, 151 Neb. 333, 37 N.W.2d 502 (1949). 35 Dahlsten v. Harris, 191 Neb. 714, 217 N.W.2d 813 (1974). See, Andrews Van Lines, Inc. v. Smith, 187 Neb. 533, 192 N.W.2d 406 (1971); Nebraska State Railway Commission v. Chicago & N. W. Ry. Co., 187 Neb. 369, 191 N.W.2d 438 (1971); Ace Gas, Inc. v. Peake, Inc., 184 Neb. 448, 168 N.W.2d 373 (1969). 36 In re Application No. C-1889, 264 Neb. 167, 178, 647 N.W.2d 45, 54 (2002). - 902 - Nebraska Supreme Court A dvance Sheets 303 Nebraska R eports IN RE APPLICATION NO. OP-0003 Cite as 303 Neb. 872 [PSC].”37 However, in 2013, the Legislature amended § 75-136(2) to change our standard of review from errors appearing on the record, as provided under the APA, to “de novo on the record.” We first addressed the “de novo on the record” standard of review for PSC cases in Telrite Corp. v. Nebraska Pub. Serv. Comm.38 Prior to the amendment, a party appealed from the PSC under the APA, and the initial appeal was taken to district court, which conducted a de novo review on the record of the agency.39 Our inquiry in appeals from a district court’s decision under the APA is limited to whether the decision conformed to the law, was supported by competent evidence, and was neither arbitrary, capricious, nor unreasonable.40 In Telrite Corp., we rejected the PSC’s argument that the previous, more deferential standard of review for an appellate court under the APA still applied after the amendment to § 75-136. In so finding, we stated that the PSC was not “due the same degree of deference it enjoyed” before the amendment.41 However, the issue of what deference is owed to the PSC regarding its public interest determinations is more nuanced than stated in Telrite Corp. Under MOPSA, the PSC views the witnesses and evaluates the strength of their testimony, receives comments from the public, investigates the issues presented in coordination with state agencies and authorized consultants, evaluates the public interest, and makes the initial decision of whether to approve an application and authorize eminent domain power. Under the circumstances, it is appropriate, even under a de novo standard of review, to adhere to the common 37 In re Application of Crusader Coach Lines, 213 Neb. 53, 58, 327 N.W.2d 98, 101 (1982). Accord In re Application of McCarty, 218 Neb. 637, 358 N.W.2d 203 (1984). 38 Telrite Corp. v. Nebraska Pub. Serv. Comm., supra note 24. 39 See § 84-917(5). 40 Telrite Corp. v. Nebraska Pub. Serv. Comm., supra note 24. 41 Id., 288 Neb. at 874-75, 852 N.W.2d at 916. - 903 - Nebraska Supreme Court A dvance Sheets 303 Nebraska R eports IN RE APPLICATION NO. OP-0003 Cite as 303 Neb. 872 practice among appellate courts to afford appropriate deference to the findings of the agency before which the record was cre- ated.42 We articulate this standard in light of the PSC’s being constitutionally created to serve the public interest. 1. PSC H ad Jurisdiction The landowners and Yankton Sioux assert that the PSC lacked jurisdiction to approve TransCanada’s application because, under the appellants’ reading of MOPSA, the PSC cannot consider a route application unless the Governor has already considered and denied the application. We determine that under the plain language of MOPSA, prior gubernatorial denial is not required to initiate application proceedings before the PSC. MOPSA is an independent statutory process under which pipeline carriers may obtain route approval and eminent domain authority. Route approval by the Governor is not at issue in this case. [9,10] Statutory language is to be given its plain and ordinary meaning, and an appellate court will not resort to interpretation to ascertain the meaning of statutory words which are plain, direct, and unambiguous.43 Components of a series or collec- tion of statutes pertaining to a certain subject matter are in pari materia and should be conjunctively considered and construed to determine the intent of the Legislature, so that different provisions are consistent, harmonious, and sensible.44 The appellants’ argument is based upon § 57-1405(1), which provides: If a pipeline carrier proposes to construct a major oil pipeline . . . and the pipeline carrier has submitted a route for an oil pipeline within, through, or across Nebraska 42 See, Law Offices of Ronald J. Palagi v. Dolan, supra note 26; Dieter v. State, supra note 27; Department of Health v. Lutheran Hosp. & Homes Soc., supra note 26. 43 Mays v. Midnite Dreams, 300 Neb. 485, 915 N.W.2d 71 (2018). 44 Davio v. Nebraska Dept. of Health & Human Servs., 280 Neb. 263, 786 N.W.2d 655 (2010). - 904 - Nebraska Supreme Court A dvance Sheets 303 Nebraska R eports IN RE APPLICATION NO. OP-0003 Cite as 303 Neb. 872 but the route is not approved by the Governor pursuant to section 57-1503, the pipeline carrier shall file an applica- tion with the [PSC] and receive approval pursuant to sec- tion 57-1408 prior to beginning construction . . . . (Emphasis supplied.) Under the appellants’ view, “the PSC may consider an appli- cation for a route if, but only if, the Governor of Nebraska first considered, and declined to grant, the proposed pipeline route within or across the State.”45 According to the appel- lants, “[d]isapproval is a prerequisite to PSC jurisdiction under § 57-1405(1)”46 and “[t]he Governor must say ‘No’ first; then comes the PSC.”47 It is clear that the appellants’ interpretation is not strictly derived from the statutory text, but, rather, is an extrapola- tion thereof. The language of § 57-1405(1) is not phrased as a jurisdictional prerequisite, but, rather, describes a process for applying for a pipeline route that has “not [been] approved by the Governor.” The appellants read the phrase “not approved by” to mean “must have first considered and denied.” We do not agree. Logically, one can “not approve” something by tak- ing no action. The phrase “not approved by” does not require the Governor to be the first to consider the application or to consider the application at all. As we explained in the back- ground section of this opinion, the MOPSA application process is one of two options the Legislature has enacted to enable a pipeline carrier to pursue route approval. Though we conduct a textual analysis as to whether § 57-1405(1) or § 57-1101 authorizes the PSC to consider TransCanada’s application, we offer no opinion as to the constitutionality of § 57-1101 or other references to the power of the Governor to approve the route. Sections 57-1405(1) and 57-1101 relate to the same sub- ject matter; they address the procedures available for a 45 Brief for appellants at 14 (emphasis in original). 46 Id. at 17. 47 Id. at 15. - 905 - Nebraska Supreme Court A dvance Sheets 303 Nebraska R eports IN RE APPLICATION NO. OP-0003 Cite as 303 Neb. 872 pipeline carrier to obtain route approval under Nebraska law. The current versions of these sections were adopted by the Legislature in the same bill, 2012 Neb. Laws, L.B. 1161, and MOPSA makes specific reference to § 57-1101.48 Therefore, §§ 57-1405(1) and 57-1101 are in pari materia and we must construe them together. Section 57-1101 provides in relevant part: [F]or any major oil pipeline . . . to be placed in opera- tion in the State of Nebraska . . . , any such person, company, corporation, or association shall comply with section 57-1503 and receive the approval of the Governor for the route of the pipeline under such section or shall apply for and receive an order approving the applica- tion under [MOPSA], prior to having the rights provided under this section. (Emphasis supplied.) Section 57-1101 describes the two avenues for route approval, under § 57-1503 and MOPSA, and uses the word “or” to connect them. The word “or,” when used properly, is disjunctive.49 This indicates that a pipeline carrier can pursue either process individually. The processes are independent of each other and should not be understood as the same thing. There are several differences. As described above, under § 57-1503, a pipeline carrier may not seek the Governor’s approval of an application until after the DEQ has utilized State funds to prepare a SEIS and has submitted its evaluation to the Governor. In contrast, under MOPSA, a pipeline carrier initiates the proceedings, is required to prove that the route is in the public interest based on the PSC’s evaluation of multifaceted statutory criteria, and must pay for the application process.50 MOPSA does not require gubernatorial denial prior to initiating an application 48 § 57-1408. 49 See Nebraska Protective Servs. Unit v. State, 299 Neb. 797, 910 N.W.2d 767 (2018). 50 See §§ 57-1405 and 57-1406. - 906 - Nebraska Supreme Court A dvance Sheets 303 Nebraska R eports IN RE APPLICATION NO. OP-0003 Cite as 303 Neb. 872 proceeding. The appellants’ assignment of error that the PSC lacked jurisdiction over TransCanada’s application is with- out merit. 2. Evidence Supports PSC’s Determination that TransCanada M et Burden of P roof In their next assignment of error, the appellants argue that the PSC erred in finding that TransCanada sustained its bur- den of proof. Upon our independent review of the record before the agency, we find that sufficient evidence supports the PSC’s decision that TransCanada met its burden of proving that the MAR is in the public interest. While the intervenors reduced the strength of TransCanada’s evidence in certain areas, the intervenors’ objections are not enough to overcome TransCanada’s comprehensive presentation with respect to the relevant public interest factors under MOPSA. Two possible misconceptions must be addressed. First, in evaluating a route, we are prohibited from considering safety issues. Nebraska cannot interfere with uniform safety standards utilized by the federal government. To do so would undermine MOPSA and jeopardize Nebraska’s ability to review and scru- tinize a pipeline route in this state under state law. Second, the MOPSA structure enacted by the Legislature concerns only the selection of a particular pipeline route. In this case, TransCanada, as well as some of the appellants, asked the PSC to approve construction of a particular pipeline route. The PSC considered the evidence and determined that the MAR is in the public interest. [11,12] An application under MOPSA shall be approved if the proposed route of the major oil pipeline is determined by the PSC to be in the public interest.51 MOPSA places the burden of proof on the applicant.52 Although MOPSA does not specify a standard of proof, unless an exception applies, 51 § 57-1407(4). 52 Id. - 907 - Nebraska Supreme Court A dvance Sheets 303 Nebraska R eports IN RE APPLICATION NO. OP-0003 Cite as 303 Neb. 872 only a preponderance of evidence is required in civil cases.53 The burden of proof is satisfied by actual proof of the facts, of which proof is necessary, regardless of which party introduces the evidence.54 In concluding that the MAR is in the public interest, the PSC properly relied on all record evidence and carefully weighed the eight factors under § 57-1407(4). (a) Compliance With Applicable Laws The first factor for the PSC’s consideration is “[w]hether the pipeline carrier has demonstrated compliance with all applica- ble state statutes, rules, and regulations and local ordinances.”55 TransCanada stated that it would comply with all applicable state statutes, rules, regulations, and local ordinances, and that it either has obtained or will obtain all permits necessary to comply with state laws, regulations, local ordinances, and zoning requirements. Moreover, TransCanada is required to comply with all applicable laws as a condition of its presiden- tial permit. Palmer, the president of the companies that own TransCanada, reaffirmed these commitments under oath. These commitments apply to the construction, maintenance, and oper- ation of the MAR. The record concerning § 57-1407(4)(a) supports the PSC’s finding that TransCanada met its burden of proof. (b) Impact on Natural Resources The PSC shall evaluate evidence of the impact due to intrusion upon natural resources and not due to safety of the proposed route of the major oil pipeline to the natural resources of Nebraska, includ- ing evidence regarding the irreversible and irretrievable 53 Wetovick v. County of Nance, 279 Neb. 773, 782 N.W.2d 298 (2010). See, Pallas v. Dailey, 169 Neb. 533, 100 N.W.2d 197 (1960); Eggleston v. Quinn, 88 Neb. 775, 130 N.W. 428 (1911). 54 Lincoln Fire Fighters Assn. v. City of Lincoln, 198 Neb. 174, 252 N.W.2d 607 (1977). 55 § 57-1407(4)(a). - 908 - Nebraska Supreme Court A dvance Sheets 303 Nebraska R eports IN RE APPLICATION NO. OP-0003 Cite as 303 Neb. 872 commitments of land areas and connected natural resources and the depletion of beneficial uses of the natu- ral resources.56 The evidence demonstrated that a large percentage of the land crossed by the pipeline is agricultural in nature and that the impacts of construction will be temporary. The MAR avoids the Nebraska Sandhills, which provides several advantages as compared to the PR, when considering impacts on natural resources. As the PSC found, compared to the PR, the MAR will involve “one fewer river crossing, fewer wells within 500 feet of the pipeline, fewer acres of pivot irrigated . . . land crossed, fewer crossing of intermit- tent and perennial streams . . . , fewer miles of pipeline placed in areas with shallow groundwater, and fewer state highways and natural gas facilities to be crossed.” The MAR “would impact 84.6 fewer miles of whooping crane migratory path as compared to the [PR],” as well as impact “fewer miles of the ranges” of other “threatened and endangered species.” The natural resources intervenors’ witness Hayes noted this fact in his conclusion that “the [MAR’s] impact upon federally listed species is significantly less than that of the [PR].” Hayes testified that, compared to the PR, the MAR substan- tially decreases the overall impact of the pipeline and stated that “irreparable damage to important natural resources, includ- ing native soils and grasslands, is proportionally reduced.” TransCanada’s witness Schmidt agreed that the MAR “ha[d] potential environmental benefits due to its co-location with [Keystone I].” Beaver, the senior reclamation specialist on the project, testified that construction of the pipeline would not significantly increase the impermeability of the soil. The PSC requested the DEQ to analyze the environmental impact of the MAR. The DEQ responded that based on the mitigation commitments and reclamation procedures within the application, the MAR “would have minimal environmental 56 § 57-1407(4)(b). - 909 - Nebraska Supreme Court A dvance Sheets 303 Nebraska R eports IN RE APPLICATION NO. OP-0003 Cite as 303 Neb. 872 impacts in Nebraska.” The DEQ then followed up with the PSC after further analyzing the relevant soils and sediment, groundwater, surface water, air, hazardous materials, and emis- sions, and again concluded that the MAR “would have minimal permanent environmental impacts in Nebraska.” The record concerning § 57-1407(4)(b) supports the PSC’s finding that TransCanada met its burden of proof. (c) Mitigation of Potential Impacts The PSC shall evaluate “[e]vidence of methods to minimize or mitigate the potential impacts of the major oil pipeline to natural resources.”57 TransCanada provided a CMRP containing “construction, operation, and maintenance measures that are designed to reduce the likelihood and severity of impacts along the pipeline construction corridor and during operations.” The CMRP outlines procedures for soil protection, water-crossing methods, vegetation reclamation, and aquatic resources protec- tion. The CMRP was developed in consultation with the NRCS and experts from the University of Nebraska. The CMRP pro- cedures will be used to minimize the environmental impact of the MAR and return the land disturbed by construction as close as possible to its preconstruction condition. The PSC concluded that TransCanada’s procedures “conform to industry standards and are reasonable.” Project manager Fuhrer testified that TransCanada will be accountable for production losses and other costs resulting from pipeline maintenance and damage to the land throughout the useful life of the pipeline. The landowners noted that the CMRP has not been updated since 2012. However, the DEQ advised the PSC that the geology has not changed. The landowners emphasized that the CMRP allows TransCanada to deviate from the plan at its discretion. The PSC found that in the event a dispute arises regarding reclamation and mitigation efforts, the parties will consult the NRCS as a resource and follow the NRCS’ advice. We agree 57 § 57-1407(4)(c). - 910 - Nebraska Supreme Court A dvance Sheets 303 Nebraska R eports IN RE APPLICATION NO. OP-0003 Cite as 303 Neb. 872 this resolution process is adequate. Because the NRCS helped formulate the CMRP and is familiar with the best reclamation and mitigation practices, the NRCS shall be consulted in any instance in which a dispute arises and TransCanada has devi- ated from the CMRP. The record concerning § 57-1407(4)(c) supports the PSC’s finding that TransCanada met its burden of proof. (d) Social and Economic Impacts The PSC shall evaluate “[e]vidence regarding the economic and social impacts of the major oil pipeline.”58 (i) Economic Impacts Goss’ report found that the pipeline project would consti- tute an economic benefit to Nebraska and would contribute to the state and local tax bases. He found that the pipeline proj- ect would result in positive tax revenue to exceed $264 mil- lion through the year 2034. His report assumed that only 10 percent of pipeline work in Nebraska would be conducted by Nebraska residents and that 7.3 percent of related pipeline work in Montana and South Dakota would be conducted by Nebraska residents. The report indicated that Goss’ estimates were conservative. The analysis did not include taxes gener- ated from the cost and installation of replacement materials or TransCanada’s preconstruction spending. In addition, the dol- lar figures were not adjusted for inflation, but were discounted to the equivalent of “2015 dollars.” The unions also presented evidence of positive economic impacts. Barnett testified that UA has worked with TransCanada on recent projects and estimated that UA could expect 564 jobs for its members. Gerhard of LiUNA stated the project presents significant opportunity for the creation of several dif- ferent types of energy-related jobs. O’Hara, the professor who analyzed the economic impact of the proposed pipeline, testi- fied that the project would not provide long-term tax benefits, 58 § 57-1407(4)(d). - 911 - Nebraska Supreme Court A dvance Sheets 303 Nebraska R eports IN RE APPLICATION NO. OP-0003 Cite as 303 Neb. 872 would create few permanent jobs, and would adversely impact property values. However, O’Hara’s analysis predominantly focused on issues of safety. O’Hara admitted that TransCanada will pay significant sales and use taxes. In addition, O’Hara’s conclusions regarding tax benefits assume that, contrary to the evidence, TransCanada will seek exemptions under the Nebraska Advantage Act. The PSC found that TransCanada “shall comply with its commitment to not use the Nebraska Advantage Act in any form in connection with the Keystone XL Project.” Nebraska’s Department of Revenue found that during con- struction, TransCanada or its contractors would incur sig- nificant sales and use tax liabilities, and that Nebraska would experience an increase in individual income tax revenue. The DEQ and the Department found that the pipeline was not expected to have an impact on residential or agricultural prop- erty values and would generate a substantial amount of new economic activity, millions of dollars in annual property tax revenue, and hundreds of jobs for Nebraskans. O’Hara opined that property values would decrease by 15 percent and that property taxes would decrease over the life of the pipeline. The PSC found that “much of the economic testimony was conflicting,” but concluded that the pipeline would accrue an economic benefit in Nebraska, and that Nebraska will “benefit from the investment and activity that is associated with the pipeline construction and operation.” (ii) Social Impacts The evidence of social impacts primarily concerned impacts on cultural resources and impacts from a temporary camp for pipeline workers that may be built in Holt County. MOPSA does not specifically state that the PSC must evaluate impacts on cultural resources. As noted, § 57-1407(4)(d) states the PSC shall consider “[e]vidence regarding the economic and social impacts of the major oil pipeline.” The parties and the PSC understood the cultural resources issue to be a piece of the PSC’s obligation to consider evidence of social impacts. The - 912 - Nebraska Supreme Court A dvance Sheets 303 Nebraska R eports IN RE APPLICATION NO. OP-0003 Cite as 303 Neb. 872 parties and the PSC generally understood “cultural resources” to mean “physical evidence of culturally and historically val- ued aspects of the human and natural environment on the land- scape,” as defined by the DEQ. The preservation of historic resources is a matter of federal law governed by the National Historic Preservation Act. The Department has been designated the federal agency respon- sible for the review of TransCanada’s permit, which has been determined to be a federal undertaking. Nebraska pro- vides resources in coordination with this effort. Pursuant to Neb. Rev. Stat. § 82-118 (Reissue 2014), the Nebraska State Historical Society, under the direction of the Nebraska State Historic Preservation Officer, is the state agency responsible for carrying out the purposes and objectives of the National Historic Preservation Act. Pursuant to the National Historic Preservation Act, Pub. L. No. 89-665, § 106, 80 Stat. 917, the Department, the Nebraska State Historic Preservation Officer, TransCanada, and vari- ous other state and federal agencies entered into an amended PA in December 2013. According to the Nebraska State Historical Society, a § 106 review identifies “arch[a]eologi- cal or historic resources . . . listed or eligible for listing in the National Register of Historic Places.” The PA requires TransCanada to complete cultural resources surveys on all areas that would potentially be impacted by the proposed undertaking and to provide adequate mitigation in consultation with the Department, state and federal agencies, and Indian tribes. The PA requires TransCanada to avoid, when possible, adverse effects on known cultural resources. When unantici- pated cultural resources are discovered, all construction within a 100-foot radius must cease and may only resume after the resources are evaluated and protected according to the require- ments under the PA. The PA includes a “Tribal Monitoring Plan” that allows “tribal monitors with experience in the iden- tification of cultural resources to monitor construction along the pipeline route.” The CMRP also contains a commitment to - 913 - Nebraska Supreme Court A dvance Sheets 303 Nebraska R eports IN RE APPLICATION NO. OP-0003 Cite as 303 Neb. 872 comply with any PA in order to minimize the impact on cul- tural sites along the route. Ponca’s witness Wright stated that construction of the pipe- line could damage or destroy historic sites, but he acknowl- edged this concern would be addressed if TransCanada adhered to the PA. Ponca stated that the Ponca Trail of Tears would not be included within the PA’s protections, because the trail is not listed on the National Register of Historic Places. However, the PA applies to any historical site eligible for inclusion on the national register, and furthermore, the PA commits TransCanada to protecting known cultural sites. TransCanada presented evi- dence that it is prepared to address the issue. TransCanada’s application states that it intends to avoid culturally significant sites by rerouting the pipeline “to the extent practicable.” Testimony at the hearing reflected that TransCanada has suc- cessfully avoided every eligible cultural site it has encountered thus far. TransCanada will have the opportunity to complete further cultural surveys prior to construction and to implement the necessary procedures under the PA. Ponca assigns error to the PSC’s determination that the preservation of cultural issues is a matter of federal law and argues that MOPSA requires an analysis with greater focus on Nebraska’s cultural resources. We disagree with Ponca’s characterization that the PSC did not evaluate the impact on Nebraska’s cultural resources. In its analysis, the PSC articulated features of the federal scheme that are available to address the risks to local cultural resources. The PSC found that TransCanada’s record of compliance with the PA and the National Historic Preservation Act showed TransCanada’s compliance would likely continue and that the Department will require compliance with federal law. The PSC concluded that these safeguards “help to assure that the route of the pipeline will be in the public interest.” The Nebraska State Historical Society, the state agency responsible for preserving historic resources, informed the PSC that, according to the processes outlined in the PA, - 914 - Nebraska Supreme Court A dvance Sheets 303 Nebraska R eports IN RE APPLICATION NO. OP-0003 Cite as 303 Neb. 872 TransCanada is required to “complete cultural resources sur- veys on all areas that would be potentially impacted,” “make recommendations on National Register of Historic Places eli- gibility,” and “provide adequate mitigation in consultation with the Department . . . , state and federal agencies, and Indian tribes.” The Nebraska State Historical Society advised that these processes protect cultural resources. Moreover, existing state laws protect cultural resources. Under Nebraska law, it is a crime to knowingly and will- fully appropriate, excavate, injure, or destroy an archaeological resource on public land without written permission from the State Archaeology Office.59 Neb. Rev. Stat. § 12-1205 (Cum. Supp. 2018) makes it a crime to knowingly fail to report the encounter of an unmarked human burial, and it requires the cessation of any activity that may disturb the burial. Neb. Rev. Stat. § 28-1301 (Reissue 2016) describes the offense of remov- ing, abandoning, or concealing human skeletal remains or burial goods. TransCanada must comply with these laws. The temporary camps for pipeline workers do not make approving the MAR contrary to the public interest. All such camps must be permitted, constructed, and operated consist ent with applicable county, state, and federal regulations. TransCanada must require camp residents to comply with a written code of conduct and potentially expel those found in violation. The camps will be fenced and secured with video surveillance and a guardhouse, staffed at all times. Only autho- rized personnel will be granted access to the camps; no visi- tors will be permitted. The record concerning § 57-1407(4)(d) supports the PSC’s finding that TransCanada met its burden of proof. (e) Other Utility Corridors The PSC must evaluate “[w]hether any other utility cor- ridor exists that could feasibly and beneficially be used for 59 Neb. Rev. Stat. § 82-507 (Reissue 2014). - 915 - Nebraska Supreme Court A dvance Sheets 303 Nebraska R eports IN RE APPLICATION NO. OP-0003 Cite as 303 Neb. 872 the route of the major oil pipeline.”60 The PSC interpreted the phrase “utility corridor” to mean “a passageway for facilities providing public services.” The PSC gave significant weight to the fact that the MAR “was developed to maximize the length of co-location with [Keystone I]” and takes advantage of the fixed entry point in Keya Paha County. The PSC found the MAR to be the most beneficial route, because the PR failed to take advantage of an existing utility corridor. The appel- lants urged approval of the I-90 Route, but the PSC rejected that proposal based on the lack of a feasible entry point. Upon de novo review, we are persuaded that the MAR’s co-location with Keystone I maximizes efficiency and reduces impacts to undeveloped land and natural resources. The PSC evaluated the eight public interest factors under § 57-1407(4) and was persuaded by the evidence in favor of the MAR under § 57-1407(4)(e). The PSC’s reasoning is compelling, because the record shows that by satisfying the considerations under § 57-1407(4)(e), the MAR’s co-location with Keystone I enhances the overall strength of the route application and serves other public interest factors under § 57-1407(4). There is evidence to support the PSC’s reason- ing in giving great weight to TransCanada’s evidence under § 57-1407(4)(e) in deciding that the MAR, rather than the PR or I-90 Route, is in the public interest. The record concerning § 57-1407(4)(e) supports the PSC’s finding that TransCanada met its burden of proof. (f) Impact on Orderly Development of Area The PSC must evaluate “[t]he impact of the major oil pipeline on the orderly development of the area around the proposed route of the major oil pipeline.”61 There was a lack of evidence that significant restrictions on development would occur. The PSC observed that while future developments 60 § 57-1407(4)(e). 61 § 57-1407(4)(f). - 916 - Nebraska Supreme Court A dvance Sheets 303 Nebraska R eports IN RE APPLICATION NO. OP-0003 Cite as 303 Neb. 872 would need to avoid the pipeline, “similar restrictions on development occur in areas near other infrastructure, i.e., roads, bridges, dams, power lines, etc.” The MAR mitigates interference with orderly development by co-locating with Keystone I. In addition, the CMRP’s mitigation procedures address possible impacts of construction. The PSC’s consult ants concluded that the pipeline would “play an ‘insignificant role in residential value, crop production, invasive species, and land development.’” We agree with the PSC that the impact on development of the area seems minimal. The record concerning § 57-1407(4)(f) supports the PSC’s finding that TransCanada met its burden of proof. (g) State Agency Reports The PSC must evaluate “[t]he reports of the agencies filed pursuant to subsection (3) of this section.”62 The PSC consulted all nine agencies listed within § 57-1407(3) on both the PR and the MAR. The agencies were familiar with the project based on prior efforts and did not express any concerns about the approval, denial, or relocation of either route. As already noted, Nebraska’s Department of Revenue found that the pipeline will generate revenue from sales taxes, use taxes, property taxes, and income taxes. The Nebraska State Historical Society stated that the necessary measures for pro- tecting cultural resources are in place. The Nebraska Game and Parks Commission explained that it would help “avoid and minimize impacts on species and their habitats.” And we reiterate the DEQ’s finding that the MAR “would have minimal environmental impacts in Nebraska.” The record concerning § 57-1407(4)(g) supports the PSC’s finding that TransCanada met its burden of proof. (h) Views of Counties and Municipalities The PSC must evaluate “[t]he views of the governing bod- ies of the counties and municipalities in the area around the 62 § 57-1407(4)(g). - 917 - Nebraska Supreme Court A dvance Sheets 303 Nebraska R eports IN RE APPLICATION NO. OP-0003 Cite as 303 Neb. 872 proposed route of the major oil pipeline.”63 The PSC sent let- ters soliciting input to 18 counties and 32 cities along both the PR and the MAR. Boone, Nance, Saline, and Seward Counties expressed their approval; Boyd and Holt Counties expressed their opposition. The PSC received no input from Butler, Colfax, Madison, Platte, or Stanton Counties. Seward, Nebraska, and Steele City submitted favorable responses. The record concerning § 57-1407(4)(h) supports the PSC’s finding that TransCanada met its burden of proof. We find that the PSC—after months of investigation review- ing extensive pleadings, exhibits, and reports from consultants; holding public meetings and a public hearing; considering written and oral arguments; deliberating; and issuing its opin- ion and findings—did not err in concluding that TransCanada proved by a preponderance of the evidence that approval of the MAR is in the public interest. 3. PSC Properly Considered MAR [13] In the appellants’ next assignment of error, they argue that the PSC was not authorized to approve the MAR, because TransCanada applied for approval of only the PR, and that the notice requirements for the MAR were not met. While it is true that TransCanada requested in its application “an order from the PSC that the [PR] is in the public interest,” we nevertheless find it indisputable that TransCanada included the MAR in its application and that the parties were on notice that the MAR was at issue. The rules of pleading are not applied in admin- istrative proceedings as strictly as they are in court proceed- ings.64 Administrative pleading rules require simply that the parties be sufficiently apprised of the nature of the proceedings so that there is no unfair surprise.65 The hearing officer for the PSC devoted a separate sec- tion of its intervention order to the MAR and made clear 63 § 57-1407(4)(h). 64 See In re Appeal of Bonnett, 216 Neb. 587, 344 N.W.2d 657 (1984). 65 Id. - 918 - Nebraska Supreme Court A dvance Sheets 303 Nebraska R eports IN RE APPLICATION NO. OP-0003 Cite as 303 Neb. 872 that the merits of the MAR would be considered. The order stated that the SAR would not be considered and informed the parties that they should be prepared to address the MAR by granting them leave to designate an additional witness and offer exhibits pertaining to the MAR. There was no objection to the MAR section of the order. The case manage- ment order stated that “any/all Hearing Officer Orders . . . will apply to and bind all parties, will control the course of the proceedings, and may be modified only by order of the Hearing Officer.” Following a prehearing conference, the hearing officer mod- ified the intervention order by allowing each intervenor group to present testimony from two witnesses, “in addition to the ability to bring an additional witness regarding the [MAR] as detailed in the [intervention order].” The PSC’s Rules of Commission Procedure provide that once an order is entered “a reasonable time will be allowed for the parties to present objections . . . . Thereafter, the terms of the order . . . determine the subsequent course of the proceedings . . . .”66 Generally, the failure to object to the specifications in the pretrial order waives any right to claim error in that regard.67 The pretrial order is binding upon the parties. The issues set out in a pre- trial order supplant those raised in the pleadings.68 [14] The appellants also contend that the PSC denied them procedural due process. Due process requires notice and an opportunity for a full and fair hearing at some stage of the agency proceedings.69 Contrary to the intervenors’ assertions, 66 291 Neb. Admin. Code, ch. 1, § 020.04 (1992). 67 See Hillcrest Country Club v. N.D. Judds Co., 236 Neb. 233, 461 N.W.2d 55 (1990). 68 See, Hall v. County of Lancaster, 287 Neb. 969, 846 N.W.2d 107 (2014), overruled on other grounds, Davis v. State, 297 Neb. 955, 902 N.W.2d 165 (2017); Cotton v. Ostroski, 250 Neb. 911, 554 N.W.2d 130 (1996). See, Kustom Kreations v. Duxbury, 216 Neb. 99, 342 N.W.2d 656 (1983); Jonas v. Willman, 27 Neb. App. 251, 930 N.W.2d 60 (2019). 69 Stoneman v. United Neb. Bank, 254 Neb. 477, 577 N.W.2d 271 (1998). - 919 - Nebraska Supreme Court A dvance Sheets 303 Nebraska R eports IN RE APPLICATION NO. OP-0003 Cite as 303 Neb. 872 the PSC’s decision to approve the MAR is a reflection of the evidence and arguments presented. As already discussed, MOPSA “is intended to deal solely with the issue of sit- ing or choosing the location of the route.”70 MOPSA allows Nebraska to exercise its sovereign authority “to protect its land and natural resources . . . by regulation through approval or disapproval of major oil pipeline siting and the location of routes.”71 MOPSA grants the PSC the authority to consult state agencies “regarding the advisability of approving, denying, or modifying the location of the proposed route of the major oil pipeline.”72 As explained, among the factors the PSC must evaluate is “[w]hether any other utility corridor exists that could feasibly and beneficially be used for the route of the major oil pipeline.”73 The record contained extensive evidence concerning the MAR. There was significant overlap in the evidence concern- ing the routes; much of the evidence concerning the PR and Keystone I equally applied to the MAR. The PR and the MAR are the same route for the first 110 miles and approximately 97 of the MAR’s remaining 170 miles co-locate with Keystone I. Several witnesses addressed these routes and the differences between them in their testimony. Hayes testified that compared to the PR, the MAR substan- tially decreases the overall negative impacts of the pipeline. Kothari testified that the MAR was beneficial and feasible. Schmidt was questioned at length and in detail about the MAR to draw out comparisons between the MAR, the PR, and the I-90 Route. Wright provided testimony concerning the MAR. The consultants advised the PSC that there is little difference in soil characteristics between the PR and the MAR. 70 § 57-1402(2). 71 § 57-1403(1). 72 § 57-1407(3). 73 § 57-1407(4)(e). - 920 - Nebraska Supreme Court A dvance Sheets 303 Nebraska R eports IN RE APPLICATION NO. OP-0003 Cite as 303 Neb. 872 The DEQ evaluated the MAR and informed the PSC that the MAR would have minimal permanent environmental impacts in Nebraska. The PSC heard evidence that TransCanada modi- fied the MAR to avoid wellhead protection areas based on the DEQ’s recommendations. Seward’s city council recognized this and approved the MAR on that basis. Thus, the suggestion that the appellants were not afforded notice and an opportunity to be heard on the MAR disregards considerable portions of the record. Fundamental issues before the PSC were whether or not to approve the PR or the MAR. Ponca argued that “the PSC could decide it preferred the [MAR] based on the evidence, but it was required to deny the [a]pplication for the [PR] and invite TransCanada to file a new application for the [MAR].”74 Ponca’s argument referred to § 57-1408(4), which provides in part that “[i]f the commission denies the application, the pipeline carrier may amend the denied application in accordance with the find- ings of the commission and submit the amended application within sixty days after the issuance of the order denying the application.” (Emphasis supplied.) The record makes clear that the PSC granted the application, approved the MAR, and determined that amendment pursuant to § 57-1408(4) was unnecessary when it overruled TransCanada’s motion for reconsideration. The PSC’s decision was consistent with the policy under MOPSA to “[e]nsure that a coordinated and efficient method for the authorization of such construction is provided.”75 There was no need to amend the application, because the application was supplanted by the hearing offi- cer’s orders concerning the MAR when no party objected to the orders. The parties effectively tried the matter as one seeking approval of the MAR. Moreover, there was no need for the PSC to grant the motion to amend, because in the civil context courts have the power to constructively 74 Reply brief for appellee Ponca on cross-appeal at 7 (emphasis supplied). 75 § 57-1402(1)(e). - 921 - Nebraska Supreme Court A dvance Sheets 303 Nebraska R eports IN RE APPLICATION NO. OP-0003 Cite as 303 Neb. 872 amend pleadings in order to render a decision consistent with the trial.76 Neither do we find a basis to reverse the PSC’s decision due to a failure to satisfy MOPSA’s notice requirements. The PSC published notice of the public hearing on TransCanada’s application in newspapers in general circulation along both the PR and the MAR. The PSC sent letters to the governing bodies along both routes and advised them that a copy of the application is available online at the PSC’s website. The PSC released additional press releases at the time the application was filed and provided notice of several public meetings and the public hearing. [15,16] Furthermore, these intervenors waived the right to object based on lack of notice. It is generally held that par- ticipation in the hearing waives any defect in the notice.77 If notice is materially lacking, then a timely objection will permit the public body to promptly remedy the defect and defer for- mal action until the required public notice can be given.78 The intervenors failed to raise the issue of notice in response to the prehearing orders, at the public hearing, or in their motions for reconsideration. An appellate court will not consider an issue on appeal that was not presented to or passed upon by the administrative agency.79 This assignment of error is with- out merit. 4. Participation Claim Without Merit Ponca and Yankton Sioux argue that the PSC improperly limited their participation to social and cultural issues. They 76 See, Denali Real Estate v. Denali Custom Builders, 302 Neb. 984, 926 N.W.2d 610 (2019); Zelenka v. Pratte, 300 Neb. 100, 912 N.W.2d 723 (2018); Blinn v. Beatrice Community Hosp. & Health Ctr., 270 Neb. 809, 708 N.W.2d 235 (2006). 77 See, Hansen v. City of Norfolk, 201 Neb. 352, 267 N.W.2d 537 (1978); Alexander v. School Dist. No. 17, 197 Neb. 251, 248 N.W.2d 335 (1976). 78 See Witt v. School District No. 70, 202 Neb. 63, 273 N.W.2d 669 (1979). 79 Betterman v. Department of Motor Vehicles, 273 Neb. 178, 728 N.W.2d 570 (2007). - 922 - Nebraska Supreme Court A dvance Sheets 303 Nebraska R eports IN RE APPLICATION NO. OP-0003 Cite as 303 Neb. 872 argue that their petitions alleged governmental and territorial interests and that the PSC’s regulations allow the intervenors to present evidence on any express interest stated in a petition for intervention. They argue that the PSC improperly ordered them to combine their witnesses and cross-examination time. Yankton Sioux argues that the conditions imposed by the PSC violated its equal protection rights. TransCanada argues that this court lacks appellate jurisdiction to consider the interve- nors’ arguments, because the intervenors did not appeal from the PSC’s order on petitions for intervention. The intervenors argue the intervention order was not a final order, because the order did not deny intervention. (a) Final Order Before reaching the legal issues presented for review, it is the duty of an appellate court to determine whether it has jurisdiction over the matter before it.80 The jurisdictional issue before us is whether the intervenors’ objections to the scope of their participation may be reviewed after their appeal from the PSC’s judgment on the merits or whether the intervenors were required to appeal from the PSC’s order on petitions for intervention. [17] We have consistently held that an order denying inter- vention is a final order for purposes of appeal.81 Here, the PSC’s intervention order did not deny intervention, but, rather, granted petitions for intervention and imposed conditions on the scope of intervention. Such an order is not final in the traditional sense in that the order is not a final determination of the parties’ rights. Moreover, agency orders granting peti- tions for intervention subject to conditions are interlocutory in 80 In re Grand Jury of Douglas Cty., supra note 21. 81 Streck, Inc. v. Ryan Family, 297 Neb. 773, 901 N.W.2d 284 (2017); Basin Elec. Power Co-op v. Little Blue N.R.D., 219 Neb. 372, 363 N.W.2d 500 (1985). See, Wayne L. Ryan Revocable Trust v. Ryan, 297 Neb. 761, 901 N.W.2d 671 (2017); Spear T Ranch v. Knaub, 271 Neb. 578, 713 N.W.2d 489 (2006); Shold v. Van Treeck, 82 Neb. 99, 117 N.W. 113 (1908). - 923 - Nebraska Supreme Court A dvance Sheets 303 Nebraska R eports IN RE APPLICATION NO. OP-0003 Cite as 303 Neb. 872 nature. Under the APA and Nebraska’s Model Rules of Agency Procedure, an agency may modify an order imposing condi- tions on intervention at any time.82 The U.S. Supreme Court held in Stringfellow v. Concerned Neighbors in Action 83 that an order granting permissive inter- vention, subject to conditions, and denying intervention as of right was not an appealable order. The Court explained that an order denying intervention is subject to appellate review by necessity, because the petitioner has no right to appeal from any subsequent order or judgment in the proceeding.84 Conversely, the imposition of conditions on intervention can be reviewed on appeal from a final judgment. Here, the PSC’s intervention order did not deny the petitions for intervention and therefore was not a final order. The intervenors properly appealed from the PSC’s judgment on the merits, and we have jurisdiction in such an appeal to consider their objections to the order which placed conditions on their participation. (b) Merits [18] Agency regulations properly adopted and filed with the Secretary of State of Nebraska have the effect of statutory law.85 Statutory language is to be given its plain and ordinary meaning, and we will not resort to interpretation to ascertain the meaning of statutory words which are plain, direct, and unambiguous.86 Pursuant to its authority under § 57-1410, the PSC adopted rules and regulations to carry out MOPSA. Under 291 Neb. Admin. Code, ch. 9, § 023.06 (2013), “The filing of petitions for intervention . . . and the conduct of the hearing shall be 82 § 84-912.02(4); 53 Neb. Admin. Code, ch. 4, § 003.04 (1994). 83 Stringfellow v. Concerned Neighbors in Action, 480 U.S. 370, 107 S. Ct. 1177, 94 L. Ed. 2d 389 (1987). 84 Id. 85 Tran v. State, ante p. 1, 926 N.W.2d 641 (2019). 86 Id. - 924 - Nebraska Supreme Court A dvance Sheets 303 Nebraska R eports IN RE APPLICATION NO. OP-0003 Cite as 303 Neb. 872 governed by the Rules of Commission Procedure.” Under the PSC’s Rules of Commission Procedure, any person who has an interest in a proceeding before the PSC, who does not desire to file a formal protest, may file a petition of formal intervention and shall become a party to the proceeding.87 Generally, one who intervenes becomes a party to the litigation and has all the rights of a party.88 An intervenor can engage in discovery, file motions, introduce evidence, and examine witnesses, and file an appeal.89 The PSC’s regulations further provide: A formal intervenor shall be entitled to participate in the proceeding to the extent of his/her express interest in the matter. Such participation shall include, without limitation, presentation of evidence and argument, cross- examination of witnesses and submission of rebuttal evi- dence. As a party, a formal intervenor shall have the right of appeal.90 The PSC is also an “agency” within the meaning of the APA, and the APA’s provisions apply to the PSC.91 The PSC has authority to take actions affecting parties subject to its juris- diction if such action is taken pursuant to a statute.92 The APA grants the PSC the power to impose conditions upon an inter- venor’s participation, and this action is distinct from granting or denying a petition for intervention.93 Section 84-912.02(3) of the APA states in pertinent part: 87 291 Neb. Admin. Code, ch. 1, § 015.01 (1992). 88 See Brown v. Jacobsen Land & Cattle Co., 297 Neb. 541, 900 N.W.2d 765 (2017). 89 Id. 90 291 Neb. Admin. Code, ch. 1, § 015.01C (1992). 91 Nebraska Pub. Serv. Comm. v. Nebraska Pub. Power Dist., 256 Neb. 479, 590 N.W.2d 840 (1999). See Yellow Cab Co. v. Nebraska State Railway Commission, 175 Neb. 150, 120 N.W.2d 922 (1963). 92 See, Neb. Rev. Stat. § 75-110(1) (Reissue 2018); In re Application No. C-1889, supra note 36. 93 See, § 75-110(2); § 84-912.02. - 925 - Nebraska Supreme Court A dvance Sheets 303 Nebraska R eports IN RE APPLICATION NO. OP-0003 Cite as 303 Neb. 872 If a petitioner qualifies for intervention, the hearing offi- cer or designee may impose conditions upon the interve- nor’s participation in the proceedings, either at the time that intervention is granted or at any subsequent time. Conditions may include: .... (b) Limiting the intervenor’s use of discovery, cross- examination, and other procedures so as to promote the orderly and prompt conduct of the proceedings; and (c) Requiring two or more intervenors to combine their presentation of evidence and argument, cross-examination, discovery, and other participation in the proceedings. The PSC granted the petitions for formal intervention filed by Ponca and Yankton Sioux in recognition of their interests in the case, then limited the scope of their participation to the issues of impacts on social and cultural resources, as rel- evant under § 57-1407(4)(d) of MOPSA. The PSC stated it imposed these conditions “in order to balance the statutorily truncated timeframe [and] the need to consider certain statu- torily required issues, with the parties’ due process interests in being heard, and in the interest of maintaining an orderly proceeding.” The intervenors argue the conditions imposed by the PSC violated the PSC’s own regulations. Ponca asserts that “the language [of the regulation] is clear — the evidence, argu- ment, and cross-examination ‘shall’ be ‘without limitation.’”94 However, Ponca’s argument departs from the plain mean- ing and organization of the language used in the regula- tion. The language provides that an intervenor’s “participation shall include, without limitation, presentation of evidence and argument, cross-examination of witnesses and submission of rebuttal evidence.”95 We interpret this language according to its plain and ordinary meaning. Here, the phrase “without 94 Brief for appellee Ponca on cross-appeal at 16. 95 291 Neb. Admin. Code, ch. 1, § 015.01C. - 926 - Nebraska Supreme Court A dvance Sheets 303 Nebraska R eports IN RE APPLICATION NO. OP-0003 Cite as 303 Neb. 872 limitation” indicates that an intervenor is entitled to engage in each form of participation listed in that sentence, i.e., the intervenor will participate in the “presentation of evidence and argument, cross-examination of witnesses and submission of rebuttal evidence.” In this context, “without limitation” does not mean, as Ponca argues, that an intervenor’s participation shall be unlimited. Taken to its logical conclusion, the inter- venors’ position would eliminate basic procedural norms. For example, the intervenors’ reading would eliminate a hearing officer’s ability to “exclude evidence which is cumulative or repetitious.”96 The intervenors’ interpretation of “without limitation” is unreasonable, would yield absurd results, and is contrary to MOPSA. The PSC advised the parties in numerous orders of its obligation to bring the proceedings to a timely resolution. Working under strict time restraints, the PSC had a managerial responsibility to oversee approximately 100 petitions for inter- vention; organize a representative presentation of evidence; acquire input from the public, agencies, local governments, and consultants; and issue a written order disposing of the case. The PSC would be unable to carry out these duties if it were required to afford unbounded participation to every intervenor. “[I]ntervention is a useful tool, but [one] which must be used carefully[,] lest the manageable lawsuit become an unmanage- able cowlick.”97 Upon de novo review, we find no error in the PSC’s interpretation of its own regulations or its actions taken pursuant to the APA. The intervenors failed to show that the hearing officer’s decisions violated their due process or equal protection rights. The intervenors presented evidence and argument, cross- examination, and redirect; had the opportunity for rebuttal; and filed briefs. The hearing officer gave the intervenors 96 291 Neb. Admin. Code, ch. 1, § 016.05 (1992). 97 Wilderness Society v. Morton, 463 F.2d 1261, 1263 (D.C. Cir. 1972) (Tamm, Circuit Judge, concurring). - 927 - Nebraska Supreme Court A dvance Sheets 303 Nebraska R eports IN RE APPLICATION NO. OP-0003 Cite as 303 Neb. 872 opportunities to bring out the differences in their positions regarding the pipeline, but they failed to form questions that were not redundant. The hearing officer explained to the inter- venors that they had “asked the same questions of virtually every witness.” The hearing officer received no substantive offer of proof to justify modifying the conditions and there- fore adhered to the prehearing order. The intervenors’ cross- examination time was not restricted. The parties never reached their 1-hour time limit for cross-examination. Additionally, they failed to call a witness allotted to address the MAR. The PSC did not act contrary to its own regulations or impose procedural conditions beyond its authority under the APA and Nebraska’s Model Rules of Agency Procedure, and its deci- sions did not injure the intervenors’ substantive rights. This assignment of error is without merit. 5. MOPSA Evidence Not Hearsay [19,20] The intervenors next argue that the PSC erred in receiving into evidence public comments, transcripts of public meetings, and the consultants’ reports. The intervenors argue that by including these materials in the record, the PSC vio- lated their due process rights, because the evidence was inad- missible hearsay. It is undisputed that the Nebraska Evidence Rules applied to the proceedings. The Nebraska Evidence Rules provide that hearsay is admissible when authorized by the statutes of the State of Nebraska.98 The legislative branch has the right to prescribe the admissibility of certain categories of evidence, but it is solely a judicial function to determine the weight, if any, to be given such evidence.99 Section 57-1407(2) permits the PSC to hold public meet- ings for the purpose of receiving public input at locations near the route and requires the PSC to “make the public input part of the record.” Section 57-1407(3) allows the PSC to request 98 Neb. Rev. Stat. § 27-802 (Reissue 2016). 99 See State ex rel. Veskrna v. Steel, 296 Neb. 581, 894 N.W.2d 788 (2017). - 928 - Nebraska Supreme Court A dvance Sheets 303 Nebraska R eports IN RE APPLICATION NO. OP-0003 Cite as 303 Neb. 872 state agencies to file a report “regarding information within the respective agencies’ area of expertise relating to the impact of the major oil pipeline.” Neb. Rev. Stat. § 57-1412 (Cum. Supp. 2018) enables the PSC to retain consultants “to assist with reviewing applications under [MOPSA].” [21] The PSC included in the record evidence from public meetings held in York, O’Neill, Norfolk, and Ralston; reports from agencies listed under § 57-1407(3); and reports from consultants. The landowners objected on hearsay grounds and moved for a “mistrial,” which the hearing officer overruled. The hearing officer’s decision was correct because, assuming that the evidence in question was hearsay, the evidence was admissible by operation of MOPSA and § 27-802. Even if the PSC erred by admitting this evidence, the intervenors made no showing that they were unfairly prejudiced by the admission of the evidence. In a civil case, the admission or exclusion of evidence is not reversible error unless it unfairly prejudiced a substantial right of the complaining party.100 This assignment of error lacks merit. 6. R emaining A rguments Not Properly R aised in MOPSA Proceeding Lastly, the intervenors raise constitutional challenges to vari- ous statutes. We conclude that these arguments are improperly raised in a MOPSA proceeding before the PSC, because the intervenors’ arguments do not relate to whether or not the PSC should grant an application for a major oil pipeline route. [22-24] As stated above, the intervenors have the full rights of original parties in a case. However, our jurisprudence rec- ognizes some practical limitations on the right to intervene. The intervenors can raise only issues that sustain or oppose the respective contentions of the original parties.101 An intervenor 100 Reiber v. County of Gage, ante p. 325, 928 N.W.2d 916 (2019). 101 Streck, Inc. v. Ryan Family, supra note 81; Wayne L. Ryan Revocable Trust v. Ryan, supra note 81. - 929 - Nebraska Supreme Court A dvance Sheets 303 Nebraska R eports IN RE APPLICATION NO. OP-0003 Cite as 303 Neb. 872 who is not an indispensable party cannot change the position of the original parties or change the nature and form of the action or the issues presented therein.102 “‘[I]t is fundamental that an intervenor takes the action as he finds it and cannot secure relief that is foreign or extraneous to the action.’”103 In other words, an intervenor cannot widen the scope of the issues, broaden the scope or function of the proceedings, or raise questions which might be the subject of litigation but which are extraneous to the controlling question to be decided in the case.104 Here, the intervenors improperly sought to alter the scope and nature of a MOPSA proceeding by raising challenges to the constitu- tionality of various statutes, in particular §§ 57-1101, 57-1401, 57-1403, 57-1407(2) and (3), and 57-1408. The original parties in a MOPSA proceeding are the appli- cant and the PSC. The PSC is a party in a MOPSA proceeding, because the PSC acts as more than a neutral factfinding body; the PSC is in charge of serving the public interest105 and has investigative responsibilities.106 The original parties did not challenge the constitutionality of MOPSA’s provisions, but instead conducted the proceedings in recognition of their statu- tory obligations. The intervenors’ challenge to § 57-1101 miscomprehends condemnation proceedings. A condemnation proceeding is an 102 Gilbert v. First National Bank, 154 Neb. 404, 48 N.W.2d 401 (1951); State ex rel. Nelson v. Butler, 145 Neb. 638, 17 N.W.2d 683 (1945). See, Chandler Co. v. Brandtjen, Inc., 296 U.S. 53, 56 S. Ct. 6, 80 L. Ed. 39 (1935); John P. Lenich, Nebraska Civil Procedure § 16:9 (2019). 103 Harleysville Ins. Group v. Omaha Gas Appliance Co., 278 Neb. 547, 552, 772 N.W.2d 88, 93 (2009), quoting Arnold v. Arnold, 214 Neb. 39, 332 N.W.2d 672 (1983). 104 Id. See, State ex rel. Nelson v. Butler, supra note 102; First Nat. Bank of Neligh v. Lancaster, 54 Neb. 467, 74 N.W. 858 (1898). 105 See, § 84-917(2)(a)(i); Shaffer v. Nebraska Dept. of Health & Human Servs., 289 Neb. 740, 857 N.W.2d 313 (2014). 106 See In re Application of Metropolitan Util. Dist., 270 Neb. 494, 704 N.W.2d 237 (2005). See, also, e.g., §§ 57-1407(2) and (3) and 57-1412. - 930 - Nebraska Supreme Court A dvance Sheets 303 Nebraska R eports IN RE APPLICATION NO. OP-0003 Cite as 303 Neb. 872 action brought by a condemning authority in the exercise of its power of eminent domain.107 In other words, eminent domain is the right or power to take private property for a public use and condemnation is the procedure whereby this power is exer- cised.108 In a condemnation action, some right in property must be taken or damaged to afford a basis for relief.109 The deter- mination of compensation to the owner of property condemned for public use, by ascertaining the value of property taken or damaged, is a judicial function.110 MOPSA proceedings merely concern what route, if any, should be approved, and as such, concern antecedent issues. The intervenors’ concerns regarding § 57-1101 are premature and would be more properly raised in subsequent condemnation proceedings. After reviewing the record, we find no plain error and no merit to any assignment of error. V. CONCLUSION In summary, the PSC is an elected body created by the Nebraska Constitution to serve the public interest. In § 57-1403 of MOPSA, the Legislature determined that “[t]he construction of major oil pipelines in Nebraska is in the public interest . . . .” The Legislature designated the PSC as the agency responsible for determining which pipeline route is in the public interest. After months of careful consideration, the PSC determined that the evidence showed that the MAR is in the public interest. Upon de novo review, we find there is sufficient evidence to support the PSC’s determination that the MAR is in the public interest. The assignments of error are without merit. A ffirmed. 107 See Henderson v. City of Columbus, 285 Neb. 482, 827 N.W.2d 486 (2013). 108 Van Patten v. City of Omaha, 167 Neb. 741, 94 N.W.2d 664 (1959). 109 Lockard v. Nebraska Pub. Power Dist., 249 Neb. 971, 546 N.W.2d 824 (1996). 110 See Webber v. City of Scottsbluff, 155 Neb. 48, 50 N.W.2d 533 (1951).	{ "pile_set_name": "FreeLaw" }
689 A.2d 1036 (1997) Johanna POIRIER v. MANPOWER INC. OF PROVIDENCE et al. No. 95-581-Appeal. Supreme Court of Rhode Island. February 20, 1997. Daniel R. Sumner, Warwick, for Plaintiff. Paul Bogosian, Jr., Cranston, Thomas C. Angelone, Providence, for Defendant. OPINION PER CURIAM. This case came before the court for oral argument December 5, 1996, pursuant to an order that had directed the parties to appear in order to show cause why the issues raised by this appeal should not be summarily decided. After hearing the arguments of counsel and examining the memoranda filed by the parties, we are of the opinion that cause has not been shown and that the issues raised by this appeal should be decided at this time. The plaintiff, Johanna Poirier, appeals from a summary judgment entered in the Superior Court in favor of defendants, Manpower Inc. of Providence and Rickey J. Houser, by reason of the exclusive-remedy provision of the Workers' Compensation Act, G.L.1956 § 28-29-20. The facts of the case are generally undisputed. The plaintiff was employed by Stanley Bostitch Company (Bostitch). The defendant Rickey J. Houser (Houser), was employed by Manpower Inc. of Providence (Manpower), an employment agency that had assigned Houser to work for Bostitch. Manpower, in support of its motion for summary judgment, filed an affidavit that Bostitch (1) exercised all supervision and control over Houser while he was on assignment to that firm, (2) was solely responsible for instructing Houser on how to complete his assigned tasks, (3) supplied any necessary tools and equipment for Houser in the performance of his assigned tasks, (4) determined the amount of time Houser worked, and (5) had the right to refuse Houser as an assigned employee as well as to recommend the termination of his services. On August *1037 19, 1992, Houser was operating a forklift at Bostitch's premises. The forklift struck a barrel, which in turn struck certain metal plates that fell on plaintiff. Three metal plates weighing 200 pounds each struck plaintiff's left leg. The plaintiff was seriously injured and collected workers' compensation benefits from Bostitch. It is alleged that Bostitch thus far has paid benefits to plaintiff in excess of $65,000. The plaintiff filed a complaint against Manpower, alleging that it was responsible for the negligence of Houser as its employee. The trial justice found on the record and the affidavit before her that Houser was an employee of both Bostitch and Manpower. She held that pursuant to our decisions in Sorenson v. Colibri Corp., 650 A.2d 125 (R.I.1994), and DiQuinzio v. Panciera Lease Co., 612 A.2d 40 (R.I.1992), the plaintiff could not bring an action against these defendants. Since Houser was an employee of Bostitch during his assignment, he would receive the same immunity from suit as would Bostitch itself pursuant to § 28-29-20, which gives immunity not only to the employer but also to its "directors, officers, agents, or employees." With this determination we are in agreement. Since the complaint alleged liability on the part of Manpower for the negligence of Houser, our opinion in DiQuinzio is controlling. For the reasons stated, the appeal of the plaintiff is denied and dismissed. The summary judgment entered in the Superior Court is affirmed. The papers in the case may be remanded to the Superior Court.	{ "pile_set_name": "FreeLaw" }
UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff-Appellee, v. No. 95-2188 JAMES EDWARD MCGILL, Defendant-Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. John A. MacKenzie, Senior District Judge. (CR-94-9) Submitted: March 21, 1996 Decided: April 3, 1996 Before NIEMEYER and MICHAEL, Circuit Judges, and BUTZNER, Senior Circuit Judge. _________________________________________________________________ Affirmed by unpublished per curiam opinion. _________________________________________________________________ COUNSEL James Edward McGill, Appellant Pro Se. James Ashford Metcalfe, Assistant United States Attorney, Norfolk, Virginia, for Appellee. _________________________________________________________________ Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). _________________________________________________________________ OPINION PER CURIAM: James E. McGill appeals from the district court's order denying his motion for the return of property. Because the district court did not abuse its discretion in denying the motion, we affirm. See Ramsden v. United States, 2 F.3d 322, 324 (9th Cir. 1993), cert. denied, ___ U.S. ___, 62 U.S.L.W. 3705 (U.S. Apr. 25, 1994) (No. 93-8393). On appeal, McGill seeks to remove the restraining order placed on his savings bonds subsequent to his indictment. Although the savings bonds are not tainted proceeds from his conviction, they are properly subject to forfeiture as substitute assets pursuant to 18 U.S.C.A. § 982(b)(1)(A) (West Supp. 1995). In his plea agreement, McGill expressly agreed that forfeiture could be obtained against any of his untainted assets in the event directly forfeitable assets were unavail- able. He further agreed that he would not contest efforts to forfeit such substitute assets. Furthermore, he agreed at the time of his guilty plea to the continuing restraint of substitute assets "until the conclu- sion of all matters, including appeals and forfeiture proceedings, relat- ing to this case." Although the restraining order was placed on McGill's savings bonds before his conviction, this court has upheld pre-trial restraints on substitute assets. See In re Billman, 915 F.2d 916 (4th Cir. 1990), cert. denied, 500 U.S. 952 (1991). Because the forfeiture judgment against McGill has not yet been satisfied, the district court did not abuse its discretion in declining to remove the restraining order placed on McGill's savings bonds. Accordingly, we affirm the district court's order denying McGill's motion for the return of property. We further deny McGill's motion for appointment of counsel. We dis- pense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED 2	{ "pile_set_name": "FreeLaw" }
144 B.R. 443 (1992) In re Brian Ray BUCHHOLZ, d/b/a Buchholz Bros., Debtor. Bankruptcy No. X91-02345S. United States Bankruptcy Court, N.D. Iowa, W.D. May 28, 1992. Donald H. Molstad, Sioux City, Iowa, for debtor. Wil L. Forker, Sioux City, Iowa, Trustee. MEMORANDUM OF DECISION AND ORDER RE: TRUSTEE'S OBJECTION TO EXEMPTION WILLIAM L. EDMONDS, Bankruptcy Judge. Trustee, Wil L. Forker, objects to the debtor's claim of exemption in the proceeds of a personal injury lawsuit. Hearing on the objection was held on April 14, 1992 in Sioux City. The court now issues its memorandum of decision and order. FINDINGS OF FACT Brian R. Buchholz (DEBTOR or BUCHHOLZ) filed his individual chapter 7 petition on December 26, 1991. At the time of 444 filing, William Hamilton, an attorney for the debtor, was holding in trust $3,000.00 from Buchholz's settlement of a personal injury lawsuit brought against the estate of Arthur Schrader. The suit arose out of a 1988 automobile accident in which Buchholz was injured. He suffered whiplash and back injury. He also began to experience regular headaches. Most, but not all, of his medical bills have been paid by his auto and health insurance carriers. He was paid for the damage to his automobile by Schrader's insurance company. Buchholz sued Schrader's estate in Iowa District Court for Buena Vista County. The case was settled for $5,500.00 from which Buchholz's attorney received a one-third contingency fee and reimbursement of his costs. The $3,000.00 being held by attorney Hamilton may be security for Buchholz's debt to Commercial Trust & Savings Bank of Storm Lake. The trustee has filed an adversary proceeding to determine the validity or enforceability of the bank's security interest. Buchholz was farming at the time of the accident; he lost no wages or profits because of the accident. When the personal injury suit was settled, no determination was made as to how much of the settlement monies were attributable to past medical bills and pain and suffering in contrast with anticipated medical bills and future pain and suffering. Buchholz still suffers from headaches. A neurologist with whom he consulted recommended surgery, but Buchholz declines to have it. DISCUSSION Debtor claims the settlement monies exempt as a "disability benefit" under Iowa Code § 627.6(8)(c). This Code section was enacted in 1981. The parties have not cited any cases that interpret it. Furthermore, there is no legislative history on which to rely. However, the language of the subsection is nearly the same as that found in § 522(d)(10)(C) of the Bankruptcy Code (Title 11) which exempts a "debtor's right to receive . . . a disability, illness, or unemployment benefit. . . ." The exemptions available in bankruptcy were delineated in 1978 as part of the Bankruptcy Reform Act. Pub.L. No. 95-598, 92 Stat. 2549 (codified as amended at 11 U.S.C. § 101-1330 (1988). The Bankruptcy Code was available to the Iowa legislature, and it appears that the legislature modeled portions of the Iowa exemption statute on § 522(d). This is apparent when one compares § 627.6(8) to 11 U.S.C. § 522(d)(10). A comparison of the federal and state exemption schemes may thus prove helpful in construing what property rights were intended to be included in the Iowa legislature's use of the term "disability benefit." In addition to providing an exemption for disability benefits under § 522(d)(10)(C), Congress established a bankruptcy exemption for a debtor's right to receive, or property traceable to, a payment "on account of personal bodily injury." 11 U.S.C. § 522(d)(11)(D). The exemption is limited to $7,500.00 and does not include pain and suffering or compensation for actual pecuniary loss. Id. In § 522(d)(11)(E), Congress also provided an exemption for "a payment in compensation of loss of future earnings of the debtor. . . ." The Iowa legislature did not adopt either of these portions of the federal scheme when it revised Iowa exemptions. It might be argued that because they are covered in separate sections, payments exempt under § 522(d)(11)(D) ("on account of personal bodily injury") would not also be included under § 522(d)(10)(C) (disability benefits, etc.). It has been observed, however, that there is a difficulty in determining exactly what payments on account of personal injury are included under § 522(d)(11)(D). Matter of Lynn, 13 B.R. 361, 362 (Bankr.W.D.Wis.1981). Lynn points out that the section's legislative history "excludes all of the types of losses that generally make up a personal injury award" and for that reason, in construing the section, the legislative history cannot be taken seriously. Id. In describing these types of losses, the court cites Dobbs, Remedies § 8.1 at 540 (1973). Dobbs describes three basic kinds of losses arising in personal injury cases (1) time losses (lost wages and lost earning capacity); (2) 445 the expenses incurred by reason of the injury (medical expenses and "kindred items"); and (3) "pain and suffering in its various forms." Id. The legislative history of § 522(d)(11)(D) is brief. It states: Paragraph (11) allows the debtor to exempt certain compensation for losses. These include . . . compensation for bodily injury, not including pain and suffering ($10,000 limitation), and loss of future earnings payments (support limitation). This provision in subparagraph (D)(11) is designed to cover payments in compensation of actual bodily injury, such as the loss of a limb, and is not intended to include the attendant costs that accompany such a loss, such as medical payments, pain and suffering, or loss of earnings. Those items are handled separately by the bill. H.R.Rep. No. 595, 95th Cong., 1st Sess. 361-362 (1977) U.S.Code Cong. & Admin.News pp. 5787, 6318. I do not agree with the proposition that the exclusion of pain and suffering and pecuniary loss leaves no other type of compensation arising out of bodily injury that one could exempt under § 522(d)(11)(D). In Iowa,[1] losses on account of personal injury include but are not limited to those described by Dobbs. In Iowa, damages for personal injury also include losses "for disability of mind and body, impairment of physical functions, and deprivation of mental powers." Schnebly v. Baker, 217 N.W.2d 708, 726 (Iowa 1974). These would be items of general, nonpecuniary losses. See 22 Am.Jur.2d Damages § 41 (1988). These types of losses would be the type of losses described in § 522(d)(11)(D). According to the legislative history, other losses attending the injury, such as medical bills, pain and suffering, and lost earnings are handled separately. This comment is important because Congress might have intended some of these losses to be covered under § 522(d)(10)(C). This would not be so with future earnings because damage awards to compensate for loss of future earnings are covered under § 522(d)(11)(E). However, past earnings losses are not. If Buchholz's case involved an exemption issue arising under § 522(d)(10)(C), the court would have to decide whether lost earnings, past and future medical expenses, and past and future pain and suffering were intended by Congress as elements of the exemption allowed for a disability benefit. The legislative history says such damages are "handled separately by the bill", but where? There is nothing in § 522(d) which specifically exempts accrued wages, pain and suffering from bodily injury or recovery of medical expenses resulting from bodily injury. Despite the fact that the legislative history indicates that Congress intended to "handle" these items of loss elsewhere, I do not believe that Congress intended to cover them under § 522(d)(10)(C). Nor do I think that the Iowa legislature intended to exempt these items under § 627.6(8)(c). The language of these sections does not lend itself to such an interpretation. The lawmakers' use of the term "disability benefit" does not call to mind thoughts of a tort recovery. "Benefit" has been defined as "[p]ayments made or entitlements available in accord with a wage agreement, insurance contract, or public assistance program." Webster's II New Riverside University Dictionary 166 (1984), and as "a payment or other assistance given by an insurance company, mutual benefit society, or public agency." The Random House Dictionary of the English Language, The Unabridged Edition 138 (1983). Black's Law Dictionary defines "benefit" as "financial assistance received in time of sickness, disability, unemployment, etc. either from insurance or public programs such as social security." Black's Law Dictionary 143 (5th Edition, 1979). One treatise states that "[t]he apparent design of [§ 522(d)(10)(C)] is to exempt temporary contractual benefits." Norton, *446 Bankruptcy Law & Practice § 26.21 (1991) (emphasis added). The use of the term "benefit" seems to limit the exemption to contractual entitlements, not tort recoveries. I conclude that § 627.6(8)(c) of the Iowa Code does not exempt tort recoveries for bodily injury. Accordingly, IT IS ORDERED that the trustee's objection to the debtor's claim of exemption is sustained. Judgement shall enter accordingly. SO ORDERED. NOTES [1] Iowa tort law is relevant because allowable damages help to define the property right which becomes an asset of the bankruptcy estate and from which estate the exemption is claimed. In re N.S. Garrott & Sons, 772 F.2d 462, 466 (8th Cir.1985) reh'g en banc denied (1985).	{ "pile_set_name": "FreeLaw" }
185 Ga. App. 750 (1988) 365 S.E.2d 494 HODGSKIN v. MARKATRON, INC. et al.; and vice versa. 75309, 75310. Court of Appeals of Georgia. Decided January 26, 1988. Rehearing Denied February 8, 1988. Anthony M. Thomasson, Gary W. Bross, Elizabeth Schoeff, for appellant. John W. Gibson, James P. P. Dirr, for appellees. SOGNIER, Judge. Jeanette Hodgskin instituted suit against Markatron, Inc., Tim Titus and Lyle Diamond (hereinafter referred to collectively as "Markatron") to recover sales commissions allegedly due under an employment contract. The trial court found in favor of Markatron on its motion for summary judgment as to Counts III, IV and V of Hodgskin's complaint; Hodgskin appeals from that order only as to Counts III and V in Case No. 75309. Markatron cross-appeals in Case No. 75310 from the trial court's denial of its motion for substitution of party plaintiff. The record reveals that Hodgskin and Markatron entered into an employment contract which provided that Hodgskin was to be paid "a commission on all sales procured by [her] in an amount equal to 50 751 percent of [Markatron's] gross profit." Hodgskin brought suit against Markatron after it began calculating "gross profits" by a method which violated the employment contract, as asserted by Hodgskin, and which resulted in reduced commission compensation for her. 1. In Case No. 75309 Hodgskin contends first that the trial court erred by granting summary judgment to Markatron on Count III of her complaint as amended in which she alleged that "[b]y withholding a part of the compensation due [Hodgskin] ... [Markatron] has wrongfully converted to its own use not less than $8,587.45 of [Hodgskin's] personal property." Hodgskin accordingly sought damages from Markatron "in an amount not less than $8,587.45." We do not agree with Hodgskin that the theory of conversion is applicable here and affirm the trial court's order granting summary judgment to Markatron on Count III. Hodgskin is not seeking to recover some specific money, either in certain bills or coins to which she had title, but instead seeks to recover a certain amount of money generally. There is no evidence in the record that there were ever any particular bills delivered or counted out which belonged to Hodgskin. Rather, it appears Hodgskin's claim for $8,587.45 could have been discharged by the payment of any lawful currency of the United States, whether it constituted a part of Markatron's gross profits then in hand or not. Thus, this is not such a case for which a cause of action for conversion was intended. See Cooke v. Bryant, 103 Ga. 727 (30 SE 435) (1898). 2. In her remaining enumeration, Hodgskin asserts error in the trial court's grant of summary judgment to Markatron on Count V of her complaint for attorney fees. Since Hodgskin acknowledges that her claim for attorney fees is based solely on her Count III conversion claim, our holding in Division 1 affirming the trial court's grant of summary judgment to Markatron as to Count III requires that we likewise affirm the trial court's grant of summary judgment to Markatron as to Count V. 3. In Case No. 75310, Markatron contends the trial court erred by denying its motion for substitution of party plaintiff asserting that Hodgskin had assigned her chose in action to Hodgskin Enterprises, Inc. In support of its motion, Markatron submitted the affidavit of its president, Titus, stating "it was [his] understanding" that Hodgskin's right to commission payments "as well as all other rights she had under her employment agreement with Markatron had been assigned to Hodgskins [sic] Enterprises, Inc." because of a letter signed by Hodgskin and her husband. The letter contained the statement that any sums from Markatron made payable personally to Hodgskin in the past and all payments in the future would "be treated as outside services paid to Hodgskin Enterprises, Inc." Both Hodgskin and her husband averred in affidavits that no assignment of any rights to 752 Hodgskin Enterprises, Inc. had occurred nor was such an assignment intended to result from the letter they signed which, they asserted, was intended instead to obviate the requirement that Markatron withhold F.I.C.A. and other sums from Hodgskin's commission payments. Under OCGA § 9-11-17, a real party in interest objection is a matter in abatement and does not go to the merits of the action. See Rigdon v. Walker Sales & Svc., 161 Ga. App. 459, 462 (288 SE2d 711) (1982). "When it is necessary to consider matters outside the pleadings in ruling on a motion to dismiss for failure to prosecute the action in the name of the real party-in-interest, this may ... be done under the provisions of OCGA § 9-11-43 (b). [Cits.]" Warshaw Properties v. Lackey, 170 Ga. App. 101, 102 (316 SE2d 482) (1984). The trial court here "correctly considered [Markatron's motion] under OCGA § 9-11-43 (b) and exercised its discretion to determine the matter by apparent consideration of evidence presented in part by deposition and affidavits. [Cit.]" Fleming v. Caras, 170 Ga. App. 579, 580 (317 SE2d 600) (1984); see also Lott v. Liberty Mut. Ins. Co., 154 Ga. App. 474, 475 (1) (268 SE2d 686) (1980). In view of the presence of evidence explaining the nature of the letter signed by Hodgskin, which rebutted Titus' affidavit as to his "understanding" of the relationship between Hodgskin and Hodgskin Enterprises, Inc., and in the absence of evidence establishing an outright assignment by Hodgskin to Hodgskin Enterprises, Inc., we believe Hodgskin has made such affirmative showing of no assignment as to withstand Markatron's motion for substitution of party plaintiff. See Fleming, supra at 581. Thus, we find no error in the trial court's denial of Markatron's motion. Judgment affirmed. McMurray, P. J., and Beasley, J., concur.	{ "pile_set_name": "FreeLaw" }
U NITED S TATES N AVY –M ARINE C ORPS C OURT OF C RIMINAL A PPEALS _________________________ No. 201700355 _________________________ UNITED STATES OF AMERICA Appellee v. JEFFERY S. THOMPSON Lance Corporal (E-3), U.S. Marine Corps Appellant _________________________ Appeal from the United States Navy-Marine Corps Trial Judiciary Military Judge: Lieutenant Colonel Eugene H. Robinson, Jr., USMC. Convening Authority: Commanding General, 1st Marine Aircraft Wing, Okinawa, Japan. Staff Judge Advocate’s Recommendation: Lieutenant Colonel Melanie J. Mann, USMC. For Appellant: Commander C. Eric Roper, JAGC, USN. For Appellee: Brian K. Keller, Esq. _________________________ Decided 7 March 2018 _________________________ Before H UTCHISON , F ULTON , and S AYEGH , Appellate Military Judges _________________________ After careful consideration of the record, submitted without assignment of error, we affirm the findings and sentence as approved by the convening authority. Art. 66(c), Uniform Code of Military Justice, 10 U.S.C. § 866(c). For the Court R.H. TROIDL Clerk of Court	{ "pile_set_name": "FreeLaw" }
579 N.E.2d 24 (1991) 219 Ill. App.3d 152 161 Ill.Dec. 767 Paul L. SMITH, a Minor, by Linda J. Smith, His Mother and Next Friend, and Linda J. Smith, Plaintiffs-Appellants, v. Kathy PITCHFORD, Defendant-Appellee. No. 5-90-0622. Appellate Court of Illinois, Fifth District. September 18, 1991. 25 James H. Cooksey, David M. Foreman, Crain, Cooksey, Veltman & Miller, Ltd., Centralia, for plaintiffs-appellants. Richard A. Cary and Janie F. Smith, Wham & Wham, Centralia, for defendant-appellee. Justice CHAPMAN delivered the opinion of the court: Plaintiff, Paul Smith, by Linda Smith, his mother and next friend, brought an action in the Circuit Court of Washington County to recover damages for personal injuries he sustained when he was bitten by a dog owned by Kathy Pitchford. The jury returned a verdict in favor of Pitchford and against plaintiff. Plaintiff's post-trial motion was denied, and he appeals. For the reasons which follow, we hold that the circuit court should have entered judgment notwithstanding the verdict in favor of the plaintiff on the question of liability and ordered a new trial on the issue of damages. We, therefore, reverse and remand with directions. The evidence established that on April 15, 1987, plaintiff, Paul Smith, an eight-year-old child, was bitten by Kathy Pitchford's dog, Roscoe. Paul, along with an eight-year-old girl named Heather Neil, went to defendant's home to visit defendant's daughter sometime around 5 p.m. that day. Defendant's daughter, Kerry Pitchford, and Heather Neil were classmates and friends. Paul had been to the Pitchford home to play on a previous occasion. With Paul walking and Heather riding her bike, the children approached the Pitchford home and saw Kathy Pitchford barbecuing out front on a partially enclosed patio. While still in the street the children called out to Mrs. Pitchford and asked if Kerry was home. Defendant told them that Kerry was not home and returned to her barbecuing. Paul walked up the driveway towards the patio entrance until he was between a fence which partially enclosed the patio and a car parked in the driveway. At this time Paul was met by the defendant's dog, Roscoe. Paul stood with his back to the car, and Roscoe was positioned in front of him. Paul testified that he said, "Hi Roscoe," whom he had met on his prior visit, and began to pet the dog. After approximately 30 seconds Paul looked down at the dog at which time Roscoe jumped up and bit plaintiff in the face. During all these events Mrs. Pitchford remained on the patio, her view of Paul obstructed by the fence. When she heard Heather's screams, Kathy Pitchford walked around the fence, and saw blood on Paul's face. Heather rode home for help, and Mrs. Pitchford sent Paul into the house, where she gave him a damp washcloth for his face. Both returned outside and were met by Paul's father, who had been notified by Heather. Paul's father took him to the local emergency room. There the wounds were treated and stitched. Paul returned to the hospital a few days later due to swelling about the face and neck. To treat the infection the doctor removed the original stitches, drained the wounds, and restitched them. Plaintiff was left with some permanent facial scarring which may be partially remedied by surgery. Plaintiff's claim is based on section 16 of the Animal Control Act (Ill.Rev.Stat.1985, ch. 8, par. 366): 26 "If a dog or other animal, without provocation, attacks or injures any person who is peaceably conducting himself in any place where he may lawfully be, the owner of such dog or other animal is liable in damages to such person for the full amount of the injury sustained." Under this section there are four elements which must be proved by the plaintiff: (1) injury caused by an animal owned by the defendant; (2) lack of provocation; (3) peaceable conduct of the person injured; and (4) the presence of the injured person in a place where he has a legal right to be. Robinson v. Meadows (1990), 203 Ill.App.3d 706, 710, 148 Ill.Dec. 805, 807, 561 N.E.2d 111, 113. There was no dispute at trial as to the first element. Defendants admits ownership of the dog and injury to plaintiff. As to the second and third elements, defendant offered no evidence. Plaintiff testified that upon encountering the dog he stopped, said "Hi Roscoe," and began to pet him. No evidence was offered to contradict or supplement this testimony. Mere presence on private property does not constitute provocation regardless of how the animal may interpret the visitor's movements. (Messa v. Sullivan (1965), 61 Ill.App.2d 386, 209 N.E.2d 872.) Provocation cannot be said to exist within the meaning of section 16 of the Animal Control Act (Ill.Rev.Stat. 1985, ch. 8, par. 366) where such unintentional stimuli as greeting or petting a dog result in the dog attacking the plaintiff viciously and the attack is "out of all proportion to the unintentional acts involved." (Robinson v. Meadows (1990), 203 Ill.App.3d 706, 713, 148 Ill.Dec. 805, 807, 561 N.E.2d 111, 115.) All evidence presented indicated that plaintiff's conduct was peaceable and involved no provocation within the meaning of the statute. Paul's testimony was corroborated in all relevant aspects by the testimony of Heather Neil, and there were no inconsistencies between the testimony of Kathy Pitchford's and that of Paul's. It is the function of a jury to weigh the conflicts and inconsistencies of testimony presented in determining the credibility and weight to be given such testimony. Where, however, the testimony of a witness is neither contradicted, either by positive testimony or by circumstances, nor inherently improbable, and the witness has not been impeached, that testimony cannot be disregarded even by a jury. (People ex rel. Brown v. Baker (1981), 88 Ill.2d 81, 58 Ill.Dec. 875, 430 N.E.2d 1126.) This is just such a case. Paul's testimony was not contradicted in any relevant aspect nor was it inherently improbable. As such the jury, contrary to arguments by the defense, was not at liberty to reject the unimpeached testimony of plaintiff on the issues of provocation and peaceable conduct. The fourth and final element concerned the lawful presence of the injured party. There is no debate as to the location of the plaintiff on the driveway of the defendant at the time of the injury, thus there is no factual dispute. It has been held that: "An owner of property who provides a path or walk from the public way to his door, without some indication (sign, posting of notice, or words) warning away those who seek lawful business with him extends a license to use the path or walk during the ordinary hours of the day. Persons who thus make use of the path or walk are licensees." (Dobrin v. Stebbins (1970), 122 Ill.App.2d 387, 389-90, 259 N.E.2d 405, 407.) The record indicates that the driveway was the sole means of access to the door of the house from the public way. There were no signs or notices posted, and defendant testified that she gave the plaintiff no words of warning. Paul's uncontradicted and unimpeached testimony indicated that he entered the defendant's property by means of the driveway for purposes of a social visit. However unusual this may seem for an eight year old, it is not inherently improbable and the jury was not free to disregard it. Plaintiff was clearly in a place where he had a legal right to be at the time of the injury. The record establishes that the evidence, when viewed in its aspect most favorable to the defendant, so overwhelmingly favors *27 the plaintiff that no contrary verdict could ever stand. (Pedrick v. Peoria Eastern Railroad Co. (1967), 37 Ill.2d 494, 229 N.E.2d 504.) We hold that the circuit court erred in denying plaintiff's motion for a judgment notwithstanding the verdict on the issue of liability. Robinson v. Meadows (1990), 203 Ill.App.3d 706, 148 Ill.Dec. 805, 561 N.E.2d 111. The judgment of the circuit court is reversed, and the cause is remanded with directions to enter judgment notwithstanding the verdict in favor of plaintiff on the issue of liability and to grant plaintiff a new trial on the issue of damages. Reversed and remanded with directions. HOWERTON and GOLDENHERSH, JJ., concur.	{ "pile_set_name": "FreeLaw" }
932 F.2d 1174 UNITED STATES of America, Plaintiff-Appellee,v.Angel RUIZ, Defendant-Appellant. No. 90-1787. United States Court of Appeals,Seventh Circuit. Argued Feb. 21, 1991.Decided May 17, 1991.Opinion Corrected, Motion to recall Mandate Denied Sept. 11, 1991. Ted S. Helwig, Asst. U.S. Atty., Susan E. Cox, Office of the U.S. Atty. and Barry R. Elden, Asst. U.S. Atty., Office of the U.S. Atty., Crim. Receiving, Appellate Div., Chicago, Ill., for plaintiff-appellee. Robert A. Korenkiewicz, Chicago, Ill., for defendant-appellant. Before BAUER, Chief Judge, and COFFEY and EASTERBROOK, Circuit Judges. BAUER, Chief Judge. 1 A jury concluded that Angel Ruiz was, in fact, no angel: it found him guilty of one count of conspiracy to distribute cocaine in violation of 21 U.S.C. Sec. 846 and one count of distribution of cocaine in violation of 21 U.S.C. Sec. 841(a)(1). The district court entered judgment on this verdict and sentenced Ruiz under the United States Sentencing Guidelines ("Guidelines") to a term of 160 months. In this appeal, Ruiz challenges both his conviction and his sentence. We affirm the former but, because the court committed error in the application of the Guidelines, we vacate Ruiz's sentence and remand the case for resentencing. 2 * The path that led authorities to Angel Ruiz began with Roberto Diaz. Diaz was a street-level drug dealer who, in the fall of 1987, began selling cocaine to "Francisco" Guerra. That choice of customer would be Diaz's undoing, as Frank Guerra was an undercover special agent with the Illinois State Police. Diaz's sales to Agent Guerra started small: an eighth of an ounce here, an ounce and a half there. After Diaz and Agent Guerra became better acquainted through these small deals, they began discussing larger transactions. Agent Guerra also started bringing his brother Fred along. Fred Guerra, as it turns out, was an undercover narcotics deputy employed by the Cook County Sheriff's Department. 3 When Agent Guerra expressed interest in larger transactions, Diaz assured him that he could get his hands on kilogram quantities of cocaine. Diaz quoted Agent Guerra a tentative price of $29,000 per kilo, contingent upon the approval of his source. He later told Agent Guerra that he could get the cocaine for $27,000 per kilo, with a discount for multi-kilogram purchases. Agent Guerra told Diaz that he was interested in buying not one but two kilograms. Diaz said no problem. Negotiations between Diaz and Agent Guerra continued, with the two eventually agreeing on a price of $52,000 for the two kilos. 4 According to Diaz's testimony, his source for cocaine was Jose Sandoval. Sandoval testified that his source, in turn, was Angel Ruiz.1 Like much else in the American economy, the Ruiz-to-Sandoval-to-Diaz operation ran on credit. Ruiz would give the cocaine to Sandoval on consignment, Sandoval agreeing to pay Ruiz, say, X dollars per ounce, as soon as he sold the cocaine to one of his customers. Sandoval would in turn consign the cocaine to Diaz for an agreed price of X + 50 dollars or X + 100 dollars per ounce, to be paid when Diaz sold the cocaine to one of his customers. Diaz, of course, would then try to sell the cocaine for more than he owed Sandoval so that he, too, could make a profit. The two-kilogram deal was to work in the same fashion: Diaz was to pay Sandoval $40,000 ($20,000 per kilo) after he collected the $52,000 from the Guerras. (The record does not reveal how much Sandoval would skim off of the $40,000 before paying Ruiz.) Diaz thus would make $12,000 in gross profit, out of which he would pay Sandoval an extra $2,000 for his help at the delivery, leaving Diaz a net profit of $10,000. 5 The two-kilogram deal, which was to be the last drug deal for this particular distribution outfit, went down as follows. On December 17, 1987, Diaz phoned Agent Guerra and told him that "his people were ready" to make the two-kilogram transaction. Transcript of Trial Proceedings ("Trial Tr."), Vol. II, p. 57. They arranged to meet that evening at the parking lot of a Zayre's department store in Lyons, Illinois, to make the exchange. Early that evening, Diaz met Sandoval at a bar and told him the buyer was ready. Sandoval stepped out and called Ruiz's house to arrange the pick up of the drugs, but no one was home. Sandoval then decided to take Diaz to a location in Cicero, Illinois, where Sandoval knew he could get the cocaine from Ruiz. (In a transaction of this size, Sandoval planned to accompany Diaz every step of the way.) 6 With Sandoval in the passenger seat giving directions, Diaz drove to Cicero and parked in an alley. While Diaz waited in the car, Sandoval met in the alley with Ruiz and another man named Antonio Marquez. Diaz as yet had not met Ruiz or Marquez, and would learn their names only after they all had been arrested. After chatting briefly in the alley, Ruiz, Marquez, and Sandoval came over to Diaz's car. Ruiz told Diaz that he had only one kilogram of cocaine. Diaz was upset, and told Ruiz that he needed--and had asked Sandoval for--two kilograms. Ruiz then responded, according to Diaz's testimony: "It doesn't matter. I'll get you the other kilo. And, if you want, even ten more I can get." Trial Tr., Vol. III, p. 162.2 Ruiz and Marquez then asked where the transaction with Diaz's customer was to occur, and Diaz told them the Zayre parking lot. Ruiz rejected that site, and they decided instead that the transaction should occur at Diaz's apartment. Diaz said he would have to go back and tell his customer about the change in location. Ruiz assented, and told Diaz to take Marquez along and show him where the apartment was. 7 Diaz and Sandoval drove off, with Marquez following in his own car. The caravan stopped by Diaz's house, where Marquez peeled off to go back and pick up Ruiz. Diaz and Sandoval proceeded to the Zayre parking lot to meet the Guerras. Diaz introduced Sandoval to the Guerras and informed Agent Guerra that the exchange had to take place at his apartment. But Agent Guerra said no sale. He flashed Diaz and Sandoval a peek at the bag containing the $52,000 and told them that the exchange would take place in the parking lot or not at all. Sufficiently persuaded, Diaz and Sandoval agreed to fetch the cocaine and return to the parking lot. 8 Back at Diaz's apartment, Diaz and Sandoval delivered the news to Ruiz and Marquez, who were waiting out front in Marquez's car. Sandoval and Diaz walked over to the car, in which Ruiz occupied the passenger seat, and the four conferred briefly. When told of Diaz's customers' insistence on the Zayre parking lot, Ruiz assented to that site. Marquez reached below the seat of the car and pulled out a one-kilogram package of cocaine, which he handed out the driver-side window to Diaz, who stuffed the package under his sweater. Ruiz handed the other kilo out the passenger-side window to Sandoval, who stuffed it under his jacket. Diaz and Sandoval then walked hurriedly back to Diaz's car. An undercover DEA agent who was positioned at that time some distance behind Diaz's car testified at trial that, when Sandoval hurried back to Diaz's car, he walked "slightly hunched over, with his hands clasped to the front of his body, almost like a fullback would carry the ball in a football game...." Trial Tr., Vol. V, p. 396. 9 With the kilograms in-hand, Diaz and Sandoval drove directly to the Zayre parking lot. Marquez and Ruiz followed closely in Marquez's car. Diaz pulled into the parking lot next to the Guerras' car, and Marquez and Ruiz positioned their car about 50 feet away. Diaz and Sandoval got out of their car and walked over to the Guerras' car, where they delivered the two kilograms of cocaine to the Guerras. Deputy Guerra then gave the arrest signal and the dozen or so agents who had been staking out the scene closed in and pinched all four suspects: Diaz, Sandoval, Marquez, and Ruiz. 10 The following day, December 18, 1987, the government filed a criminal complaint charging all four with distribution of two kilograms of cocaine in violation of 21 U.S.C. Sec. 841(a). About one month later, however, on the government's oral motion, the court dismissed the charge against Ruiz and released him from custody. The remaining three defendants subsequently were indicted for both conspiracy to distribute cocaine and distribution of cocaine, to which charges they each pleaded guilty. Diaz and Sandoval, in return for their pleas and their promises to testify against Ruiz, received sentences of two and one-half years and three and one-half years, respectively--substantially lower than the sentences they would have received under the Guidelines. 11 Diaz and Sandoval then were brought before the grand jury, which returned a two-count indictment against Ruiz, charging him with conspiracy under 21 U.S.C. Sec. 846 and distribution under 21 U.S.C. Sec. 841(a). In December 1989, the case was tried to a jury, which found Ruiz guilty on both counts. The district court subsequently denied Ruiz's post-trial motions and held a sentencing hearing. Because the conduct that constitutes the core of this offense occurred after November 1, 1987, the court applied the Guidelines, under which the court sentenced Ruiz to 160 months on each count to run concurrently. Ruiz filed a timely appeal, raising various challenges to both his conviction and his sentence. II A. Sufficiency of the Evidence 12 First, and most predictably, Ruiz argues that the evidence presented by the government was insufficient to support his conviction on either count. This is so, argues Ruiz, because the convictions are based entirely on the uncorroborated testimony of Diaz and Sandoval, two drug-dealing - felons - turned - government - informants who simply cannot be believed. As we have too-often reminded counsel, "this argument is wasted on an appellate court." United States v. Molinaro, 877 F.2d 1341, 1347 (7th Cir.1989). Ruiz thoroughly attacked Diaz's and Sandoval's credibility at trial, and the jury, "which is the only entity entitled to make such credibility determinations, apparently decided to believe" their testimony despite their "many character flaws." Id. (citation omitted). See also United States v. Beverly, 913 F.2d 337, 358 (7th Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 766, 112 L.Ed.2d 786 & --- U.S. ----, 111 S.Ct. 951, 112 L.Ed.2d 1039 (1991). In other words, Ruiz had his shot to sell Diaz and Sandoval as liars, but the jury didn't buy it. 13 Apart from this credibility challenge, Ruiz argues generally that the convictions must be overturned because they were based on uncorroborated hearsay. In reviewing such sufficiency challenges, we ask whether, "viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979) (emphasis in original). See also United States v. Haddon, 927 F.2d 942, 950 (1991); United States v. McNeese, 901 F.2d 585, 600 (7th Cir.1990) ("Only when the record contains no evidence, regardless of how it is weighed, from which the jury could find guilt beyond a reasonable doubt, may an appellate court overturn the verdict.") (quotation and citations omitted). We will spare ourselves, and the reader, the recapitulation of the record evidence summarized above; suffice it to say that, viewing the evidence in light of these standards, we conclude that the distribution conviction must stand. 14 Ruiz's sufficiency challenge to the Sec. 846 conspiracy conviction merits a few, additional words. The government was required to prove both the existence of the conspiracy and Ruiz's membership in, or participatory link to, the conspiracy. As Ruiz correctly argues, on review this court requires that there be "substantial evidence" in support of these elements before we will sustain a conspiracy conviction. United States v. Durrive, 902 F.2d 1221, 1225-29 (7th Cir.1990).3 It is also true, however, that the government may use "circumstantial evidence as support, even sole support, for a [conspiracy] conviction." Durrive, 902 F.2d at 1229. Ruiz suggests that the government has failed to meet its evidentiary burden regarding his membership in the conspiracy. He submits that the record supports at most the notion that he merely knew of the conspiracy, associated with some of its members, and was present at its last criminal act, none of which is sufficient to establish membership. See United States v. Atterson, 926 F.2d 649, 655-56 (7th Cir.1991); Durrive, 902 F.2d at 1225. The record supports a good deal more than that. The government introduced evidence, as summarized above, that Ruiz was the ultimate supplier for a conspiracy that dealt cocaine in quantities both large and small. After Ruiz supplied the cocaine, he retained an interest in it while he waited for his money to make its way back up the chain. When it came time for the big transaction, Ruiz showed up in person and directed the deal. Further, both Diaz and Sandoval placed Ruiz at the scene when the two kilograms were handed over to them, and the undercover agent's "fullback" testimony corroborates that transfer. Finally, when the whole group was arrested in the parking lot, Ruiz was there with Marquez keeping an eye on his investment. From all this evidence, the jury concluded that Ruiz was not merely along for the ride but was a member of the distribution conspiracy. That conclusion will not be disturbed. B. The Jury Instructions 15 Ruiz's second line of attack on his conviction regards the jury instructions. Over the objection of Ruiz's counsel, the district court gave the standard aiding and abetting instruction used in this circuit, see Federal Criminal Jury Instructions of the Seventh Circuit ("F.C.J.I. 7th Cir.") Sec. 5.08 (1980), as well as the Pinkerton instruction that is reproduced in the margin,4 both of which were offered by the government. We note at the outset that we review jury instructions as a whole, and "[a]s long as the instructions treat the issues fairly and adequately, they will not be interfered with on appeal." McNeese, 901 F.2d at 607 (quotation and citations omitted). See also United States v. Doerr, 886 F.2d 944, 960 (7th Cir.1989). Thus, before we consider any of Ruiz's particular jury instruction challenges, we must widen the lens and look at the instructions in their entirety. 16 After the standard opening instructions defining the jury's role and duty and the nature and types of evidence, the court admonished the jury that Diaz and Sandoval had pleaded guilty and that their testimony "must be considered with caution and great care" and that their guilty pleas should not be considered as evidence against Ruiz. Trial Tr., Vol. V, p. 551. The court then gave the standard instructions regarding the indictment, the presumption of innocence, and the government's burden of proof. After explaining that the indictment charges two separate crimes, the court quoted and explained the statute at issue in the first count: 21 U.S.C. Sec. 846, the conspiracy statute. The court then gave our standard instruction listing the elements of conspiracy. See F.C.J.I. 7th Cir. Sec. 5.11 (The court omitted the portions of the instruction that refer to "overt acts," because Sec. 846 does not require proof of an overt act.) The conspiracy elements instruction included the statement, "In determining whether the defendant became a member of the conspiracy, you may consider only the acts and statements of that particular defendant,"5 and ended with the sentence, "The government must prove beyond a reasonable doubt from the defendant's own acts and statements that he was aware of the common purpose and was a willing participant." Trial Tr., Vol. V., pp. 553-54. The court then gave the Pinkerton instruction reproduced supra at note 4, followed by an instruction quoting the statute involved in the second count: 21 U.S.C. Sec. 841(a)(1), substantive distribution. In explaining this charged offense, the court defined "distribution" and listed the elements of the offense pursuant to our standard instructions. See 3 Federal Criminal Jury Instructions of the Seventh Circuit ("3 F.C.J.I. 7th Cir.") 116 & 117 (1986). The court then gave our standard instruction defining "knowingly," F.C.J.I. 7th Cir. Sec. 6.04, followed by an instruction admonishing the jury that mere presence at the scene, knowledge of the crime and/or association with its participants is insufficient to establish guilt or membership in a conspiracy. In the final substantive instruction, the court reminded the jury that both crimes charged require that Ruiz acted "knowingly and intentionally," and that it was Ruiz's theory of defense that he did neither. 1. The Aiding and Abetting Instruction 17 Over half a century ago, Judge Learned Hand penned the classic description of the elements required for aiding and abetting liability in United States v. Peoni, 100 F.2d 401, 402 (2d Cir.1938). This circuit has incorporated Judge Hand's formulation, along with the language of 18 U.S.C. Sec. 2(a) (aiders and abettors punishable as principals), into our standard instruction. See United States v. Valencia, 907 F.2d 671, 680-81 (7th Cir.1990); McNeese, 901 F.2d at 608. The district court gave that standard instruction in this case. Ruiz does not challenge the sufficiency or validity of the aiding and abetting instruction, but argues that it should not have been given in this case because his indictment did not charge him with aiding and abetting and because the evidence at trial did not warrant the instruction. 18 As to the former argument, it is well-established that a defendant need not be charged separately with aiding and abetting for that theory of liability to be presented to the jury, so long as the evidence warrants the instruction and no unfair surprise results. See United States v. Galiffa, 734 F.2d 306, 311-12 (7th Cir.1984), cert. denied, 474 U.S. 1032, 106 S.Ct. 592, 88 L.Ed.2d 572 (1985). On appeal, Ruiz suggests that this case fits into the "unfair surprise" exception. This suggestion is too little, too late: Ruiz made no mention of any "surprise" at the instructions conference held by the district court, and he has not even attempted to point to any prejudice that resulted from the alleged "lack of adequate notice." Moreover, "[b]ecause aiding and abetting does not constitute a separate crime, all indictments are to be read as if the alternative provided by the aiding and abetting statute, 18 U.S.C. Sec. 2, is included therein." Galiffa, 734 F.2d at 312 (quotation and citations omitted). 19 Ruiz's other argument--that the evidence did not warrant the aiding and abetting instruction--was considered and rejected by the district court at the instructions conference. The court noted that the second count charged Ruiz with distribution of two kilograms of cocaine, but the evidence at trial established that Diaz and Sandoval made the actual delivery of those kilograms to Agent Guerra. The court ruled that an aiding and abetting instruction was called for because the evidence supported the inference that the acts of Diaz and Sandoval were induced and commanded by Ruiz, and because Ruiz did not personally participate in the delivery of the two kilograms. See Trial Tr., Vol. V, p. 495. That ruling did not constitute reversible error. The jury could have inferred from the evidence that Ruiz, although he did not personally hand the two kilograms to the agents, knowingly facilitated the distribution of those kilograms, and the challenged instruction properly apprised the jury as to the elements of aiding and abetting liability to be applied to that inference. 2. The Pinkerton Instruction 20 The Pinkerton instruction given by the district court in this case differs markedly from our pattern instruction. Compare 3 F.C.J.I. 7th Cir. 6. Mere semantical differences, of course, are insignificant, but more is at issue here. As we stated recently when reviewing an essentially identical instruction, this version of the Pinkerton instruction "fail[s] to list every element of the Pinkerton doctrine with precision." United States v. McKenzie, 922 F.2d 1323, 1330 (7th Cir.1991) (discussing deficiencies in this version of Pinkerton instruction). We need not examine in detail the shortcomings of this instruction, however, because in this case, as in McKenzie, the defendant failed to object to the wording of the instruction at trial, and the deficiencies contained in this abbreviated Pinkerton instruction do not constitute "plain error." See McKenzie, 922 F.2d at 1330 & n. 4. 21 What Ruiz did object to at trial, and continues to object to on appeal, is the fact that a Pinkerton instruction was given at all. Ruiz maintains that the instruction "nullified" the immediately preceding instruction listing the elements required for a conspiracy conviction, and in particular the portions of that conspiracy instruction regarding the required mental state and proof of membership. As with the aiding and abetting instruction, Ruiz also argues that the Pinkerton instruction was "inappropriate to the facts of this case" because those facts established, if they established criminal liability at all, that Ruiz was directly liable. These challenges are meritless. The Pinkerton instruction did not, by its placement or its language, negate the conspiracy elements instruction, which explicitly placed on the government the burden to prove, by defendant's own acts and statements, his awareness of the common purpose of, and his membership in, the conspiracy. Indeed, the Pinkerton instruction began with the words "If it is established beyond a reasonable doubt that a conspiracy existed and it is established beyond a reasonable doubt that a particular defendant was a member of the conspiracy, ..." (emphasis added). This introductory phrase should have prevented the jury from using the conditional Pinkerton instruction to "negate" the elements instruction. Further, in the instruction regarding the elements of the substantive distribution count, which immediately followed the Pinkerton instruction, the jury was reminded again that the government was required to prove beyond a reasonable doubt that Ruiz knowingly or intentionally distributed cocaine. And finally, as we discuss above, the evidence at trial did in fact support an agency theory of liability, in that Ruiz distributed the two kilograms through Diaz and Sandoval. Thus, viewed in the context of the instructions as a whole and in light of the evidence adduced at trial, the district court's decision to give a Pinkerton instruction was not reversible error. 3. The Intent Instructions 22 Ruiz's final challenge to his conviction concerns the district court's refusal to give two jury instructions he tendered. The first would have defined and distinguished "specific intent" and "general intent," and the second would have defined the word "intentionally" as "consciously will[ing] those of his actions which constitute elements of the crimes charged." The rejection of these tendered instructions was not reversible error. We have recommended to the district courts that they avoid instructions that drag the jury through the "specific intent"/"general intent" quagmire, because such instructions "more than likely confuse rather than enlighten juries." F.C.J.I. 7th Cir. Sec. 6.02. We have suggested instead that courts give the instruction(s) that "define the precise mental state required by the particular offense charged." Id. See also United States v. Markowski, 772 F.2d 358, 364-65 (7th Cir.1985) ("A jury should be told only what it needs to know, not what might confuse."), cert. denied, 475 U.S. 1018, 106 S.Ct. 1202, 89 L.Ed.2d 316 (1986). 23 The indictment charged Ruiz with two offenses: distribution of two kilograms of cocaine in violation of 21 U.S.C. Sec. 841(a)(1), which contains the mental states "knowingly or intentionally," and conspiracy to distribute cocaine in violation of 21 U.S.C. Sec. 846, which does not itself contain a mental state, but which, according to our standard instruction (given in this case), can only be sustained if the defendant "knowingly and intentionally became a member of the conspiracy." F.C.J.I. 7th Cir. Sec. 5.11. The district court properly informed the jury that these were the required mental states, that the government was required to prove them beyond a reasonable doubt, and that it was Ruiz's theory of defense that he acted "neither knowingly nor intentionally." Trial Tr., Vol. V, p. 556. The court also decided to give our standard definition of "knowingly," but rejected as unnecessary Ruiz's tendered instruction defining "intentionally." That tendered instruction would only have introduced another phrase, "consciously willed," that itself would have required an explanation or definition. Viewing the instructions as a whole, we are convinced that the jury was told what it "needed to know" here, and that the required mental states for Ruiz's offenses were set forth adequately for the jury.6 III 24 Ruiz also challenges his sentence under the Guidelines. Ruiz's sentencing hearing was held on March 30, 1990. Some months earlier, the court had ordered a pre-sentence investigation and report by the Probation Department. That report calculated Ruiz's base offense level as 28, using the total amount of cocaine actually distributed by the Ruiz-Sandoval-Diaz conspiracy (2,081.85 grams). The report rejected the government's recommendation that Ruiz also be held accountable for the ten kilograms that Diaz and Sandoval said Ruiz mentioned, stating that the evidence was unclear as to whether Ruiz had access to that cocaine. The report then recommended a two-level increase in the offense level pursuant to Guidelines Sec. 3B1.1(c) because of Ruiz's "managerial role" in the offense. The final adjusted offense level recommended in the report was 30, which would have, in combination with Ruiz's criminal history category, resulted in a sentencing range of 97-121 months. 25 Ruiz objected to the managerial role adjustment, and argued the point at the sentencing hearing. The court also heard argument from both sides concerning whether Ruiz should be held accountable for ten kilograms of cocaine based on the "even ten more I can get" statement. The court concluded that he should, and, accordingly, fixed Ruiz's base offense level at 32 (five to fifteen kilograms of cocaine). The court then awarded a two-level enhancement for managerial role, resulting in an adjusted offense level of 34. An offense level of 34 produced, in Ruiz's case, a sentencing range of 151-188 months. After hearing argument in mitigation and aggravation, the court picked a sentence in the low end of that range, 160 months, plus a special assessment of $100 and a five year period of supervised release. A. The Managerial Role Adjustment 26 On appeal, Ruiz first repeats his claim that he should not have received a two-level upward adjustment under Guidelines Sec. 3B1.1(c). Ruiz contends that the evidence showed that he and his coconspirators merely had a "buyer-seller" relationship, not one in which he was calling the shots. The district court, in contrast, found that the evidence established that Ruiz maintained control and supervision of the others from "a field general's position." Transcript of Proceedings on March 30, 1990 ("Sent.Tr."), p. 29. That finding resolved a factual issue--Ruiz's role in the conspiracy--and will only be reversed for clear error. United States v. Spillman, 924 F.2d 721, 723 (7th Cir.1991). See also 18 U.S.C. Sec. 3742(e) (when reviewing a sentence, the court of appeals "... shall accept the findings of fact of the district court unless they are clearly erroneous ..."). No clear error was committed here. Diaz and Sandoval, whom the court determined to be telling the truth, testified that Ruiz was the supplier of the cocaine; set the price for the cocaine; had decision-making authority over the details of the distribution of the cocaine, including, for the two-kilogram transaction, the timing and location of the deal; and, with Marquez, physically oversaw the two-kilogram deal. Several of these factors were corroborated by the testimony of undercover agents concerning, among other things, the actions of Ruiz on the day of the arrest. Thus, the district court's upward adjustment pursuant to Sec. 3B1.1 will not be disturbed. Cf. United States v. Franco, 909 F.2d 1042, 1046-47 (7th Cir.1990). B. The Quantity of Cocaine 27 Second, Ruiz argues that the statement attributed to him by Diaz and Sandoval in their trial testimony was insufficient grounds for the court to use ten kilograms in calculating his offense level.7 Guidelines Sec. 1B1.3 instructs the sentencing court to consider, when it is calculating base offense level and making adjustments, various categories of "relevant conduct," including "all acts and omissions committed or aided and abetted by the defendant, or for which the defendant would be otherwise accountable, that occurred during the commission of the offense of conviction," Sec. 1B1.3(a)(1), as well as "acts and omissions that were part of the same course of conduct or common scheme or plan as the offense of conviction." Sec. 1B1.3(a)(2) (Amended versions effective Nov. 1, 1989). Guidelines Sec. 2D1.4(a), in turn, provides that the offense level for a conspiracy involving drugs "shall be the same as if the object of the conspiracy ... had been completed." (Amended version effective Nov. 1, 1989). Application Note 1 to Sec. 2D1.4(a) explains further that, 28 [i]f the defendant is convicted of an offense involving negotiation to traffic in a controlled substance, the weight under negotiation in an uncompleted distribution shall be used to calculate the applicable amount. However, where the court finds that the defendant did not intend to produce and was not reasonably capable of producing the negotiated amount, the court shall exclude from the guideline calculation the amount it finds the defendant did not intend to produce and was not reasonably capable of producing. 29 (Amended version effective Nov. 1, 1989). 30 Thus, under these provisions, Ruiz's base offense level should have been calculated based on ten kilograms if that amount was "under negotiation in an uncompleted distribution" and Ruiz intended to produce and was "reasonably capable of producing" ten kilograms. It was the government's burden to prove these elements by a preponderance of the evidence. See United States v. White, 888 F.2d 490, 499 (7th Cir.1989). The district court concluded that it had: "I think [Ruiz] made [the ten kilogram] indication not as an idle boast but that he had the intention to produce that ten kilograms, if necessary, and, frankly, based upon his capability of producing the drugs he did produce, I believe he was reasonably capable of producing the ten kilograms he said he could produce." Sent.Tr., p. 30. 31 That conclusion cannot withstand scrutiny. This was not a case in which the defendant had actually arranged the details of a drug sale (e.g., price, quantity, location), but was arrested with or charged for a smaller amount of drugs because the pinch was made before the larger deal could be completed, as were United States v. Macias, 930 F.2d 567 (7th Cir.1991); United States v. Buggs, 904 F.2d 1070 (7th Cir.1990); and United States v. Vopravil, 891 F.2d 155 (7th Cir.1989). Nor was this a case in which a negotiated deal fell through because the buyer found a better deal elsewhere, as was Franco, 909 F.2d at 1045-47. In this case, according to the evidence, the only drug sales arranged by Ruiz and his coconspirators involved amounts actually delivered: a total of approximately 2.08 kilograms. Ruiz's single comment was not sufficient to establish that the conspiracy had as its goal the consummation of a deal for upwards of ten kilograms. Such an amount never had been mentioned to Agent Guerra; there was no evidence of other buyers for such an amount; no price had been set or even quoted for such an amount; indeed, there was no evidence of any kind that Ruiz had in his possession or had access to that amount of cocaine. And how much, really, can be made of Ruiz's comment? "Even ten more I can get" is hardly the negotiation of a specific drug transaction. If so, then had Ruiz said "I can get you tons more," or even "I can get you all the cocaine in Colombia," he could have been held accountable for those amounts--a result that could not have been intended by Guidelines Secs. 1B1.3 and 2D1.4. 32 Standing alone, as it does here, an off-hand statement referring to larger quantities of narcotics that amounts to no more than braggadocio is insufficient to establish that those quantities were "under negotiation" as envisioned in Guidelines Sec. 2D1.4(a). Thus, the district court's sentence calculation utilizing ten kilograms was reversible error. Cf. United States v. Moon, 926 F.2d 204, 208-10 (2d Cir.1991) (conversations early in the negotiations concerning the availability and price of "one or two" kilograms not sufficient to sustain district court's sentence calculation based on two kilograms, where the evidence revealed that the total amount the buyer actually sought to and did purchase was one kilogram); United States v. Foley, 906 F.2d 1261, 1264-65 (8th Cir.1990) (reversing district court's finding that additional two ounces of cocaine were "negotiated" where conversation mentioning these quantities did not have the specificity that attended the other drug transactions). Ruiz's base offense level should have been calculated, as the presentence report suggested, on the basis of the amount of cocaine that actually was distributed by this conspiracy. That offense level (28), combined with a two-level managerial role enhancement, would have yielded an adjusted offense level of 30 and a sentencing range of 97-121 months. The 160 month sentence imposed by the district court must be vacated and the case remanded for resentencing using the proper adjusted offense level. IV 33 Angel Ruiz was convicted, in large measure, on the say so of his coconspirators. That fact does not differentiate his case from the mine-run of conspiracy and narcotics cases, nor does it indicate a failure of proof by the government. In addition, the court committed no error in its charge to the jury, and, therefore, Ruiz's conviction is AFFIRMED. Error was committed, however, in the calculation of Ruiz's sentence under the Guidelines. Therefore, the sentence is VACATED and the case is REMANDED for resentencing consistent with this opinion. 34 SO ORDERED. 1 Ruiz hotly contested the credibility of Diaz's and Sandoval's testimony in his arguments to the jury, and he continues to do so in his arguments to this court. We will not undertake to sort out all of the claimed inconsistencies and the claimed motives to lie. The jury had that task, and Ruiz's trial counsel did a commendable job putting before the jury all sorts of impeachment evidence. What we examine and recount here is the evidence and testimony upon which the jury could have relied in finding Ruiz guilty 2 Similarly, Sandoval testified that, after he and Diaz told Ruiz that two kilograms were needed, Ruiz said, "[A]ll I have here is one in the car." At which point Sandoval asked, "Can you also sell us the other one?" and Ruiz responded, "[S]ure, of course, even ten, if you want." Trial Tr., Vol. IV, p. 308 3 Although Ruiz's trial was held before Durrive was decided, the standard of review established in that case applies nonetheless. See United States v. Lamon, 930 F.2d 1183, 1191 n. 17 (7th Cir.1991); United States v. Kimmons, 917 F.2d 1011, 1015 n. 5 (7th Cir.1990) 4 If it is established beyond a reasonable doubt that a conspiracy existed and it is established beyond a reasonable doubt that a particular defendant was a member of the conspiracy, then the acts and declarations of any other member of such conspiracy in or out of the defendant's presence, done in furtherance of the objects of the conspiracy and during its existence, may be considered as evidence against the defendant. When persons enter into an agreement for an unlawful purpose, they become agents for one another and are responsible for each other's actions made during the existence of the conspiracy and in furtherance of its unlawful purpose Trial Tr., Vol. V, p. 554. 5 In United States v. de Ortiz, 907 F.2d 629 (7th Cir.1990) (en banc ), cert. denied, --- U.S. ----, 111 S.Ct. 684, 112 L.Ed.2d 676 (1991), we held that this portion of Sec. 5.11 conflicts with Fed.R.Evid. 104 and Bourjaily v. United States, 483 U.S. 171, 107 S.Ct. 2775, 97 L.Ed.2d 144 (1987), in that it overly favors the accused. This case was tried well before our decision in de Ortiz, and neither party has raised the conflict with Bourjaily--the government, of course, need not, as it attained a conviction, and Ruiz would not, as any "error" worked in his favor. Thus, we will not venture into that thicket here 6 United States v. Liparota, 471 U.S. 419, 105 S.Ct. 2084, 85 L.Ed.2d 434 (1985), relied upon heavily by Ruiz, is not to the contrary. In that case, the Supreme Court reversed a conviction under 7 U.S.C. Sec. 2024(b)(1) (food stamp fraud) because the trial court's jury instructions allowed the jury to find the defendant guilty with no showing by the government of any mental state regarding one element of the offense: that the acquisition or possession of the food stamps was unauthorized by law. In this case, the jury was properly instructed as to the mental state the government was required to prove for each element of the offenses 7 Ruiz expends much time and energy arguing that Marquez, not he, made the ten kilogram statement, which argument relies on a disputed police affidavit and the supposition that Diaz and Sandoval were lying in their testimony. After seeing the affiant police officer, Diaz, and Sandoval testify, the district court concluded that the officer had been mistaken and that Diaz and Sandoval were telling the truth. Giving due regard to the district court's superior opportunity to assess the credibility of witnesses, we find no clear error in that factual conclusion. See 18 U.S.C. Sec. 3742(e). Therefore, we accept as fact that Ruiz made the statement attributed to him by Diaz and Sandoval	{ "pile_set_name": "FreeLaw" }
516 F.2d 1394 75-1 USTC P 9490 M.G. ASTLEFORD and Jane Z. Astleford, Appellants,v.COMMISSIONER OF INTERNAL REVENUE, Appellee. No. 74-1798. United States Court of Appeals, Eighth Circuit. Submitted May 14, 1975.Decided May 29, 1975. Dennis M. Mathisen, Minneapolis, Minn., for appellants. Michael L. Paup, Atty., Tax Div., U.S. Dept. of Justice, Washington, D.C., for appellee. Before GIBSON, Chief Judge, STEPHENSON, Circuit Judge, and SMITH, Senior District Judges.* PER CURIAM. 1 Taxpayers M.G. and J.Z. Astleford have appealed a judgment of the United States Tax Court determining deficiencies in the total amount of $271,006.77 due to disallowance of business bad debt deductions in the tax years 1963, 1964 and 1966 occasioned by a total loss of $609,658.61 sustained by the taxpayers' partnership. The loss was characterized by the court as a capital loss for the reason that the unrecovered advances made by the taxpayers to Melroy Constructors, Inc. (100% owned by M.G. Astleford), were equity rather than debt investments. 2 We have carefully considered the records, briefs and arguments of the parties and affirm on the basis of the Tax Court's opinion1 on the issue whether the Astlefords' advances of funds to Melroy constituted equity or debt investments. The equity of Melroy was so thin, compared to its degree of debt capitalization, as to be almost meaningless. The day-to-day operations of the corporation commanded a much greater infusion of corporate funds than the token $10,000 contribution set up by the Astlefords on the corporate books. For this and the other reasons discussed by the Tax Court, the entire transaction in substance, regardless of form, places the advances denominated by the taxpayers as loans into the category of capital infusions for operating purposes. 3 Further, since we concur with the Tax Court's opinion that the advances constituted equity capital advances rather than loans, we do not reach, nor do we intimate any view of, the Tax Court's position on the second issue discussed briefly in its opinion--that it would treat the advances as nonbusiness bad debts were they considered to be debt rather than equity advances, thus limiting the deduction to a short term capital loss. 4 The judgment of the Tax Court is affirmed. * The Honorable Talbot Smith, United States Senior District Judge, Eastern District of Michigan, sitting by designation 1 Reported at 33 T.C.M. 184 (July 11, 1974)	{ "pile_set_name": "FreeLaw" }
FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________ No. 1D16-5692 _____________________________ STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant, v. JENNIFER ANN HAWKINSON and BRIAN REYNOLDS PETERS, Appellees. _____________________________ On appeal from the Circuit Court for Duval County. Tyrie W. Boyer, Judge. January 2, 2018 PER CURIAM. State Farm Mutual Automobile Insurance Company appeals the partial final judgment entered in favor of Appellee Jennifer Ann Hawkinson in her suit for uninsured motorist (UM) benefits under her parents’ insurance policy. 1 The policy provided UM 1 The partial final judgment is appealable even though Ms. Hawkinson’s claims against the alleged tortfeasor, Appellee Brian Reynolds Peters, remain pending in the trial court because the judgment resolves all of her claims—except an abated bad faith coverage to the parents’ relatives and it defined “relative” to include a related person who “resides primarily” with the parents, as well as the parents’ “unmarried and unemancipated child away at school.” The trial court determined that Ms. Hawkinson met the definition of “relative” because, at the time of the accident for which she was seeking UM benefits, she was unmarried, unemancipated, and away at college. Although there was conflicting evidence that reasonably could have supported a contrary finding regarding Ms. Hawkinson’s emancipation status, we are constrained to affirm because the finding made by the trial court is supported by competent substantial evidence. See Bonich v. State Farm Mut. Auto Ins. Co., 996 So. 2d 942, 944 (Fla. 2d DCA 2008) (“While the question being litigated was the legal question of coverage, that question turned on the resolution of disputed issues of fact concerning [the insured’s child’s] residence. The trial court held an evidentiary hearing to resolve those disputed issues of fact, and it then reached a legal conclusion on coverage based on its findings of fact. We review the trial court's findings of fact in a declaratory judgment action to determine whether they are supported by competent, substantial evidence.”). And, based on this disposition, we need not address the propriety of the trial court’s alternative determination that Ms. Hawkinson met the policy’s definition of relative because she still “reside[d] primarily” with her parents despite significant indicia that she had moved out for good. AFFIRMED. WETHERELL, RAY, and WINOKUR, JJ., concur. _____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________ claim—against State Farm. See Fla. R. App. P. 9.110(k); Fridman v. Safeco Ins. Co. of Ill., 185 So. 3d 1214, 1227-28 (Fla. 2016). 2 Rhonda B. Boggess and Gina P. Grimsley of Taylor, Day, Grimm & Boyd, Jacksonville, for Appellant. William A. Bald, Benjamin E. Richard, and Lee T. Griffin of Pajcic & Pajcic, P.A., Jacksonville, for Appellee Jennifer Ann Hawkinson. No appearance for Brian Reynolds Peters, Appellee. 3	{ "pile_set_name": "FreeLaw" }
238 F.2d 852 GREAT NORTHERN RAILWAY COMPANY, a corporation, Realtor-Petitioner,v.Edward T. HYDE, Plaintiff-Respondent,Honorable Robert C. Bell, Judge of the United States District Court, District of Minnesota, and The Other Judges and Officers of the United States District Court, District of Minnesota, Respondents. No. 15630. United States Court of Appeals Eighth Circuit. December 18, 1956. Rehearing Granted March 7, 1957. Don E. Engle, St. Paul, Minn. (Edwin C. Matthias and Anthony Kane, St. Paul, Minn., were with him on the brief), for relator-petitioner. Harry H. Peterson, Minneapolis, Minn. (Eugene A. Rerat, Minneapolis, Minn., was with him on the brief), for plaintiff-respondent and respondents. Before SANBORN, WOODROUGH and WHITTAKER, Circuit Judges. SANBORN, Circuit Judge. 1 The vital question for decision in this case is whether § 1651 (a) of 28 U.S.C.A.1 furnishes a means for reviewing an order of the District Court, not otherwise reviewable, transferring, under § 1404(a) of 28 U.S.C.,2 from the District of Minnesota to the Northern District of California a personal injury case arising out of an accident which occurred in the city of Seattle, Washington. We are asked to prohibit Judge Bell, acting for the United States District Court for the District of Minnesota, from effectuating his order transferring the case to the Northern District of California, and to command him to transfer it to the Western District of Washington for trial at Seattle. 2 The following are the facts upon which the application of the Great Northern Railway Company for a writ of prohibition and mandamus are based: 3 Edward T. Hyde, while working as a switch foreman for the Great Northern Railway Company in its yard at Seattle, on November 5, 1955, was seriously injured. He employed a Minneapolis attorney and brought an action on February 23, 1956, against the Railway Company, under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq., in the United States District Court for the District of Minnesota, Third Division, to recover damages for his injuries. His claim was that the accident resulted from the negligence of the defendant and a violation by it of the Federal Safety Appliance Act. 4 The defendant on March 16, 1956, filed its answer, denying liability, and gave notice of a motion to transfer the case, under § 1404(a), to the Western District of Washington, for trial at Seattle. The motion was based upon affidavits showing that, for the convenience of material witnesses and the saving of unnecessary expense to the defendant, Seattle, where the accident occurred, where the plaintiff resided at the time of the accident, and where he received medical and hospital care and treatment from the time of his injury to January 30, 1956, was the most convenient and appropriate place for the trial of the case. 5 In opposition to the defendant's motion, counsel for the plaintiff lodged with the court an affidavit stating that the defendant had its home office in Minnesota, where it was incorporated; that the burden of producing medical evidence was on the plaintiff; and that such evidence was as readily available in Minnesota as elsewhere. An affidavit of the plaintiff's wife, also lodged with the court, stated that from November 6, 1955, to January 30, 1956, the plaintiff was in a hospital at Seattle under the care of a Great Northern Railway Company physician; that, upon the physician's recommendation, the plaintiff was transferred to the Veterans' Hospital at Long Beach, California, for treatment, and has been there since February 1, 1956; that she and the plaintiff had decided to make California their home; that, because of his injuries, it is very difficult for the plaintiff to travel; that it would be better if the trial of this case could be had in the city of Los Angeles, California; that she and the plaintiff "would prefer that the case be tried in St. Paul, Minnesota, for the reason that when her said husband is discharged from the Veterans' Hospital in Long Beach, it is her intention to bring him to the State of Minnesota for medical examinations and further treatment, and" she "feels that if the case cannot be tried in the City of St. Paul, State of Minnesota, that it would be more convenient for her said husband if the case could be transferred to the State of California," for trial at Los Angeles. 6 On May 28, 1956, a hearing was had before Judge Bell on the motion of the defendant for a transfer of the case to the Western District of Washington and the opposition of the plaintiff and his request or suggestion that if the court determined that the case should not be tried in the District of Minnesota, the transfer be to the Southern District of California, Central Division. 7 Judge Bell on June 20, 1956, denied the motion of the defendant to transfer the case to the Western District of Washington, and, instead, transferred it to the Southern District of California, for trial at Los Angeles. 8 The defendant on June 26, 1956, moved Judge Bell for an order staying the effect of his transfer order of June 20, 1956, upon the ground, among others, that there had been no showing that the action could have been brought in the Southern District of California. The motion for a stay was granted. On July 3, 1956, the United States District Court for the Southern District of California, on motion of the defendant, returned the case to the District of Minnesota. 9 On July 17, 1956, Judge Bell granted a motion of the defendant for a rehearing of its motion for a transfer of the case to the Western District of Washington. Thereafter on July 28, 1956, the plaintiff filed a motion opposing the transfer, but asking the court to transfer the case to the Northern District of California, for trial at San Francisco, if the court should decide that the District of Minnesota was not the proper venue. 10 The rehearing of the defendant's motion to transfer the case to the Western District of Washington, for trial at Seattle, and the hearing of the motion of the plaintiff that, if transferred at all, the case be transferred to the Northern District of California, for trial at San Francisco, came on before Judge Bell on July 31, 1956. On August 2, 1956, he filed an order denying the defendant's motion and transferring the case to the Northern District of California. 11 The General Offices of the defendant are in St. Paul, Minnesota, where the case would have been for trial had it not been transferred. St. Paul adjoins Minneapolis, where the attorney for the plaintiff resides and has his office, but is otherwise unrelated in any way to the plaintiff's action or the claim upon which it is based. 12 The city of San Francisco, where it is conceded the plaintiff's action could have been brought, is nearer the Veterans' Hospital at Long Beach than is Seattle or St. Paul. St. Paul, however, is farther from Long Beach than is Seattle. Aside from the proximity of San Francisco to Long Beach, where the plaintiff and his wife have resided since he entered the Veterans' Hospital, San Francisco has no connection with his action. 13 Judge Bell, in his return to the defendant's application for a writ of prohibition and mandamus, states that, in transferring the case to the Northern District of California, the court properly exercised the judicial power and discretion vested in it by § 1404(a), and that the order of transfer was in accordance with that section "in that it was for the convenience of the parties and witnesses, in the interest of justice." 14 While we do not question the sincerity of the belief of Judge Bell that the transfer of the plaintiff's case for trial at San Francisco was made in the exercise of a sound judicial discretion and in conformity with the letter and spirit of § 1404(a), we believe that there was no adequate factual or legal basis for the transfer. If the order transferring the case were subject to review for an erroneous exercise of discretion, we would not hesitate to reverse the order and direct the District Court to transfer the case to Seattle, where the plaintiff's claim arose and where most of the persons reside who will be called to give evidence at the trial. We are of the opinion, however, that the transfer order is not subject to review by prohibition or mandamus, despite the fact that it is not an appealable order and that an appeal from a final judgment in the case will be an inadequate remedy for the erroneous transfer. 15 This Court held in Carr v. Donohoe, 201 F.2d 426, that § 1651 (a) of 28 U.S.C. did not furnish a means for reviewing an order transferring an action from one District to another District within this Circuit. We think there is no controlling distinction between the Carr case and the instant case so far as the question of reviewability, under § 1651(a), of transfer orders is concerned. In the Carr case we pointed to the intracircuit transfer merely to show that there was no possibility of the appellate jurisdiction of this Court being affected in any way by such a transfer. 16 In the case of In re Josephson, 1 Cir., 218 F.2d 174, the United States Court of Appeals for the First Circuit, in dealing with the question of reviewability of a transfer order, said in an opinion by Chief Judge Magruder, at page 181 of 218 F.2d: 17 "* * * But assuming that if the transfer order is ever to be reviewed it must be now, we do not forget that appellate review is not of the essence of due process. See McKane v. Durston, 1894, 153 U.S. 684, 687, 14 S.Ct. 913, 38 L.Ed. 867. Particularly, there may be strong reasons of policy why litigation should not be delayed by appellate review of an administrative order of the sort here involved. It is not unlike an order by a federal district court remanding a case to the state court from which it had been removed. Here Congress has specifically provided that such an order `is not reviewable on appeal or otherwise.' 28 U.S.C. § 1447(d), as amended. In certain situations, the fact that a prejudicial order unless presently reviewable can never be corrected on appeal may be a consideration bearing on whether the order is to be deemed a `final decision' from which an appeal may be taken under 28 U.S.C. § 1291. See Cobbledick v. United States, 1940, 309 U.S. 323, 328-330, 60 S.Ct. 540, 84 L.Ed. 783. But we do not have such a situation here, since it is conceded that the transfer order now in question is an unappealable interlocutory order." 18 The position taken by the First Circuit in that case is stated on page 183 of 218 F.2d, as follows: "Accordingly, we serve notice that in the future, except in really extraordinary situations the nature of which we shall not undertake to formulate in advance, we shall stop such mandamus proceedings at the very threshold, by denying leave to file the petition for a writ of mandamus." 19 Substantially the same position had been taken by the Third Circuit in All States Freight, Inc., v. Modarelli, 196 F.2d 1010, 1012. Judge Goodrich, who wrote the opinion in that case, after stating the truism that "Every litigant against whom the transfer issue is decided naturally thinks the judge was wrong," said: 20 "We do not propose to grant such review where the judge in the district court has considered the interests stipulated in the statute and decided thereon. * * " He concluded the opinion as follows: 21 "We realize that the view we express is not the one which some of our judicial brethren are following with regard to this statute. But we cannot escape the conclusion that it will be highly unfortunate if the result of an attempted procedural improvement is to subject parties to two lawsuits: first, prolonged litigation to determine the place where a case is to be tried; and, second, the merits of the alleged cause of action itself." 22 The Fourth Circuit, in a recent opinion by Chief Judge Parker in the case of Clayton v. Warlick, 232 F.2d 699, has held that, while mandamus or prohibition will lie to compel a District Judge to exercise the discretion conferred upon him by § 1404(a) or to prevent him from transferring a case to a District to which, as a matter of law, it is not transferable, § 1651(a) does not afford a means for the review of an order such as that here involved. The court said at page 706 of 232 F.2d: 23 "The correct rule to be applied, we think, is the same as that applied in the case of other interlocutory orders, i. e., where the judge has exercised a power conferred upon him by law, mandamus may not be availed of to review the exercise of the power in the face of the restriction placed by Congress on the review of interlocutory orders. The distinction which we think applicable was that drawn by the Supreme Court in De Beers Consolidated Mines, Ltd. v. United States, 325 U. S. 212, 217, 65 S.Ct. 1130, 1133, 89 L.Ed. 1566, where the court said: 24 "`When Congress withholds interlocutory reviews, § 262 [now 28 U. S.C. § 1651] can, of course, not be availed of to correct a mere error in the exercise of conceded judicial power. But when a court has no judicial power to do what it purports to do — when its action is not mere error but usurpation of power — the situation falls precisely within the allowable use of § 262.' 25 "See also the concurring opinion of Judge Swan in Ford Motor Co. v. Ryan, 2 Cir., 182 F.2d 329, 332, and the decision of the Court of Appeals of the Second Circuit in Ward Baking Co. v. Holtzoff, 2 Cir., 164 F. 2d 34, 36 where the court said: 26 "`Section 262 of the Judicial Code, 28 U.S.C.A. § 377, [now 28 U.S.C. § 1651] cannot be availed of to correct a mere error in the exercise of conceded judicial power, but may be used to prevent usurpation of power, if "the lower court is clearly without jurisdiction."'" 27 We find ourselves in complete accord with the opinion in Clayton v. Warlick, supra. As Chief Judge Parker says in that opinion, the expressions of the various circuits with respect to the reviewability of orders of transfer under § 1404(a), through the use of § 1651(a), are in hopeless conflict. 28 This Court has, perhaps, been more conservative than other courts of appeals in resisting the use of § 1651(a) as a device for reviewing nonappealable interlocutory orders. In an opinion written for this Court by Judge Walter H. Sanborn in 1927, in Hosey v. Kennamer, 8 Cir., 21 F.2d 64, 65, he said: 29 " * * When a question has been decided by the officer or person to whose judgment or discretion the law has intrusted its determination, the writ of mandamus may not issue to review or reverse that decision or to compel another. It may issue to command judicial officers to hear and to decide a question within their jurisdiction, but courts have no power by writ of mandamus to direct such officers how they shall decide such a question, or in whose favor they shall render their judgment, because such action would result in the substitution of the judgment and opinion of the commanding court for that of the judicial officer or officers to whose judgment and discretion the law intrusted the decision of the issue. For the same reason it cannot be invoked to compel a court or a judicial officer to reverse a decision already rendered, to correct an erroneous conclusion, or to render another decision. Kimberlin v. Commission to Five Civilized Tribes, 8 Cir., 104 F. 653, 655; Henderson Tire & Rubber Co. v. Reeves & Otis, Judges, 8 Cir., 14 F.2d 903, 906; Minnesota Moline Plow Co. v. Dowagiac Mfg. Co., 8 Cir., 126 F. 746, 748; Brictson Mfg. Co. v. Munger, Judge, 8 Cir., 20 F.2d 793." 30 See, also: Sound Investment & Realty Co. v. Harper, 8 Cir., 178 F.2d 274; Larsen v. Nordbye, 8 Cir., 181 F.2d 765; Larsen v. Switzer, 8 Cir., 183 F.2d 850; Leimer v. Reeves, 8 Cir., 184 F.2d 441; Hydraulic Press Mfg. Co. v. Moore, 8 Cir., 185 F.2d 800, 802-803; Petsel v. Riley, 8 Cir., 192 F.2d 954. 31 This Court has used its power to issue writs of mandamus or prohibition to compel a District Judge to exercise a jurisdiction which the law has made it his duty to exercise, Barber Asphalt Paving Co. v. Morris, 8 Cir., 132 F. 945, 956, or to prevent a judge from exercising a power that he clearly does not have. We have studiously refrained from using mandamus to tell a judge what decision he must make in the exercise of a jurisdiction and discretion intrusted to him by law. The Supreme Court has said: 32 "Mandamus, prohibition and injunction against judges are drastic and extraordinary remedies. * * As extraordinary remedies, they are reserved for really extraordinary causes." 33 Ex parte Fahey, 332 U.S. 258, 259-260, 67 S.Ct. 1558, 91 L.Ed. 2041; Ex parte Collett, 337 U.S. 55, 72, 69 S.Ct. 944, 953, 93 L.Ed. 1207. We do not regard controversies between litigants, and between their counsel, as to where a case can most conveniently, fairly, efficiently and economically be tried as "really extraordinary." 34 It is unfortuniate that the question of the reviewability of a transfer order under § 1651(a) has not as yet been put at rest. The Supreme Court, in Norwood v. Kirkpatrick, 349 U.S. 29, 33, 75 S.Ct. 544, 99 L.Ed. 789, found it unnecessary to determine whether mandamus or prohibition was a proper remedy to test the validity of a transfer order. The instant case squarely presents that question and it would seem to be an appropriate case in which to apply for certiorari. 35 So far as this Court is concerned, we shall hereafter grant leave to apply for mandamus or prohibition to review transfer orders if and when an Act of Congress or a decision of the Supreme Court requires us to do so. We think that, in the interest of an expeditious, efficient and orderly administration of justice, controversies about venue should be finally settled and determined at the District Court level. 36 The application of the defendant for a writ prohibiting the transfer of the plaintiff's case to the Northern District of California and directing its transfer to the Western District of Washington, is denied upon the sole ground that the transfer order complained of by the defendant is not reviewable here by prohibition, mandamus or otherwise. 37 Application denied. Notes: 1 "§ 1651Writs. "(a) The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law." 2 "§ 1404Change of venue "(a) For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought."	{ "pile_set_name": "FreeLaw" }
28 Cal.App.4th 493 (1994) 33 Cal. Rptr.2d 542 ROBERT L. HUTCHINS, Plaintiff and Respondent, v. JUNEAU TANKER CORPORATION, Defendant and Appellant. Docket No. A062536. Court of Appeals of California, First District, Division Three. September 14, 1994. 495 COUNSEL Emard & Perrochet, Wayne F. Emard and Kevin J. Odell for Defendant and Appellant. Miller, Brodsky & Baskin, Eugene A. Brodsky and Ellen Shapiro for Plaintiff and Respondent. OPINION MERRILL, J. Respondent Robert L. Hutchins filed a seaman's personal injury action under the Jones Act (46 U.S.C. § 688 et seq.) and general maritime law against appellant Juneau Tanker Corporation (Juneau)[1] and OMI Corporation (OMI). The action was filed in superior court pursuant to the "savings to suitors clause" which provides state courts with concurrent maritime jurisdiction. (28 U.S.C. § 1333(1).) FACTUAL AND PROCEDURAL BACKGROUND On December 22, 1987, Hutchins was serving as an able-bodied seaman aboard Juneau's vessel SS Overseas Juneau. His assigned overtime work that day was the lubrication or "slushing" of two of the three mooring wires spooled on winches at the stern of the vessel's main deck. Slushing of the wire rope required removal of old grease and application of new grease. The entire length of the wire had to be pulled off the core of the drum in preparation of this task. At least three able-bodied seaman were involved in 496 this slushing operation. The bosun had ordered Hutchins to coil or "fake" the wire rope into figure eight's as it came off the warping capstan. This required pulling the wire off the capstan and reshaping it into figure eight's on the deck. The bosun considered the job of pulling the wire off the warping capstan or warping head to be a strenuous job. Hutchins worked from 8 a.m. until 11:30 a.m. performing these overtime duties and then took a lunch break. He returned to the slushing operation at approximately 1 p.m. He pulled and faked three or four figure eight's. As he was pushing the next coil of wire down to the deck from chest height, he felt a sudden popping sensation, accompanied by sharp pain directly below his sternum. He dropped the wire and bent over from pain. At the bosun's suggestion, Hutchins rested for approximately 20 minutes. The pain subsided and he returned to work. Hutchins told the medical officer about his injury but he decided to stay aboard the vessel when it discharged its cargo at a San Francisco Bay refinery. On December 28, 1987, as the SS Overseas Juneau was making its return trip to Valdez, Hutchins informed a replacement medical officer about the lump and discoloration that had formed in the area where he had felt the popping sensation. In Valdez, a doctor in a port clinic diagnosed Hutchins with a ventral hernia and found him not fit for duty. Hutchins had surgery for repair of the hernia on January 7, 1988. After four months of recuperation, Hutchins was released by his treating physician, Dr. Muhammad Aswaq, to return to work. However, Dr. Aswaq did advise him that the heavy lifting required in shipboard work did expose him to increased risk of recurrence of the ventral hernia. From May 5, 1988, to August 22, 1988, Hutchins served as an able seaman on the Bayridge, performing various strenuous jobs, without suffering a recurrence of the ventral hernia. He then worked for six days aboard the MV Ranger, without injury. On November 14, 1988, Hutchins joined the OMI Sacramento as an able seaman. On December 15, 1988, while the bosun, Hutchins and three other able seamen were attempting to tip a spool of wire weighing in excess of 1,200 pounds, he suffered a recurrence of the ventral hernia as well as a right inguinal hernia. Dr. Robert Murray performed the second surgical repair on the hernias on December 29, 1988. On April 3, 1989, Dr. Murray found Hutchins fit for sea duty. On April 14, 1989, Hutchins began service on the USS Great Land and within two weeks suffered a recurrence of his ventral hernia. Following 497 another surgical repair, his union doctor pronounced him unfit for sea duty permanently. Hutchins's action against Juneau, filed March 1988, alleged causes of action under general maritime law for unseaworthiness of the vessel and under the Jones Act (46 U.S.C. § 688 et seq.) for negligence. The complaint was amended in February 1989 to name OMI as a defendant for damages resulting from Hutchins's December 15, 1988, injury. On April 6, 1992, the date set for trial, Hutchins and OMI reached a settlement in the amount of $55,000 which was determined to be in good faith under Code of Civil Procedure[2] section 877.6.[3] Juneau made a motion in limine, seeking the admission of evidence of OMI's negligence and the unseaworthiness of its vessel and Hutchins's comparative fault in connection with his December 15, 1988, injury aboard the OMI Sacramento. The motion was denied. By special verdict the jury found Hutchins suffered damages in the amount of $434,533 and that he was 53 percent at fault and Juneau was 47 percent at fault for the injuries. In accordance with the jury's special verdict, and the pro tanto reduction of $55,000, the amount of the OMI settlement, the trial court entered judgment against Juneau in the amount of $149,230.51. Juneau's motion for new trial was denied. Juneau appeals from the judgment, challenging, inter alia, the court's exclusion of evidence of OMI's negligence and the unseaworthiness of OMI's vessel, and the court's refusal to instruct the jury to determine settling tortfeasor OMI's proportional share of fault. DISCUSSION (1a) On appeal and during proceedings below Juneau's position has been that under federal maritime law, where the plaintiff has settled with one of the defendants prior to trial, there must be an allocation of fault among all the defendants, including the settling defendants. Juneau has maintained that 498 any award of damages against the remaining defendants must be reduced by the settling defendant's proportionate share of fault and not by a pro tanto credit for the amount of the settlement as required by section 877.6. Accordingly, Juneau submits the trial court erred in excluding evidence of OMI's negligence and the unseaworthiness of its vessel in connection with Hutchins's injuries suffered aboard its vessel and in refusing instructions to the jury to allocate responsibility for the damage in proportionate share among all the defendants. Likewise, Juneau urges error in the application of a pro tanto credit in the amount of the settlement pursuant to section 877.6. Additionally, Juneau contends the trial court erred in excluding evidence of Hutchins's comparative fault in connection with the injury he suffered on OMI's vessel. During the pendency of Juneau's appeal, the United States Supreme Court's opinion in McDermott, Inc. v. AmClyde (1994) 511 U.S. ___ [128 L.Ed.2d 148, 114 S.Ct. 1461] (McDermott), was issued, adopting the proportionate share approach. McDermott is fully applicable to the case before us and requires that we reverse the judgment. In McDermott, an admiralty case involving a construction accident in the Gulf of Mexico, the plaintiff settled with some of the defendants prior to trial, agreeing to dismiss their claims with prejudice, release them from liability and indemnify them against any contribution action in exchange for a sum of money. Two defendants remained in the case following settlement. The jury determined the total amount of damages and allocated responsibility in proportionate share among the parties. The district court entered judgment in accordance with the jury's determination of each parties' proportionate share of fault, denying the nonsettling defendants' motion to apply a pro tanto credit for the amount of the settlement. The Fifth Circuit Court of Appeals reversed, applying a pro tanto settlement credit against the liability of one of the defendants after determining a contractual provision precluded recovery against the other. The unanimous United States Supreme Court reversed, holding that the liability of nonsettling defendants in a federal maritime case should be calculated with reference to the jury's allocation of proportionate responsibility. The McDermott court first noted that in United States v. Reliable Transfer Co. (1975) 421 U.S. 397 [44 L.Ed.2d 251, 95 S.Ct. 1708] (Reliable Transfer), it had abandoned a former rule for the assessment of damages in federal maritime cases in favor of a rule assessing damages on the basis of proportionate fault. The high court noted that the interest in fairness promoted by the new rule outweighed other interests served by the old rule. (McDermott, supra, 511 U.S. ___, ___ [128 L.Ed.2d 148, 155-156, 114 S.Ct. 1461, 1465].) 499 Unlike the proportionate fault approach adopted in Reliable Transfer, a consensus among scholars and judges had not been formed with respect to the manner in which a settlement credit should be applied in federal maritime cases. (McDermott, supra, 511 U.S. ___, ___ [128 L.Ed.2d 148, 155-156, 114 S.Ct. 1461, 1465].) The McDermott court analyzed three alternatives, as set forth by the American Law Institute, for determining how such a credit should be determined: (1) pro tanto setoff with right of contribution against the settling defendant; (2) pro tanto setoff without a right of contribution against the settling defendant; and (3) the proportionate share approach. (McDermott, supra, 511 U.S. ___, ___ [128 L.Ed.2d 148, 155-159, 114 S.Ct. 1461, 1465-1467].) The court stated that in choosing among the alternatives, three considerations were paramount: consistency with Reliable Transfer's proportionate fault approach, promotion of settlement and judicial economy. The first alternative was criticized primarily as being a disincentive to settlement. The second alternative, the pro tanto approach, would frequently not reflect the nonsettling defendant's equitable share as settlement with one defendant with less than its equitable share requires the nonsettling defendant to pay more than its share. The high court was critical of the good faith hearing procedure instituted in many states as not guaranteeing an equitable allocation of liability. The likelihood of inequitable apportionments of liability is not in accord with Reliable Transfer. (McDermott, supra, 511 U.S. ___, ___ [128 L.Ed.2d 148, 158-159, 114 S.Ct. 1461, 1467].) The McDermott court noted that as to the remaining considerations of encouraging settlements and judicial economy, the pro tanto approach did not clearly serve to advance either interest. (McDermott, supra, 511 U.S. ___, ___ [128 L.Ed.2d 148, 160-161, 114 S.Ct. 1461, 1467-1469].) McDermott concluded, "... we are persuaded that the proportionate share approach is superior, especially in its consistency with Reliable Transfer." (McDermott, supra, 511 U.S. ___, ___ [128 L.Ed.2d 148, 162, 114 S.Ct. 1461, 1470].) (2) A state which has concurrent jurisdiction of in personam maritime causes of action under the savings to suitors clause "`"is free to adopt such remedies, and to attach to them such incidents, as it sees fit" so long as it does not attempt to ... make changes in the "substantive maritime law."' [Citations.]" (Offshore Logistics, Inc. v. Tallentire (1986) 477 U.S. 207, 222 [91 L.Ed.2d 174, 222, 106 S.Ct. 2485].) "[I]n such cases the extent to which state law may be used to remedy maritime injuries is constrained by a so-called `reverse-Erie' doctrine which requires that the substantive remedies afforded by the States conform to governing federal maritime standards. [Citations.]" (Id., at p. 223 [91 L.Ed.2d at p. 190].) (1b) Hutchins argues the McDermott opinion does not preclude application of section 877.6. Citing American Dredging Co. v. Miller (1994) 510 500 U.S. ___ [127 L.Ed.2d 285, 114 S.Ct. 981] (American Dredging), Hutchins submits the good faith settlement procedure and application of a settlement credit against the nonsettling defendant's liability is a matter of procedure only and neither violates a characteristic feature of maritime law nor subverts its proper harmony. We disagree. In American Dredging, the United States Supreme Court ruled that in admiralty cases filed in a state court under the Jones Act and the "saving to suitors clause," federal law does not preempt state law concerning the doctrine of forum non conveniens. (American Dredging, supra, 510 U.S. ___, ___ [127 L.Ed.2d 285, 293-294, 114 S.Ct. 981, 985].) The high court, relying on Southern Pacific Co. v. Jensen (1917) 244 U.S. 205, 216 [61 L.Ed. 1086, 1098, 37 S.Ct. 524] (Jensen), analyzed that the proviso against a state court adopting remedies which change the substantive maritime law is violated when a state remedy "`works material prejudice to the characteristic features of the general maritime law or interferes with the proper harmony and uniformity of that law in its international and interstate relations.' [Citation.]" (American Dredging, supra, 510 U.S. ___, ___ [127 L.Ed.2d 285, 293-294, 114 S.Ct. 981, 985].) The American Dredging court found the forum non conveniens doctrine did not work material prejudice to a characteristic feature of the general maritime law as it did not originate in admiralty or have exclusive application there. The high court also found that the uniform application of forum non conveniens was unnecessary to maintain the proper harmony of maritime law under Jensen. The court considered that the forum non conveniens doctrine, essentially a venue rule, is procedural rather than substantive. The court contrasted the procedural forum non conveniens doctrine with substantive matters such as a state's application of contributory negligence as a bar to recovery and a state's application of the burden of proof upon the plaintiff. (American Dredging, supra, 510 U.S. ___, ___ [127 L.Ed.2d 285, 294-295, 114 S.Ct. 981, 986-988].) American Dredging reasoned that the forum non conveniens doctrine "does not bear upon the substantive right to recover, and is not a rule upon which maritime actors rely in making decisions about primary conduct how to manage their business and what precautions to take." (American Dredging, supra, 510 U.S. ___, ___ [127 L.Ed.2d 285, 297-298, 114 S.Ct. 981, 988-989], fn. omitted.) The manner in which a nonsettling defendant's liability is reduced, whether by a proportionate share approach or by a pro tanto credit, has a direct impact upon the substantive right to recover. The trial court's application of section 877.6 is not merely a matter of procedure. Consistent application of rules pertaining to calculation of the remaining defendant's liability is required for uniformity and harmony in general maritime law. 501 Hutchins argues that McDermott did not directly address application of the proportional share approach where the defendants are successive tortfeasors in two separate incidents. In such cases, Hutchins continues, the proportionate share rule will not serve the interest of judicial economy as a lengthier jury trial will be required to determine the settling defendant's role. First, McDermott plainly did not limit application of the proportionate share approach to cases concerning joint tortfeasors in the same incident. Moreover, the McDermott court's comparison of the two approaches with respect to judicial economy was inconclusive and clearly not the decisive factor in its decision. The court analyzed that the impact on judicial economy by either the proportionate share or the pro tanto rule was "ambiguous." The relative fault of the parties would have to be determined under both approaches: in the pro tanto approach, a separate pretrial good faith hearing would be the setting for determining the settling defendant's share of responsibility; in the proportionate share approach, additional trial time would be required for allocation of responsibility. The high court found the potential for time saving existed under either approach, depending upon a host of factors. The court noted the uncertainty in such factors as the length of the good faith hearing, the possibility the remaining defendant settles before trial, and the possibility that little or no additional trial time would be required under the proportionate share approach. The court concluded "[t]he pro tanto rule thus has no clear advantage with respect to judicial economy." (McDermott, supra, 511 U.S. ___, ___ [128 L.Ed.2d 148, 161-162, 114 S.Ct. 1461, 1470], fn. omitted.) McDermott leaves no doubt that the trial court's rulings excluding evidence of OMI's negligence and the unseaworthiness of its vessel, refusing instructions to the jury to allocate fault in proportionate shares among all defendants and applying a pro tanto settlement credit pursuant to section 877.6 conflict with federal maritime law and are therefore error. Additionally, Hutchins's comparative fault in connection with the injury he suffered on OMI's vessel is directly related to the question of jury allocation of fault. (3), (1c) Under the Jones Act and the general maritime law that governs unseaworthiness claims, the doctrine of comparative negligence applies. (Pope & Talbot, Inc. v. Hawn (1953) 346 U.S. 406, 408-409 [98 L.Ed. 143, 150-151, 74 S.Ct. 202]; Socony-Vacuum Co. v. Smith (1939) 305 U.S. 424, 429 [83 L.Ed. 265, 269, 59 S.Ct. 262]; Ammar v. American Export Lines, Inc. (2d Cir.1964) 326 F.2d 955, 959-960.) Thus, if a seaman's negligence has contributed to the cause of his injury, his recovery should be reduced proportionately. (Socony-Vacuum Co. v. Smith, supra, 305 U.S. at p. 429 [83 L.Ed. at p. 269].) A seaman's negligence must be 502 considered whether it occurs at the commencement of the chain of causation or at the end. Therefore, damages may be reduced due to a seaman's negligence in a subsequent accident which aggravated damages from the shipboard accident. (Ammar v. American Export Lines, Inc., supra, 326 F.2d at pp. 959-960.) DISPOSITION The trial court erred in excluding OMI's negligence and the unseaworthiness of its vessel; rejecting jury instructions for the allocation of fault according to each defendant's proportionate share; and applying section 877.6 to the jury's determination of Juneau's liability. The exclusion of evidence of Hutchins's comparative fault in connection with the OMI injury was also an erroneous ruling. (Cal. Const., art. VI, § 13.) In view of our decision, we need not address Juneau's remaining contentions of instructional error, insufficiency of evidence to support the verdict and inconsistency of the verdict. The judgment is reversed and the action is remanded to the trial court for a new trial. Appellant is awarded costs on appeal. White, P.J., and Jenkins, J.,[] concurred. A petition for a rehearing was denied October 12, 1994, and appellant's petition for review by the Supreme Court was denied December 15, 1994. NOTES [1] Hutchins's original and first amended complaint named Maritime Overseas Corporation, the purported owner of the SS Overseas Juneau, as a defendant. The parties entered a stipulation whereby Maritime Overseas Corporation would be dismissed from the action without prejudice, the answer of Maritime Overseas Corporation would be deemed the answer of Juneau and that all further pleadings could be titled Hutchins v. Juneau Tanker Corporation. [2] All further statutory references are to the Code of Civil Procedure. [3] Section 877.6 provides in pertinent part: "(a) Any party to an action wherein it is alleged that two or more parties are joint tortfeasors ... shall be entitled to a hearing on the issue of the good faith of a settlement entered into by the plaintiff or other claimant and one or more alleged tortfeasors.... [¶] (c) A determination by the court that the settlement was made in good faith shall bar any other joint tortfeasor ... from any further claims against the settling tortfeasor ... for equitable comparative contribution, or partial or comparative indemnity, based on comparative negligence or comparative fault." [] Judge of the Alameda Superior Court sitting under assignment by the Chairperson of the Judicial Council.	{ "pile_set_name": "FreeLaw" }
52 Md. App. 308 (1982) 450 A.2d 913 RONALD T. EPPS v. STATE OF MARYLAND. No. 1008, September Term, 1981. Court of Special Appeals of Maryland. Decided September 2, 1982. The cause was argued before MORTON, MOORE and LISS, JJ. J. Michael McLaughlin, Jr., Assigned Public Defender, for appellant. Diane G. Goldsmith, Assistant Attorney General, with whom were Stephen H. Sachs, Attorney General, William A. Swisher, State's Attorney for Baltimore City, and John 309 Themelis, Assistant State's Attorney for Baltimore City, on the brief, for appellee. MOORE, J., delivered the opinion of the Court. In this case appellant complains that he agreed to a bench trial on the condition that he would, if found guilty, receive only "one life sentence." He was convicted of three counts of first-degree murder and two counts of arson, for which he was sentenced to three concurrent terms of life imprisonment and two 30-year terms, also concurrent. These sentences, he contends, breached a bargain he had made with the State and invalidated his waiver of a jury trial. Also, he claims, the trial judge abused his discretion by denying the appellant's motion to sever the two arson counts, thus entitling appellant to new trials. We disagree, for the reasons stated, and shall affirm the convictions. I Appellant, Ronald T. Epps, and Janice Witherspoon were friends and the parents of a baby girl before their "relationship" began to deteriorate in late 1979. Miss Witherspoon lived at 1526 Homestead Street in Baltimore, Maryland, the neighborhood of the various relatives and residents who testified at trial. Roger Watson, who was married to Ms. Witherspoon's cousin, Verna, testified that he observed appellant coming from the rear of 1526 Homestead Street about 9 p.m. on March 5, 1980. That same evening, Ms. Witherspoon had gone to the Watsons' home to babysit and spend the night. Fire broke out in the Homestead Street residence at about 5:30 a.m. on March 6. Wardell Boroughs, who roomed on the second floor, and 13-year-old Paulette Preddy perished.[1] A neighbor, Renee Luttrell, testified that she talked to appellant at about 7 a.m. on March 6 a block away from the fire and he told her he had not heard about it. 310 Deborah Lawson, Ms. Witherspoon's guardian and aunt who lived at 2215-17 North Aisquith Street, testified that she received numerous telephone calls from appellant during March and April, sometimes two or three a day. "[H]e would say things like, you mother-fuckers are going to die.... It got so bad I had the phone off the hook for a period of time." Ms. Witherspoon, who moved in with her aunt at 2215-17 North Aisquith in early April, testified that appellant told her on March 14 he would set her aunt's house on fire by climbing in through a basement window and starting a fire in the hallway near the stairs. Ms. Witherspoon related this conversation to her cousin Verna, and her aunt, Mrs. Lawson, who called the police. On April 16, 1980 at about 4 a.m., fire broke out at the Aisquith Street address. Sherron Pratt, Lewis Barnes, and Mrs. Lawson, all in the corner-lot building, testified that they heard an explosion and then saw smoke and flames. They escaped. Yvonne von Hendricks, however, was trapped on the third floor. She dropped her baby out the window, and Mr. Barnes caught the child in a blanket. She then jumped but Mr. Barnes "couldn't hold her;" she died from her injuries.[2] Later that day, police arrested appellant who denied any involvement. Charles Cornell, a fire investigator, determined that the Homestead Street fire started on the first floor stairway in a large pile of clothing. At first he concluded that the cause was "careless smoking." Later, he determined that the fire had been intentionally set, probably by a match thrown on the pile of clothing. The fire at Aisquith Street was also deliberately set, also at the base of the stairway, with gasoline. Clifton Brown, a fellow inmate of appellant at the Baltimore City Jail, testified that he had a conversation with appellant on April 29 when: "[h]e started telling me about the fire he set in the 311 1500 block of Homestead Street ... after the fire was set he ran ... and stood on the corner and he seen somebody go in and bring somebody out on the sidewalk, ... he told me he knew the little girl had got hurt in the house, she and her sister, ... the house was the second or third house from the corner ... and then he started telling me about the Aisquith Street fire ... after he set the fire he stood out there and watched the lady, as she dropped the child out of the window and then he seen [sic] her jump from out of the window." Appellant testified that he had known Ms. Witherspoon for two and a half years, that there were "no problems" with their relationship, that he was sleeping when both fires occurred, that on April 16, he was picked up at his home at about 5 a.m. to go to work,[3] that he never saw Clifton Brown or had any contact with him in jail, and that he did not set either fire. After closing arguments, the court found appellant guilty of all five charges. Following a pre-sentence investigation, appellant was sentenced on December 29, 1980. This appeal followed. II A criminal defendant's right to a jury trial is as fundamental as the maxim innocent until proven guilty. It is guaranteed by the Constitution of the United States, U.S. Const.Amend. VI, applicable to the States through the Fourteenth Amendment, and by the Maryland Declaration of Rights, Arts. 5, 21 and 24. However, this right may be waived, as when the defendant pleads guilty, State v. Priet, 289 Md. 267, 424 A.2d 349 (1981), or elects to be tried by a judge. Md. Rule 735 (1981 Cum. Supp.); Rose v. State, 177 312 Md. 577, 10 A.2d 617 (1940). "To satisfy constitutional due process standards, the waiver of the right to a jury trial must constitute an intentional relinquishment or abandonment of a known right or privilege." Dortch v. State, 290 Md. 229, 234, 428 A.2d 1220 (1981), citing Boykin v. Alabama, 395 U.S. 238 (1969). Appellant here does not contend that he was uninformed of the nature of a jury trial or his right to it. Instead he claims that he waived a jury trial because the State promised he would get only "one life sentence," and the trial judge agreed to be bound by that promise.[4] Appellant argues that the cases construing Md. Rule 733 (Plea Agreements), Maryland Rules of Procedure, (1982 ed.), are so analogous to the bargain made by appellant that they should control. Once past this leap of logic, appellant concludes that the trial judge's failure to live up to the bargain requires a new trial. We cannot countenance the initial leap. By its terms, Md. Rule 733 covers only guilty or nolo contendere pleas. Rule 733 c. (Agreements on Sentence, Disposition or Other Judicial Action) comes into operation only "[i]f a plea agreement has been reached pursuant to subsection a 6 of this Rule for a plea of guilty or nolo contendere...." Subsection c is not at all applicable to a plea of not guilty the plea in the instant case. Therefore, the reasoning of cases construing plea bargains, whose very existence is premised on pleas of guilty or nolo contendere, can have no application where the plea is not guilty. Gray v. State, 38 Md. App. 343, 356-7, 380 A.2d 1071 (1977). See generally Santobello v. New York, 404 U.S. 257 (1971); McCormick v. State, 38 Md. App. 442, 381 A.3d 694 (1978). Further, the purpose of plea agreements is to expedite the processing of criminal defendants through the judicial system. The defendant agrees to give up something the constitutional right to a jury trial, for example to get 313 something a reduced charge, sentencing recommendation or other consideration outlined in Rule 733 a (Conditions for Agreement). McCormick, supra; Miller v. State, 272 Md. 249, 322 A.2d 527 (1974). This purpose and result are not analogous to the purpose of Rule 735 governing waiver of jury trial because there is no legal difference between jury trial and bench trial. Both modes of trial are considered equal, Gilbert v. State, 36 Md. App. 196, 210, 373 A.2d 311 (1977).[5] More importantly, bargaining over the waiver of a jury trial is not now addressed by any procedural rule in this State. The fundamental right to a jury trial may be waived under Md. Rule 735; if it is to be subject to barter between a defendant and the State, the trial judge should be apprised fully of the nature and extent of the bargain. (Whether it may properly be the subject of barter, a question we do not resolve, should be carefully considered by bench and bar.) In this case, we observe that, after fully apprising the defendant on the record of the nature of jury and court trials, defense counsel went on to say: "The State has indicated that in fact if you take a court trial and if you are found guilty the State is not going to suspend your murder [sentences], but ask the Judge, if you are found guilty, that the maximum sentence you get would be one life sentence. Do you understand that? [Answer: Yes]." (Emphasis added.)[6]314 Defense counsel then addressed the trial judge and the following colloquy occurred: "MR. POLANSKY: If I understand the Court correctly, the Court is binding itself to that recommendation that if in fact Mr. Epps is found guilty of any charges in this case the maximum sentence would be one life sentence. THE COURT: While the cases have been joined and we are proceeding as one case, they are all going to be heard together and if I find him guilty of either one he will get one life sentence? MR. THEMELIS (State's Attorney): Yes, I am arguing for a life sentence. MR. POLANSKY: And the Court will not exceed that sentence as being the maximum. THE COURT: You are requesting me to bind myself to that if I so find him guilty. MR. POLANSKY: Yes, sir. THE COURT: Maybe I forgot the recommendation in my chambers, you want to approach the bench." The bench conference was not recorded, but from the tenor of the questioning quoted above, it appears that the trial judge intended to straighten out defense counsel's apparent misconception. When the proceedings continued on the record, the trial judge stated his understanding of the State's position: "THE COURT: The State made the recommendation that if the Court finds the defendant guilty the State has recommended the sentence be constricted to one life sentence, and any other sentences, if any, shall be concurrent." 315 Defense counsel then asked the defendant: "Q Is that your understanding? A If I be found guilty, the State is restricted only to give me one life sentence, I understand that. Q I will ask you again, sir, that is, has there been any inducement for you to take a court trial and you understand what a jury trial is, do you have any questions? A No. Q Do you understand what a court trial is? A Yes. Q Do you have any questions in regard to a court trial? A No, I do not. Q Now, we have discussed that at length, have we not? A Yes. Q And you have to make that decision as to whether you want a court or jury trial? A I prefer a court trial." From the preceding exchange, appellant has artfully constructed his argument but factually there was no "deal." The judge did not agree that he would impose only one life sentence. He merely restated the State's recommendation. The defendant answered negatively when asked whether there had been any inducement to "take a court trial" and affirmatively when asked whether he understood the nature of the two modes of trial. Although it was improper for counsel to introduce a sentencing recommendation in the midst of voir dire on jury trial waiver, the waiver itself fully complied with Rule 735 b. As the trial judge stated: "THE COURT: Let the record show that the Court observed the demeanor of the defendant to the response of his counsel's explanation of a jury trial or a court trial, and additionally, the explanation by the State and the Court has concluded that the defendant is intelligently and 316 knowingly waiving his right to a jury trial and is requesting a court trial." The "bottom line" is, of course, that concurrent sentences are the functional equivalent of one life sentence. Appellant's counsel stated at oral argument that three life sentences and two 30-year sentences, even if concurrent, would be "held against" appellant when he became eligible for parole. However, the granting of parole is based on other factors, as set forth in Md. Ann. Code, Art. 41 § 112 (1978 Repl. Vol.).[7] III Appellant argues that the trial court abused its discretion in denying his motion to sever the two arson charges on the basis of prejudicial joinder and lack of significant connection between the two incidents. We find no prejudice to appellant, ample connection between the two fires, and proper exercise of judicial discretion. Maryland Rule 745 c (1981 Cum. Supp.) states that "[i]f it appears that any party will be prejudiced by the joinder for trial of charging documents, the court may order separate trials or grant any other relief justice requires." The rule, identical to its precursors, Md. Rules 734 and 735, McKnight v. State, 280 Md. 604, 607 n. 1, 375 A.2d 551 (1977), is couched in simple language and is apparent in purpose, Lewis v. State, 235 Md. 588, 590, 202 A.2d 370 (1964), that is, to prevent any prejudice to the defendant, Jones v. State, 38 Md. App. 432, 435, 381 A.2d 317 (1978), aff'd, 284 Md. 232, 395 A.2d 1182 (1979). The absence of prejudice is the 317 fundamental concern, Grandison v. State, 32 Md. App. 705, 363 A.2d 523 (1976), and that determination is vested solely in the sound discretion of the trial judge. Jennings v. State, 8 Md. App. 312, 315, 259 A.2d 543 (1969). There is "no rigid rule and the only limitation is that courts will guard against injustice." Wanzer v. State, 202 Md. 601, 608, 97 A.2d 914 (1953). As the Court of Appeals said in McKnight, supra, 280 Md. at 609-10: "In any given case of similar offense joinder, therefore, the trial judge must balance the likely prejudice caused by the joinder against the important considerations of economy and efficiency in judicial administration." The case held that a defendant charged with similar but unrelated offenses is entitled to a severance where he establishes that the evidence as to each individual offense would not be mutually admissible at separate trials. Id. at 612. Evidence of another crime is admissible if it falls within one of the exceptions to the general rule excluding such evidence. Ross v. State, 276 Md. 664, 350 A.2d 680 (1976). These exceptions are: motive, intent, absence of mistake, a common scheme or plan, handiwork or signature, and identity. If the State can establish mutual admissibility through one of these exceptions, the trial judge may then balance judicial efficiency and probative value against any prejudicial effect on the defendant. Id. at 669-70. See generally McKnight, supra; Simms v. State, 39 Md. App. 658, 388 A.2d 141, cert. denied, 283 Md. 738 (1978). In this case, the State argued that the offenses were mutually admissible under one or both of two exceptions: common scheme thoroughly analyzed by Judge Digges in Cross v. State, 282 Md. 468, 386 A.2d 757 (1978) and/or motive. Appellant argues that the evidence was too tenuous to show any actual motive on his part or to establish any signature or handiwork exception as to how the fires were started. 318 The evidence, however, clearly establishes appellant's motive and common scheme. Rebuffed in his efforts to resume his relationship with Ms. Witherspoon, he planned how to harm her. The March 6, 1980 fire, which was deliberately set, occurred at Ms. Witherspoon's residence at 1526 Homestead Street. She was out babysitting that night. Ms. Witherspoon and appellant were then on "shaky ground" and she was "trying to get away from him." Appellant confessed to Clifton Brown, a fellow jail inmate, that he had set a fire in the 1500 block of Homestead Street. In April 1980, Ms. Witherspoon moved to her aunt's residence at 2215-17 Aisquith Street, the scene of the second fire on April 16, 1980. Between March 6 and April 16, the aunt, Mrs. Lawson, who lived at the Aisquith Street address, received threatening phone calls from appellant. On March 14, 1980, appellant informed Ms. Witherspoon that he would set her aunt's house on fire. Further, appellant warned her that she was "asking for trouble" and that she had "better get out of the house." On April 16, at about 1 a.m., only hours before the fire, appellant called Ms. Witherspoon at the Aisquith Street address and told her "if [she] didn't come back to him there would be more tragedy in [her] family." He told her that "he had five dollars" and he "could easily go out and buy some gasoline instead of getting high." Clifton Brown also testified that appellant told him that he had set a fire on Aisquith Street. In Ellerba v. State, 41 Md. App. 712, 727-30, 398 A.2d 1250, cert. denied, 285 Md. 729 (1979), this Court examined a joinder of two arson charges. Because the incendiary devices used to start the fires were not the same, we ruled that joinder was not proper under the "signature" or "handiwork" exceptions. Id. at 729-30. However, we recognized that a "common scheme or plan" exception would have been available if there had been evidence that appellant had started the fires to make and collect insurance claims. Id. at 730. Unlike Ellerba, in this case there was evidence of a motive and a "common scheme or plan" in appellant's arson of the *319 residences of Ms. Witherspoon. Because the evidence of both offenses demonstrates a plan on the part of the appellant to get back at Ms. Witherspoon after the break-up of their relationship, both offenses meet the test of mutual admissibility under McKnight, supra. See Mason v. State, 12 Md. App. 655, 280 A.2d 753 (1971). Accordingly, the trial judge balanced the conflicting "considerations of prejudice and economy." McKnight, supra, 280 Md. at 610. We perceive no abuse of discretion in his decision to deny appellant's motion for severance. Judgments affirmed; appellant to pay the costs. NOTES [1] Paulette Preddy, who died in the fire, was a niece of Mrs. Lawson; the latter was also Ms. Witherspoon's aunt. [2] Mrs. Lawson, who saw Mrs. Hendricks jump, testified that "she was heavy and pregnant and her head hit the rocks in the yard of the house by the porch." Her child was stillborn. [3] James Thomas testified that he picked up appellant between four and five a.m. on April 16 and drove him to a "joint" on Liberty Road, which appellant was supposed to clean. Appellant had been helping him at various nightclubs for two years, Mr. Thomas said. He added that he had called appellant's house earlier and his mother had said she would get him up. [4] The State argues that appellant failed to preserve this issue for review because he neither objected to imposition of the sentence nor moved to modify it. Md. Rule 1085 (1982 ed.) and Logan v. State, 289 Md. 460, 487-8, 425 A.2d 632 (1981). We need not decide this issue. [5] Rule 735 b (Procedures for Acceptance of Waiver) is substantially the same as prior Rule 735 d (1981 Cum. Supp.) except for deletion of the "full knowledge" language. The waiver of jury trial has no application to the acceptance of a plea of guilty because in pleading guilty, the defendant waives his right to be tried at all. Matthews v. State, 46 Md. App. 172, 416 A.2d 1314 (1980) (construing Md. Rule 735 d). In pleading not guilty, even with an agreed statement of facts, the defendant retains the right to choose between a jury and a judge. But it is a choice of equals. The right to waive one over the other has no bearing on the right to plead not guilty. [6] Tactically, appellant's choice of a court trial was based on the theory, expounded by defense counsel in closing argument, that the situation was emotionally charged, and that the judge would rely only on proven facts to find guilt beyond a reasonable doubt. He said: "I will start out by saying that one of the reasons that Mr. Epps decided on a court trial and to proceed this way is that he felt in his mind that we could submit an objective [sic] and the Judge could look at the facts in this case and not get tied up with any emotional argument, but keep an open mind." [7] The regulations to the statute expand on the factors to be considered by the Parole Commission, COMAR 12.08.01 18 A (Supp. 3). Nowhere is the number of concurrent sentences specified as a factor. The circumstances surrounding the crime part of the decision-making process, as might be expected. Persons sentenced to life imprisonment are eligible for parole after serving a total of 15 years less credits for good behavior and industrial time earned. COMAR 12.08.01 17 A (3) (a). Only the Governor may grant parole to those serving life terms. COMAR 12.08.01 17 A (3) (b). See Hanson v. Hughes, 52 Md. App. 246, ___ A.2d ___ (1982).	{ "pile_set_name": "FreeLaw" }
891 So.2d 569 (2004) James Edward YORK, Jr., Petitioner, v. STATE of Florida, Respondent. No. 2D04-2853. District Court of Appeal of Florida, Second District. December 1, 2004. Rehearing Denied February 1, 2005. 570 James Edward York, Jr., pro se. Charles J. Crist, Jr., Attorney General, Tallahassee, and Cerese Crawford Taylor, Assistant Attorney General, Tampa, for Respondent. CASANUEVA, Judge. James Edward York, Jr., in his petition filed pursuant to Florida Rule of Appellate Procedure 9.141(c), alleges that his appellate counsel was ineffective for failing to argue on direct appeal that the jury instruction on the justifiable use of force, given in his trial on the charges of aggravated battery and shooting at, within, or into a vehicle, constituted fundamental error. We agree that appellate counsel was ineffective in neglecting to raise this issue, and we grant York a belated appeal on this issue only. York was convicted, after jury trial, of the above offenses. The judgment and sentence were affirmed on direct appeal. See York v. State, 872 So.2d 910 (Fla. 2d DCA 2004) (table decision). York testified at trial, and, needless to say, his testimony differed substantially from that of the victim. The victim, in his trial testimony, indicated that he got into his car upon leaving York's home after a violent argument with York when York shot at him, shattering the windshield of the car. The victim got out of the car, at which point York fired a second shot. The victim testified that, during the incident, he was shot in the hand and back. He further testified that he had no firearms with him that night and that he never shot at York. York testified that, earlier in the evening, he and the victim had been out drinking and the victim had a considerable amount to drink. At York's residence, York teased the victim about his lack of success that evening in obtaining the telephone numbers of any women. According to York, the victim became very irate and refused to leave when York asked him to. The victim then struck York on the temple, knocking him to the ground. York got back up and the victim pushed him back down. While York was on the ground, the victim pushed and kicked him. The victim then went to the kitchen where he grabbed York's rifle. The pair struggled over the rifle, which went off, hitting the victim in the hand. The victim again pushed York, and York fell back with the rifle. At this point, the victim stated: "I'm going to get my gun." York testified that he was aware that the victim had two hunting rifles in the van he was driving. While the victim went to his van, York moved onto the patio of his house with the rifle. York testified that the victim got into the van and then came out shooting. York fired back, shattering the windshield of the van. York fired again and then ran and hid. In closing argument, trial counsel argued that York was acting in self-defense. The trial court instructed the jury on the charges of aggravated battery and shooting into an occupied vehicle. After giving these instructions, the trial court then instructed the jury on the justifiable use of deadly force. This instruction contained the following language: However, the use of force likely to cause death or great bodily harm is not justifiable if you find: 571 1. James Edward York was attempting to commit, or committing, or escaping after the commission of aggravated battery. (Emphasis added.) Thus, the jury was advised that the very action that York was attempting to justify as self-defense, shooting the victim,[1] could not be considered self-defense. The trial court erred in so instructing the jury. See Giles v. State, 831 So.2d 1263, 1265 (Fla. 4th DCA 2002). However, because trial counsel did not object to the erroneous instruction, for appellate counsel to raise the issue on direct appeal, the error would have to be fundamental. See Baker v. State, 877 So.2d 856, 857 (Fla. 2d DCA 2004). Giles was decided prior to appellate counsel's filing the initial Anders brief in the direct appeal from York's judgment and sentence. In Giles, trial counsel preserved the issue for direct review by objecting to the erroneous instruction on the justifiable use of nondeadly force. See Giles, 831 So.2d at 1264. Thus, the court in Giles did not address the issue of whether the instruction as given constituted fundamental error. However, in an opinion issued one day prior to the filing of the initial Anders brief in York v. State, 872 So.2d 910 (Fla. 2d DCA 2004) (table decision), the Fourth District issued its opinion in Fair v. State, 858 So.2d 1103 (Fla. 4th DCA 2003). The court in Fair held that appellate counsel was ineffective in neglecting to argue on direct appeal that the instruction given on the justifiable use of deadly force, which had the effect of instructing the jury that "the defendant is not entitled to use force if he was committing, attempting to commit, or escaping after committing the crime charged," constituted fundamental error. Fair, 858 So.2d at 1104. After the filing of the initial Anders brief in York, but prior to the filing of the answer brief, the Fourth District in Rich v. State, 858 So.2d 1210, 1210-11 (Fla. 4th DCA 2003), held that it was fundamental error in that case to give a justifiable use of force instruction advising the jury that such use of force was not justified if the defendant was committing or attempting to commit an aggravated battery where the defendant was charged with aggravated battery.[2] Although Fair and Rich were not available to appellate counsel prior to the completion of her initial Anders brief in York, she should have been aware of them and could have filed a motion to file a supplemental brief. See Gisi v. State, 848 So.2d 1278, 1281 (Fla. 2d DCA 2003). As we did in Baker, we conclude that the failure of appellate counsel to argue that the jury instruction on justifiable use of force constituted fundamental error was ineffective assistance of appellate counsel. Accordingly, we grant the petition. Because the determination as to whether the justifiable use of force instruction was fundamental error requires a full review of the record on appeal, we instruct the trial court, within thirty days from the issuance of the mandate in this case, to appoint an appellate attorney to file a brief limited to the issue outlined above. See Baker, 877 So.2d at 858. Appellate counsel shall, within thirty days of the appointment, file *572 a new notice of appeal and reference this opinion in the notice of appeal. STRINGER and KELLY, JJ., Concur. NOTES [1] Although York was charged with aggravated battery and shooting at, within, or into a vehicle, both charges resulted from York's shooting of the victim, which he sought to justify as self-defense. [2] This court followed the reasoning of Rich in Zuniga v. State, 869 So.2d 1239 (Fla. 2d DCA 2004). Furthermore, the opinion in Zuniga was filed three days prior to the issuance of the per curiam opinion in York. Appellate counsel could have filed a motion for rehearing based on this court's opinion in Zuniga.	{ "pile_set_name": "FreeLaw" }
188 Ill. App.3d 172 (1989) 544 N.E.2d 64 THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. SCOTT TIMBERSON, Defendant-Appellant. No. 5-87-0855. Illinois Appellate Court Fifth District. Opinion filed August 30, 1989. 173 Daniel M. Kirwan and Janet L. Gandy, both of State Appellate Defender's Office, of Mt. Vernon, for appellant. John Baricevic, State's Attorney, of Belleville (Kenneth R. Boyle, Stephen E. Norris, and Ellen Eder Irish, all of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People. Reversed and remanded. JUSTICE CHAPMAN delivered the opinion of the court: The defendant, Scott Timberson, was charged with first degree murder (Ill. Rev. Stat. 1987, ch. 38, par. 9-1) in St. Clair County, Illinois. After a jury trial the defendant was found guilty of second degree murder (Ill. Rev. Stat. 1987, ch. 38, par. 9-2) and was sentenced to 12 years' imprisonment. On appeal the defendant claims: (1) that the trial court erred in refusing to instruct the jury on the issue of self-defense; and (2) that the trial court abused its discretion in sentencing defendant. We reverse and remand for a new trial. The evidence adduced at trial showed that on July 5, 1987, the defendant, then 16 years old, was walking with his younger brother 174 Michael and a friend, Edwin Mumford, to a skating rink located in East St. Louis, Illinois. A passing car stopped and two men got out and accused Michael of beating up their brother. Michael denied any knowledge of the incident and the men eventually left. The boys then decided that they needed some protection, so they went to the defendant's house, where the defendant obtained a gun that he had purchased some weeks earlier from someone on the street. The three then continued on to the skating rink, where the defendant hid the gun in a nearby alley before entering the rink. While inside the skating rink, the boys met the defendant's sisters, Gloria and Crystal, and DeAndre Jackson, and they all left the skating rink when it closed and began to walk home. In the meantime, Mumford had retrieved the gun from the alley and was carrying it in his waistband. While the group was walking home, a car passed them and someone in the car shouted an obscene remark, apparently directed at Jackson. Jackson responded with a similar remark. The car then stopped, and the victim, Ray Manuel, got out of the car and approached the group. The area was dark and both Mumford and the defendant testified that they did not know the victim, although Mumford later recognized Manuel as an acquaintance from school. Manuel approached the group asking, "What's up?" and, according to the witnesses, acting in an aggressive manner. The defendant and several other witnesses testified that the victim reached into the waistband of his trousers, and they believed he was reaching for a gun. The defendant took his pistol from Mumford and fired a shot "to scare" the victim. Although the defendant and several witnesses testified that Manuel was facing the group when the shot was fired, he was struck in the back of the neck and subsequently died from the gunshot wound. The defendant, along with Mumford and Michael Timberson, ran from the scene of the shooting. After the police investigation of the shooting implicated the defendant, they asked him, on July 7, to come to the station for questioning. He did so, accompanied by his mother, and after initially denying involvement in the shooting, the defendant confessed. At the jury instruction conference the defendant's attorney tendered a self-defense instruction (Illinois Pattern Jury Instructions, Criminal, No. 24-25.06 (2d ed. 1981) (hereinafter IPI Criminal 2d No. 24-25.06)) which was refused by the trial court. IPI Criminal 2d No. 24-25.06 states: "A person is justified in the use of force when and to the extent that he reasonably believes that such conduct is necessary to defend himself against the imminent use of unlawful force. 175 However, a person is justified in the use of force which is intended or likely to cause death or great bodily harm only if he reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or another." The jury was instructed, however, concerning belief of justification as a mitigating factor in reducing the offense from first degree murder to second degree murder (Illinois Pattern Jury Instructions, Criminal, Nos. 7.05A, 7.06A (2d ed. Supp. 1989)). The jury found the defendant guilty of second degree murder. The defendant's post-trial motion was denied and he was sentenced to 12 years in prison. The defendant's initial contention is that the trial court erred in refusing to instruct the jury on the issue of self-defense. The defendant argues that the testimony of DeAndre Jackson, Gloria Timberson, Edwin Mumford, and Michael Timberson that they believed Ray Manuel was reaching for a gun, as well as the defendant's testimony to the same effect, was sufficient to raise the issue of self-defense. In addition, the defendant notes that the earlier confrontation with the two men in the car also contributed to his fear when he was approached by another unknown figure (the victim) also alighting from a car. The State argues that there was insufficient evidence presented at trial to warrant an instruction on self-defense. The State notes that the victim was shot in the back of the neck, and that the uncontradicted testimony of the pathologist established that it was impossible for the victim to be shot in such a manner if he were facing the defendant. The State also points out that several of the witnesses, in their initial statements to the police, stated that the victim turned back towards the car before he was shot. Furthermore, the State notes that the defendant's statement to the police was inconsistent concerning when he shot the victim: "After I fired the shot, the guy continued to walk towards us, then he fell face down. The guy turned and started walking back towards the vehicle that he had gotten out of when he [sic] fired the shot. Then he fell down." Finally, the State contends that the defendant's claim that the shooting was accidental is inconsistent with a claim of self-defense. At trial the following testimony was elicited from the defendant on direct examination: "Q. Okay. What did you do with the gun? A. Then, you know, by him not stopping, I pointed the gun off to my right side and fired a single shot. Q. Did you shoot at him? 176 A. No, I shot in an attempt to scare him. Q. You didn't shoot to try to shoot him, did you? A. No." 1, 2 To establish that a person acted in self-defense, he must show that unlawful force was threatened against him, that he was not the aggressor, and that he reasonably believed: (1) that the danger of harm was imminent; (2) that the use of force was necessary to avert the danger; and (3) that the kind and amount of force used was necessary. (People v. Jaffe (1986), 145 Ill. App.3d 840, 852, 493 N.E.2d 600, 609; People v. Lenzi (1976), 41 Ill. App.3d 825, 834, 355 N.E.2d 153, 162.) When there is some evidence in the record which, if believed by a jury, would support a defendant's claim of self-defense, he is entitled to have the jury instructed on his theory of self-defense. (People v. Lockett (1980), 82 Ill.2d 546, 551, 413 N.E.2d 378, 381; People v. Robinson (1987), 163 Ill. App.3d 754, 761, 516 N.E.2d 1292, 1298.) It has also been held that even "slight evidence" of self-defense is sufficient to support the giving of an instruction. People v. Brooks (1985), 130 Ill. App.3d 747, 750, 474 N.E.2d 1287, 1289; see Jaffe, 144 Ill. App.3d at 852, 493 N.E.2d at 609. 3 In the instant case, we believe that there was ample evidence presented which, if believed by the jury, could have supported the defendant's claim of self-defense. The defendant, DeAndre Jackson, Gloria Timberson, Edwin Mumford, and Michael Timberson all testified that the victim, Ray Manuel, approached the group in a threatening manner, reached for something in his waistband, and each of them thought he was reaching for a gun or a weapon. While the witnesses' testimony that the victim was facing the defendant when he was shot was contradicted by their earlier statements to the police and by the location of the gunshot wound, we believe it was the province of the jury to evaluate such inconsistencies and resolve them one way or the other. The failure to instruct the jury on the theory of self-defense, however, precluded the jury from considering whether the defendant's belief that his actions were justified was a reasonable belief. Moreover, it is apparent that the jury believed, at a minimum, that defendant subjectively believed that his use of force was justified. The jury was instructed on both first and second degree murder and found the defendant guilty of second degree murder. In order to do so, the jury had to find that the defendant "believed the circumstances to be such that they justified the deadly force he used, but his belief that such circumstances existed was unreasonable." IPI Criminal 2d No. 7.06A (Supp. 1989). In People v. Lockett (1980), 82 Ill.2d 546, 413 N.E.2d 378, our supreme 177 court held that when the evidence supports the giving of an instruction on self-defense, a tendered instruction on voluntary manslaughter based upon an unreasonable belief of justification should also be given. The offense of voluntary manslaughter has since been replaced by the offense of second degree murder. (Pub. Act 84-1450, § 2, eff. July 1, 1987.) However, with the major exception of placing the burden on the defendant to prove the factor in mitigation, the offense of voluntary manslaughter under the old statute, and second degree murder under the new statute, are substantially the same. Compare Ill. Rev. Stat. 1985, ch. 38, par. 9-2, with Ill. Rev. Stat. 1987, ch. 38, par. 9-2. The instant case, however, does not present the same issue as that decided in Lockett; it is instead the converse situation. Nevertheless, while we do not find Lockett to be directly applicable to this case, we find it to be instructive. "It is not the province of the judge to weigh the evidence and decide if defendant's subjective belief was reasonable or unreasonable. The judge's duty is to determine if any evidence is presented that the defendant had a subjective belief. We can conceive of no circumstance when a judge could determine, as a matter of law, that a jury could find the defendant had a reasonable subjective belief the killing was justified, but that the jury could not find the defendant's subjective belief was unreasonable. So long as some evidence is presented from which a jury could conclude that defendant had a subjective belief, the jury should determine if the belief existed and, if so, whether that belief was reasonable or unreasonable." (Emphasis added.) Lockett, 82 Ill.2d at 553, 413 N.E.2d at 382. 4 In the instant case there was sufficient evidence presented from which a jury could conclude that the defendant had a subjective belief that his use of force was justified. Indeed, as discussed above, the jury in fact found that the defendant believed he was justified, but that his belief was unreasonable. Because the jury was not instructed that it could find that the defendant's belief was reasonable, and that upon such a finding they should enter a verdict of not guilty, the defendant is entitled to a new trial. See People v. Woodward (1979), 77 Ill. App.3d 352, 395 N.E.2d 1203 (holding that it was reversible error to refuse to give an instruction on self-defense where an instruction on voluntary manslaughter based on an unreasonable belief of justification was given). 5 Nor are we persuaded by the State's argument that the defendant's claim that the shooting was accidental precluded an instruction 178 on self-defense. An instruction on self-defense may be given even though the defendant testifies that the shooting was accidental. (People v. Whitelow (1987), 162 Ill. App.3d 626, 629, 515 N.E.2d 1327, 1329; People v. Brooks (1985), 130 Ill. App.3d 747, 751, 474 N.E.2d 1287, 1290; see also People v. Robinson (1987), 163 Ill. App.3d 754, 516 N.E.2d 1292 (and cases cited therein); see generally Annot., 15 A.L.R.4th 983 (1982); Annot., 55 A.L.R.3d 620 (1974).) In the instant case, while the defendant testified that he did not intend to shoot the victim, he claimed that his actions in taking and firing the gun were motivated by his fear of the victim. This was sufficient to "place the shooting in the context of self-defense." Whitelow, 162 Ill. App.3d at 629, 515 N.E.2d at 1329. In view of our disposition of this issue, we need not address the defendant's claim that the trial court abused its discretion in sentencing him to 12 years' imprisonment. Accordingly, the defendant's conviction is reversed and this cause is remanded to the circuit court for a new trial. Reversed and remanded. WELCH, P.J., and HARRISON, J., concur.	{ "pile_set_name": "FreeLaw" }
846 F.Supp. 36 (1994) Emmett G. DAMMON, Jr., et al. v. W.L. FOLSE, et al. Civ. A. No. 93-1132. United States District Court, E.D. Louisiana. February 2, 1994. 37 Don M. Richard, Denechaud & Denechaud, New Orleans, LA, for plaintiffs. Patrick J. Berrigan, James Grady Wyly, III, Deutsch, Kerrigan & Stiles, Slidell, LA, for W.L. Folse. Risley C. Triche, Risley C. Triche & Associates, Napoleonville, LA, Harry Platton Pastuszek, Jr., Muller & Pastuszek, Mandeville, LA, for Richard-Tanner. Harry Platton Pastuszek, Jr., Muller & Pastuszek, Mandeville, LA, for Terry Bankston, Jules A. LaGarde, St. Tammany Parish School Bd. ORDER AND REASONS FELDMAN, District Judge. Before the Court is the motion to dismiss of the defendants Terry Bankston and the St. Tammany Parish School Board. For the reasons that follow, the motion is GRANTED as to the School Board, and DENIED as to Bankston. Background In this RICO case, plaintiffs allege that defendants conspired to rig the bidding process for the public contracts of the St. Tammany Parish School Board for their private enrichment. Plaintiffs also charge that defendants used their racketeering enterprise to prevent plaintiffs from securing any public contracts as retaliation against the plaintiffs because plaintiffs alerted the authorities to defendants' scheme. Plaintiffs assert that defendants' activities formed an on-going RICO enterprise, with predicate acts of extortion, bribery, mail fraud and wire fraud. In September of 1993 the School Board, Terry Bankston and Richard Tanner filed a motion to dismiss for failure to state a claim upon which relief can be granted. The Court converted their Rule 12(b)(6) motion to a motion for a more definite statement under Rule 12(e) because of the complexity of the RICO statute, and because it is the nature of these cases that some of the facts that could establish a claim for racketeering were often within the possession of the defendants. The Court gave plaintiffs an additional 30 days within which to conduct discovery and ordered the plaintiffs to file a RICO case statement that complies with the RICO Standing Order of this Court. Thereafter, plaintiffs were granted an additional thirty days to conduct discovery due to the illness of plaintiffs' counsel. On November 12, 1993 plaintiffs filed an amended complaint and an amended RICO case statement. The School Board and Terry Bankston have now filed a second motion to dismiss plaintiffs' RICO claims for failure to state a claim under Rule 12(b)(6).[1] I. A. RICO Liability of The School Board The School Board argues that it cannot be held liable under RICO because a municipal entity lacks the ability to form the criminal intent necessary to commit the required predicate acts under RICO. The School Board is half right. Although there is no Fifth Circuit precedent on point, the School Board invokes some persuasive authority on the inability to have criminal intent from the Ninth Circuit. Lancaster Community Hospital v. Antelope Valley Hospital District, 940 F.2d 397, 404-405 (9th Cir.1991), cert. denied ___ U.S. ___, 112 S.Ct. 1168, 117 L.Ed.2d 414 (1992); See also County of Oakland by Kuhn v. City of Detroit, 784 F.Supp. 1275 (E.D.Mich.1992) (following Lancaster and Nu-Life); Nu-Life Constr. v. Board of Education, 779 F.Supp. 38 248 (E.D.N.Y.1991) (a school board, as a municipal entity, is incapable of forming the criminal intent necessary to support the alleged predicate offenses). Dismissal of the RICO claims against the School Board is also justified under what the Third Circuit calls its alternative to the "incapacity to form mens rea" argument. In Genty v. Resolution Trust Corporation, 937 F.2d 899 (3rd Cir.1991) the Third Circuit reasoned that RICO's mandatory treble damages could not properly be applied against a municipal corporation because, despite the additional remedial nature of such damages, treble damages are primarily and essentially punitive in nature; and awarding punitive damages against the taxpayers of a municipal corporation whom RICO was designed to protect would be counterintuitive to the very purpose of the statute.[2] This Court is of the belief that the two circuit theories for refusing to hold a municipal entity liable under RICO are not mutually exclusive indeed, it can be said that they are two sides of the same concept. In an abstract but doctrinal sense, a corporation in and of itself cannot form mens rea. Similarly, a corporation, that is, the institutional construct itself, cannot be deterred; deterrence can only be achieved by targeting the behavior of the people who determine corporate conduct. Thus, if punitive damages would not operate to encourage innocent and essentially powerless taxpayers to prevent RICO's condemned activity by municipal officials, short of the election process, it would seem inappropriate to hold the municipal corporation liable. The argument that a municipal corporation, as a corporation, cannot form mens rea summons a ready response: a private corporation is equally incapable of forming criminal mens rea, but that does not preclude the imposition of punitive damages again a private corporation's assets. But this Court draws attention to an important distinction: that distinction lies with whom is being deterred. As against a private corporation, deterrence is said to operate, and does so, by encouraging the shareholders to police their board of directors. The differing approaches regarding private and municipal corporations is justified, as the Supreme Court wrote in City of Newport v. Fact Concerts, Inc. because: [T]he relation which the officers of a municipal corporation sustain toward the citizens thereof for whom they act, is not in all respects identical with that existing between stockholders of a private corporation and their agents; and there is not the same reason for holding municipal corporations, engaged in the performance of acts for the public benefit, liable for the willful or malicious acts of its officers, as there is in the case of private corporations. Newport 453 U.S. 247, 261-62, 101 S.Ct. 2748, 2757, 69 L.Ed.2d 616 (quoting Hunt v. City of Boonville, 65 Mo. 620 (1877)). The Third Circuit has added to the case dialogue and importantly articulated why private corporations are answerable for punitive damages but public corporations or entities are not: There are at least two major distinctions between municipal corporations and ordinary corporations that militate against imposing punitive damages on the former. First, there is the difference in accountability. Shareholders of an ordinary corporation can require quarterly reports, as is the usual case, or even more frequently, of the activities of their corporate officers or directors, and of the corporate operations, and thus have an opportunity to ascertain if there are any illegal or inappropriate activities by the corporation. Municipal officials, on the other hand, make no similar accounting to the public. Residents of a municipality, of course, can exercise their ballots in approval or disapproval but then usually only once every four years. Commenting on residents' capacity to regulate municipal officials' conduct, one court remarked, "While theoretically they have a voice in selecting the agents who shall *39 represent and control the municipality, we know that practically it often happens that the government is not of their choice, and its management not in accordance with their judgment." Ranells v. City of Cleveland, 41 Ohio St.2d 1, 70 O.O.2d 1, 321 N.E.2d 885, 888-9 (1975). Second, a shareholder upon ascertainment or even suspicion of improper conduct can promptly disassociate from the corporation by selling the stock or bringing a derivative, injunctive, or some other appropriate remedial action. In contrast, even if information of fraudulent activity by municipal officers were available, residents of a municipality have little opportunity, if any, for disassociation. Genty v. Resolution Trust Corporation, 937 F.2d 899, 911 (3rd. Cir.1991). This Court is impressed and persuaded by that sort of thinking. Thus, the justification for the reluctance to impose RICO liability against municipal corporations is not merely due to the inability of municipal corporations to form the requisite criminal intent. That is only a glimpse of the rationale: the rule rests on the ineffectiveness of attempting to deter the behavior of a public corporation by way of punitive damages. In addition, it must also be stressed that the rule against imposing punitive damages on a municipality is conceptually sound because taxpayers, who are supposed to be protected by the RICO law, ought not be punished when RICO is violated by agents over whom they have little or no control.[3] B. RICO Liability of Terry Bankston Plaintiffs correctly assert that Bankston completely fails to address the allegations in the amended complaint that he used the mails to fraudulently give the appearance that he and the other defendants were conducting the School Board's activities in a legitimate manner. Furthermore, the allegations of continuity is that Bankston's fraud, by use of the mails, helped to perpetrate the ongoing conspiracy to control the School Board's bidding process. Due to the failure of Bankston to meaningfully engage the issue of the adequacy of the pleadings against him in particular, after full opportunity to do so, Bankston's motion must be denied. Accordingly, the motion to dismiss all RICO claims against the St. Tammany Parish School Board is hereby GRANTED. The motion to dismiss the RICO claims by defendant Terry Bankston is DENIED. NOTES [1] The Court notes that in their amended complaint the plaintiffs added a fifth claim for state law violations. Defendants' motion to dismiss does not address those claims; the Court therefore declines to discuss the adequacy of the pleading of those claims. [2] The Court is unpersuaded by plaintiffs' argument that mandatory treble damages under RICO are not punitive in nature. See Abell v. Potomac Ins. Co., 858 F.2d 1104, 1141 (5th Cir. 1988) (RICO damages are punitive) (vacated on other grounds Fryar v. Abell, 492 U.S. 914, 109 S.Ct. 3236, 106 L.Ed.2d 584 (1989)). [3] The Court notes that its hybrid Lancaster-Genty rationale for rejecting RICO liability for the School Board extends to all the subparts of § 1962; Genty emphasizes that it is the availability of punitive damages that makes RICO inapplicable to municipal corporations. Punitive treble damages are available under each of the four subparts of § 1962. Furthermore, respondeat superior is not available as an end-run around this bar on RICO liability. See Landry v. Air Line Pilots Ass'n Intern. AFL-CIO, 901 F.2d 404, 425 (5th Cir.1990), cert. denied, 498 U.S. 895, 111 S.Ct. 244, 112 L.Ed.2d 203 (1990), (where legal enterprise cannot be held directly liable under § 1962(c), vicarious liability does not present an alternate route to impose liability).	{ "pile_set_name": "FreeLaw" }
449 N.W.2d 827 (1989) Garland Ray GREGORY, Jr., Petitioner and Appellant, v. Herman SOLEM, Respondent and Appellee. Nos. 16618, 16619. Supreme Court of South Dakota. Argued October 16, 1989. Decided December 20, 1989. 828 Michael Butler, Richard Braithwaite, on the brief, Sioux Falls, for petitioner and appellant. Jeffrey P. Hallem, Asst. Atty. Gen., Pierre, Jeffry L. Bloomberg, Lawrence County State's Atty., Deadwood, for respondent and appellee. GILBERTSON, Circuit Judge. ISSUES PRESENTED Garland Ray Gregory, Jr. (petitioner) brings the following issues to this court for our resolution: 1. AT PETITIONER'S ARRAIGNMENT ON THE CHARGE OF CONSPIRACY TO COMMIT MURDER, WAS HE AWARE OF THE NATURE OF THE OFFENSE? 2. DID PETITIONER'S TRIAL COUNSEL NEGLECT TO INFORM PETITIONER OF THE ELEMENTS OF CONSPIRACY TO COMMIT MURDER, WHICH FAILURE CONSTITUTES INEFFECTIVE REPRESENTATION? In addition, Herman Solem (respondent) has filed a notice of review in which he raises the following issue: SHOULD PETITIONER'S AMENDED PETITION FOR WRIT OF HABEAS CORPUS HAVE BEEN DISMISSED PURSUANT TO SDCL 21-27-16.1? We find respondent's issue dispositive of this appeal and affirm the trial court's denial of the petition albeit for a different reason. City of Mitchell v. Beauregard, 430 N.W.2d 704 (S.D.1988). PROCEDURAL HISTORY On March 13, 1980, pursuant to a plea bargain, petitioner pled guilty to conspiracy to commit murder. In exchange, the state dismissed a companion murder charge and agreed to request a sentence of life imprisonment rather than seek the death penalty. The trial court accepted petitioner's guilty plea and sentenced him to life imprisonment. Following the sentence, petitioner did not file a direct appeal. On January 27, 1981, petitioner sought post conviction relief. The circuit court denied this request. Upon appeal this court held that the trial court substantially complied with SDCL ch. 23A-7 in its determination that there was a sufficient factual basis for petitioner's guilty plea and that such plea was knowingly, intelligently and voluntarily entered. We remanded, however, for entry of specific findings and conclusions on whether petitioner was advised of 1) the nature of the conspiracy charge, 2) the consequences of a guilty plea, and 3) for a determination of whether petitioner's guilty plea was a voluntary and intelligent choice among alternative courses of action. See Gregory v. State, 325 N.W.2d 297 (S.D.1982) (hereinafter Gregory I). The circuit court's findings of fact and conclusions of law were affirmed in Gregory v. State, 353 N.W.2d 777 (S.D.1984) (hereinafter Gregory II). Therein we held: [T]he record in the instant case, when viewed in the totality of the circumstances, fairly supports the finding that petitioner understood the nature of the charges against him and that his guilty plea was accepted in compliance with both statutory and constitutional requirements. 353 N.W.2d at 780. Petitioner next filed a petition for writ of habeas corpus in the United States District Court for the District of South Dakota. Relief was denied. Upon appeal the district court's decision was affirmed in Gregory v. Solem, 774 F.2d 309 (8th Cir.1985). The Eighth Circuit found sufficient evidence in the record to establish a factual 829 basis for the acceptance of the guilty plea. The federal appeals court further concurred with this court's analysis in Gregory II by finding that his guilty plea was knowing, intelligent and voluntary. On November 25, 1986, petitioner filed another application for writ of habeas corpus in Lawrence County circuit court.[1] In that petition he raised the two issues that he brings to this court as grounds for appeal. Prior to any hearings, respondent made a motion to dismiss pursuant to SDCL 21-27-16.1. Respondent argued that petitioner's issues had either been previously adjudicated or waived. The trial court agreed and dismissed. Upon appeal in Gregory v. Solem, 420 N.W.2d 362 (S.D. 1988) (Gregory III), this court reversed. We held that petitioner was entitled to an evidentiary hearing to attempt to show reasonable cause why his current issues had not been raised in the previous petition. Thereafter the circuit court on remand held such a hearing. At the conclusion of this hearing, respondent renewed its motion to dismiss under SDCL 21-27-16.1. Such motion was denied by the circuit court. The circuit court then held against petitioner on the merits of the issues raised in his habeas corpus petition. Both parties now appeal to this court as set forth above. ISSUE PRESENTED SHOULD PETITIONER'S AMENDED PETITION FOR WRIT OF HABEAS CORPUS HAVE BEEN DISMISSED PURSUANT TO SDCL 21-27-16.1?[2] The scope of review is limited in a state habeas corpus proceeding because the remedy is in the nature of a collateral attack upon a final judgment. Goodroad v. Solem, 406 N.W.2d 141 (S.D.1987). A writ of habeas corpus will provide relief for a petitioner if any of the grounds of SDCL 21-27-16 are met. This court will not overturn the factual findings of the circuit court unless they are clearly erroneous. Id. at 145. SDCL 21-27-16.1 is the statute which both parties cite in support of their position: All grounds for relief available to a petitioner under this chapter shall be raised in his original, supplemental or amended application. Any ground not raised, finally adjudicated or knowingly and understandingly waived in the proceedings resulting in his conviction or sentence or in any other proceeding that the applicant has taken to secure relief from his conviction, or sentence, may not be the basis for a subsequent application, unless the court finds grounds for relief asserted which for reasonable cause were omitted or inadequately raised in the original, supplemental or amended application. (emphasis added).[3] 830 In Gregory III, we noted petitioner's burden of proof of "reasonable cause" but did not feel it necessary to go into an in-depth discussion of what this standard required of a habeas petitioner. Respondent argues that the "reasonable cause" requirement of SDCL 21-27-16.1 should be interpreted in accordance with the United States Supreme Court's "cause and prejudice" standard of review. See Smith v. Murray, 477 U.S. 527, 106 S.Ct. 2661, 91 L.Ed.2d 434 (1986); Murray v. Carrier, 477 U.S. 478, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986); Engle v. Isaac, 456 U.S. 107, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982); Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). Petitioner asks that such a standard be rejected and opts for a "reasonable man" standard. The circuit court applied the cause and prejudice test advanced by respondent. However, having done so, it concluded that petitioner had apparently met such a standard and denied respondent's motion to dismiss.[4] The seminal case concerning the "cause and prejudice" test is Wainwright v. Sykes, supra. This standard was adopted therein, but the United States Supreme Court felt it unnecessary to define its specific elements. It did, however, adopt a general rule that for a habeas petitioner to avoid dismissal of a subsequent petition for failure to raise the issue in a prior proceedings, the petitioner must show: 1. Cause for his omission or failure to previously raise the grounds for habeas relief; and 2. Actual prejudice resulting from the alleged constitutional violation. Later, in Murray v. Carrier, supra, the Supreme Court set forth an in-depth analysis of what constitutes "cause": We think, then, that the question of cause for procedural default does not turn on whether counsel erred or on the kind of error counsel may have made. So long as a defendant is represented by counsel whose performance is not constitutionally ineffective under the standard established in Strickland v. Washington, supra, we discern no inequity in requiring him to bear the risk of attorney error that results in a procedural default. Instead, we think that the existence of cause for a procedural default must ordinarily turn on whether the prisoner can show that some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rule. Without attempting an exhaustive catalog of such objective impediments to compliance with a procedural rule, we note that a showing that the factual or legal basis for a claim was not reasonably available to counsel or that "some interference by officials" made compliance impracticable, would constitute 831 cause under this standard. (citations omitted). 477 U.S. at 488, 106 S.Ct. at 2645, 91 L.Ed.2d at 408. In addressing the second prong, that being "prejudice," the Supreme Court noted that "[t]he habeas petitioner must show `not merely that errors at ... trial created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.'" Id., 477 U.S. at 494, 106 S.Ct. at 2648, 91 L.Ed.2d at 412.[5] (emphasis original). This cause and prejudice standard has also received increasing acceptance among the various state jurisdictions dealing with this issue. See Valeriano v. Bronson, 12 Conn.App. 385, 530 A.2d 1100 (1987); Cherry v. Abbott, 258 Ga. 517, 371 S.E.2d 852 (1988); Polly v. State, 355 N.W.2d 849 (Ia. 1984);[6]Irving v. State, 498 So.2d 305 (Miss.1986); Passanisi v. Dir. Nev. Dept. of Prisons, 769 P.2d 72 (Nev.1989); Wells v. Shulsen, 747 P.2d 1043 (Utah 1987); Epperly v. Booker, 235 Va. 35, 366 S.E.2d 62 (1988); Cutbirth v. State, 751 P.2d 1257 (Wyo.1988). This court is well aware that in recent years, habeas petitioners have sought relief from the federal and state courts of South Dakota in a manner which has these proceedings going to and from each court on a frequent basis. The case at bar is an example in point. With the adoption of the "cause and prejudice" doctrine in all federal courts, the use of the same criteria by this court would facilitate the task of federal courts in the examination of these issues when raised in a federal post-conviction proceeding in which review is sought of a state court conviction in South Dakota. Cutbirth, supra at 1262. Likewise, a previous federal determination under the same standard as adopted by this court would avoid attempted relitigation of the same issue in a subsequent state proceeding. For the foregoing reasons, we adopt the "cause and prejudice" standard as the "reasonable cause" showing that a habeas corpus petitioner must make under SDCL 21-27-16.1. The issues raised by petitioner in his first habeas petition and its subsequent evidentiary hearing are set forth in Gregory I. However, that decision resulted in a partial reversal and remand to the trial court for further proceedings. The parties to this appeal vigorously argue over the effect of SDCL 21-27-16.1 on the subsequent proceedings. After the remand from this court for further findings in Gregory I, petitioner's then attorney, Mr. Mueller, believed that the state did not have sufficient evidence in the record to successfully overcome petitioner's habeas challenge. He informed petitioner of this opinion. Mueller also wrote the habeas court and argued against reopening the record. 832 After Mueller's departure, petitioner's new attorney, Mr. Jackley, talked to Mueller, reviewed the court file and came to the same conclusion. On two occasions, Jackley wrote petitioner and advised him of this opinion and requested a response. Petitioner wrote back to Jackley and concurred with this trial tactic. Apparently the state was also somewhat nervous about the quality of its existing record as it sought an additional evidentiary hearing. Jackley, on behalf of petitioner, opposed this request. (See the Appendix for excerpts of this correspondence.) Attorney Jackley testified at petitioner's most recent habeas hearing that he reviewed the entire record and agreed with Mueller's conclusion that petitioner has received competent representation prior to and at this arraignment. This was a second reason that Jackley saw no benefit to reopen the habeas record to allege ineffective assistance by trial counsel. A third reason Jackley did not want the record reopened was that it would give the state a chance to introduce a private deposition given by petitioner to his trial attorneys in which petitioner admitted certain matters of his legal knowledge concerning the lack of possibility of parole from a life sentence; this knowledge was diametrically opposed to his current legal position and testimony. Jackley felt that this deposition could destroy petitioner's credibility and veracity with the habeas court. The circuit court sided with petitioner and opted not to hold any further evidentiary hearings. However, this strategy backfired on petitioner. The circuit court ruled in favor of the state. This court affirmed in Gregory II. The above clearly shows that petitioner, with the concurrence of his counsel, made an informed and calculated decision not to raise these issues when he had a chance to do so.[7] Such a scenario is clearly well short of the establishment of "cause", as set forth in Smith v. Murray, supra.[8] An examination of the second requirement, that being prejudice, also shows that petitioner's claim is found wanting. The circuit court, after this court's remand in Gregory III, entered the following findings: The Court finds that Attorney Smit repeatedly explained the elements of the crime of conspiracy to Gregory. * * * * * 833 It is therefore the finding of this Court that the Petitioner knew the nature of the charges against him, and that the same were explained to him by counsel and that the Petitioner was specifically aware of the nature and elements of the conspiracy charge to which he pled. In making such findings, the circuit court chose the credibility of attorney Smit over that of petitioner and found that petitioner's testimony was "open to question" in regards to his entire testimony. The court further found that his memory of conversations with his trial counsel was "extremely limited" and that petitioner specifically conspired with co-defendant Archambult to effect the death of Michael Young. Based on an examination of the record, these findings are not clearly erroneous. Goodroad, supra at 145. Any claim of prejudice is further negated by looking to the reason petitioner pled guilty in the first place. He knowingly entered a guilty plea to the conspiracy charge with a recommended life sentence to avoid the "99-1 chance" his trial counsel predicted that he could be convicted by a jury of murder and the possible imposition of the death penalty. Gregory v. Solem, 774 F.2d at 316. Therefore, it is this court's conclusion that petitioner has failed to establish "prejudice" in that there is no showing that he sustained actual and substantial disadvantage "infecting his entire trial with error of constitutional dimensions." CONCLUSION To the greatest extent possible, all issues which bear on the criminal charge should be determined at trial; the accused is in the courtroom, the jury is in the box, the judge is on the bench, and the witnesses, having been subpoenaed and duly sworn, await their turn to testify. Society's resources have been concentrated at that time and place in order to decide, within the limits of human fallibility, the question of guilt or innocence of one of its citizens. Any procedural rule which encourages the result that the trial be as free of error as possible is thoroughly desirable. The trial on the merits is to be the "main event," rather than a "tryout on the road" for what will later be the determinative habeas hearing. Wainwright v. Sykes, 433 U.S. at 90, 97 S.Ct. at 2508, 53 L.Ed.2d at 610. Petitioner's request for a writ of habeas corpus is denied for failure to show reasonable cause pursuant to SDCL 21-27-16.1 why he did not raise the same issues in his previous habeas proceeding. Affirmed. WUEST, C.J., and MORGAN, J., concur. HENDERSON, J., concurs in result without writing. SABERS, J., concurs in result. GILBERTSON, Circuit Judge, for MILLER, J., disqualified. APPENDIX Petitioner claims that he was not entitled to a second evidentiary hearing after the Gregory I remand because it was prohibited. No such limitation can be found in that opinion. Additionally, it is clear from the correspondence of petitioner's attorneys at that time, that the state would have been very agreeable to a stipulated reopening of the record. However, petitioner's counsel were using their best efforts to block any further hearings. On December 18, 1982, Mueller wrote the circuit court and the state: First, it is my position the Record must remain as forwarded to the Supreme Court and that no additions or deletions can be made thereto. In other words, this Court's Findings and Conclusions are limited to the record as originally submitted to the Supreme Court and from which they are bound to make their final decision. It is what the record then showed and no post mortem material is to be added to the same. After Jackley replaced Mueller, Jackley wrote petitioner on April 4, 1983: Again, Garland, Mr. Mueller is in accord with this conclusion, also. It is simply 834 that Judge Moses has to issue the above mentioned and discussed findings of fact and conclusion of law based on the record, that was before him after your post conviction hearingthat is, the record upon which he issued the original findings of fact and conclusions of law. This is the same record which was sent to the Supreme Court as a part of your appeal. I think this is of great advantage to you. It does not give the State a further chance to put on any evidence. I firmly believe, particularly after reading the transcript of the Change of Plea and the Post Conviction Relief Hearing, that it will be difficult if not impossible for Judge Moses to find that you had been informed of the necessary things.... In a nutshell, I am recommending no further hearing at this time. Make the Judge decide what the Supreme Court wants on what he already has on these questions. I am not, however, going to communicate these decisions to Judge Moses until such time as I get your thinking on the situation and your approval of this course of action. So, let me know what you think as soon as possible (emphasis original). Again, on April 11, 1983, Jackley write petitioner: The State doesn't have anything to go on on these particular matters and if no further litigation is done, I don't see how Judge Moses can find that you were adequately protected in these areas. Again, I will wait to hear from you on a final answer as to whether or not you would want any further hearing in light of the above. On April 13, 1983, petitioner responded to Jackley: I just feel I was taken for a ride the first time around by [the trial] attorneys who I presume let their moral beliefs interfere with their chosen profession ("Defense Attorneys"), and did not emit their full capabilities in a defense on my behalf. On April 18, 1983, petitioner again responded to Jackley: Received your letter dated April 11, 1983 and in answer to it I again submit; I feel comfortable in your making any and all decisions that are strategically appropriate in gaining my return to court. On April 29, 1983, Jackley wrote the trial court: I am in basic agreement with Mr. Mueller's conclusions concerning the posture of the case which he expressed in his letter to Judge Moses and Craig Grotenhouse [state's attorney] dated December 18, 1982. That is: First, the Supreme Court's decision and Order dated October 27, 1983, indicated that the case was remanded for entry of specific findings and conclusion on whether appellate was advised of the nature of the charge and consequences of his plea and for a determination of whether appellant's guilty plea was a voluntary and intelligent choice among alternative choices of action. Those findings, conclusions and the determination must be made based upon the record as originally submitted to the Supreme Court and from which they must make their final decision. Nothing additional is to be included, and therefore, in short, there should be no additional hearings and no additional evidence added to the record. On June 13, 1983, Jackley wrote petitioner: I did have a conversation with a member of the State Capitol Attorney General's staff the other day, and he indicated that they as well as the Lawrence County State's Attorney's office do want a further hearing, if for no other reason then they don't feel they got their case fully presented at the last hearing. This is a good indication to me that we should avoid any further hearings if at all possible. On June 22, 1983, Jackley wrote petitioner: Bad news, but not totally unexpected. Judge Moses has issued a memorandum opinion ... and has found in favor of the state.... *835 I am still of the opinion that we were better off in not having any additional hearings. The State has knowledge of a deposition transcript taken by a court reporter with you and your attorneys Smit and Wolsky. Had they been able to get that in, I understand, talking with the Attorney General's Office that it would have made their case. As it is, we are again limited to the original file and hearing and that is all Judge Moses has used, and all that the Supreme Court will use in appeal. On June 24, 1983, petitioner wrote Jackley in response: The contents of the deposition is not so damaging that it would destroy my chances of obtaining a new trial. But as you stated, it would complicate matters. SABERS, Justice (concurring in result). I agree with the majority in denying Gregory's petition for a writ of habeas corpus because Gregory failed to show reasonable cause pursuant to SDCL 21-27-16.1 "why he did not raise the same issues in his previous habeas proceeding." I also agree with the letter and the spirit of the "Conclusion." However, I would not adopt the federal "Cause and Prejudice test" for several reasons: 1. There is no need to do so, as the South Dakota statute is clear. 2. It unduly complicates an already complicated area of the law. 3. It unduly injects a new element of "prejudice" contrary to the plain wording of SDCL 21-27-16.1. SDCL 21-27-16.1 provides in part: Any ground not raised, finally adjudicated or knowingly and understandingly waived ... may not be the basis for a subsequent application, unless the court finds grounds for relief asserted which for reasonable cause were omitted or inadequately raised[.] In other words, unless one can show reasonable cause why his grounds for relief were omitted, or inadequately raised, he cannot raise them as grounds for relief. Stated affirmatively: one can assert grounds for relief only if he can show reasonable cause why they were omitted or inadequately raised before. This statutory language is clear. It has nothing to do with prejudice and it should have nothing to do with the federal "Cause and Prejudice test." In Gregory III, we held that Gregory was entitled to an evidentiary hearing to attempt to show reasonable cause why his current issues had not been raised in the previous petition. Gregory v. Solem, 420 N.W.2d 362 (S.D.1988). We did not hold that he must show reasonable cause and prejudice, and we should not do so now. NOTES [1] There have been no less than seven attorneys representing petitioner since his initial charge of conspiracy to commit murder. To clarify the facts of this case, the following appearances should be noted. Attorneys Wolsky and Smit represented him through arraignment and sentencing. Mr. Mueller represented him on his first habeas petition and Gregory I. Shortly after remand, Mueller left to become a magistrate and was replaced by Mr. Jackley. Jackley represented petitioner in future remand proceedings and Gregory II. [2] Petitioner's consistent claim throughout is that he was not aware of the nature of the offense of conspiracy to commit murder. Arguably, this issue was decided against petitioner in Gregory II, and thus res judicata would apply. In Gregory III, this court remanded to the circuit court for a further evidentiary hearing on his present petition. In holding against petitioner on this issue, the circuit court did not rest its ruling on res judicata but rather went into the merits, concentrating on whether petitioner was advised by his trial attorneys of the elements of conspiracy to commit murder. Respondent did not file a notice of review on this point. Therefore, the issue of res judicata is not before this court. [3] SDCL 21-27-16.1 and its predecessor, SDCL 23A-34-15, appear to be patterned after section eight of the Uniform Post Conviction Relief Act. Petitioner and respondent advance arguments concerning the interpretation of SDCL 21-27-16.1 which cannot be accepted by this court. Respondent argues that SDCL 21-27-16.1 should be strictly construed as it is more limited than its predecessor, SDCL 23A-34-15. Actually, the only significant change in the two statutes is that the second sentence of 21-27-16.1 now requires that the petitioner's grounds be raised and adjudicated or knowingly and understandably waived in the initial proceeding or face a possible prohibition at later habeas proceedings. Under its predecessor, SDCL 23A-34-15, such a prohibition could apply unless the grounds were raised or finally adjudicated or knowingly and understandably waived. SDCL 21-27-16.1 cures the situation where a petitioner raises a point, the court in the initial habeas hearing fails to rule on it, and yet this statutorily results in a prohibition of the subject in future proceedings. Petitioner argues that waiver can occur pursuant to the second sentence of the statute only by a knowing and understanding waiver. This is also incorrect. Waiver can occur when grounds are raised and adjudicated or by a knowing and understanding waiver. [4] The circuit court's exact rationale on this issue is unknown. All that is contained in the record is a one page order denying the motion to dismiss. Prior to 1983, findings of fact and conclusions of law were required in habeas proceedings by SDCL 23A-34-18. With the repeal of this chapter and the codification of the present habeas chapter, SDCL 21-27, this explicit requirement was dropped. A reason for this omission may be the Legislature's belief that the general provision on civil findings of fact and conclusions of law, SDCL 15-6-52(a), imposed the same requirement. Habeas corpus proceedings are civil in nature. See SDCL 15-6-81(a) and SDCL ch. 15-6, Appendix A. To insure proper appellate review, findings of fact and conclusions of law should be entered hereafter on motions made pursuant to SDCL 21-27-16.1. In the case at bar, remand is unnecessary because of the circuit court's findings of fact and conclusions of law on the petitioner's two claims for relief, together with the court record. These findings and the record provide a basis for our disposition of this appeal. [5] To avoid undue harshness in the application of the "cause and prejudice" rule, the United States Supreme Court has adopted three exceptions in which the application of the rule is waived. None are applicable here. 1. A novel legal claim which was not reasonably available to trial counsel at the time of default. Smith v. Murray, 477 U.S. at 536, 106 S.Ct. at 2667, 91 L.Ed.2d at 446. 2. Ineffective assistance of counsel. Murray v. Carrier, 477 U.S. at 488, 106 S.Ct. at 2645, 91 L.Ed.2d at 409. 3. A fundamental miscarriage of justice such as a constitutional violation which has probably resulted in the conviction of one who is actually innocent. Id., 477 U.S. at 496, 106 S.Ct. at 2649, 91 L.Ed.2d at 413. [6] In Polly, the Iowa Supreme Court summarized the rationale from the above cited federal cases which justified the adoption of the "cause and prejudice" standard: These included extension of the trial ordeal for both society and the accused, degradation of the prominence and importance of the original criminal trial, diminution of the mutual concern of trial counsel and courts for the sanctity of constitutional safeguards when the right to correct such errors on postconviction is readily available, lessening of prisoner focus on good behavior and possible rehabilitation as prisoners concentrate on postconviction rather than parole for their release, and societal inability to punish the guilty when postconviction relief is granted so long after commission of the crime that retrial is a practical impossibility. Another reason ... is that defense counsel deliberately would elect not to appeal, thus providing the opportunity to importune a second (postconviction) district court on their client's behalf before submitting claims to an appellate tribunal. 355 N.W.2d at 855-856. [7] Petitioner admits that he testified at his 1981 habeas hearing that he had no complaint about the quality of his representation by Wolsky and Smit. He now seeks to distinguish this prior position by arguing that in 1981 he could not foresee this court's ruling in Gregory II, which he interprets to create a due process right to the criminal defendant that his attorney explain the elements of the crime to the client. This is a misinterpretation of our holding. In Gregory II we noted the long-standing due process requirement that before a plea can be voluntarily entered, the defendant must possess "an understanding of the nature of the charge." Cited with approval in this case was the analysis of the United States Supreme Court in Henderson v. Morgan, 426 U.S. 637, 647, 96 S.Ct. 2253, 2258, 49 L.Ed.2d 108, 115 (1976): Normally the record contains either an explanation of the charge by the trial judge, or at least a representation by defense counsel that the nature of the offense has been explained to the accused. (emphasis added). The ultimate burden of assuring that a defendant is advised of the nature of the charge against him falls upon the trial court and not upon the defendant's attorney. Application of Garritsen, 376 N.W.2d 575 (S.D.1985). [8] A party to an action may not make a voluntary decision concerning a trial tactic and then when they find themselves in an undesirable position as a result of that legal posture, attempt to proceed in a subsequent inconsistent manner. Judicial estoppel bars such gamesmanship. Federal Land Bank of Omaha v. Johnson, 446 N.W.2d 446 (S.D.1989); Warren Supply v. Duerr, Pliley, Thorsheim Dev., 355 N.W.2d 838 (S.D. 1984). The United States Supreme Court in Smith v. Murray applied this rationale to the use of the "cause and prejudice" standard in habeas cases: [D]efense counsel may not make a tactical decision to forgo a procedural opportunityfor instance, to object at trial or to raise an issue on appealand then when he discovers that the tactic has been unsuccessful, pursue an alternative strategy.... The encouragement of such conduct ... would undermine the accuracy and efficiency of the state judicial systems to the detriment of all concerned. Procedural defaults of this nature are, therefore, inexcusable, and cannot qualify as "cause" for purpose of federal habeas corpus review. 477 U.S. at 534, 106 S.Ct. at 2666, 91 L.Ed.2d at 444 (quoting from Reed v. Ross, 468 U.S. 1, 14, 104 S.Ct. 2901, 2909, 82 L.Ed.2d 1 (1984)).	{ "pile_set_name": "FreeLaw" }
FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 10-10131 Plaintiff-Appellee, D.C. No. v. 2:08-cr-01329-ROS-1 DAMIEN ZEPEDA, Defendant-Appellant. ORDER Filed February 10, 2014 ORDER KOZINSKI, Chief Judge: Upon the vote of a majority of nonrecused active judges, it is ordered that this case be reheard en banc pursuant to Federal Rule of Appellate Procedure 35(a) and Circuit Rule 35-3. The three-judge panel opinion shall not be cited as precedent by or to any court of the Ninth Circuit.	{ "pile_set_name": "FreeLaw" }
39 B.R. 663 (1984) In re Albert GALVAN, a/k/a Albert Joseph Galvan, Debtor. The HARTFORD INSURANCE GROUP and Margaret Paden, Plaintiffs/Appellants, v. Albert GALVAN, a/k/a Albert Joseph Galvan, Defendant/Appellee. Civ. A. No. 83-JM-2499, Bankruptcy Adv. No. 83 G 1539. United States District Court, D. Colorado, Civil Division. May 16, 1984. David W. Higgs, Law Offices of John E. Walberg, Denver, Colo., for plaintiffs/appellants. Gary E. Hanisch, Walsenberg, Colo., for defendant/appellee. ORDER JOHN P. MOORE, District Judge. THIS MATTER comes before me for review of an order of the bankruptcy court (Gueck, J.) discharging appellants' claim against the debtor. The specific issue presented is whether liability for property damage caused while the debtor was driving 664 under the influence of alcohol involves a claim for "willful and malicious injury" by the debtor and therefore falls within one of the enumerated exceptions to the general rule of dischargeability. The bankruptcy court found appellants' debt was not a claim for willful and malicious injury and ruled the debt was dischargeable. Upon review of the record below, the briefs, case law, and legislative history, I come to a different conclusion and therefore reverse. The essential facts disclosed by the record are undisputed. On May 24, 1980, the appellee-debtor, Albert Galvan ("debtor" or "Galvan"), while driving under the influence,[1] struck the residence of appellant Margaret Paden ("Paden") and caused property damage in the amount of $4,750.00. The Paden residence was insured by appellant Hartford Insurance Group ("Hartford"). Hartford, as subrogee of the claim of Paden, brought suit against Galvan in the Huerfano County District Court for the State of Colorado. Judgment in that action, entered upon stipulation, was in favor of Hartford in the amount of $4,550.00. The issue of willful and malicious conduct was never raised in the state court action. Soon after the entry of the state court judgment, Galvan filed his petition for relief in bankruptcy. Hartford and Paden filed a claim in the bankruptcy court, asserting that under 11 U.S.C. § 523(a)(6) the judgment debt was not dischargeable. That section excepts from discharge any debt "for willful and malicious injury by the debtor to another entity or to the property of another entity." The bankruptcy court reasoned the debt was not one for willful and malicious injury because there was no showing the debtor acted with intent to cause injury or in a manner which would necessarily result in injury. Hartford and Paden now seek review of the bankruptcy court's ruling that their claim was not one for willful and malicious injury. It is evident that "the boundaries of willful and malicious conduct causing injury to the person or property of another . . . do not lend themselves completely to a clear and definite pattern available for ready use in every case involving the question of non-dischargeability." Den Haerynck v. Thompson, 228 F.2d 72, 74 (10th Cir.1955). Since the turn of the century, the leading case on this subject has been Tinker v. Colwell, 193 U.S. 473, 24 S.Ct. 505, 48 L.Ed. 754 (1904). In Tinker, the United States Supreme Court enunciated the rule that "willful and malicious" could include not only conduct undertaken with a specific intent to cause injury, but also actions evidencing a willful disregard of one's known duty or wrongful conduct which necessarily causes injury. There is a disagreement about the continuing strength of Tinker v. Colwell since the enactment of the Bankruptcy Code. Legislative comments to § 523(a)(6) state "willful" means deliberate or intentional, and "[t]o the extent that Tinker v. Colwell [citation omitted] held that a looser standard is intended, and to the extent that other cases have relied on Tinker to apply a `reckless disregard' standard, they are overruled." H.R. No. 95-595, 95th Cong. 1st Sess. at 365 (1977); U.S.Code, Cong. & Adm.News 1978, pp. 5787, 6320, 6321. Some courts have refused to recognize this comment as having any binding authority. See, e.g., In re Simmons, 9 B.R. 62 (Bkrtcy.S.D.Fla.1981); In re Rines, 18 B.R. 666 (Bkrtcy.M.D.Ga.1982); In re Askew, 22 B.R. 641 (Bkrtcy.M.D.Ga.1982). Other courts, relying upon this comment, have required specific intent on the part of the debtor before finding a debt non-dischargeable under § 523(a)(6). See, e.g., In re Davis, 26 B.R. 580 (Bkrtcy.D.R.I.1983); In re Oakes, 24 B.R. 766 (Bkrtcy.N.D.Ohio 1982). In the present case, the bankruptcy court in part followed the latter line of reasoning in its determination that appellants' claim was not one for "willful and malicious" injury to property. 665 It is my conclusion, however, that the enactment of 11 U.S.C. § 523(a)(6) worked no change in the concept of willful and malicious behavior, notwithstanding the legislative history and comments regarding Tinker v. Colwell. Analysis of legislative history is a useful tool where the language of the statute is ambiguous; however, in the present case, the language of the statute is clear. Thus, resort to committee reports, legislative comments, and the like is unnecessary. Moreover, when the Bankruptcy Code was enacted, the statutory language remained unchanged. It is presumed that when Congress drafts a statute it does so with full knowledge of the existing law; thus, if Congress intended there to be a different standard under the Bankruptcy Code than was formerly employed, it could have modified the language of the statute. See In re Simmons, supra; In re Rines, supra. Having determined the meaning of "willful and malicious" remains unchanged under the Bankruptcy Code, appellants' claim must be examined in light of that standard. The analysis in the present case is complicated by the fact that at the time of the accident, Galvan was driving while intoxicated. The questions presented are whether Galvan's conduct was willful and maliciousor merely negligent, and whether the fact Galvan was intoxicated negates the requisite intent element. Clearly, "willful"; means deliberate or intentional. 3 Collier on Bankruptcy (15th ed.) § 523.16. "Intentional" means acting with intent to bring about certain consequences. Restatement (Second) of the Law of Torts § 8A. Yet, the law has always recognized that intent may be implied from conduct. Where one follows a course of conduct which is so certain to bring about a particular result, it will be presumed from the conduct itself that the actor intended the result. Restatement (Second) of the Law of Torts, supra, at notes a and b. In other words, where a particular consequence is so likely to flow from a course of conduct, one who embarks on that course will be treated as if he intended the result, even in the absence of evidence of specific intent to cause the injury. The bankruptcy court declined to find Galvan's act of driving while intoxicated was the type of conduct which is so likely to cause damage that his injurious acts may be deemed intentional. I disagree with that conclusion. In my opinion, that result does not recognize the realities of drunken driving. At the time of the accident, the debtor had a blood alcohol content of .172. It was undisputed that Galvan had been drinking the night before and into the morning of the accident. Although Galvan may not have subjectively intended to inflict damage to the Paden residence, he embarked upon a course of conduct whereby the possibility of having an injury accident was so great as to be almost a certainty. Therefore the intent to cause the injury may be implied from the conduct. According to this analysis, the injury inflicted by Galvan is deemed intentional. Thus, appellants' claim is one for willful and malicious injury to property, and it is not dischargeable in bankruptcy. This result is consistent with the law in this circuit prior to the enactment of the Bankruptcy Code. In Den Haerynck v. Thompson, supra, it was held that a claim based upon a wrongful death judgment recovered from a motorist who was intoxicated at the time of the accident was not dischargeable in bankruptcy. There the court found the injury resulting from the debtor's operation of his automobile with "wanton disregard" for the rights of others a "willful and malicious injury," despite the fact the debtor did not act with the specific intent to cause the injury.[2] That is not to say that acts of simple negligence may provide the basis for willful and malicious injury. Clearly, 11 U.S.C. § 523(a)(6) requires a much higher degree of misconduct before such an injury will be *666 found. I find only that it is entirely consistent with traditional tort and bankruptcy principles to find the debtor in the present case, by driving under the influence of alcohol and damaging appellants' property, inflicted a willful and malicious injury. In my opinion, this is the type of injury which cannot be dischargeable. Accordingly, it is ORDERED that the bankruptcy court order dated November 21, 1983, is reversed. NOTES [1] At the time of the accident, Galvan's blood alcohol level was .172. In Colorado, a person is presumed intoxicated when his blood alcohol level measures .15. [2] See also, Pelletti v. Membrila, 234 Cal.App.2d 606, 44 Cal.Rptr. 588 (1965). (Where driver exhibited several elements of misconduct, including intoxication, the question of whether defendant's conduct was willful was a question for the jury.)	{ "pile_set_name": "FreeLaw" }
21 Cal.2d 237 (1942) In re FRANK PORTNOY et al., on Habeas Corpus. Crim. No. 4429. Supreme Court of California. In Bank. Nov. 17, 1942. Clifford Thoms for Petitioners. John Neblett, District Attorney, for Respondent. GIBSON, C.J. Petitioners were convicted in the Justice's Court of Riverside County under two counts of a complaint charging them with violating the provisions of Ordinance No. 248 of that county. The judgments of conviction were affirmed on appeal by the superior court. A writ of certiorari, which was sought to annul the judgments of conviction, was denied by this court upon the ground that no excess of jurisdiction was present. (Portnoy v. Superior Court, 20 Cal.2d 375 [125 P.2d 487].) This proceeding in habeas corpus is based upon the contention that the sections of the ordinance under which petitioners were convicted are 239 unconstitutional. If petitioners were in fact convicted under the terms of an unconstitutional ordinance, there can be no doubt of the power and duty of this court to order them released upon a proceeding in habeas corpus. (See In re Bell, 19 Cal.2d 488 [122 P.2d 22].) The first count of the complaint is founded upon section 2 of the ordinance which provides: "It shall be unlawful for any person, either as owner, lessee, principal, agent, employee, servant, clerk, waiter, cashier or dealer to establish, lease, open, maintain, keep, carry on or work in any building, house or room or any other place where any game, device, scheme, gaming or gambling is permitted, allowed or carried on in violation of any of the provisions of this Ordinance or in violation of the law of the State of California." Count two of the complaint was subsequently dismissed. The third count is based upon section 4 of the ordinance which reads: "... it shall be unlawful for any person to own or have in his possession or under his custody or control any slot machine, upon the result of the action of which money or other valuable thing is staked or hazarded and which is or may be operated or played by placing or depositing therein any coins, checks or slugs, or as a result of the operation of which any money or other representative of value is or may be won or lost, when the result of the action or operation of said slot machine is dependent in whole or in part upon hazard or chance." Petitioners contend that sections 2 and 4 of the ordinance are unconstitutional in that they constitute a duplication of existing provisions of the Penal Code, a duplication which creates a conflict between the state and the local law necessitating the invalidation of the latter. [1] The control of gambling activities is a matter concerning which local governments possess power to enact and enforce local regulations not in conflict with general laws, for the purpose of supplementing those laws. (Const., art. XI, 11; In re Murphy, 128 Cal. 29 [60 P. 465]; cf. Mann v. Scott, 180 Cal. 550, 556 [182 P. 281]; In re Hoffman, 155 Cal. 114 [99 P. 517, 132 Am.St.Rep. 75].) This is not a matter, in other words, which comes within the group of municipal affairs as to which local regulations are superior to a state statute (cf. City of Pasadena v. Charleville, 215 Cal. 384 [10 P.2d 745]), or within the class of cases in which the Legislature has indicated its intent to occupy the field fully to the exclusion 240 of any local regulation. (Cf. Pipoly v. Benson, 20 Cal.2d 366 [125 P.2d 482].) [2] Insofar as the provisions of Ordinance No. 248 purport to prohibit acts which already are made criminal by the Penal Code, it is clear that they exceed the proper limits of supplementary regulation and must be held invalid because in conflict with the statutes which they duplicate. (Pipoly v. Benson, supra, p. 370; In re Sic, 73 Cal. 142 [14 P. 405]; In re Mingo, 190 Cal. 769 [214 P. 850]; Ex parte Daniels, 183 Cal. 636, 645 [192 P. 442, 21 A.L.R. 1172].) An examination of Penal Code, section 330a, illustrates the duplication here existing and demonstrates the invalidity of section 4 of the ordinance upon which count three of the complaint is founded. Thus, Penal Code, section 330a, provides: "Every person, who has in his possession or under his control, either as owner, lessee, agent, employee, mortgagee, or otherwise, or who permits to be placed, maintained or kept, in any room, space, inclosure or building owned ... by him, or under his management or control, any slot or card machine, contrivance, appliance or mechanical device, upon the result of action of which money or other valuable thing is staked or hazarded, and which is operated, or played, by placing or depositing therein any coins, checks, slugs, balls, or other articles or device, or in any other manner and by means whereof, or as a result of the operation of which any merchandise, money, representative or articles of value, checks, or tokens, redeemable in, or exchangeable for money or any other thing of value, is won or lost, or taken from or obtained from such machine, when the result of action or operation of such machine, contrivance, appliance, or mechanical device is dependent upon hazard or chance ... is guilty of a misdemeanor. ..." (Italics ours.) Substantially the entire text of section 4 of the ordinance is found in Penal Code, section 330a. Under the cases cited above there is no alternative to declaring section 4 invalid to the extent of such duplication. Respondents urge, however, that certain of the language used in section 4 of the ordinance is broader than the language used in the Penal Code, and it is suggested that the ordinance can be sustained insofar as its provisions can be said to supplement, rather than duplicate, existing statutes. Thus, it is pointed out that the ordinance, unlike the statute, is so worded as to prohibit the possession of any slot machine upon the action of which money is hazarded and which "is 241 or may be operated or played by placing or depositing therein any coins ... or as a result of the operation of which any money ... is or may be won or lost. ..." Assuming for the purposes of this proceeding the validity of respondents' contention that there is a substantial difference between prohibiting the possession of slot machines upon which money is hazarded and prohibiting the possession of machines upon which money may be hazarded (see Chapman v. Aggeler, 47 Cal.App.2d 848 [119 P.2d 204]; cf. contra People v. Kay, 38 Cal.App.2d Supp. 759 [102 P.2d 1110]), this distinction is unavailing in the present case. The ordinance, like the statute, contains as an integral part of the description of the prohibited acts the phrase "upon the result of the action of which money or other valuable thing is staked or hazarded." The words "may be" appearing in the ordinance are used only in connection with the additional descriptive phrases dealing with the operation of the machines. Thus, the requirement is identical under both the statute and the ordinance with respect to an essential element of the crime, the hazarding of money. It follows that section 4 of the ordinance results in an unconstitutional duplication of section 330a of the Penal Code and is therefore invalid. [3a] Similar considerations are controlling with respect to a portion of the activities prohibited by section 2 of the ordinance. Penal Code, section 331, provides: "Every person who knowingly permits any of the games mentioned in section three hundred thirty and section three hundred thirty a of this code to be played, conducted, or dealt in any house owned or rented by such person, in whole or in part, is punishable as provided in the preceding sections." It is apparent that section 2 of the ordinance is a duplication of Penal Code, section 331, insofar as it purports to prohibit an owner or lessee from establishing, leasing, opening, maintaining, keeping, or carrying on a house in which any of the gambling activities covered by the Penal Code are permitted to be conducted. Partial invalidity of section 2 of the ordinance must therefore be conceded. Respondents contend, however, that the language of section 2 includes activities which are not prohibited by the Penal Code. Thus, the prohibitions of the ordinance apply to a "principal, agent, employee, servant, clerk, waiter, cashier or dealer" as well as to an owner or lessee, and the ordinance includes "building, room, or any other place" as well as a house. Relying upon section 20 242 of the ordinance, which provides that if "any section, subdivision, paragraph, sentence, clause or phrase of this Ordinance is for any reason held to be unconstitutional, such decision shall not affect the remaining portions of this Ordinance. ...", respondents argue that section 2 must be sustained insofar as it prohibits acts in addition to those prohibited in the Penal Code. [4] The rule is well settled, where such a severability clause is included, that the valid portions of a statute or ordinance which is partially unconstitutional will be upheld if the remaining portion is severable and constitutes a completely operative expression of the legislative intent. (Bacon Service Corp. v. Huss, 199 Cal. 21, 32 [248 P. 235].) On the contrary, however, where the invalid portions of the statute are so connected with the rest of the statute as to be inseparable, it is clear that the entire act must fall. (Bacon Service Corp. v. Huss, supra; In re White, 195 Cal. 516 [234 P. 396]; Robison v. Payne, 20 Cal.App.2d 103 [66 P.2d 710].) [3b] In the instant case the provisions of section 2 are so inseparably connected that it is impossible to sustain any part of the section after the invalidation of the part in conflict with the provisions of the Penal Code. This conclusion becomes apparent upon examining the language of the section, because the question of a conflict between the ordinance and the Penal Code depends upon which combination of the various individuals and activities specified is involved in a particular case. Nothing less than a complete rewriting of this section could make it consistent with the provisions of the Penal Code and accomplish its true function as supplementary legislation. Since the invalid portions of section 2 cannot be severed from the rest of the section, it must be declared wholly invalid. Sections 2 and 4 of Ordinance No. 248 are unconstitutional. The judgments of conviction thereunder and petitioners' present detention are therefore unlawful. Petitioners are discharged. Shenk, J., Curtis, J., Edmonds, J., Carter, J., Traynor, J., and Spence, J. pro tem., concurred.	{ "pile_set_name": "FreeLaw" }
NUMBERS 13-05-635-CV 13-06-029-CV COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG ___________________________________________________________________ EMMA NUNEZ, ET AL., Appellants, v. AQUA CHEM D/B/A CLEAVER BROOKS DIVISION, Appellee. ___________________________________________________________________ On appeal from the 319th District Court of Nueces County, Texas. ___________________________________________________________________ MEMORANDUM OPINION Before Chief Justice Valdez and Justices Yañez and Garza Memorandum Opinion Per Curiam Appellants, EMMA NUNEZ, ET AL., perfected an appeal from a judgment entered by the 319th District Court of Nueces County, Texas, in cause number 01-05717-G. After the notice of appeal was filed, appellee, Aqua Chem d/b/a Cleaver Brooks Division, filed a motion requesting that this Court sever and dismiss it from this appeal. In the motion, appellee states that appellants agreed to nonsuit it from this matter prior to hearing and mistakenly included it as a party to the appeal. Appellee requests that this Court sever and dismiss Aqua Chem d/b/a Cleaver Brooks Division from this appeal. Appellants= appeal against appellee, AQUA CHEM D/B/A CLEAVER BROOKS DIVISION, is severed from the original appeal and is docketed under cause number 13-06-029-CV. Having considered appellee=s motion to dismiss the appeal and the documents on file, this Court is of the opinion that the motion should be granted. The motion to dismiss appellants= appeal against appellee, AQUA CHEM D/B/A CLEAVER BROOKS DIVISION, is hereby granted. The appeal against appellee, AQUA CHEM D/B/A CLEAVER BROOKS DIVISION, in cause number 13-06-029-CV is ordered DISMISSED. The remaining issues in the appeal will remain docketed under cause number 13-05-635-CV. PER CURIAM Memorandum Opinion delivered and filed this the 9th day of February, 2006.	{ "pile_set_name": "FreeLaw" }
39 Ill. App.3d 908 (1976) 351 N.E.2d 366 THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MICHAEL AKINS, Defendant-Appellant. No. 61373. Illinois Appellate Court First District (5th Division). Opinion filed June 25, 1976. 909 James R. Streicker and Steven Clark, both of State Appellate Defender's Office, of Chicago, for appellant. Bernard Carey, State's Attorney, of Chicago (Laurence J. Bolon, Michael E. Shabat, and Larry L. Thompson, Assistant State's Attorneys, of counsel), for the People. Judgment affirmed. Mr. JUSTICE BARRETT delivered the opinion of the court: Defendant Michael Akins was found guilty of murder, attempt murder and aggravated battery in violation of sections 9-1, 12-4 and 8-4 of the Criminal Code (Ill. Rev. Stat. 1971, ch. 38, pars. 9-1, 12-4 and 8-4) in a jury trial in the circuit court of Cook County. He was sentenced to the penitentiary for not less than 20 nor more than 30 years for murder; not less than 4 nor more than 12 years for attempt murder; and not less than 3 nor more than 9 years for aggravated battery with all sentences to run concurrently. On appeal defendant contends: (1) he was not proven guilty beyond a reasonable doubt; (2) his murder conviction should be reduced to voluntary manslaughter; (3) the jury should not have been given an instruction on flight; (4) the trial court erred in entering judgment and sentence on the jury verdict of guilty of aggravated battery. On the evening of August 20, 1971, at approximately 7:30 p.m. a small group of people gathered in front of the residence at 134 East 105th Street, Chicago, Illinois to converse and pass the time. Defendant, who emerged from a nearby alley, exchanged words with Charles Redmon, whereupon they began fighting and wrestled to the ground. Friends and relatives, including George Redmon, Charles' brother, and Helen Rimmer, defendant's mother-in-law, attempted to break up the fight and finally succeeded in forcibly pulling them apart. Shortly thereafter defendant drew his handgun, and fired shots seriously wounding George 910 Redmon and killing Charles Redmon. Two conflicting versions of the shootings were presented to the jury. George Redmon testified for the State that he was in front of his aunt's property at 134 East 105th Street when he saw the defendant come out of the alley adjacent to the property. Charles Redmon, the deceased, and defendant began talking. After some name calling, Charles attempted to hit defendant but missed. Defendant grabbed Charles and they wrestled to the ground near the curb of the street. George attempted to pull defendant from Charles. Finally, Welborn Freeman pushed George away and Mrs. Chatman (Helen Rimmer) separated Charles and defendant. Charles was lying on the ground and defendant rose to his feet. At that point George turned around and noticed defendant pointing a gun in his direction. George started to run but was shot in the back. The bullet caused him to spin around and he fell to the ground on his back. George further testified that he heard the gun repeatedly fire before defendant shot him again, this time in the leg. Patricia Driskell testified for the State that when she reached the altercation the defendant was positioned on top of Charles and several people were attempting to break up the fight. When the parties had been separated she bent down over Charles, who was still on the ground, and told him that the fight was over and asked him to come into the house. Then she heard the shots. She looked up at the defendant and observed "sparks coming from his hand." She saw the gun and began to run back to the house. Charles was about seven or eight feet from defendant when the shooting began. She heard a total of six shots. Welborn Freeman, the brother of Patricia Driskell, testified that Mrs. Chatman asked him to stop the fight. He pulled George from the defendant and thrust him towards the sidewalk fence. As George was getting up off the ground the first shot was fired. He said he turned around and observed that defendant was aiming a pistol at George. Defendant shot George, turned to his left and shot Charles, who was still on the ground, and then turned back to his right and again shot George. Six shots were fired. Donald Rimmer (a/k/a Donald Chatman) testified for the defense that the defendant was positioned atop the deceased who was striking defendant in the face saying he would kill him. He said he saw Patricia Driskell with a kitchen knife saying "hold him, I will stab him." He pushed her away and helped to break up the fight. His mother, Helen Rimmer, was able to get defendant to his feet. As she was leading the defendant away Welborn Freeman charged the defendant shouting, "Hold it * * , I am going to kill this * ." Welborn was three feet away when defendant turned and fired his gun and he used the deceased 911 as a shield when the shooting began. He further testified that he did not see Welborn with a gun or a knife. Helen Rimmer (a/k/a Helen Chatman), defendant's mother-in-law, testified for the defense that she picked the defendant up and began taking him home when Welborn Freeman ran up behind defendant threatening his life. Defendant rapidly turned around and started shooting. Welborn then picked Charles up using him as a shield. About two or three minutes elapsed from the time Mrs. Rimmer attempted to end the fight to the time the shots were fired. Defendant testified that he was 21 years old and had been convicted of robbery. The fight had ended when his mother-in-law pulled him up. As he started for home he heard someone from behind and immediately started to fire. He did not observe a weapon or "bother" to look and see who was approaching. He further testified that he only fired his weapon when he heard someone behind him say something using the word "kill." He did not remember the exact words and did not know if the comments were directed at him, but he did remember turning half way around and shooting the gun twice. At that time he was dazed and unaware of all that was happening. After the shootings he stayed at various relatives' homes and then left for Aurora, although an attorney had advised him to surrender to authorities. He obtained a job in St. Charles using the name Larry Alexander. Within two weeks after his arrival in Aurora he was arrested by Aurora police who had observed the car he was driving stop in a no parking zone and block traffic. He told police his name was Larry Alexander, and later that it was Michael Atkins. A search of the defendant's car produced a semi-automatic .25-caliber pistol. It was stipulated at trial that test bullets fired from this weapon were similar ballistically to bullets recovered in the shooting of the Redmon brothers. Dr. Edward Shalgos, a pathologist, was called in rebuttal for the State. He testified that he performed an autopsy on the body of Charles Redmon and noted the presence of two bullet wounds. One wound was received in the upper region of Redmon's right chest. The point of entry and the course of the bullet through the body indicated to him that the gun was held in a position over the victim. The second wound was received in the back of the victim's right chest. This indicated to him that Redmon had his back toward the person who shot him. He further stated it was most unlikely that both wounds were suffered when Redmon was standing unless the hand holding the pistol was above him. William Jannotta, a homicide investigator for the Chicago Police Department, testified for the State in rebuttal that Mrs. Rimmer told him she was not at the scene of the shooting. 912 OPINION Defendant first contends he was not proven guilty beyond a reasonable doubt since he acted in the reasonable belief that his actions were in self-defense. He argues that he was justified in using deadly force because of his belief that he was about to be assaulted. Whether a killing is justified under the law of self-defense is a question of fact to be determined by the jury under proper instructions. (People v. Johnson (1969), 112 Ill. App.2d 148, 251 N.E.2d 393.) The law allows a person to use deadly force in defense of himself if he reasonably believes that such force is necessary to prevent imminent death or great bodily harm. (Ill. Rev. Stat. 1971, ch. 38, par. 7-1.) Since self-defense is an affirmative defense, where it is raised, the burden is on the State to disprove it beyond a reasonable doubt in order to show defendant's guilt. (People v. Warren (1965), 33 Ill.2d 168, 210 N.E.2d 507.) Once a jury has decided this question its verdict will not be disturbed unless the evidence is so palpably contrary to the verdict or so unsatisfactory that it justifies a reasonable doubt of the defendant's guilt. People v. McClain (1951), 410 Ill. 280, 102 N.E.2d 134. 1 We believe that the evidence was sufficient to disprove beyond a reasonable doubt defendant's claim of self-defense and to justify the jury's verdicts. The State's evidence demonstrated that the defendant held the most deadly weapon at the scene. It showed that George Redmon was some distance from defendant and that he began to run when the defendant pointed a pistol at him. The evidence further showed that Charles was still lying on the ground when he was shot. Moreover, there was no claim made during the trial that either Charles or George Redmon had any weapon in his possession. Indeed, defendant admitted he did not observe a weapon at the time his alleged assailant approached him. Clearly, no threat to the defendant's life had been presented by either of the victims. Although the defense argues Welborn Freeman rapidly approached defendant from behind shouting he would kill defendant, Welborn testified he was facing the house talking to George Redmon when the first shot was fired. We hold the jury was justified in finding from the evidence that defendant did not act in self-defense. Defendant next contends his murder conviction should be reduced to voluntary manslaughter. He argues that he was acting under a sudden and intense passion resulting from serious provocation and that a sufficient cooling off period had not passed when the shots were fired. (People v. Johnson (1972), 4 Ill. App.3d 249, 280 N.E.2d 764.) In Johnson the court reduced defendant's conviction from murder to voluntary manslaughter stating that there was no pause in the activities of the two combatants to show that the fatal blow was attributable to malice or revenge. In the instant case, however, a pause in the altercation occurred. 913 Defendant testified that the fight had ended and he had started for home when he heard someone behind him. Johnson, then, is factually inapposite. Defendant cites People v. Bartley (1914), 263 Ill. 69, 104 N.E. 1057, for the proposition that the pause in the fight did not constitute a sufficient cooling off period because only seconds elapsed between the end of the fight and the shootings. His reliance on this case is misplaced. In Bartley the accused and the deceased fought with fists, then with garden equipment, and finally the accused shot the deceased while the latter was about to strike him with an ax. The accused, after the exchange with the garden equipment, left the scene of the fight, retrieved a gun, and returned to the farmyard where he shot the deceased to death. In reversing the accused's conviction for murder, the Supreme Court of Illinois held that at most the conviction should have been for manslaughter. The court reasoned that there had been a serious and highly provoking injury inflicted upon the accused and an attempt to further commit a serious personal injury upon him. Moreover, the difficulty between the accused and the deceased had not terminated even though there had been a break in the fighting. Therefore, an interval of a few minutes did not constitute sufficient cooling time. 2 Here, in contrast, when the defendant began walking away from the fight scene after the fight had ended, he reacted with deadly force to a verbal statement which he only partially heard. Admittedly, he did not "bother" to look and see who was approaching nor did he observe anyone with weapons. Although only seconds may have passed between the end of the fight and the shootings, we believe that there was a sufficient pause to permit passions to cool and the voice of reason to be heard. As stated by the court in People v. Harris (1956), 8 Ill.2d 431, 435, 134 N.E.2d 315: "What constitutes a sufficient `cooling-off period' depends upon the extent to which the passions have been aroused and the nature of the act which caused the provocation (26 Am. Jur., Homicide, sec. 24), and, for that reason, no yardstick of time can be used by the court to measure a reasonable period of passion but it must vary as do the facts of every case. Humans react violently to the infliction of a serious injury, and the degree of pain which results therefrom not only governs the passion itself but also influences the duration of the cooling period." (See also People v. Walker (1965), 55 Ill. App.2d 292, 204 N.E.2d 594, and People v. Hough (1968), 102 Ill. App.2d 287, 243 N.E.2d 520.) Under the circumstances of this case the jury could justly determine that defendant acted without sufficient provocation. Defendant also argues that this court should reduce the conviction from murder to voluntary manslaughter since he believed that this use of 914 deadly force was necessary in his own defense but that such belief was unreasonable. 3 From the evidence presented we believe the jury was justified in finding that defendant's acts were deliberate and motivated from malice or deliberate revenge. As our Supreme Court stated in People v. Bolger (1934), 359 Ill. 58, 68, 194 N.E. 225: "The law has committed to the jury, or to the trial court where a cause is tried by the court, the determination of the credibility of the witnesses and of the weight to be accorded to their testimony, and where the evidence is merely conflicting this court will not substitute its judgment for that of the jury or the trial court." Defendant next contends that it was error to give the following flight instruction to the jury: "The court instructs the jury that if the jury believes from the evidence beyond all reasonable doubt, that the defendant, immediately after the commission of the crime with which he stands charged, fled and remained away until taken into custody, such flight is a proper circumstance to be considered in determining the guilt or innocence of the defendant." We believe that People v. Burris (1971), 49 Ill.2d 98, 273 N.E.2d 605, is dispositive of this contention. In Burris our Supreme Court considered a similar instruction on flight. The court affirmed its use and stated they did not see how the giving of the instruction could have reasonably affected the verdict. 4 Here, as in Burris, the instruction did not tell the jury that defendant had fled. It merely told them that if they found from the evidence defendant had fled then that fact could be considered in their deliberations. We also believe that there is ample evidence in the record to support the instruction. Therefore, we do not find that error was committed by giving the instruction on flight. Finally, defendant contends that the attempt murder and aggravated battery convictions arose from a single course of conduct and he should have been convicted and sentenced only of attempt murder. In support of his contention defendant cites People v. Steen (1972), 9 Ill. App.3d 488, 292 N.E.2d 513, and People ex rel. Walker v. Pate (1973), 53 Ill.2d 485, 292 N.E.2d 387. Steen is not in point as it involved acts that occurred almost simultaneously. Pate is not in point either as it involved the single act of shooting the victim once. Here, defendant first fired his weapon at George Redmon hitting him in the back. Defendant next fired a series of shots at the deceased, Charles Redmon. Then defendant turned and again fired his weapon at George wounding him in the leg. In People v. Harper (1972), 50 Ill.2d 296, 278 N.E.2d 771, the court 915 rejected the contention that the imposition of two separate sentences for the crimes of rape and robbery of a single victim was impermissible. The court said: "While it is true that the rape and robbery occurred in a series of acts committed at the same place and within a short time, it is equally true that they constituted separate acts involving different elements. As such, they were separate offenses for which concurrent sentences were both constitutionally and statutorily permissible. People v. Johnson (1970), 44 Ill.2d 463; People v. Raby (1968), 40 Ill.2d 392." 50 Ill.2d 296, 302. 5 The same reasoning is directly applicable to the instant case. The attempt murder had no necessary connection with the aggravated battery since the attempt murder was complete before George was shot in the thigh. The crimes were separate and distinct although only one victim was involved. Defendant's concurrent sentences on both the attempt murder and aggravated battery of George Redmon were therefore proper. The judgment of the circuit court of Cook County is accordingly affirmed. Affirmed. LORENZ, P.J., and SULLIVAN, J., concur.	{ "pile_set_name": "FreeLaw" }
473 Pa. 369 (1977) 374 A.2d 689 WORKMEN'S COMPENSATION APPEAL BOARD of the Commonwealth of Pennsylvania and William H. Collier, Appellant, v. OVERMYER MOLD COMPANY, Appellee. Supreme Court of Pennsylvania. Argued September 23, 1976. Reargument Denied July 6, 1977. Decided June 3, 1977. 370 Thomas W. Scott, Killian & Gephart, Harrisburg, for appellant. Ralph A. Davies, Thomson, Rhodes & Grigsby, Pittsburgh, Linton L. Moyer, James N. Diefenderfer, Allentown, for appellee. Before JONES, C.J., and EAGEN, O'BRIEN, ROBERTS, POMEROY and MANDERINO, JJ. OPINION MANDERINO, Justice. Section 306(f) of The Pennsylvania Workmen's Compensation Act, Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 531, provides for payment by the employer for ". . . reasonable surgical and medical services, services provided by duly licensed practitioners of the healing arts, medicines, and supplies, . . ." made necessary by a work related injury to an employee. On November 17, 1972, while in the employ of appellee, Overmyer Mold Company, appellant, William H. Collier, suffered a work-related injury to his lower back. Following his injury, appellant consulted one Dr. Testa, a physician engaged in the general practice of medicine, who had been designated by appellee as one of five authorized treating physicians in accordance with Section 306(f) of the Workmen's Compensation Act. After three visits, Dr. Testa told appellant that he could not do him any good, and that appellant should seek work involving less strenuous physical exertion. 371 Appellant then consulted one Dr. Andrew Krupar, a Doctor of Chiropractic, and after a three month period of treatment, was sufficiently recovered from the effects of the November 17, 1972, injury that he was able to return to his previous job without any disability or other problem. When appellant presented the chiropractor's bill to appellee, payment was refused. Appellant then filed a claim with the Bureau of Workmen's Compensation seeking reimbursement. A hearing was held before an appointed Workmen's Compensation Referee who concluded that the $210.00 chiropractor's fee was a legitimate medical expense incurred as the result of a work related injury within the meaning of the Workmen's Compensation Act, and that appellee was therefore liable under Section 306(f) for its payment. Appellee appealed the referee's decision to the Workmen's Compensation Appeal Board (Board), which affirmed that decision in an opinion dated November 26, 1974. Appellee then appealed to the Commonwealth Court, argument was held before a three judge panel, and a decision and opinion was filed on July 25, 1975, reversing the decision of the Board and denying appellant's request for compensation. Workmen's Compensation Appeal Board v. Overmyer Mold Co., 20 Pa.Cmwlth. 456, 342 A.2d 439 (1975). We granted appellant's petition for allowance of appeal, and this appeal followed. Appellant presents several arguments in support of his contention that the Commonwealth Court's decision was in error. Because we agree with appellant that Section 306(f) of the Workmen's Compensation Act requires appellee to pay the claim at issue, we need not now address the other issues raised. Section 306(f), reads pertinently as follows: "The employer shall provide payment for reasonable surgical and medical services, services rendered by 372 duly licensed practitioners of the healing arts, medicines, and supplies, as and when needed: Provided, That the employe may select a duly licensed practitioner of the healing arts of his own choice, unless at least five physicians shall have been designated by the employer or by the employer and the employe's representative by agreement, in which instances the employe shall select a physician from among those designated. . . If the employe shall refuse reasonable services of duly licensed practitioners of the healing arts, surgical, medical and hospital services, treatment, medicines and supplies, he shall forfeit all rights to compensation for any injury or any increase in his incapacity shown to have resulted from such refusal." (Emphasis added.) In reversing the Board's award of compensation, the Commonwealth Court concluded that Section 306(f)'s provision that ". . . the employe may select a duly licensed practitioner of the healing arts of his own choice, unless at least five physicians shall have been designated by the employer . . ., in which [instance] the employe shall select a physician from among those designated . . . ." meant that ". . . the employe choosing medical services other than those provided by [the] designated physicians, without authorization of the employer or the designated physician, should not have reimbursement for such other services." 20 Pa.Cmwlth. 460, 342 A.2d 441. We believe this conclusion rests on an erroneous interpretation of the language of Section 306(f). The pertinent part of Section 306(f) makes reference to "practitioners of the healing arts," and to "physicians". These terms are not synonymous. They have distinct statutory definitions. The Statutory Construction Act defines "healing art" as "[t]he science of diagnosis and treatment in any manner whatsoever of disease or any ailment of the human body." 1 Pa.C.S.A. 373 § 1991. A "practitioner of the healing arts" is therefore one who engages in, applies, or makes use of, ". . . the science of diagnosis and treatment . . . of disease. . ." and other ailments of the human body. "Physician," on the other hand, is defined by the Statutory Construction Act as follows: ". . . an individual licensed under the laws of this Commonwealth to engage in the practice of medicine and surgery in all of its branches within the scope of the act of June 3, 1911 (P.L. 639) relating to medicine and surgery and its amendments, or in the practice of osteopathy or osteopathic surgery within the scope of the act of March 19, 1909 (No. 29) and its amendments." 1 Pa.C.S.A. § 1991. Keeping in mind the distinction between "practitioners of the healing arts" and "physicians," we are unable to conclude that the unless clause of 306(f) was intended to take away rights clearly given to the employee by those portions of the section preceding the unless clause. The section plainly starts out by requiring the employer to pay for services rendered by any duly licensed practitioner of the healing arts. It then provides that the employee may select any duly licensed practitioner of the healing arts he or she chooses. These portions of the section would clearly entitle appellant to the payment of the $210.00 bill. This was a bill rendered by a practitioner of the healing arts, and no issue has been raised concerning the necessity for the services or the reasonableness of the charges. The issue is whether the duty of the employer and the right of the employee specified in the first portion of the section were intended to be taken away by the unless clause. The only restriction contained in the unless clause is the limitation on the employee's freedom of choice when choosing a physician, and then only if the employer 374 has designated at least five physicians. Appellee would have us read this clause to mean that when five physicians have been designated, the employee shall select a physician and no other practitioner of the healing arts. Even were we to concede that such an interpretation is plausible, it is not the only reasonable interpretation. As appellant has argued, it is also reasonable to interpret the unless clause to mean that the employee must choose one of the designated physicians if the employee chooses to use a physician. If the employee does not choose to use a physician, the unless clause is not applicable. In the absence of a clear legislative mandate that an employee's right to use any practitioner of the healing arts is taken away when five physicians are designated, we decline to accept appellee's interpretation. Our interpretation of Section 306(f) more fully comports with the purpose of the Workmen's Compensation Act: to compensate employees for accidentally inflicted work related injuries. Monahan v. Seeds and Durham, 336 Pa. 67, 6 A.2d 889 (1939). The Act is designed to speedily adjudicate and protect the employee's rights. See Taylor v. Ewing, 166 Pa.Super. 21, 70 A.2d 456 (1950), and Jester v. Electric Power Const. Co., 113 Pa.Super. 177, 172 A. 154 (1934). To accomplish this purpose it has been repeatedly said that the Act should be liberally construed. See Billick v. Republic Steel Corp., 214 Pa.Super. 267, 257 A.2d 589 (1969); Chernetsky v. William Penn Stripping Co., 200 Pa.Super. 277, 188 A.2d 770 (1963); Shatto v. Bardinet Exports, 170 Pa.Super. 16, 84 A.2d 388 (1951); Cope v. Philadelphia Toilet and Laundry Supply Co., 167 Pa.Super. 205, 74 A. 2d 775 (1950). As stated by the Superior Court in Dupree v. Barney, 193 Pa.Super. 331, 336, 163 A.2d 901, 904 (1960), "It may be trite to again point out that the Workmen's Compensation Law is a remedial Act passed for 375 the benefit of workers, authorized by the police powers of the State and is frequently referred to as a humanitarian measure. The Workmen's Compensation Act was passed for the purpose of protecting workmen. [Citation omitted.] For this purpose it must be liberally construed." Our interpretation of Section 306(f) is made with these precepts in mind. The purpose of the section is to secure ". . . payment for reasonable surgical and medical services, services rendered by duly licensed practitioners of the healing arts, medicines, and supplies, as and when needed . . ." to treat an employee for his or her work related injury. An employee's rights to such treatment are more fully protected if the choice as to the kind of treatment desired is left as much as possible with the employee. If the legislature had intended to restrict the employee's rights to choose "any practitioner of the healing arts," it could have limited that choice by allowing the employer to designate certain "practitioners of the healing arts" from which the employee was to choose. This the legislature did not do. Instead, we believe the legislature intended only to limit the employees choice as to "physicians," if the employee desired to be treated by a "physician," and if the employer had designated five "physicians" in accord with the statute. Order of the Commonwealth Court is vacated, and the order of the Workmen's Compensation Appeal Board, awarding appellant compensation in the amount of $210.00, is reinstated. NIX, J., did not participate in the consideration or decision of this case. JONES, former C.J., did not participate in the decision of this case. POMEROY, J., filed a concurring opinion. 376 POMEROY, Justice, concurring. Although I agree with the majority that section 306(f) of the Workmen's Compensation Act, Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 531, requires appellee to pay for the chiropractor services incurred by appellant in connection with his work related injury, I cannot join in the majority's interpretation of section 306(f). Section 306(f) provides in pertinent part as follows: The employer shall provide payment for reasonable surgical and medical services, services rendered by duly licensed practitioners of the healing arts, medicines, and supplies, as and when needed: Provided, That the employe may select a duly licensed practitioner of the healing arts of his own choice, unless at least five physicians shall have been designated by the employer. . . in which instances the employe shall select a physician from among those designated.. . . (Emphasis added). Relying upon the discrete definitions of "healing art" and "physician" contained in the Statutory Construction Act, 1 Pa.C.S.A. § 1991, the majority interprets the italicized portion of the above quoted section to mean that in the event that the employer designates five physicians, the employee must choose from those so designated only if the employee desires the treatment of a physician; if the employee does not choose to consult a physician, the majority concludes that the "unless" clause of section 306(f) is inapplicable. I am unable to agree. The provision of section 306(f) allowing employers to designate five physicians and, when the employer does so, requiring the employee to "select a physician from among those designated," obviously was intended to accord employers some measure of control over the services obtained by the employee without unreasonably restricting the employee's freedom of choice. The majority's interpretation renders the proviso clause of section 306(f) 377 almost meaningless and fails to effectuate what seems to be the clear legislative intent. In my view, the proviso clause of section 306(f) must be read as a whole, and the legislature's use of terms which although having similar connotations are differently defined should not be held to overrule the obvious meaning of the clause. So read, the clause means exactly what it says: the employee is free to make his own selection of a duly licensed practitioner of any of the healing arts unless the employer designates at least five physicians, in which case the employee must select one of the physicians so designated.[1] Such a straight-forward reading insures that the purpose of the clause is fulfilled. There is nothing in the language or purpose of section 306(f), however, which can reasonably be construed as precluding an employee who consults one of the employer's designated physicians from seeking the services of another practitioner of the healing arts in the event that the consulted physician tells the injured employee that he the doctor is unable to help him. That was the situation in the case at bar. Appellant first sought the services of Dr. Testa, a physician designated by appellee pursuant to section 306(f). Only after Dr. Testa informed appellant that the doctor could not help him did appellant seek the services of Dr. Krupar, a doctor of chiropractic. In my view, therefore, appellant fully complied with the requirements of section 306(f), and appellee must pay for the services rendered by Dr. Krupar. Hence, I concur in the result reached by the majority.[2] NOTES [1] Had the legislature intended the proviso clause of section 306(f) to have the meaning that the majority ascribes to it, the legislature undoubtedly would have phrased the clause differently. For example: "Provided, That the employe may select a duly licensed practitioner of the healing arts of his own choice, but if the employe desires to select a physician, and at least five physicians shall have been designated by the employer, then the employe shall select a physician from among those designated." [2] There is no dispute that section 306(f) requires an employer to pay for "services rendered by duly licensed practitioners of the healing arts." Moreover, appellee does not claim that chiropractors are not practitioners of the healing arts, nor does appellee challenge the necessity of Dr. Krupar's services or the reasonableness of his charges.	{ "pile_set_name": "FreeLaw" }
936 F.Supp. 601 (1996) Lynn J. VANDERVEST and Rick E. Vandervest, Plaintiffs, v. WISCONSIN CENTRAL, LTD., State Farm Mutual Automobile Insurance Company, WEA Insurance Corporation, and An Unknown Insurance Carrier, Defendants. No. 96-C-677. United States District Court, E.D. Wisconsin. September 12, 1996. 602 Daniel D. Whetter, Green Bay, WI, for Plaintiffs. Oppenheimer, Wolff & Donnelly by James A. Fletcher and Jennifer K. Muenchrath, Minneapolis, MN, for Defendant Wisconsin Central Ltd. DECISION and ORDER MYRON L. GORDON, District Judge. On June 7, 1996, defendant Wisconsin Central, Ltd. ["WCL"], filed a "Notice of Removal" of this action which asserts a state law personal injury claim arising out of an automobile accident between the automobile driven by Lynn Vandervest and a train owned and operated by WCL. The action was originally filed in the circuit court of Kewaunee county. In its notice of removal, WCL alleges that this action is properly removable under 28 U.S.C. § 1441 because it is an action where the matter in controversy exceeds the sum of $50,000, exclusive of interest and cost, and the real parties in interest are citizens of different states. See 28 U.S.C. § 1332(a)(1). Presently before the court is the plaintiffs' "Motion in Opposition to Removal." In their 603 motion, the plaintiffs contend that the action should be remanded to state court because this court lacks subject matter jurisdiction. Specifically, they contend that diversity jurisdiction does not exist under 28 U.S.C. § 1332 because State Farm Automobile Insurance Company ["State Farm"] and WEA Insurance Corporation ["WEA"] both citizens of the state of Wisconsin are not nominal parties in this action as alleged by WCL in its notice of removal. In addition, the plaintiffs assert that diversity between the parties does not exist because WCL is a Wisconsin corporation. It is undisputed that the plaintiffs are citizens of the state of Wisconsin. In a removal action, a district court is required to remand a case to state court if it determines, any time before final judgment, that it lacks subject matter jurisdiction over the case. See 28 U.S.C. § 1447(c). Where, as here, the jurisdiction of the court is challenged as a factual matter, the party invoking jurisdiction of the court has the burden to demonstrate that the jurisdictional allegations are supported by competent proof. See Grafon Corp. v. Hausermann, 602 F.2d 781, 783 (7th Cir.1979). Under 28 U.S.C. § 1332(a)(1), diversity of citizenship exists where the matter in controversy exceeds the sum or value of $50,000, exclusive of interest and costs, and is between ... citizens of different states;.... For purposes of determining diversity, "a corporation shall be deemed to be a citizen of any State by which it has been incorporated and of the State where it has its principal place of business...." 28 U.S.C. § 1332(c)(1). Insofar as this action involves multiple corporate defendants, the plaintiff must differ in citizenship from each defendant the rule of "complete diversity" in order for subject matter jurisdiction to exist under § 1332. See Strawbridge v. Curtiss, 3 Cranch 267, 7 U.S. 267, 2 L.Ed. 435 (1806); Bagdon v. Bridgestone/Firestone, Inc., 916 F.2d 379, 381 (7th Cir.1990); cert. denied, 500 U.S. 952, 111 S.Ct. 2257, 114 L.Ed.2d 710 (1991). However, in determining whether complete diversity exists, courts must only look at those parties "who are real and substantial parties to the controversy." Navarro Savings Association v. Lee, 446 U.S. 458, 461, 100 S.Ct. 1779, 1782, 64 L.Ed.2d 425 (1980). The inclusion of nominal parties in the pleadings does not affect diversity jurisdiction. Matchett v. Wold, 818 F.2d 574, 576 (7th Cir.), cert. denied, 484 U.S. 897, 108 S.Ct. 230, 98 L.Ed.2d 189 (1987). Thus, removal is proper under 28 U.S.C. § 1441 if complete diversity exists between the real parties in interest. The plaintiffs claim that WCL is incorporated in the state of Wisconsin, and hence not of diverse citizenship, based on the allegation in WCL's answer which was filed on June 11, 1996, that "it is a Wisconsin corporation...." (Original Complaint ¶ 3.) However, this argument overlooks the fact that WCL filed an amended complaint on June 12, 1996, which alleged that "it is an Illinois corporation...." (Amended Complaint ¶ 3.) Moreover, the affidavit of Thomas F. Power, the executive vice president and chief financial officer of WCL, confirms the allegations of the amended complaint in that the affidavit states that "[WCL] is incorporated under the laws of the State of Illinois." (Power Aff. at ¶ 3.) In my opinion, the record demonstrates that WCL is incorporated in Illinois. The plaintiffs also argue that WCL is a citizen of Wisconsin because its principal place of business is in Wisconsin. In particular, the plaintiffs maintain that "[WCL] does the majority of their [sic] business in the State of Wisconsin, and.... has approximately 2,500 miles of railroad track that they [sic] operate in the State of Wisconsin." (Whetter Aff. at ¶ 7.) In determining a corporation's principal place of business, the court of appeals for the seventh circuit has adopted the "nerve center" test. Wisconsin Knife Works v. National Metal Crafters, 781 F.2d 1280, 1282 (7th Cir.1986). To ascertain the locus of the nerve center, the court of appeals has stated that "we look for the corporation's brain, and ordinarily find it where the corporation has its headquarters." Id. at 1282. Other factors relevant to determining the locus of a corporation's nerve center are: (1) where important decisions are made; (2) where the corporation's general counsel, directors, officers 604 and shareholders are located; and (3) where the corporation is funded and (4) where the corporation's primary bank account exists. Chamberlain Mfg. Corp. v. Maremont Corp., 828 F.Supp. 589, 592 (N.D.Ill.1993). The record reveals that WCL has its corporate headquarters in Rosemont, Illinois and that this is where virtually all decision-making occurs. (Power Aff. ¶¶ 4 and 5.) Mr. Power has testified that the president of WCL and seven of eight vice-presidents have their offices in Rosemont, Illinois and that all of the following take place in Rosemont, Illinois: accounting, administrative, and financial services, human resources, and legal, real estate and treasury services. (Power Aff. at ¶¶ 6-8.) Moreover, it is undisputed that all of WCL's director and shareholder meetings take place in Rosemont, Illinois and that all of WCL's books, corporate records and bank records are maintained in this location. Based on this uncontested evidence, I find that WCL's principal place of business is Rosemont, Illinois. Because WCL is incorporated in Illinois and has its principal place of business in Illinois, it is a citizen of Illinois. Accordingly, the plaintiffs' contention that diversity of citizenship is lacking because WCL is a citizen of Wisconsin is without merit. The plaintiffs also seek remand on the ground that State Farm and WEA are not nominal parties and that their citizenship therefore destroys complete diversity. It is undisputed that State Farm and WEA are citizens of Wisconsin. Thus, if State Farm and WEA are, in fact, real parties in interest, complete diversity does not exist. A defendant is a nominal party if there is no reasonable basis for predicting that it will be held liable. Shaw v. Dow Brands, Inc., 994 F.2d 364, 369 (7th Cir.1993) (citing 14A Charles A. Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice & Procedure § 3731 n. 10 (1985)). According to the allegations of the complaint, State Farm is the plaintiffs' automobile insurer and WEA is the plaintiffs' medical insurer. Each party allegedly paid benefits to the plaintiffs because of the accident at issue and was named as a defendant solely because of its subrogation interest. Where state law creates a separate and distinct cause of action against the insurer which an injured party may pursue in lieu of his action against a tortfeasor, that insurer is not a nominal defendant, but is in fact a real party in interest for purposes of federal jurisdiction. Lumbermen's Mut. Cas. Co. v. Elbert, 348 U.S. 48, 51, 75 S.Ct. 151, 153-54, 99 L.Ed. 59 (1954). Wisconsin provides for the action against an insurer under Wis. Stats. § 632.24, which provides: Any bond or policy of insurance covering liability to others for negligence makes the insurer liable, up to the amounts stated in the bond or policy, to the persons entitled to recover against the insured for the death of any person or for injury to persons or property, irrespective of whether the liability is presently established or is contingent and to become fixed or certain by final judgment against the insured. In addition, Wisconsin's statute relating to joinder of parties provides, in pertinent part, for direct action against an insurer: In any action for damages caused by negligence, any insurer which has an interest in the outcome of such controversy adverse to the plaintiff or any of the parties to such controversy, or which by its policy of insurance assumes or reserves the right to control the prosecution, defense or settlement of the claim or action, or which by its policy agrees to prosecute or defend the action brought by the plaintiff or any of the parties to such action, or agrees to engage counsel to prosecute or defend said action or agrees to pay the costs of such litigation, is by this section made a proper party defendant in any action brought by the plaintiff in this state on account of any claim against the insured. Wis.Stats. § 803.04(2). These statutes make the insurer of a defendant/tortfeasor in a negligence action a real party in interest. See Verhein v. South Bend Lathe, Inc., 598 F.2d 1061, 1064 (7th Cir.1979). In the instant action, State Farm and WEA have no relationship to the alleged tortfeasor, WCL, as they are the plaintiffs' 605 insurers. Moreover, because the plaintiffs' complaint contains no claim against State Farm or WEA it cannot be said that the interests of the insurers are adverse to those of the plaintiffs. See Harvey v. Marriott Corp., 680 F.Supp. 1289, 1290 (E.D.Wis.1988) (Reynolds, J.) (Where plaintiff's insurer was named as a defendant solely to protect its subrogated interest in plaintiff's action and no claim for relief was asserted against the insurer, the citizenship of the insurer was not considered by the court for purposes of determining the existence of complete diversity.). I find that State Farm and WEA, as insurers of the plaintiffs who were named as defendants solely to protect their respective subrogated interests do not fall within the purview of Wis.Stats. § 632.24 or § 803.04(2) and are not otherwise real parties in interest. Any financial interest State Farm or WEA has in this litigation is indirect in that it is contingent upon the liability of WCL to the plaintiffs. Consequently, the citizenship of State Farm and WEA does not destroy the diversity that exists between the real parties in interest in this case. Therefore, IT IS ORDERED that the plaintiffs' "Motion in Opposition to Removal" be and hereby is denied, with costs.	{ "pile_set_name": "FreeLaw" }
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3. SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-0294-16T3 MAXTRADE, LLC, Plaintiff-Appellant, v. POWERSPORTS WAREHOUSE, LLC, a/k/a POWERSPORTS WAREHOUSE or POWERSPORT WAREHOUSE, SCOOTERLANDUSA, LLC, a/k/a SCOOTERLAND OR SCOOTERLAND USA, TAI LUU, a/k/a TOM LUU and MAI LIN NGUYEN, a/k/a LYNN LUU, doing business as POWERSPORT WAREHOUSE and SCOOTERLANDUSA, Defendants-Respondents. ___________________________________ Submitted October 2, 2017 – Decided November 20, 2017 Before Judges Whipple and Rose. On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L- 8191-13. Greg Riley, attorney for appellant. Gerard J. Jackson, attorney for respondents. PER CURIAM Plaintiff Maxtrade, LLC appeals from the trial court’s August 12, 2016 order denying its motion to amend the judgment, pursuant to the terms of a settlement agreement with defendants Powersports Warehouse, LLC, a/k/a Powersports Warehouses or Powersport Warehouse (“Powersports”), ScooterlandUSA, LLC, a/k/a Scooterland or Scooterland USA ("Scooterland"), Tai Luu a/k/a Tom Luu ("Luu"), and Mai Lien Nguyen, a/k/a Lynn Luu ("Nguyen"),1 d/b/a Powersport Warehouse and ScooterlandUSA. Having reviewed the record in light of applicable principles of law, we affirm. We recite the following key facts and procedural history from the motion record. The underlying lawsuit arises from a dispute between two commercial entities. In December 2012, plaintiff agreed to sell ninety-one all-terrain vehicles to defendants for the sum of $41,401. Following an initial payment of $10,000, defendants failed to pay the remaining balance. In December 2013, plaintiff filed a complaint against Powersports and Luu, alleging causes of action for book account (count one), breach of contract (count two), quantum meruit/unjust enrichment (count three), personal liability of Luu (count four), and fraud (count five). In September 2015, plaintiff filed its 1 Luu and Nguyen are husband and wife. We use Nguyen's presumed maiden name to avoid confusion. We mean no disrespect in so doing. 2 A-0294-16T3 first amended complaint, naming Scooterland and Nguyen, and revising and adding the following counts: conversion by Scooterland (count four), personal liability of Luu (count five), fraud (count six), and conversion by Luu and Nguyen (count seven). Plaintiff moved for partial summary judgment on counts one and two. By order entered January 9, 2015, the court granted the motion and entered judgment in the amount of $32,629. Despite various orders entered by the court, relating to enforcement of the judgment, the full amount of the judgment remained unsatisfied. On November 6, 2015, three days prior to trial on the remaining claims, the parties entered into a written settlement agreement, providing as follows: 1. The total amount of the settlement is $20,000. 2. Defendants will make payments as follows: a) $10,000 upon receipt of the closing documents which shall be a Release and a Stipulation of Dismissal b) $5,000 to be paid on January 1, 2016. c) $2,500 to be paid on April 1, 2016. d) $2,500 to be paid on July, 1, 2016. 3. All payments shall be made payable to Greg Riley Trust Account. 4. Upon receipt, deposit, and after allowance of sufficient time to clear, [p]laintiff will provide [d]efendants with a Warrant in Satisfaction of the Judgment entered on January 9, 2015. 5. In the event of a material default by the [d]efendants, [p]laintiff shall have the right 3 A-0294-16T3 to amend the Judgment entered on January 9, 2015, to include [Nguyen] as a judgment debtor. 6. Defendants shall be in material default of the settlement if any payment is not received within ten (10) days of the due date. 7. This settlement includes any and all claim [sic] against the [d]efendants. [(Emphasis added)]. On November 18, 2015, plaintiff's counsel delivered to defense counsel the closing documents referenced in paragraph 2(a) of the settlement agreement. Contrary to the settlement terms, defendants did not remit payment within ten days. By correspondence dated December 14, 2015, plaintiff's counsel notified defense counsel that defendants had breached the settlement agreement by failing to make the first payment. The following day, by correspondence dated December 15, 2015, plaintiff's counsel acknowledged receipt of a $10,000 check from Scooterland, and indicated the second payment of $5,000 was due on January 1, 2016. By correspondence dated January 26, 2016, plaintiff's counsel notified defense counsel that the second payment had not been made, and as such, defendants were in default, pursuant to the terms of the settlement agreement. On or about February 5, 2016, 4 A-0294-16T3 plaintiff's counsel deposited into his trust account a check from Scooterland in the amount of $5,000. Defendants failed to make the remaining two payments. On July 13, 2016, plaintiff filed a motion to amend the judgment to add Nguyen as a judgment debtor, pursuant to paragraph 5 of the settlement agreement. Plaintiff sought to execute on assets owned jointly by Luu and Nguyen. On July 26, 2016, plaintiff's counsel received, and accepted, a check in the amount of $5,000 from Scooterland, representing the total amount due under the third and fourth payments. On August 12, 2016, the trial court entered an order denying plaintiff’s motion to amend the judgment. The trial court did not issue findings of fact or an opinion. However, following the filing of the instant appeal, the court issued a statement of reasons, pursuant to Rule 2:5-1(b), finding plaintiff by accepting payment had waived its rights to repudiate the settlement agreement. On appeal, plaintiff argues: it did not waive its rights under the settlement agreement; the trial court failed to enforce the settlement agreement; and the trial court rewrote the settlement agreement to provide defendants with a better bargain. Having fully considered these contentions, we affirm. 5 A-0294-16T3 A settlement agreement is subject to the ordinary principles of contract law. Thompson v. City of Atlantic City, 190 N.J. 359, 374 (2007). "Interpretation and construction of a contract is a matter of law for the court subject to de novo review." Fastenberg v. Prudential Ins. Co. of Am., 309 N.J. Super. 415, 420 (App. Div. 1998). "Accordingly, we pay no special deference to the trial court's interpretation and look at the contract with fresh eyes." Kieffer v. Best Buy, 205 N.J. 213, 223 (2011); see Manalapan Realty, L.P. v. Twp. Comm., 140 N.J. 366, 378 (1995) ("A trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference."). A party waives its right to sue for breach of contract where it continues performance under the contract, even after a breach has occurred. See, e.g., Garden State Bldgs., L.P. v. First Fid. Bank, N.A., 305 N.J. Super. 510, 524 (App. Div. 1997), certif. denied, 153 N.J. 50 (1998). "Waiver is the voluntary relinquishment of a known right." Clarke v. Clarke ex rel. Costine, 359 N.J. Super. 562, 571 (App. Div. 2003). It "must occur by a 'clear[,] unequivocal and decisive act.'" Borough of Closter v. Abram Demaree Homestead, Inc., 365 N.J. Super. 338, 354, certif. denied, 179 N.J. 372 (2004)(quoting W. Jersey Title & Guar. Co. v. Indus. Tr. Co., 27 N.J. 144, 152 (1958)). "The 6 A-0294-16T3 intent to waive need not be stated expressly, provided the circumstances clearly show that the party knew of the right and then abandoned it, either by design or indifference." Knorr v. Smeal, 178 N.J. 169, 177 (2003). Waiver can also be "'found if the conduct of [an entity] after information of . . . breach of contract is such as to justify an inference of affirmation rather than rescission of the contract.'" Iafelice ex rel. Wright v. Arpino, 319 N.J. Super. 581, 588 (App. Div. 1999)(quoting Bonnet v. Stewart, 68 N.J. 287, 294 (1975)). In terms of waiver of rights or enforcement of rights, a party must elect which course it wishes to follow; it cannot pursue both. Merchants Indem. Corp. v. Eggleston, 37 N.J. 114, 130-31 (1962). Guided by these principles, we find plaintiff's acceptance of the late payments constitutes a waiver of any claimed breach pursuant to paragraph 6 of the settlement agreement. Rather than rejecting each untimely payment, plaintiff accepted payment, reminding defendants of the upcoming due dates for the next payments. By warning defendants of their breach, more than once, and nonetheless accepting late payments after the breach had occurred each time, plaintiff voluntarily relinquished its rights under the settlement agreement "by a clear[,] unequivocal and decisive act." Abram, supra, 365 N.J. Super. at 354. In so doing, 7 A-0294-16T3 plaintiff waived its rights to enforce the terms of the settlement agreement. Arpino, supra, 319 N.J. Super. at 588. Because we are satisfied plaintiff waived its rights under the settlement agreement, plaintiff's contention that the court failed to enforce the agreement likewise fails. Plaintiff cannot waive its rights under the settlement agreement, by accepting late payments, and seek to enforce the settlement agreement, by attempting to amend the January 9, 2015 judgment. Merchants, supra, 37 N.J. at 130-31. Similarly, plaintiff's claim that, by denying its motion to amend the judgment the trial court rewrote the settlement agreement in defendants’ favor, lacks merit. Courts do not, and cannot, rewrite contracts in order to provide a better bargain than contained in their writing. Christafano v. N.J. Mfg. Ins. Co., 361 N.J. Super. 228, 237 (App. Div. 2003). Rather, courts allow experienced commercial parties to negotiate for themselves, and "do not seek to 'introduce intolerable uncertainty into a carefully structured contractual relationship' by balancing equities." Brunswick Hills Racquet Club, Inc. v. Route 18 Shopping Ctr. Assocs., 182 N.J. 210, 230 (2005) (quoting Brick Plaza Inc. v. Humble Oil & Ref. Co., 218 N.J. Super. 101, 105 (App. Div. 1987)). Here, the trial court did not rewrite the settlement agreement. Instead, the court interpreted the agreement under 8 A-0294-16T3 principles of contract law and waiver, correctly ruling plaintiff had waived its rights under the settlement agreement. Furthermore, the parties are commercial entities that bargained at arm's length, with the assistance of counsel. The parties agreed to the due date for each payment, and the definition of a material default. Plaintiff waived its rights to enforce the material default provision of the settlement agreement by accepting untimely payments that were not in conformance with the settlement agreement. Moreover, there was no provision in the settlement agreement stating that acceptance of a late payment would not constitute a waiver of plaintiff's rights. Nor did plaintiff accept defendants' untimely payments under protest. As such, we have no basis to address the effectiveness of doing so. We are satisfied the trial judge appropriately denied plaintiff's motion to amend the judgment, finding plaintiff assented to the untimely payments, and defendant ultimately paid the entire amount due under the terms of the settlement agreement. Affirmed. 9 A-0294-16T3	{ "pile_set_name": "FreeLaw" }
963 S.W.2d 941 (1998) Charles FOWLER, Appellant, v. QUINLAN INDEPENDENT SCHOOL DISTRICT, Appellee. No. 06-97-00122-CV. Court of Appeals of Texas, Texarkana. Submitted February 25, 1998. Decided February 26, 1998. 942 Gary W. Smith, Greenville, for Appellant. George C. Scherer, Law Office of Robert Luna, P.C., Dallas, for Appellee. Gary B. Bennett, Blair, Goggan, Sampson, Meeks, Greenville, for Intervenor. Before CORNELIUS, C.J., and GRANT and ROSS, JJ. OPINION CORNELIUS, Chief Justice. In this restricted appeal, Charles Fowler complains of a default judgment rendered against him in a suit by a school district and a county for delinquent taxes. He contends that reversible error is shown because the record does not affirmatively demonstrate strict compliance with the rules regarding citation and service of process. Fowler is the owner of approximately four-tenths of an acre in Hunt County. Quinlan Independent School District filed suit to collect delinquent ad valorem taxes against the property. The school district procured the issuance of citation and delivered the citation to a constable for service. The constable filed a return of service which appears in the 943 record.[1] Fowler did not answer, and the court rendered a default judgment for $2,372.79. The property was thereafter sold at auction to satisfy the tax lien. Fowler contends that citation was not served on him, so error is obvious from the face of the record, and the case should be remanded for trial. Restricted appeals are controlled by TEX.R.APP. P. 25.1, 26.1, 30, which provide that a party to the suit may appeal within six months of the judgment if the party did not participate in the actual trial of the suit. A party appealing by restricted appeal (1) must bring the appeal within six months from the date the trial court signs the judgment; (2) must not have participated in the actual trial; and (3) must demonstrate error apparent from the face of the record. TEX. CIV. PRAC. & REM.CODE ANN. § 51.013 (Vernon 1997); TEX.R.APP. P. 30; DSC Finance Corp. v. Moffitt, 815 S.W.2d 551 (Tex. 1991). Review by restricted appeal affords an appellant the same scope of review as an ordinary appeal, i.e., a review of the entire case. See Gunn v. Cavanaugh, 391 S.W.2d 723, 724 (Tex.1965). The only restriction on the scope of review is that the error must appear on the face of the record. See General Elec. Co. v. Falcon Ridge Apartments, 811 S.W.2d 942, 943 (Tex.1991). The face of the record, for purposes of a restricted appeal, consists of all the papers on file in the appeal, including the statement of facts. Norman Communications v. Texas Eastman Company, 955 S.W.2d 269 (Tex.1997); DSC Finance Corp. v. Moffitt, 815 S.W.2d at 551. In this case, the appeal was timely filed, and Fowler did not participate in the trial. The only question before us is whether error is apparent on the face of the record. When a default judgment is attacked directly by a restricted appeal it is essential that strict compliance with the Texas Rules of Civil Procedure regarding the issuance of citation, the manner and mode of service, and the return of process be shown on the face of the record. McKanna v. Edgar, 388 S.W.2d 927, 929 (Tex.1965). There are no presumptions in favor of valid issuance, service, and return of citation in a review of a no-answer default judgment. Uvalde Country Club v. Martin Linen Supply Co., 690 S.W.2d 884, 885 (Tex.1985); McKanna v. Edgar, 388 S.W.2d at 929. Moreover, failure to affirmatively show strict compliance with the Rules of Civil Procedure renders the attempted service of process invalid. McKanna v. Edgar, 388 S.W.2d at 929. TEX.R. CIV. P. 107 is controlling in this case. The rule, in pertinent part, states: The return of the officer or authorized person executing the citation shall be endorsed on or attached to the same; it shall state when the citation was served and the manner of service and be signed by the officer officially or by the authorized person.... When the citation was served by registered or certified mail as authorized by Rule 106, the return by the officer or authorized person must also contain the return receipt with the addressee's signature. The return of a service document is prima facie evidence of the facts recited in the return. Pleasant Homes, Inc. v. Allied Bank of Dallas, 776 S.W.2d 153, 154 (Tex. 1989). The return is prima facie evidence even though the facts in the form are preprinted rather than filled in by the officer. Primate Constr., Inc. v. Silver, 884 S.W.2d 151, 153, (Tex.1994). The officer's return is ambiguous. The only address for Fowler that is contained in the return is a post office box, yet the return does not affirmatively show that service was by either registered or certified mail. The return also contains blanks to reflect the time and date of execution, but they have not been completed. The return then contains form language indicating that the citation was delivered to Fowler in person, although the school district's counsel at the hearing claimed that the citation was mailed. Further, the return is not personally signed, but is stamped with the name of 944 the constable.[2] Finally, the return does not have attached to it the return receipt with the addressee's signature as is required by the mandatory language of Rule 107 if service is effected by mail. The return does not constitute "strict" compliance with the Rule. The school district, however, contends that strict compliance should be determined from a review of the evidence at the hearing. There was no evidence taken at the hearing; only statements made by the district's counsel in response to the court's questions about the case. The school district contends that the reporter's record of that hearing shows affirmatively that the mail receipt was once attached to the officer's return but was lost, and that since the hearing shows that the receipt was lost, that showing should control. In cases involving such a citation by mail, the cases have spoken exclusively in the language of Rule 107, which requires that the mail receipt be attached to the officer's return and that it be considered as the relevant "face of the record." The school district argues that we should apply the analysis used in Burrows v. Miller, 797 S.W.2d 358, 360 (Tex.App.-Tyler 1990, no writ), because the mail receipt is clearly a lost document. In Burrows, the appellant brought a bill of review seeking to overturn a judgment sixty-eight years after it was rendered. Among other things, the appellant contended that the judgment was void because no return of service was contained in the court record. The court noted that the 1920 judgment recited service and that the record contained the answer filed by the attorney appointed to represent the defendants, served by publication, and also contained the return of citation from a different and wholly unrelated lawsuit. The court concluded that the return was lost and that, since it was lost, it could resort to secondary evidence to establish service. The court concluded that, even though the recital of service in a default judgment under direct attack did not create a presumption of proper service, the recitation in the judgment was evidence of proper service. The court distinguished Burrows from other default/service cases because the others were cases where documents in the record contradicted the recitations in the judgment, and thus demonstrated a fatal flaw in the service. This analysis is difficult to apply consistently, however, because it is difficult to determine whether a document has been lost or simply never existed. It is not necessary that we attempt to apply this reasoning to our case, since there is nothing in the record except a recitation in the judgment to indicate that the mail receipt ever existed. Moreover, the reporter's record provides no support for such an assumption. Counsel suggests that the reporter's record shows its existence. It does not. The trial judge examined and explicitly mentioned the returns and mail receipts for the dismissed defendants, and then asked for a similar receipt for Fowler. He was given a copy of the constable's return, but the record does not indicate that he ever saw a copy of any mail receipt for Fowler. Thus, there is no proof that service was made on Fowler, except a recitation of proper service in the judgment. Finally, we note that language in McKanna requires reversal unless the record "affirmatively show(s) a strict compliance" with the rules.[3]McKanna v. Edgar, 388 S.W.2d at 929. This would appear to preclude affirmance based on presumptions of service, unless the face of the record clearly and unambiguously shows the existence and later loss of the critical documents. The attempted citation of service shown by this record does not comply with Rule 107, and that failure constitutes clear error on the face of the record. Because service of citation in this case was not in strict compliance with the Texas Rules of Civil Procedure, there is error on the face of the record. We accordingly reverse the default judgment and remand the cause to 945 the trial court for trial in accordance with this opinion. NOTES [1] Suit was originally filed against three individuals. The other two were dropped from the suit. Service upon them was specifically indicated by certified mail with attached return receipt. [2] A stamped signature may be sufficient if authorized, but there is no proof in the record here that the stamp was an authorized signature of the constable. [3] This requirement was not met in the Burrows case cited above, and its application is problematic in view of that failure.	{ "pile_set_name": "FreeLaw" }
812 N.E.2d 789 (2004) BALLARD, Robert, Appellant, v. STATE of Indiana, Appellee. No. 24S01-0407-CR-332. Supreme Court of Indiana. July 28, 2004. PUBLISHED ORDER This matter is before us on appellant's petition to transfer jurisdiction pursuant to Appellant Rule 56(B). After being convicted of voluntary manslaughter as a Class A felony, appellant was sentenced to an enhanced term of forty years. See Ind.Code §§ 35-42-1-3; XX-XX-X-X. The trial court suspended ten years of the enhanced sentence subject to certain conditions. Appellant raised the enhanced sentence as an issue in this appeal. A unanimous Court of Appeals concluded that the misdemeanors in appellant's criminal history were not significant aggravators sufficient to justify an enhanced sentence, and reduced the sentence to the presumptive term of thirty years. Ballard v. State, 808 N.E.2d 729, 736 (Ind.Ct.App.2004). In doing so, however, the Court of Appeals failed to reinstate the ten-year period of suspension. We do so now. Accordingly, the petition to transfer is granted. Appellant's sentence shall be the presumptive term of thirty years with ten of those years suspended. The Court of Appeals opinion is otherwise summarily affirmed. See App. R. 58(A)(2). All Justices concur.	{ "pile_set_name": "FreeLaw" }
92 F.Supp.2d 310 (2000) Robert MOSCOSO, Plaintiff, v. THE CITY OF NEW YORK, the Commissioner of the New York City Police Department, Police Officer Christopher Callahan, Shield # 1533 and Unidentified Police Officers, Defendants. No. 99 CIV. 1098(JSR). United States District Court, S.D. New York. April 13, 2000. 311 Thomas Sheehan, of Cheda & Sheehan, Jackson Heiguts, NY, for plaintiff. John Queenan, Asst. Corporation Counsel, New York City, for defendants. MEMORANDUM ORDER RAKOFF, District Judge. When one person badly beats another, leaving him bloody and battered, may the assaulter escape arrest by simply asserting, without corroboration, that he was acting in self-defense? Common sense suggests otherwise, and the law, as this case illustrates, follows the suggestion. The facts pertinent to defendants' instant summary judgment motion, undisputed except as otherwise indicated, are as follows. On April 22, 1998, several New York City police officers from the 13th Police Precinct responded to a "911" call reporting a fight in progress at 27th Street and Third Avenue in Manhattan. See Declaration of Christopher Callahan ("Callahan Decl.") at ¶ 2. The first two officers to arrive at the scene, Thomas Rindos and Robert Rennie, observed two men, later identified as the plaintiff, Robert Moscoso, and one Li Shing Wang, on the ground, struggling with a hammer. See Declaration of Thomas Rindos ("Rindos Decl.") at ¶ 2. By the time the individually-named defendant in this case, officer Christopher Callahan, responded to the scene with his partner, the men had been separated and Wang was sitting on the ground holding a bloody towel to his head and being aided by police officers. See Callahan Decl. ¶ 2. Officer Callahan was assigned to investigate and to determine whether an arrest should be made. See id. ¶ 3. Pursuant to those duties, Officer Callahan was informed that a fight involving a hammer had occurred, see id., and that the plaintiff had come to the scene of the fight from the apartment of one Susanna Lau, which was located nearby. See id. ¶ 4. Officer Callahan and two other officers proceeded to the apartment to speak to Ms. Lau and to find out if the hammer had come from her apartment. See id. Ms. Lau acknowledged that the plaintiff had been at her apartment shortly prior to the fight. See id. ¶ 5. As for Ms. Lau's comments regarding the hammer, the accounts offered by plaintiff and defendants differ markedly. Defendants claim that, in response to questioning by Officer Callahan, Ms. Lau admitted that she kept a hammer in her house, and that when she went to look for the hammer under her sink, it was missing. See id. According to Officer Callahan, Ms. Lau described the hammer as a silver hammer with a black handle. See id. Later, however, when Ms. Lau was brought to the police precinct to see if she 312 could identify a hammer recovered from the crime scene, Ms. Lau denied it was the hammer from her apartment. See id. ¶ 6. Officer Callahan avers that he nonetheless discredited her statement because the hammer matched her earlier description. See id. Ms Lau's account, however, is different and must be credited for the purpose of defendants' motion, since it supports plaintiff's position. According to Ms. Lau, she never offered a description of the hammer to the Police Officers, nor stated it was missing, but rather showed her hammer to them. See Decl. of John F. Queenan, Ex. C, Deposition of Susanna Lau ("Lau Dep.") at 155. She confirms that she failed to identify the hammer she was shown at the precinct house, but avers that her denial of ownership at the precinct was consistent with her statements in her apartment. See Decl. of John F. Queenan, Ex. C, Stmt. of Susanna Lau ("Lau Stmt.") at 3. In any event, it is undisputed that Wang was taken to Bellevue hospital for treatment of his injuries. See Callahan Decl. ¶ 7; Declaration of Frederick Moreira ("Moreira Decl.") ¶ 3. While there, he told Officer Moreira that he had rung Ms. Lau's doorbell but had not been buzzed in, and that he had then walked to a payphone on Third Avenue to call Ms. Lau, whereupon the plaintiff "approached him from the side, argued with him, and then struck him with a hammer." Moreira Decl. at ¶ 4. Moreira returned to the precinct house and informed Officer Callahan of Mr. Wang's statement and of the fact that Mr. Wang had been bleeding profusely from the head. Moreira also gave Callahan a copy of the "memobook" in which he had recorded his conversation with Wang. See Moreira Decl. at ¶ 7; Callahan Decl. at ¶ 7. Officer Callahan was also furnished with statements taken by other officers at the scene, including a statement from a witness who had seen the two men fighting and a statement from the doorman who had placed the 911 call. See Callahan Decl. at ¶ 7; id. Ex. A. Neither of these statements, however, shed light on the question of which man had initiated the fight or which brought the hammer to the scene. See id. Ex. A. For his part, plaintiff told the police that Wang had attacked him and that he had been merely defending himself. See Moscoso Dep. at 282. He also claimed that the hammer belonged to Mr. Wang. See id. at 287. After analyzing these competing statements, Officer Callahan determined to arrest plaintiff and, along with Officer Moreira, completed the arrest paperwork, see Callahan Decl. at ¶ 4; Moreira Decl. at ¶ 7. Plaintiff was charged with second degree assault and fourth degree possession of a weapon, see Declaration of Thomas Sheehan ("Sheehan Decl."), Ex. A. Subsequently, however, a determination was reached not to proceed with the case, and the charges were dismissed on June 8, 1998. See Complaint at ¶ 16. Some months later, plaintiff commenced the instant action, alleging various claims under 42 U.S.C. § 1983 and New York state law against Officer Callahan, the City of New York, and the Police Commissioner of the City of New York. See Complaint ¶¶ 17-57. While differing in their particulars, the various causes of action ultimately reduce to claims of false arrest, false imprisonment, and malicious prosecution,[1] attributed in the first instance to the arresting officer, Callahan. The threshold question in such a case is whether there existed probable cause to arrest. "[T]he existence of probable cause to arrest constitutes justification and `is a complete defense to an action for false 313 arrest' whether that action is brought under state law or under § 1983." Weyant v. Okst, 101 F.3d 845, 852 (2d Cir.1996), quoting Bernard v. United States, 25 F.3d 98, 102 (2d Cir.1994); see also Bryant v. Rudman, 933 F.Supp. 270, 274 (S.D.N.Y. 1996); Dukes v. City of New York, 879 F.Supp. 335, 340-43 (S.D.N.Y.1995). Similarly, probable cause is a bar to claims of malicious prosecution directed at the arresting officer under § 1983 or cognate state law, unless that officer, following the arrest but prior to initiating prosecution, learned of facts that would negate his earlier determination of probable cause. See, e.g., Dukes v. City of New York, 879 F.Supp. 335, 341-42 (S.D.N.Y.1995). "[P]robable cause to arrest exists when the officers have knowledge or reasonably trustworthy information of facts and circumstances that are sufficient to warrant a person of reasonable caution in the belief that the person to be arrested has committed or is committing a crime." Weyant, supra, at 852. Because on this summary judgment motion by defendants the Court must consider the facts in the light most favorable to the plaintiff, the Court will assume that only the following undisputed facts could have been reasonably relied upon by Officer Callahan in deciding to arrest the plaintiff: 1) officers arriving at the scene observed the plaintiff and Wang struggling over a hammer; 2) Officer Callahan observed Mr. Wang bleeding profusely from the head; 3) Mr. Wang stated that the plaintiff had approached him from the side and hit him with a hammer; and 4) plaintiff admitted hitting Wang but asserted that he was acting in self-defense and that Wang had brought the hammer.[2] The question then is whether a claim of assault made by one participant in an altercation, supported by evidence of significant injury, can constitute probable cause for the arrest of the other, uninjured, participant notwithstanding the latter's claims of self-defense. In answering this question, the Court looks to Ricciuti v. N.Y.C. Transit Authority, 124 F.3d 123 (2d Cir.1997). In that case, a police officer was approached by a man, Harlice Watson, who was bleeding and carrying a pair of broken eyeglasses. See id. at 125. Watson stated that he was a corrections officer, showed the officer his identification, and stated that the plaintiff in that case, Alfred Ricciuti, had attacked him without provocation. See id. Based on this statement, the police officer arrested Ricciuti. See id. Shortly thereafter, Ricciuti's nephew approached and protested the arrest, stating that his uncle was innocent. See id. The officer ignored these protests, and continued on to the station with Ricciuti. See id. The Second Circuit, in reviewing the district court's determination that the officer in that case was entitled to qualified immunity, stated the following: Although Officer Lopez would have been entitled to believe Alfred Ricciuti's version of events rather than Watson's, he was not required to do so. Given Watson's version of events and his visible injuries, a competent police officer could believe that it was objectively reasonable to arrest plaintiff for the assault that had been committed. The officer was not required to make a full investigation into plaintiff's state of mind prior to taking action. Once a police officer has a reasonable basis for believing there is probable cause, he is not required to explore and eliminate every theoretically plausible claim of innocence before making the arrest.... Here, Watson's version of events was plausible, and his credibility was buttressed by the fact that he identified himself [as] a law enforcement officer. Under the circumstances, Officer Lopez had a reasonable basis for believing there was probable cause, and was entitled to qualified immunity in making the arrest notwithstanding 314 Alfred Ricciuti's protestations of innocence. Id. at 128. The facts of the instant case are substantially similar to those in Ricciuti. While there is the distinction that the complaining witness in Ricciuti was a corrections officer, this fact, as conceded by plaintiff at oral argument, see transcript, 11/10/99, was hardly pivotal to the Court of Appeals' decision but simply supplied additional buttress to the arresting officer's determination of the plausibility of the victim's account. In virtually every such case of competing accounts, an arresting officer will have to make such determinations, explicitly or implicitly, and they will often turn on little more than observations of demeanor or an assessment of competing probabilities. But such observations and assessments are the bedrock of after-the-fact fact-finding by anyone. If we allow judges and jurors to use such bases to find the facts in reaching final judgments, we necessarily must allow police officers to do likewise in determining whether to arrest. It is also true that Ricciuti considered the issue of probable cause only in relation to the availability of qualified immunity, and not in relation to the determination of probable cause. The two questions, however, though distinct, are closely related: the former involves determining whether the arresting officer reasonably believed that probable cause existed, see Ricciuti, supra, at 128; Bryant, supra, at 277, while the latter involves determining whether probable cause in fact existed, see Weyant, supra, at 852; Bryant, supra, at 274. While the Second Circuit in Ricciuti did not consider the issue of whether probable cause in fact existed perhaps because the issue was not considered by the district court, see Ricciuti v. New York City Transit Auth., 1996 WL 15652 (S.D.N.Y.1996) here there is no impediment to applying the reasoning of Ricciuti to that issue. Officer Callahan knew that there had been a struggle over a hammer, that one man was severely injured, that the injured man claimed that the plaintiff had assaulted him, and that plaintiff admitted as much, albeit with an explanation that suggested a defense. From these facts alone, Officer Callahan could infer that the elements of second degree assault (i.e. intent and injury with a deadly weapon, see N.Y. Penal Law § 120.05(2)) and fourth degree possession of a weapon (i.e. possession of a deadly instrument or weapon with intent to use it unlawfully against another, see N.Y. Penal Law § 265.01(2)) had been met. Thus, the Court concludes that there was probable cause for the arrest. As the Ricciuti Court points out, Officer Callahan was under no duty, once probable cause was found to exist, to credit the plaintiff's protestations of self-defense. See Ricciuti, supra, at 128. Under New York law, self-defense is an affirmative defense, see N.Y. Penal Law §§ 35.00, 35.15, requiring the defendant to show that he reasonably believed that his force was necessary to prevent what he reasonably believed to be the use of unlawful physical force, see N.Y. Penal Law § 35.15(1). On the facts here alleged by plaintiff, Officer Callahan had insufficient basis to assess whether plaintiff's claims that Wang had attacked him were true, let alone a basis for crediting plaintiff's facially unlikely claim that plaintiff's substantial assault on Mr. Wang was a reasonable use of force under the circumstances. Accordingly, because there was probable cause for arresting the plaintiff, the Court grants defendants' motion for summary judgment as to plaintiff's claims, whether under section 1983 or New York State law, that are predicated on false arrest or false imprisonment. Further, because plaintiff points to no admissible evidence of any facts that came to light after the arrest that would negate probable cause, the Court likewise grants defendants' motion for summary judgment on plaintiff's claims under state and federal law predicated on malicious prosecution. Finally, because this disposes of all claims, the entire complaint *315 is hereby dismissed with prejudice. Clerk to enter judgment. SO ORDERED. NOTES [1] Any doubt on this score was removed by the instant motion practice. For example, while plaintiff's fourth cause of action seems to allege negligent investigation by the defendants, see Complaint at ¶¶ 41-45, plaintiff, in his memorandum of law, explicitly disclaims such and states that "plaintiffs claims are for false arrest and not for negligent investigation." Pl. Mem. of Law at 5. [2] Even for purposes of this motion, this may state the case too favorably to plaintiff, since, given Ms. Lau's relationship with plaintiff, Officer Callahan, even on Ms. Lau's version of what she said, could have discredited her statements and drawn an adverse inference therefrom.	{ "pile_set_name": "FreeLaw" }
Order entered December 21, 2018 In The Court of Appeals Fifth District of Texas at Dallas No. 05-18-01392-CV No. 05-18-01393-CV IN RE HOWARD HOLLAND, Relator Original Proceeding from the 422nd Judicial District Court Kaufman County, Texas Trial Court Cause Nos. 31608-422 and 31609-422 ORDER Before Justices Bridges, Brown, and Boatright Based on the Court’s opinion of this date, we CONDITIONALLY GRANT relator’s petition for writ of mandamus. We ORDER the trial court to issue a written ruling on relator’s motion for forensic DNA testing within thirty (30) days of the date of this order. We further ORDER the trial court to file with this Court, within forty-five (45) days of the date of this order, a certified copy of its written ruling issued in compliance with this order and with the Court’s opinion of this date. Should the trial court fail to comply with this order, the writ will issue. /s/ ADA BROWN JUSTICE	{ "pile_set_name": "FreeLaw" }
4 Cal.4th 29 (1992) 840 P.2d 961 13 Cal. Rptr.2d 856 CHARLES C. NG, Petitioner, v. THE SUPERIOR COURT OF THE CITY AND COUNTY OF SAN FRANCISCO, Respondent; THE PEOPLE, Real Party in Interest. Docket No. S025119. Supreme Court of California. December 3, 1992. 32 COUNSEL Jeff Brown, Public Defender, under appointment by the Supreme Court, Michael N. Burt, Deputy Public Defender, and Peter G. Keane for Petitioner. No appearance for Respondent. Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, John H. Sugiyama, Assistant Attorney General, Morris Beatus and Dane R. Gillette, Deputy Attorneys General, for Real Party in Interest. OPINION ARABIAN, J. Defendant, being prosecuted on felony charges in one county, seeks to be transported to another county for arraignment on unrelated felony charges. We are asked to decide whether he must be arraigned in the second county during the pendency of the first proceeding. We hold that the defendant need not be arraigned in the second county until the criminal proceedings in the first county have concluded. I. FACTS In 1985 and 1986, two no-bail arrest warrants were issued in San Francisco Municipal Court on complaints charging defendant with murder, attempted murder, and being an accessory to another murder. For some period prior to and during 1991, defendant was incarcerated in Canada on unrelated charges. On September 26, 1991, he was extradited to California because of other unrelated capital charges in Calaveras County and because of some or all of the San Francisco charges. Pursuant to an order of the Calaveras County Superior Court, he was placed into custody at Folsom Prison. The next day, September 27, defendant was arraigned in the Calaveras County Justice Court on the capital charges, including 11 counts of first degree murder. Those charges are pending. Since October 1991, defendant has actively sought to be transported to San Francisco for arraignment on the charges in that jurisdiction. After his attempts to obtain relief in the municipal and superior courts of San Francisco failed, he filed a petition for a writ of mandate/prohibition in the Court of Appeal asking the court to order his transportation to, and arraignment in, San Francisco. The Court of Appeal requested informal opposition from the Attorney General, and advised the parties that it might issue a peremptory 33 writ in the first instance. (See Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171 [203 Cal. Rptr. 626, 681 P.2d 893] (Palma).) After receiving opposition, on February 4, 1992, the Court of Appeal filed an opinion ordering the issuance of a peremptory writ of mandate directing the San Francisco Superior Court to direct the municipal court to "arrange forthwith for the arraignment of [defendant] on the complaints filed against him in that court." The opinion also stated, "To facilitate the relief requested, this order is final forthwith. (Cal. Rules of Court, rule 24(d).)" Two days later, purporting to act pursuant to the "peremptory writ of mandate" issued by the Court of Appeal, the San Francisco Superior Court issued its own peremptory writ of mandate commanding the municipal court to arrange for defendant's arraignment "forthwith." The municipal court scheduled the arraignment for February 13; the warden of Folsom Prison was ordered to deliver defendant for the arraignment on that date. On February 11, 1992, we stayed the orders, and on March 19, 1992, granted the Attorney General's petition for review. II. DISCUSSION A. Procedural Matters (1a) Substantial confusion followed the filing of the Court of Appeal opinion ordering the issuance of a peremptory writ of mandate. As noted, the opinion, citing California Rules of Court, rule 24(d) (all rule citations are to these rules), stated that the "order is final forthwith." What the court undoubtedly meant to say, and should have said more clearly, is that the order is final forthwith "as to that court." (Rule 24(d).) As we explained in Palma, supra, 36 Cal.3d at pages 180-181, the rule "now permits the Court of Appeal to direct also that its decision granting the peremptory writ shall become final `as to that court within a stated period less than 30 days or that it shall be final as to that court immediately if early finality is necessary to prevent mootness or to prevent frustration of the relief granted.' In any event, it is only when the decision becomes final as to both the Court of Appeal and this court that the peremptory writ actually issues." (Italics in original, quoting former rule 24(c) (now rule 24(d)), fn. omitted.) The Court of Appeal decision in this case would not become final as to this court until at least 30 days after it became final as to the Court of Appeal, that is, 30 days after it was filed. (Rule 28; see Palma, supra, 36 Cal.3d at p. 183, fn. 11.) Although the Court of Appeal opinion was not final, and the peremptory writ had thus not issued, the opinion was immediately presented to the San 34 Francisco Superior Court. That court mistook the opinion for the "peremptory writ of mandate" itself. It issued its own peremptory writ directed to the municipal court. The latter court then ordered defendant arraigned a mere nine days after the Court of Appeal opinion was filed. This unduly hasty action necessitated an emergency stay by this court to preserve real party in interest's right to petition for review. We reiterate what we explained in Palma, supra. The opinion of February 4, 1992, was not the writ itself, and it had no effect until it became final as to this court as well as the Court of Appeal. (2) "The ... distinction between the judgment or decision directing that the writ issue, and the writ itself, applies when the peremptory writ is issued in the first instance.... [A] judgment or order directing that the writ issue must be entered by the court before the writ may be issued by an appellate court. [Citations.] That judgment or order is an appealable judgment if made by a superior court [citation] or is a decision subject to a petition for hearing [now review] in this court if made by a Court of Appeal. (Rule 28.) A Court of Appeal lacks authority either to issue a peremptory writ without prior entry of an order directing its issuance or to make such an order final forthwith, thereby to permit the immediate issuance of the writ itself without opportunity for review of the order by this court." (Palma, supra, 36 Cal.3d at pp. 181-182, fn. omitted.) The writ itself may not be issued "before the judgment or order directing that it issue has been filed and has become final." (Id. at p. 181, fn. 9.) (1b) The superior court thus erred in treating the opinion as the writ, and acting upon it immediately. Henceforth, any Court of Appeal opinion accelerating the date of finality under rule 24(d) should make clear that the finality referred to is only as to that court, and not for all purposes. Likewise, the party to whom the writ will be directed the superior court in this case should not mistake the opinion for the writ itself. It should await issuance of the writ before acting upon it in order to preserve further available appellate proceedings.[1] Although our plenary review of the merits of this case renders moot the procedure followed in the Court of Appeal, we also question the propriety of 35 using the accelerated procedures established in Palma, supra, 36 Cal.3d 171. In Palma, we permitted the issuance of a peremptory writ in the first instance, with procedural safeguards which were followed here. But we also deemed the procedure a "rarity." (Id. at p. 179; see also Bay Development Ltd. v. Superior Court (1990) 50 Cal.3d 1012, 1035 [269 Cal. Rptr. 720, 791 P.2d 290] (conc. opn. of Lucas C.J.).) We stress that the accelerated Palma procedure is the exception; it should not become routine. Generally, that procedure should be adopted only when petitioner's entitlement to relief is so obvious that no purpose could reasonably be served by plenary consideration of the issue for example, when such entitlement is conceded or when there has been clear error under well-settled principles of law and undisputed facts or when there is an unusual urgency requiring acceleration of the normal process. If there is no compelling temporal urgency, and if the law and facts mandating the relief sought are not entirely clear, the normal writ procedure, including issuance of an alternative writ (see Palma, supra, at pp. 177-178) should be followed. In this case, defendant presented the Court of Appeal with a novel contention. Although the relevant facts are generally undisputed, any legal entitlement to immediate multiple arraignments was far from clear. Defendant had been incarcerated in Canada for years, much of the time resisting extradition to California. There was no apparent need for the sudden rush to judgment when he finally was extradited. We thus doubt that the rare procedure of issuing a peremptory writ in the first instance was appropriate. We need not decide the point definitively, however, for we now turn to our own consideration of the merits of defendant's petition. B. The Merits (3a) In ordering that defendant be arraigned in San Francisco, the Court of Appeal relied primarily on California Constitution, article I, section 14, which provides in pertinent part: "A person charged with a felony by complaint subscribed under penalty of perjury and on file in a court in the county where the felony is triable shall be taken without unnecessary delay before a magistrate of that court."[2] The court also cited language by this court that "The right to a prompt arraignment is `"a fundamental right of the arrested person"'...." (People v. Thompson (1980) 27 Cal.3d 303, 329 [165 Cal. Rptr. 289, 611 P.2d 883], quoting People v. Powell (1967) 67 Cal.2d 32, 59 [59 Cal. Rptr. 817, 429 P.2d 137].) 36 The court held that the defendant must be arraigned without unnecessary delay in every county in which a complaint has been filed against the defendant, not just the county currently prosecuting him. If one count of murder had been filed in each of eleven counties, instead of eleven counts in one county, the court apparently would have required defendant to be shuttled from county to county until he was arraigned in each one. Beyond that, defendant apparently intends to seek much more. In his brief on the merits, he candidly informs us that he wants "the noncapital case [to] go first during a necessarily lengthy period of pretrial preparation of the capital case." The Court of Appeal left for future litigation "contentions of good cause to delay further proceedings" in San Francisco. Here, defendant has been arraigned on the Calaveras County charges. He does not deny that that arraignment was prompt, and that those charges alone justify his continuing incarceration pending trial. The issue is thus squarely presented: Do California Constitution, article I, section 14, and the related statutory provisions, require prompt multiple arraignments, one in each county in which a felony complaint is on file? (4) For the reasons that follow, we hold that, assuming the charges in other counties play no role in defendant's custody status,[3] prompt arraignment in the first county that actively prosecutes the charges, followed by arraignment in other counties upon commencement of actual prosecution of the charges in those counties, is sufficient. Prosecution in the first county may proceed to its conclusion without interference by the need to transport the defendant to other counties in which he is charged by complaint. As we explain, a distinct statutory provision specifically addresses the situation of charges in more than one county, and reconciles the need to prosecute one case at a time with the legitimate, and sometimes conflicting, interest of the defendant for a reasonably prompt resolution of all outstanding criminal charges. (3b) Defendant does not cite, and we have not found, any case holding that an arraignment is required in another county while a prosecution is pending in a first county. Defendant, and the Court of Appeal, rely solely on 37 cases involving the initial arraignment following arrest, such as People v. Thompson, supra, 27 Cal.3d 303. While we agree that prompt arraignment following arrest is a fundamental right, defendant was promptly arraigned in Calaveras County. The question, upon which the cases are silent, is whether there is a right to prompt multiple arraignments. To answer this question, we first examine the underlying rationale for requiring prompt arraignment. (5) "The principal purposes of the requirement of prompt arraignment are to prevent secret police interrogation, to place the issue of probable cause for the arrest before a judicial officer, to provide the defendant with full advice as to his rights and an opportunity to have counsel appointed, and to enable him to apply for bail or for habeas corpus when necessary." (People v. Powell, supra, 67 Cal.2d at p. 60; accord, Youngblood v. Gates (1988) 200 Cal. App.3d 1302, 1311 [246 Cal. Rptr. 775].) The United States Supreme Court has explained that "`The purpose of this impressively pervasive requirement [requiring arrested persons to be promptly taken before a committing authority] of criminal procedure is plain. A democratic society, in which respect for the dignity of all men is central, naturally guards against the misuse of the law enforcement process.... Experience has therefore counseled that safeguards must be provided against the dangers of the overzealous as well as the despotic. The awful instruments of the criminal law cannot be entrusted to a single functionary.'" (McNabb v. United States (1943) 318 U.S. 332, 343 [87 L.Ed. 819, 825-826, 63 S.Ct. 608], as quoted in Youngblood v. Gates, supra, 200 Cal. App.3d at p. 1311; see also People v. Pettingill (1978) 21 Cal.3d 231, 242 [145 Cal. Rptr. 861, 578 P.2d 108] [discussing the dangers of an arrestee being held "incommunicado"].) (3c) As defendant argues, other purposes of the arraignment include informing the defendant of the charge and providing an opportunity to enter a plea or to move to set aside the accusatory pleading. (75 Ops.Cal.Atty.Gen. 51, 54 (1992), and cases cited therein.) Each of these purposes is served by the combination of prompt arraignment in the first county followed by arraignment in the other counties when the charges there are actively prosecuted. To the extent the purpose of arraignment is for a court to consider defendant's custody status, either directly by allowing the setting of bail, or indirectly as a precursor to other proceedings such as the preliminary hearing, arraignment must be prompt, but there is no need for multiple arraignments. The need to inquire into custody status, and the need for arraignment as to the charges being actively prosecuted, have been served by the arraignment in Calaveras County. Defendant has already been brought 38 before a neutral judicial officer, he has been informed of the charges that are currently being prosecuted, he is not being held bereft of counsel or incommunicado. Other purposes informing defendant of the specific charges being prosecuted, advice of rights, appointment of counsel,[4] allowing defendant to enter a plea or move to set aside the accusatory pleading do not require immediate arraignment in each county, but will be served by arraignment in San Francisco when those charges are actively prosecuted in that county. Custody has been a paramount concern in cases discussing the need for prompt arraignment. (See County of Riverside v. McLaughlin (1991) 500 U.S. ___ [114 L.Ed.2d 49, 111 S.Ct. 1661] [stressing the need for a prompt judicial determination of the propriety of prolonged detention].) For example, the arraignment requirement of Penal Code section 825 has been interpreted as not applying when a parole hold on other matters has been placed upon the defendant. (O'Neal v. Superior Court (1986) 185 Cal. App.3d 1086, 1090 [230 Cal. Rptr. 257]; People v. Gordon (1978) 84 Cal. App.3d 913, 923 [149 Cal. Rptr. 91].) Penal Code section 859b grants to a defendant "in custody" the right to a preliminary hearing within 10 court days. That section, which has been described as "in pari materia" with Penal Code section 859, has been interpreted as applying only to persons in custody solely by reason of the charges which are the subject of the preliminary hearing. (People v. Williams (1987) 194 Cal. App.3d 124, 131 [239 Cal. Rptr. 375]; see also Blake v. Superior Court (1980) 108 Cal. App.3d 244, 247-248 [166 Cal. Rptr. 470].) While these cases do not directly decide the instant question, they suggest that a defendant in custody for charges in one county need not be immediately arraigned in other counties. Although not directly on point, a number of cases have recognized the practical difficulties of attempting simultaneous multiple prosecutions, and the consequent propriety of trying one case at a time. In People v. Gates (1987) 43 Cal.3d 1168, 1192 [246 Cal. Rptr. 775], we held that "The pendency of another trial necessarily constitutes good cause" for delays in the second trial. (See also People v. Bradford (1976) 17 Cal.3d 8, 19 [130 Cal. Rptr. 129, 549 P.2d 1225] ["The preindictment delay in this case was justified by the necessity of awaiting termination of the federal and Los Angeles proceedings...."]; Crockett v. Superior Court (1975) 14 Cal.3d 433, 441, fn. 10 [121 Cal. Rptr. 457, 535 P.2d 321]; Blake v. Superior Court, supra, 108 Cal. App.3d at p. 252 ["It is not unreasonable to delay the Sacramento prosecution until the completion of the Los Angeles criminal 39 proceedings."]; People v. Erb (1965) 235 Cal. App.2d 650, 652 [45 Cal. Rptr. 503] ["The fact that the defendant was incarcerated in a jail in a county other than that in which the information had been filed was good cause for continuing his arraignment until he could be present."].) In People v. Watts (1969) 274 Cal. App.2d 755 [79 Cal. Rptr. 409], defendant was not transported to Orange County on charges already on file in that county until completion of criminal proceedings in Los Angeles. In rejecting claims that defendant's speedy trial rights were violated, the court discussed at length the difficulties inherent in trying to conduct simultaneous prosecutions in two counties, even adjacent counties like Orange and Los Angeles. While not directly addressing the right of arraignment, the court stated that "neither the defendant's right to a speedy trial nor due process require any such method of procedure [simultaneous prosecutions]." (Id. at p. 762.) It concluded "that the orderly administration of justice and the defendant's right to a speedy trial are both preserved by the procedure followed in the case at bench, when there is no unreasonable delay between the successive trials in the several counties." (Id. at p. 763.) Here, too, it is reasonable, and permissible, to await prosecution in one county before arraignment and prosecution in the next. Defendant, facing capital charges in Calaveras County, is an obvious security risk. The Court of Appeal has ordered defendant transported to San Francisco for arraignment. Defendant's stated intent to attempt to force trial in San Francisco before trial in Calaveras, combined with the Court of Appeal's reservation of the issue of future speedy trial claims in San Francisco, would likely require further shuttling back and forth between the two jurisdictions. The security risks and costs would be substantial. Defendant would also be able to thrust and parry one county against the other by sometimes asserting time limits and sometimes waiving them. It is difficult enough to bring a single complex case to trial. There is no need to prosecute two complex cases simultaneously.[5] Defendant argues that he is entitled to have all charges pending eventually resolved. We agree. (6) "The constitutional right to a speedy trial protects every accused; a convict is not excepted." (In re Mugica (1968) 69 Cal.2d 516, 522-523 [72 Cal. Rptr. 645, 446 P.2d 525]; see also Hayes v. Superior Court (1971) 6 Cal.3d 216, 221 [98 Cal. Rptr. 449, 490 P.2d 1137] 40 [noting the difficulties confronting a prison inmate if other charges are not resolved]; Smith v. Hooey (1969) 393 U.S. 374 [21 L.Ed.2d 607, 89 S.Ct. 575] [holding that one state has, upon demand, a constitutional duty to try to bring an inmate of another state to trial on unresolved charges].) (3d) That right is not at issue here. We merely hold that a defendant may not force prosecution in one county while other charges are being prosecuted in another; we do not suggest that a defendant does not have a right to force the resolution of other charges upon completion of the first charges. Defendant, claims, however, that if California Constitution, article I, section 14, and Penal Code section 859, are interpreted to apply only to defendants in custody by reason of the pending charges, he "would not even be entitled to a prompt arraignment in San Francisco upon completion of the Calaveras County proceedings, but must await the service of any resulting sentence in Calaveras County." We disagree. Although the arraignment provisions relied upon by defendant do not apply to charges in multiple counties, other provisions do apply to protect defendant's legitimate interests in having all outstanding charges resolved. Penal Code section 1381 provides generally that an inmate incarcerated on one set of charges may demand to be tried or sentenced on "any other indictment, information, complaint, or any criminal proceeding wherein the defendant remains to be sentenced" that is pending in California. (Italics added.)[6] "The cases dealing with a California prisoner's or parolee's constitutional and statutory rights to a speedy trial on another felony charge have held that such rights are governed by section 1381 of the Penal Code. [Citations.] ... The procedural requirements of section 1381 do not conflict with the constitutional guarantee of speedy trial [citation] or with the right to be taken before a magistrate without unnecessary delay." (In re Mugica, supra, 69 Cal.2d at p. 523.) Thus, Penal Code section 1381 serves to protect defendant's interest in having any remaining charges resolved upon completion of the prosecution in the first county. The provisions for speedy arraignment do not require multiple arraignments during the pendency of the charges that were the subject of the first arraignment. This holding makes it unnecessary to consider defendant's remaining contentions. 41 III. CONCLUSION The Court of Appeal erred in finding that defendant had a right to be arraigned in San Francisco while the capital charges in Calaveras County were pending. The judgment of the Court Appeal ordering the issuance of a peremptory writ of mandate is reversed, and the matter is remanded with instructions to deny defendant's petition for writ of mandate/prohibition. Lucas, C.J., Panelli, J., Kennard, J., Baxter, J., and George, J., concurred. MOSK, J. I concur in the judgment. In my view, petitioner is not entitled to the relief he seeks. To be sure, he has a right to a prompt arraignment in San Francisco under article I, section 14 of the California Constitution. But through his arraignment in Calaveras and the appointment of counsel in San Francisco, he has already received all the benefits that the right is intended to guarantee its "principal purposes" being "to prevent secret police interrogation, to place the issue of probable cause for the arrest before a judicial officer, to provide the defendant with full advice as to his rights and an opportunity to have counsel appointed, and to enable him to apply for bail or for habeas corpus when necessary." (People v. Powell (1967) 67 Cal.2d 32, 60 [59 Cal. Rptr. 817, 429 P.2d 137] [decided under Cal. Const., art. I, former § 8, the relevantly similar predecessor of present § 14].) With that said, I am of the view that the sequence of prosecution effectively determined here satisfies the ends of justice. The charges in Calaveras are considerably more serious and numerous than those in San Francisco. The latter consist of single counts of murder, attempted murder, and accessory after the fact to murder. The former include 11 counts of murder under 7 special circumstances. They are properly tried first. Nevertheless, I would not deduce a "rule" from what has transpired here. It is doubtful that the sequence of prosecution should depend on which county succeeds in securing custody of the defendant. Often this fact is fortuitous. Never is it dispositive in and of itself. For example, if San Francisco authorities had arrested defendant, under a "rule" of mere priority they would have been permitted to try him first despite the more serious and numerous charges in Calaveras. For an even more graphic illustration: if Amador authorities had arrested defendant for a single routine burglary, under this same "rule" they would have been allowed the first trial despite the other, much more serious and numerous charges. Certainly, such results would not serve the interests of justice. *42 I hope that the Legislature will establish a mechanism whereby the sequence of prosecution among competing counties may appropriately be determined. It could perhaps authorize the Attorney General, as "the chief law officer of the State" (Cal. Const., art. V, § 13), to fix the order of multiple trials. I trust that a legislative response will be forthcoming. NOTES [1] We note that the rules provide a procedure for expedited finality when there is a need for prompt action. Rule 25(b) states: "For good cause shown, or on stipulation of the parties, the Supreme Court may direct the immediate issuance of a remittitur. The Court of Appeal may direct the immediate issuance of a remittitur on stipulation of the parties." Since a remittitur issues only "after the final determination" of a cause such as this (rule 25(a)), rule 25(b) means, in effect, that upon stipulation, either the Court of Appeal or this court may order immediate finality for all purposes; absent a stipulation, this court may order immediate finality for good cause shown. Therefore, although the Court of Appeal lacks authority (absent stipulation) to permit the immediate issuance of the writ without opportunity for review by this court (see Palma, supra, 36 Cal.3d at p. 182), this court has such authority when there is good cause. [2] Various statutory provisions address this mandate. Penal Code section 825 provides in pertinent part that "the defendant must in all cases be taken before the magistrate without unnecessary delay, and, in any event, within two days after his or her arrest, excluding Sundays and holidays...." Penal Code section 859 provides in pertinent part that the defendant "shall, without unnecessary delay, be taken before a magistrate of the court in which the complaint is on file." (See also Pen. Code, §§ 821, 976.) [3] There is no doubt that the capital charges in Calaveras County alone justify defendant's continuing incarceration. The San Francisco charges play no role in his custody status. As discussed in the text, arraignment is an important safeguard against improper continuing incarceration. We thus note that if a defendant is entitled to release, on bail or otherwise, in the first county, and another county seeks to keep him in custody on charges in that county, the defendant would undoubtedly have the right to obtain a prompt judicial determination of the propriety of the continuing incarceration. (See, e.g., Pen. Code, § 976.) Since those are not the facts here, we do not explore the question further except to stress that our holding applies only when charges from outside counties play no role in defendant's incarceration. [4] For reasons which are unclear on the record, counsel has already been appointed to represent defendant on the San Francisco charges. [5] To the extent that defendant contends that the delay in prosecuting the San Francisco charges has prejudiced or will prejudice him in violation of his due process or speedy trial rights, we merely note that, except for the narrow issue decided here, nothing we say can or does affect defendant's ability to make any appropriate motions he may choose once the San Francisco charges are actively prosecuted. [6] Penal Code section 1381.5 is the counterpart for inmates in federal custody in this state. Penal Code section 1389, the "Agreement on Detainers," is the counterpart for persons incarcerated outside the state. (See People v. Watts, supra, 274 Cal. App.2d at pp. 759-760.) We do not here discuss the details of these provisions, or whether they are constitutionally based, or how they may eventually apply to defendant; instead, we merely note that, in contrast to the arraignment provisions, they expressly address the problem of charges in multiple jurisdictions.	{ "pile_set_name": "FreeLaw" }
656 So.2d 954 (1995) AGRITURF MANAGEMENT, INC., Appellant, v. Jane ROE, individually, and as Trustee for R.R., and as parent and guardian of Jane Doe Minor, a minor child, Appellee. No. 94-03661. District Court of Appeal of Florida, Second District. Opinion filed June 23, 1995. Wayne Tosko of Neilson and Associates, Orlando, for appellant. Victor C. Krumm of Law Office of Victor C. Krumm, P.A., Sarasota, for appellee. FRANK, Chief Judge. Agriturf Management, Inc., is a familystructured corporation engaged in the landscaping business. Its president, Raymond T., has a granddaughter, Jane Doe Minor, whose parents, Jane Roe (J.R.) and R.R., rented a house from Raymond that is adjacent to property used by Agriturf to store its trailer and equipment and to prepare fertilizers and chemicals to be used in each succeeding day's work. Jane Doe Minor often accompanied Raymond at the end of the work day when he returned equipment to the area behind the house. In the spring and summer of 1992, when the child was six years old, Raymond sexually fondled Jane Doe Minor on several occasions at the trailer where Agriturf's equipment and material were 955 stored. On one occasion, during the child's visit to her grandfather's house, Jane Doe Minor's grandmother witnessed Raymond fondling Jane Doe Minor. The grandmother called the police; Raymond was arrested and ultimately sentenced to four years in prison. R.R. and J.R. sued Agriturf on Jane Doe Minor's behalf, alleging that Agriturf was negligent and that as a direct result of its negligence, their daughter was injured. The complaint further alleged that Raymond, in the course and scope of his employment, tortiously engaged in illicit sexual relations with Jane Doe Minor in a trailer used to transport Agriturf's equipment. The parties reached a settlement that involved a "highlow" agreement. Pursuant to the terms of that agreement, if Agriturf were determined liable by the court for the acts of Raymond, Agriturf would pay R.R., J.R., and Jane Doe Minor an agreed upon amount. If the court's final determination were of no liability, Agriturf would pay a lesser amount. The parties stipulated that the issue of Agriturf's liability was a question of law for the court, and they agreed that live testimony would not be required. The trial court concluded that Raymond's conduct was within the course and scope of his employment with Agriturf and that Agriturf was liable for Raymond's unlawful acts. We disagree. The trial court grounded its analysis upon its findings that Agriturf provided the means and the place for Raymond to molest his granddaughter because the abuse occurred in the Agriturf trailer. Furthermore, because Jane Doe Minor would help Raymond put away tools and clean the equipment, the court concluded that Raymond was acting within the apparent scope of his authority and serving the interests of Agriturf. We reject the trial court's analysis. It is true that the abusive touching occurred on Agriturf property during the time when Raymond was cleaning up and closing out the day's business. It is also true that Jane Doe Minor would help her grandfather but obviously in a manner limited by the capabilities of such a young child. However, even though the acts of cleaning and putting away equipment occurred within the course and scope of Raymond's employment with Agriturf, the sexual abuse did not. As a matter of law, the fondling of the six-year old child by her grandfather did not occur in furtherance of the business objectives of the adult's employer. See Kane Furniture Corp. v. Miranda, 506 So.2d 1061 (Fla. 2d DCA 1987); Nazareth v. Herndon Ambulance Service, Inc., 467 So.2d 1076 (Fla. 5th DCA 1985). As was noted in Nazareth, "[g]enerally, sexual assaults and batteries by employees are held to be outside the scope of an employee's employment and, therefore, insufficient to impose vicarious liability on the employer." 467 So.2d at 1078. An exception may occur if the tortfeasor was assisted in accomplishing the molestation by virtue of the employer/employee relation. Id. In this case, however, if any relationship furthered Raymond's deviant purpose, it was that of grandfather/granddaughter. Unlike the case of Hennagan v. Dep't of Highway Safety and Motor Vehicles, 467 So.2d 748 (Fla. 1st DCA 1985), in which a police officer allegedly used the authority of his office to lure a young girl into his car and ultimately to molest her, Raymond's misconduct did not have as its source or its purpose any intent to serve Agriturf. Agriturf has also contended here that the evidence was insufficient to show that the corporate entity, Agriturf Management, Inc., knew or should have known of the sexual molestation of Jane Doe Minor. Absent such knowledge, Agriturf should not be held liable for the acts of its employee. The trial court did not comment upon this issue in its final order. Nevertheless, we agree with Agriturf that Raymond's knowledge of his own illegal acts cannot be imputed to the corporation because they were committed outside the scope of his employment. If the corporation were deemed to have notice of the illicit conduct of its officer and employee conduct that furthered only the prurient interest of the actor and had no relation to the company's business Agriturf would in effect become the insurer of the independent, illegal actions of its employees. See Dickson v. Graham-Jones Paper Co., 84 So.2d 309 (Fla. 1955). Such a result is neither intended nor desirable under the principles of agency law. 956 Accordingly, the final order determining Agriturf liable for the illegal acts of its employee is reversed, and this cause is remanded for further proceedings consistent with this opinion. BLUE and FULMER, JJ., concur.	{ "pile_set_name": "FreeLaw" }
561 S.W.2d 148 (1978) TIPTON COUNTY BOARD OF EDUCATION and William T. Eaton, Petitioners, v. Lawrence DENNIS, b/n/f Stephen Dennis and Stephen Dennis, Individually, Respondents. Supreme Court of Tennessee. January 23, 1978. 149 J. Thomas Caldwell, Ripley, J. Houston Gordon, Covington, for petitioners. Ricco Gatti, Jr., Memphis, for respondents. OPINION HARBISON, Justice. These actions were instituted under the Tennessee Governmental Tort Liability Act, T.C.A. §§ 23-3301 et seq. They arose out of a collision between an automobile being driven by Mrs. Jane Ann Dennis and a school bus which was stalled on State Highway 59 at about 7:30 a.m. on January 23, 1974. Mrs. Dennis was fatally injured in the accident. Her twelve-year-old son, a passenger in her car, sustained personal injuries. The trial court found that Mrs. Dennis was guilty of proximate contributory negligence and dismissed the action brought for her wrongful death. He allowed a recovery to the minor, Lawrence Dennis, and to his father for medical expenses. From these judgments the plaintiffs appealed, contending that the trial court had erred in dismissing the wrongful death action and in not allowing punitive damages in the action brought on behalf of the minor. They contended that the trial court erred in not finding the operator of the school bus guilty of gross negligence. The Court of Appeals affirmed the compensatory award in the suit of the minor but held the bus driver to be grossly negligent, entitling the plaintiffs to punitive damages. It also held that Mrs. Dennis was guilty only of remote contributory negligence, which would not bar recovery in view of the gross negligence of the bus driver. It allowed compensatory and punitive damages in the wrongful death action. This Court granted certiorari to consider whether or not punitive damages are recoverable, as a matter of law, under the provisions of the Tennessee Governmental Tort Liability Act, and also to review the disposition of the wrongful death action by the Court of Appeals. There were numerous other issues before the trial court and Court of Appeals, but we have limited our consideration to the two questions stated above, one of which is legal and the other factual. A large number of witnesses testified in the cases, and there was a great deal of conflicting testimony. As provided by statute, the actions were tried without a jury, T.C.A. § 23-3319, and review on appeal is governed by T.C.A. § 27-303. On the January morning when the accident occurred, Daylight Saving Time was in effect, and there is little question from the record that the collision occurred during darkness. A light misty rain had been falling, and the pavement was wet, although it was not raining at the time of the accident. The school bus had been traveling north on a straight, relatively level two-lane highway. The investigating highway patrolman testified that the road was completely level to the south of the collision site for more than a mile. To the north there was a gradual incline, cresting several hundred feet past the accident scene. The automobile being operated by Mrs. Dennis was also proceeding in a northerly direction, and it struck the school bus in the rear. There were approximately twenty to twenty-five children on the bus at the time of the collision. The driver had stopped to 150 pick up a regular passenger, Debbie Boyd, at the home of her grandmother, Mrs. Freddie Gibson. He stopped at or near the driveway to the residence, which was situated on the east side of the highway. The right wheels of the bus were at the edge of the pavement, but not on the shoulder. After Debbie Boyd had boarded the bus, the driver shifted into gear, but the motor of the bus stalled after the vehicle had moved forward a very short distance. The driver made two attempts to start the motor, but the starter did not engage. He got out of the bus, raised the hood, and checked the battery cable, which was intact. He returned to the bus and again attempted to start the engine, without success. He then requested the oldest boy on the bus, Danny Brent, who was sixteen years of age, to stand on the opposite shoulder of the highway to flag traffic. The driver went into Mrs. Gibson's home and called the maintenance shop of the school system for assistance. He received an answer immediately, and was advised that a mechanic should be on the scene within about ten minutes. He then returned to the highway, where a number of cars had stopped behind the bus. He and Danny Brent waved about six cars around the bus and were attempting to flag traffic when Mrs. Dennis approached from the south. The bus remained stalled in the northbound lane of the highway for ten to fifteen minutes between the time of its initial stop and the collision. Most of the children remained on the bus. The driver testified that there were flares on board, and that these were in operable condition. He had not placed them along the highway prior to the impact, however, as required by T.C.A. § 59-919. He testified that he simply did not think to get the flares, with all of the other matters which required his attention. Mrs. Dennis was apparently driving at a high rate of speed for the weather conditions then obtaining. The impact between her automobile and the bus was violent, driving the school bus more than one hundred feet north on the highway and into the southbound lane, and completely demolishing the front portion of the automobile. Witnesses estimated her speed at about fifty-five miles per hour, but we agree with the observation of the Court of Appeals that a trier of fact could reasonably conclude that the vehicle was traveling at an even higher rate of speed. Lawrence Dennis testified that he did not see the school bus until his mother's vehicle was within ten or fifteen feet of it, and that there were no lights on the bus at the time. He also testified, however, that he was just beginning to learn to operate an automobile and that he was quite sleepy, almost "groggy," when the collision occurred. There was sharply conflicting testimony concerning the presence or absence of lights on the bus at the time of the accident. A number of persons who were driving or riding in other automobiles prior to the collision testified that they did not see any lights on the bus, either from the front or the rear. Others testified to the contrary, one witness testifying that she stopped behind the bus and then pulled around it, and that its lights were operating. The bus driver testified that the flashers on the bus were operating continuously from the time he stopped until the accident occurred. He said that the headlights were burning when he first stopped, but that he cut these off in order to try to start the engine, later turning them on again. He testified that at no time were the flashers ever turned off. One eyewitness, traveling north behind the Dennis vehicle, testified unequivocally that the lights of the bus were flashing, and that he saw them over two-tenths of a mile before he reached the accident scene. He saw the impact, saw the bus careen down the highway thereafter, and testified that its flashers were burning during and after the impact. The fact that the lights were burning after the accident was confirmed by the investigating highway patrolman, and by one of the maintenance employees of the School Board. The latter also testified that they were still on when the damaged bus was brought into the garage later in the morning. 151 Debbie Boyd, the boarding passenger, was slightly injured in the accident and made claim for damages. Her case was tried along with the cases now under consideration. Her grandmother, Mrs. Gibson, testified positively that the bus lights were flashing when the accident occurred, and that she heard her daughter, mother of the child, exclaim that Mrs. Dennis was going to run into the bus. Danny Brent, the sixteen-year-old who was assisting with traffic, and whose injured sister was also a claimant in the trial court, testified that the bus lights were flashing when the accident occurred. There was, therefore, material evidence in the record to justify a factual decision either way as to whether the bus was lighted before the collision. The trial judge concluded that the lights either were not burning or that they were so dim as not to be visible under the weather and driving conditions then existing. The Court of Appeals concurred in this finding. The trial judge, however, also concluded that the bus driver was not guilty of gross neglect. He observed that the driver was "a relatively uneducated man and that he tried to do what he thought best under the circumstances." The Court of Appeals overturned this conclusion and found that the bus driver was guilty of gross neglect of duty, to the point that he might as well have left the scene of the accident, as occurred in one of the cases which it cited and relied upon, Inter-City Trucking Co. v. Daniels, 181 Tenn. 126, 178 S.W.2d 756 (1944). The Court of Appeals also reversed the finding of the trial judge that the wrongful death action was barred by the proximate contributory negligence of Mrs. Dennis. It concurred in finding that she was at fault, but characterized her negligence as being "remote" only. We are unable to agree with either of these conclusions of the Court of Appeals. In the first place, it seems to us that the school bus driver did not evince a conscious neglect of duty or display a callous indifference to consequences. He was faced with a school bus loaded with children, a vehicle which had suddenly experienced an engine failure, and a busy highway filled with traffic, which was stopping and building up behind the bus. He dispatched the oldest student on the bus to assist with traffic, made a very brief phone call for assistance, and then returned himself to try to relieve traffic congestion. Whatever the ultimate factual decision on the matter may have been, he clearly believed that flashing lights on his bus were operating as a warning to approaching cars, and substantial independent evidence was offered in support of his testimony in that regard. A total of not more than fifteen minutes elapsed. While his failure to place flares, as required by statute, constituted negligence per se, and while we have no disposition to alter the conclusions of the courts below that this failure was a direct and proximate cause of the accident, we do not think his conduct at all comparable to that of the truck driver who abandoned a darkened vehicle for over an hour and a half and was found in a near-by restaurant after the accident, as in the Inter-City Trucking Co. case, supra. Nor is it even remotely comparable to that of the owner and the driver in Garner v. Maxwell, 50 Tenn. App. 157, 360 S.W.2d 64 (1961). There the vehicle was on the highway for over four hours at night. The owner and the driver, Garner and Wells, deliberately turned off the lights to protect the battery, left the vehicle unattended without lights or flares and went home to bed. The trial judge saw and observed all of the witnesses in this case and heard the conflicting testimony. Based thereon, he concluded that the bus driver was not guilty of gross misconduct or aggravated neglect of duty. We are of the opinion that the evidence does not preponderate against this finding, and we reverse the holding of the Court of Appeals that the bus driver was guilty of gross negligence. We are also unable to conclude that the negligence of Mrs. Dennis, found to exist by both courts below, was anything other the direct and proximate and constituted an immediate, contributing cause to the tragic 152 accident in which she lost her life. Accordingly the judgment of the Court of Appeals, awarding compensatory and punitive damages for her wrongful death, is reversed, and the judgment of the trial court, dismissing that suit, is affirmed at the cost of the respondent therein. No issue is made before us as to the amount of compensatory damages awarded to the minor, Lawrence Dennis, and to his father for medical expenses. The Court of Appeals added punitive damages to the compensatory award made by the trial court, and, for the reasons stated above, on the facts, we are of the opinion that this was error. We are further of the opinion that it was error as a matter of law, because we do not consider that punitive damages are recoverable under the provisions of the Tennessee Governmental Tort Liability Act, T.C.A. § 23-3301 et seq. Like many other statutes permitting recovery from governmental entities for tortious injuries, the Tennessee Governmental Tort Liability Act contains several exceptions. It does not authorize any recovery at all for most willful or intentional torts. T.C.A. § 23-3311. It generally removes immunity from suit, with stated exceptions, "for injury proximately caused by a negligent act or omission of any employee within the scope of his employment... ." Ibid. It specifically removes such immunity for injuries resulting from negligent operation of motor vehicles or other equipment. T.C.A. § 23-3308. The statutes define injury for which damages may be recovered as follows: "The word `injury' means death, injury to a person, damage to or loss of property or any other injury that a person may suffer to his person, or estate, that would be actionable if inflicted by a private person or his agent." T.C.A. § 23-3302(4). The theory of punitive, or exemplary damages is not to compensate an injured plaintiff for personal injury or property damage, but to punish a defendant, to deter him from committing acts of a similar nature, and to make a public example of him. As stated in a recent case, they are "in excess of compensatory damages and in addition thereto." Inland Container Corp. v. March, 529 S.W.2d 43 (Tenn. 1975). See Liberty Mutual Ins. Co. v. Stevenson, 212 Tenn. 178, 368 S.W.2d 760 (1962); Knoxville Traction Co. v. Lane, 103 Tenn. 376, 53 S.W. 557 (1899). Apart from statute, the weight of authority is that punitive damages are not recoverable from municipal or local governments, on grounds of public policy. Since the ultimate payment of public tort claims devolves upon taxpayers, most courts have concluded that punitive awards in such cases have little deterrent value and do not advance any other public purpose underlying exemplary damages. See 57 Am.Jur.2d, Municipal, Etc. Tort Liability §§ 318 et seq.; 63 C.J.S. Municipal Corporations § 947; Annot., 19 A.L.R.2d 903 (1951). In many jurisdictions having tort claim statutes, there are express provisions disallowing punitive awards. See, e.g. 28 U.S.C.A. § 2674 (Federal Tort Claims Act); West's Ann.Gov. Code § 818 (California, 1977 Supp.) (disallowing "damages imposed primarily for the sake of example and by way of punishing the defendant"); Minn.Stats. Ann. §§ 466.04 (1977 Supp.); Okla.Stats. Ann. § 11-1751(b) (1977 Supp.). The Tennessee statute does not expressly prohibit an award of punitive damages. However, it seems to us inappropriate and not in accord with the legislative intent to permit a punitive award against a public body and its employees where only a negligent act is involved, even though it might be characterized as gross, when the Legislature has excluded compensatory as well as punitive awards in nearly all cases involving willful or intentional misconduct. Further, the definition of "injury" for which recovery may be had is not consonant with the theory of punitive damages. We are of the opinion that in adopting the Tennessee Governmental Tort Liability Act, the General Assembly intended to authorize compensatory damages, but not exemplary or punitive damages, within the statutory limits. T.C.A. § 23-3327. *153 Accordingly, the judgment of the Court of Appeals in the action brought on behalf of Lawrence Dennis is modified by deleting the award of punitive damages. It is otherwise affirmed. Costs accrued in the appellate courts in that case are taxed against respondents; costs in the trial court against petitioners. The cause will be remanded to the trial court for any necessary orders incident to the final judgment. HENRY, C.J., and COOPER, JONES and BROCK, JJ., concur.	{ "pile_set_name": "FreeLaw" }
Prejudgment Interest Under the Back Pay Act for Refunds of Federal Insurance Contributions Act Overpayments T h e B ack Pay A c t’s a u th o riz a tio n o f p re ju d g m e n t in te re st d o e s n o t a p p ly to the re tu rn o f a F ederal In su ran ce C o n trib u tio n s A ct tax o v e rp a y m e n t. E ven i f the B a c k Pay A c t d id ap p ly to su ch re tu rn s, an a g e n c y ’s sp e c ific e x e m p tio n fro m lia b ility u n d e r the F e d e ra l In su ra n c e C o n trib u tio n s A ct w o u ld o v e m d e the p ro v isio n s o f the B ack P a y A ct. May 31, 1994 M e m o r a n d u m O p in io n f o r t h e A c t in g G e n e r a l C o u n s e l D e pa r t m e n t o f D efen se This memorandum responds to your Office’s request for our opinion whether civilian employees of the Department of Defense (“DoD”) who receive from the Internal Revenue Service (“IRS”) a refund of taxes that were deducted from their pay pursuant to 26 U.S.C. § 3121(a) of the Federal Insurance Contributions Act, 26 U.S.C. §§ 3101-3128 (“FICA”), as amended, are entitled to receive prejudgment interest on the refund from DoD pursuant to the Back Pay Act, 5 U.S.C. § 5596, as amended. We conclude that these DoD employees are not entitled to receive addi tional interest from DoD. I. BACKGROUND FICA imposes a tax on the income of every employee, calculated as a percent age of wages, for the support of old-age, survivors, disability, and hospital insur ance. 26 U.S.C. § 3101. A corresponding payroll tax for the same purpose is imposed on every employer with respect to each employee. Id. § 3111. Under FICA, every employer must deduct its employees’ share of the FICA tax from their wages “as and when paid.” Id. § 3102(a). All sums collected must be paid over to the IRS. Id. § 3102(b). In 1983, FICA taxation was extended to all subsequently hired civilian federal employees. See Social Security Act Amendments of 1983, Pub. L. No. 98-21, § 101(b)(1), 97 Stat. 65, 69 (codified as amended at 26 U.S.C. § 3121(b)(5), (6)); S. Rep. No. 98-23, at 5 (1983). Each federal agency is treated as a separate employer for purposes of FICA. See 26 U.S.C. § 3122. Certain civilian DoD employees receive allowances for living quarters and for temporary lodging costs pursuant to the Overseas Differentials and Allowances Act, 5 U.S.C. § 5923, as amended (“ODAA allowances”). ODAA allowances have 127 Opinions o f th e O ffice o f L egal C ounsel always been expressly exempted from income tax. See 26 U.S.C. § 912(1)(C); Anderson v. United States, 929 F.2d 648, 649 (Fed. Cir. 1991). Because FICA does not expressly exempt ODAA allowances from taxation, an issue arose as to whether such payments were taxable for that purpose. DoD concluded that they were and, accordingly, deducted appropriate sums from its employees’ ODAA allowances and paid those funds over to the IRS. See Anderson v. United States, 16 Cl. Ct. 530, 532-33 (1989) At least some of the affected employees filed ad ministrative claims for refunds, which the IRS denied. Id. at 533-34. The IRS’s denial of these claims did not survive judicial scrutiny. In Anderson, a number of DoD employees brought suit against the United States, seeking a re fund of the FICA taxes paid on ODAA allowances for the years 1984 through 1987. The Court of Federal Claims granted them summary judgment, holding that ODAA allowances are exempt from FICA taxation. 16 Cl. Ct. at 541. The deci sion was affirmed on appeal. Anderson v. United States, 929 F.2d 648 (Fed. Cir. 1991). The United States did not petition the Supreme Court for a writ of certio rari. As a result of Anderson, certain DoD employees (and other similarly situated federal employees) will receive refunds of the contested FICA taxes (“Anderson employees”). II. ISSUE FOR CONSIDERATION W e have been asked to determine the amount of interest that must be paid on FICA tax refunds to Anderson employees. Absent a waiver of sovereign immunity, the United States and its agencies are not liable for prejudgment interest. See, e.g., Library o f Congress v. Shaw, 478 U.S. 310, 310, 314-15 (1986); Loefflerv. Frank, 486 U.S. 549, 554, 556-57 (1988). The Internal Revenue Code (“Code”) contains such a waiver with respect to refunds of FICA tax overpayments. See 26 U.S.C. §§ 6413(b), 6611(a). The Office of Personnel Management (“OPM”) and DoD agree that the IRS must pay Anderson employees prejudgment interest on their FICA tax refunds pursuant to these provisions. The Back Pay Act, however, also expressly permits prejudgment interest on an award of “back pay,” as defined by that Act. See 5 U.S.C. § 5596(b); Brown v. Secretary o f the Army, 918 F.2d 214, 216-18 (D.C. Cir. 1990), cert, denied, 502 U.S. 810 (1991). OPM believes that Anderson employees are entitled to receive interest on their refunds under the Back Pay Act. See Letter for Albert V. Conte, Director, Defense Finance and Accounting Service, Department of Defense, from Constance Berry Newman, Director, Office of Personnel Management at 1 (Apr. 27, 1992) (“Newman Letter”); Letter for Philip M. Hitch, Deputy General Counsel (Fiscal), Department of Defense, from Arthur Troilo III, General Counsel, Office of Personnel Management at 3-4 (Nov. 30, 1992) (“Troilo Letter”). Accordingly, OPM instructed federal agencies that: “Because IRS computes interest in a manner 128 P rejudgm ent Interest Under the B ack Pay A ct f a r R efunds o f F ederal Insurance C ontributions A ct O verpaym ents that would result in a smaller interest payment to employees, agencies must com pute interest due employees under the back pay law (5 U.S.C. 5596).” Attachment to Memorandum for Directors of Personnel from Claudia Cooley, Associate Di rector for Personnel Systems and Oversight at 3 (Dec. 3, 1991). OPM further in structed that each agency must add to the IRS’s interest payment an amount sufficient to make the total equal to the larger amount of interest prescribed under the Back Pay Act. Newman Letter at 1-2. OPM suggests that agencies failing to make this payment could be held liable for the additional amount. Troilo Letter at 3, 4. DoD’s position is that it has no legal obligation to pay any additional inter est.1 III. LEGAL ANALYSIS We conclude that the Back Pay Act’s authorization of prejudgment interest does not apply to the return of a FICA tax overpayment. The Back Pay Act was not intended to remedy this type of injury. Indeed, as discussed below, FICA contains a provision that exempts employers from liability in these circumstances. Conse quently, there is no legal basis for OPM’s instruction to agencies to pay additional interest computed under the Back Pay Act. A. THE REQUIREMENTS FOR APPLICATION OF THE BACK PAY ACT ARE NOT MET The Back Pay Act provides: An employee of an agency who, on the basis of a timely appeal or an administrative determination . . . is found by appropriate authority under applicable law, rule, regulation, or collective bar gaining agreement, to have been affected by an unjustified or un warranted personnel action which has resulted in the withdrawal or reduction of all or part of the pay, allowances, or differentials of the employee— . . . is entitled, on correction of the personnel action, to receive for the period for which the personnel action was in effect— 1 D oD estim ates lhat paying additional interest under the Back Pay A ct w ould c o st approxim ately $7 million M em orandum for Daniel L K offsky A cting A ssistant A ttorney G eneral, O ffice of Legal C ounsel, D epartm ent o f Justice, from Jam ie S. G orelick, G eneral C ounsel, D epartm ent of D efense at 6 (Ju n e 21, 1993). 129 O pinions o f the O ffice o f L egal C ounsel . . . an amount equal to all or any part of the pay, allowances, or differentials, as applicable which the employee normally would have earned or received during the period if the personnel action had not occurred, less any amounts earned by the employee through other employment during that period. 5 U.S.C. § 5596(b). In general, the Back Pay Act grants a cause of action to an employee who has lost pay as a result of a wrongful personnel action. Its purpose is to permit such an employee to recover money damages sufficient to make the employee whole. United States v. Testan, 424 U.S. 392, 407 (1976): Wells v. FAA, 755 F.2d 804, 807 (1 1th Cir. 1985). The need for the Act arises “by the fact that, absent specific command of statute or authorized regulation, an appointed employee subjected to unwarranted personnel action does not have a cause of action against the United States.” United States v. Hopkins, 427 U.S. 123, 128 (1976). The Supreme Court repeatedly has adhered to a narrow construction of the Back Pay Act, finding that it authorizes money damages only in the “‘carefully limited circumstances’” ex pressly set forth in the statute. United States v. Mitchell, 463 U.S. 206, 217 (1983) (quoting United States v. Testan, 424 U.S. at 404). OPM maintains that the Back Pay Act applies concurrently with the provisions of the Code as a remedy for an agency’s erroneous deduction of too much FICA tax from its employees’ earnings. OPM has not, however, cited (nor have we found) any reported decision applying the Back Pay Act in such circumstances. In light of the Supreme Court’s strict construction of the Back Pay Act, the absence of authority suggests that OPM ’s novel application should be approached with skepti cism. OPM, moreover, has not demonstrated that the specific requirements of a Back Pay Act action have been met. The first requirement is that an employee must have been subject to an “unjustified or unwarranted personnel action.” The legislative history of the Back Pay Act discusses the types of personnel actions falling within its purview: H.R. 1647 does not prescribe the specific types of personnel ac tions covered. Separations, suspensions, and demotions constitute the great bulk of cases in which employees lose pay or allowances, but other unwarranted or unjustified actions affecting pay or allow ances could occur in the course of reassignments and change from full-time to part-time work. If such actions are found to be unwar ranted or unjustified, employees would be entitled to backpay bene fits when the actions are corrected. 130 P rejudgm ent Interest Under the Back Pay A ct f o r R efunds o f F ederal Insurance C ontributions A ct O verpaym ents S. Rep. No. 89-1062, at 3 (1966); see United States v. Testan, 424 U.S. at 405-06 (quoting this cited legislative history). The examples given in the Senate report all involve an alteration of the terms of employment, such as the downgrading of an employee’s appointed position, that cause an employee to earn less money. The damages owed to the employee equal the reduction of earnings arising out of the adverse personnel action. In contrast, the Anderson employees did not suffer a loss of earnings: they concededly earned the money that was deducted from their paychecks. Their claim, rather, was that the United States was indebted lo them to the extent that the FICA deductions ex ceeded their actual tax liability. See Stone v. White, 301 U.S. 532, 534-35 (1937) (claim of tax overpayment is in the nature of one for money had and received); King v. United States, 641 F.2d 253, 259 (5th Cir. 1981) (same); M issouri Pac. R.R. Co. v. United States, 338 F.2d 668, 670 (Ct. Cl. 1964) (taxpayer bringing action for refund must show payment of excess taxes that equitably belong to him or there can be no recovery). At least one court has held that a claim for money due is not cognizable under the Back Pay Act: Mere failure by a government agency to pay money due is not the kind of adverse personnel action contemplated in the Back Pay Act. We are not called upon to correct an adverse personnel ac tion. . . . Plaintiffs’ claims are analogous to ones for unpaid salary for time actually worked. Bell v. United States, 23 Cl. Ct. 73, 77 (1991). Thus, we conclude that DoD’s er roneous deduction of too much FICA tax was not an adverse personnel action within the contemplation of the Back Pay Act. OPM has not called our attention to, and we have not discovered, any decision that might compel a different conclu sion. A second essential element under the Back Pay Act is that the personnel action must have caused the “withdrawal or reduction of all or part of the pay, allow ances, or differentials of the employee.” OPM suggests that an agency’s deduction of too much FICA tax constitutes a reduction in pay (or, in this case, allowances). Section 3123 of FICA, however, provides: Whenever under . . . [FICA] . . . an employer is required or per mitted to deduct any amount from the remuneration of an employee and to pay the amount deducted to the United States, . . . then for purposes of [FICA] the amount so deducted shall be considered to have been paid to the employee at the time o f such deduction. 26 U.S.C. § 3123 (emphasis added). See Pope v. University o f Washington, 852 P.2d 1055, 1062 (Wash. 1993), cert, denied, 510 U.S. 11 15 (1994); IRS Private 131 Opinions o f th e O ffice o f L egal C ounsel Ruling 7702012130A, 1977 PRL Lexis 60. Cf. Slodov v. United States, 436 U.S. 238, 243 (1978) (“[o]nce net wages are paid to the employee, the taxes withheld are credited to the employee regardless of whether they are paid by the employer, so that the IRS has recourse only against the employer for their payment”). DoD was “required or permitted” to determine the amount of remuneration subject to tax and to make the appropriate deduction. See 26 U.S.C. § 3102(b); id. § 3122. Thus, the deductions at issue here must be considered as having been paid to the Anderson employees.2 Finally, the Back Pay Act requires that the employing agency have been found by an “appropriate authority” to have engaged in a wrongful personnel action. OPM has defined this term in its regulations: “Appropriate authority means an entity having authority in the case at hand to correct or direct the correction of an unjustified or unwarranted personnel action, including . .. the Office of Personnel M anagement.” 5 C.F.R. § 550.803. OPM regards itself as the “appropriate authority” that has found that DoD has engaged in a wrongful personnel action with respect to the Anderson employees: OPM clearly meets the definition [of an “appropriate authority” set forth in 5 C.F.R. § 550.803] . . . and, in addition, is specifically mentioned as such an authority [in the regulation], . . . In the case of the FICA tax issue, OPM, consistent with its mission as the Fed eral personnel administrator, was compelled to issue guidance to Federal agencies setting forth instructions on how to implement the Anderson decision, including how to correct the erroneous with holdings of FICA taxes. 2 S ectio n 3123, by its term s, applies only " fo r p u rposes” o f FIC A . Thus, it is possible lhat the deduction m ight be treated as a n o n -p ay m en t o f wages fo r purposes o f som e other statute. But there is no basis for doing so here, because ihe B ack Pay Act is p u re ly rem edial: it restores pay lost to an em ployee from the violation o f a right gran ted un d er another “ a p p licab le law, rule, regulation, or collective bargaining agree m ent.'’ 5 U S C . (j 5596(b) T he ' ‘applicable law " in this case— FIC A — expressly authorized D oD to m ake the c o n te ste d d ed u ctio n s and com m anded th a t they be co n sid ered as a paym ent o f rem uneration Thus, D o D ’s erro n eo u s FIC A d ed u ctio n s cannot serv e as the predicate for an action under the Back Pay A ct, w hich requires that the claim ant have suffered a loss o f pay resulting from a w rongful personnel action. W e note also that the clash o f assum ptions betw een FICA an d the Back Pay Act concerning w hether an a g e n c y 's d ed u ctio n o f FIC A tax is a payment o f w ages could ex p o se the A nderson em ployees to unpleasant tax c o n seq u en ces if, as O PM proposes, the tw o schem es w ere applied concurrently. It is settled law that aw ards u n d e r the Back Pay A ct are taxable e a rn in g s for FIC A and incom e tax purposes, subject to tax w ith holding w hen they are paid to the employee. S e e, e.g., Tanaka v. D epartm ent o f Navy, 788 F.2d 1552, 1553 (Fed. C ir. 1986), A in sw o rth v. U nited Stales, 3 9 9 F 2d 176, 185-86 (C t Cl 1968), K opp v. D epartm ent o f A ir F orce, 37 M .S P R 434, 4 3 6 (1988) T h is tax treatm ent co m p o rts w ith the theory that the Back Pay Act provides ‘“ rep aratio n . based upon the loss o f w ages w hich the em ployee has suffered from the em p lo y er’s w ro n g .’" A in sw o rth , 3 9 9 F 2d at 185 (quoting S o cia l S ecu rity Bd. v. N ierotko, 327 U S 358, 364 (1946)). T hus, alth o u g h O D A A allo w an ces ordinarily are excluded from FICA and incom e taxation, the A nderson em p lo y e es’ recovery w ould be taxable as o rd in ary wage earn in g s if they w ere received as an aw ard of back pay ra th e r th an as a tax refu n d (absent an e q u ita b le adjustm ent). T his anom aly highlights the dubious nature o f any su g g estio n that the Back Pay Act has a ro le to play in the return o f a tax overpaym ent. 132 P rejudgm ent Interest U nder the B ack Pay A ct f o r R efunds o f F ederal Insurance C ontributions A ct O verpaym ents Troilo Letter at 3. We do not agree that OPM is an “appropriate authority” under the Back Pay Act. Whatever OPM’s authority to “issue guidance” to agencies concerning how to correct the FICA tax treatment of ODAA allowances in light of Anderson, it did not have authority to correct the improper FICA tax deductions contested in An derson, which is “the case at hand.” DoD was vested with initial authority to de termine the amount of FICA tax to be deducted from its Anderson employees’ pay. 26 U.S.C. § 3122. That determination was subject to review and correction by the Secretary of the Treasury. Id. (As noted in § I, supra, the Secretary agreed with DoD and allowed the deductions to stand.) The Secretary’s decision was final within the executive branch. See 26 U.S.C. § 6406.3 Judicial review of the Secre tary’s decision was available in either the federal district courts or the Court of Federal Claims. See 26 U.S.C. § 7422; 28 U.S.C. § 1346. (The Anderson em ployees proceeded in the Federal Claims Court.) In either case, the decision was not subject to further review by the executive branch. See H ayburn’s Case, 2 U.S. (2 Dali.) 409 (1792) (executive branch revision of final judgments of the judicial branch violates the separation of powers); United States v. O'Grady, 89 U.S. (22 Wall.) 641 (1874) (same). Thus, at no point did OPM have authority to “correct or direct the correction o f ’ the decision to deduct FICA taxes from the ODAA allow ances of the Anderson employees. Therefore, OPM does not meet the criterion set forth in its own regulation defining an “appropriate authority.” B. OPM’S PROPOSED APPLICATION OF THE BACK PAY ACT IS INCONSISTENT WITH FICA’S EXPRESS GRANT OF AN EXEMPTION FROM LIABILITY FOR EMPLOYERS As a general matter, the Code’s remedial provisions have been held to be the exclusive remedy for those seeking a return of tax overpayments. See, e.g., Bruno v. United States, 547 F.2d 71 (8th Cir. 1976) (suit for refund of taxes was governed by the specific limitation period in the Internal Revenue Code and not the general limitations period for civil actions against the United States in title 28); Michigan State Employees A ss’n v. Marian, 608 F. Supp. 85, 90-92 (W.D. Mich. 1984) (the existence of specific remedial procedures in the Internal Revenue Code to redress tax overpayments foreclosed any possibility of relief under 42 U.S.C. § 1983). In this case, moreover, Congress provided specific procedures to apply “[i]f more than the correct amount of [FICA] tax .. . is paid [by an employee] with respect to any payment of remuneration.” 26 U.S.C. § 6413; see 26 C.F.R. § 31.6413. See generally Rev. Rul. 81-310, 1981-2 C.B. 241; Rev. Proc. 81-69, 1981-2 C.B. 726; 3 O rdinarily, 26 U S C. § 6406 perm its review o f the S ecretary’s decisions by the T ax C ourt S uch review was not available here because the Tax C ourt has no ju risd ictio n to adjudicate FICA tax liability 2 6 U .S.C. § 7442 133 Opinions o f th e O ffice o f L e g a l Counsel Atlantic D e p ’t Stores, Inc. v. United States, 557 F.2d 957 (2d Cir. 1977); M acy’s New York, Inc. v. United States, 484 F. Supp. 181 (S.D.N.Y. 1980); Entenmann’s Bakery, Inc. v. United States, 465 F. Supp. 1118 (E.D.N.Y. 1979).4 It seems un likely that Congress intended the very general remedial provisions of the Back Pay Act to apply as well, thereby giving federal employees a more generous remedy than that available to employees in the private sector. Even if the Back Pay Act were generally applicable here, OPM’s proposal that each agency pay additional interest to its Anderson employees is inconsistent with § 3102(b) of FICA. That section provides that an employer who has collected FICA taxes and paid them over to the IRS “shall be indemnified against the claims and demands of any person for the amount of any such payment.” Id.5 An “indemnity” is a “legal exemption from liability for damages.” American Heritage Dictionary of the English Language 917 (3d ed. 1992). Section 3102(b), further more, has been held to serve the same purpose as 26 U.S.C. § 3403,6 which applies to the collection of income taxes. See United States Fidelity & Guaranty Co. v. United States, 201 F.2d 118, 119 (10th Cir. 1952) (equating 26 U.S.C. § 3102(b) with § 3403). Section 3403, in turn, invariably has been construed to mandate that an employer is immune from suit by its employees concerning federal income taxes that have been withheld by the employer and paid over to the IRS. See, e.g., Edgar v. Inland Steel Co., 744 F.2d 1276, 1278 (7th Cir. 1984); Pascoe v. IRS, 580 F. Supp. 649, 654 (E.D. Mich. 1984), a ff’d, 755 F.2d 932 (6th Cir. 1985); Chandler v. Perini P ow er Constructors, Inc., 520 F. Supp. 1152, 1156 (D.N.H. 1981). Therefore, we conclude that § 3102 provides an employer with a legal exemption from liability to the extent of the amount of FICA taxes collected and paid over to the IRS.7 OPM ’s proposal that federal agencies pay their Anderson employees additional interest under the Back Pay Act contravenes this exemption. Under familiar prin 4 A n em p lo y er has an incentive to calculate the tax co rrectly because its ow n share o f the FICA tax m ir rors that o f its em p lo y ees See 26 U S C § 3 1 1 1 . A lso, an em p lo y er who has collected too much FICA tax is not p erm itted to receiv e a return o f its own overpaym ent u n less it has repaid the affected em ployees (or form er em p lo y ees) o r has m ade a reasonable e ffo rt to perfect th e ir claim s for a refund See Rev Rul. 8 1-310, at 242. 5 S e e also 26 C F.R § 31 .3 1 0 2 - 1(c) (“The e m p lo y e r is in d em n ified against the ctaim s and dem ands o f any person for the a m o u n t o f any p aym ent of such tax m ade by the em ployer to the district d irecto r ”) 6 S ectio n 3 4 0 3 p ro v id es T h e e m p lo y e r shall be liable for the p a y m e n t o f the [incom e] lax required to be deducted and w ith h eld un d er this chapter, and shall n o t be liable to an y person for the am ount o f any such paym ent 7 A n ind em n ity can also b e a “(s]ecurity a g ain st dam age, loss, or injury/* A m erican H eritage D ictionary o f the E n g lish L an g u ag e at 917 U nder the la tte r definition, § 3 102(b) m ight be read as a prom ise to c o m pensate e m p lo y ers for their liability arising o u t o f the FICA tax collection process rather than as a legal e x em ption from liab ility in the first instance It is, how ever, a recognized rule o f statutory construction that a w aiver o f so v ereig n im m u n ity m u st be unequivocal. Thus, if tw o readings are plausible, the one that does not w aiv e so v ereig n im m unity m u st be adopted. See U nited S ta te s v N o rd ic Village, Inc , 503 U S 30, 33- 37 (1 9 9 2 ). C o n seq u en tly , w e read § 3102(b) as conferring a legal exem ption Indeed, § 3102(b) fails to nam e an in d em n ito r, w hich su p p o rts our read in g and also fatally underm ines any claim that § 3102(b) con tains an u n eq u iv o cal w aiv er o f sovereign im m unity 134 P rejitdgm ent Interest U nder the B ack P ay A ct f o r R efunds o f F ederal Insurance C ontributions A ct O verpaym ents ciples of statutory construction, the exemption in § 3102(b), which is specifically applicable to the collection of FICA taxes, must prevail over the more generally applicable interest provision of the Back Pay Act. See Brown v. Secretary o f Army, 918 F.2d at 218 (Title VII’s limit of two years on recovery of back pay would take precedence over the more generous term in the Back Pay Act when both remedies were facially available to federal employees who had successfully sued their employer under Title VII). See generally Bulova Watch Co. v. United States, 365 U.S. 753, 758 (1961) (a provision of the Code specifically addressed to the computation of interest on carry-back tax refunds would prevail over provision on computation of interest on tax refunds generally); 2B Norman J. Singer, Suth erland Statutory Construction § 51.02 (5th ed. 1992) (“Where a conflict exists the more specific statute controls over the more general one.”). Thus, even if the Back Pay Act’s interest provision were facially applicable, it could not be applied in these circumstances. CONCLUSION We conclude that DoD is not required to pay its Anderson employees any inter est under the Back Pay Act. The Back Pay Act does not apply in these circum stances. Even if it did, the interest provision of the Back Pay Act must yield to the legal exemption from liability granted to employers under FICA. Thus, OPM’s instruction to agencies to pay additional interest has no legal basis. WALTER DELLINGER Assistant Attorney General Office o f Legal Counsel 135	{ "pile_set_name": "FreeLaw" }
780 F.2d 1023 Unpublished DispositionNOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.(The decision of the Court is referenced in a "Table of Decisions Without Reported Opinions" appearing in the Federal Reporter.)UNITED STATES OF AMERICA, Plaintiff-Appelleevs.FLOYD MURRAY, JR., Defendant-Appellant. 85-1154, 85-1157 United States Court of Appeals, Sixth Circuit. 11/27/85 AFFIRMED 1 E.D.Mich. ORDER 2 BEFORE: MERRITT and MARTIN, Circuit Judges; JOHNSTONE, District Judge. 3 This cause having come on to be heard upon the record, the briefs and the oral argument of the parties, and upon due consideration thereof, 4 The Court finds that no prejudicial error intervened in the judgment and proceedings in the district court, and it is therefore ORDERED that said judgment be, and it hereby is, affirmed. Honorable Edward H. Johnstone, United States District Judge, Western District of Kentucky, sitting by designation	{ "pile_set_name": "FreeLaw" }
862 F.2d 308 Appeal of McDonnell (Robert) NO. 88-1271 United States Court of Appeals,Third Circuit. OCT 24, 1988 Appeal From: U.S.T.C., Korner, J., 88 T.C. 583 1 AFFIRMED.	{ "pile_set_name": "FreeLaw" }
IN THE SUPREME COURT OF TENNESSEE AT NASHVILLE Heard at Knoxville January 4, 2005 Session STATE OF TENNESSEE v. EDWIN GOMEZ and JONATHAN S. LONDONO Appeal by Permission from the Court of Criminal Appeals Criminal Court for Davidson County No. 2001-A-280 Cheryl Blackburn, Judge No. M2002-01209-SC-R11-CD - Filed April 15, 2005 E. RILEY ANDERSON , J., concurring in part and dissenting in part. I agree that neither defendant is entitled to relief under Crawford v. Washington, 541 U.S. 36 (2004) and concur in that part of the Court’s opinion. I disagree, however, with the majority’s discussion and application of Blakely v. Washington, 124 S. Ct. 2531 (2004), to Tennessee’s Criminal Sentencing Reform Act of 1989 (“Reform Act”). The majority concludes that the defendants’ sentences, imposed under Tennessee Code Annotated section 40-35-210 (2003), do not violate their Sixth Amendment right to trial by jury. See United States v. Booker, 125 S. Ct. 738, 750 (2005); Blakely, 124 S. Ct. at 2537. I disagree. In my view, the presumptive sentences set forth in Tennessee Code Annotated section 40-35- 210 established a fixed point for the defendants’ sentences such that the upward departure, based solely on findings made by the trial judge, was imposed in violation of Blakely and therefore violated the defendants’ Sixth Amendment right to trial by jury. I also disagree with the majority’s conclusions that Blakely did not announce a new rule and that we should strictly apply issue preservation principles when determining whether a defendant has preserved a Blakely claim. I would therefore vacate the defendants’ sentences and remand to the trial court for resentencing in light of Blakely and Booker. I. Constitutionality of the Tennessee Reform Act I begin my analysis by examining the three recent United States Supreme Court cases which drastically altered the legal landscape by determining that, when a trial judge imposes a sentence in excess of the maximum authorized by the jury’s verdict alone, the sentence violates the Sixth Amendment right to trial by jury. In Apprendi v. New Jersey, 530 U.S. 466 (2000), the Supreme Court held that, “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Id. at 490. Although the court has since clarified the meaning of “the prescribed statutory maximum,” it has not deviated from the core principle set forth in Apprendi: where the legislature has defined a crime and set a punishment for that crime, a trial judge may not impose a sentence exceeding the maximum punishment authorized by the jury’s verdict alone. Id.; see also Blakely, 124 S. Ct. at 2538; Booker, 125 S. Ct. at 756. As I will explain, Apprendi’s core holding did not change with Booker and invalidates the defendants’ sentences. A. In Apprendi, the defendant pled guilty to a crime statutorily punishable by up to ten years in prison. The trial judge, however, made additional findings and sentenced the defendant to twelve years – two years outside the maximum statutory range. 530 U.S. at 469-71. Apprendi held that this departure beyond the statutory maximum, based on facts not found by a jury, was unconstitutional. Id. at 490. The court reasoned that the Sixth Amendment jury trial guarantee, coupled with the Due Process protections of the Fourteenth Amendment, “indisputably entitle[s] a criminal defendant to ‘a jury determination that [he] is guilty of every element of the crime with which he is charged, beyond a reasonable doubt.’” Id. at 477 (citation omitted). The court explained that at common law, it was the province of the jury to determine whether a defendant had committed all of the elements charged, and it was the role of the judge merely to impose sentence based on the jury’s findings. Id. at 478-79. The court extracted from this history the principles that any fact necessary to support a defendant’s punishment constitutes an element of the crime and that all elements must be charged in the indictment and found by a jury beyond a reasonable doubt. See id. at 490. The court explained that the New Jersey sentencing scheme at issue in Apprendi, whereby the judge could enhance sentences by finding additional elements not found by the jury, was incompatible with the Sixth Amendment: The historic link between verdict and judgment and the consistent limitation on judges’ discretion to operate within the limits of the legal penalties provided highlight the novelty of a legislative scheme that removes the jury from the determination of a fact that, if found, exposes the criminal defendant to a penalty exceeding the maximum he would receive if punished according to the facts reflected in the jury verdict alone. Apprendi, 530 U.S. at 482-83. -2- Although Apprendi’s limitation on judicial fact-finding called into question the ability of judges ever to make findings relevant to sentencing, the court seemed to limit Apprendi only two years later, in Harris v. United States, 536 U.S. 545 (2002). In Harris, five members of the court upheld a federal statute permitting a judge to impose an increased minimum sentence based on facts not found by the jury. Id. at 568. Although the court split four votes to four as to whether Apprendi permitted this result, the majority upheld the sentence. See id. The result in Harris, then, indicated that Apprendi only applied when a judge found facts used to sentence a defendant above the range for the crime of which he had been convicted. The open question, however, was what constituted the applicable “range.” The two cases that very recently addressed that open question were Blakely and Booker. In discussing Blakely and Booker, it is critical to understand the sentencing systems that were at issue in those two cases. Booker dealt with the Federal Sentencing Guidelines. See 125 S. Ct. at 746. Blakely dealt with Washington state’s Reform Act. See 124 S. Ct. at 2535. Those sentencing systems operated as follows. After a jury convicted a defendant (or a defendant entered a guilty plea) as to a particular crime, the sentencing judge was not free to impose a sentence anywhere within the statutory range. Rather, under the federal Guidelines, a judge was required to start at a “base range” determined by the jury’s verdict. See U.S. Sentencing Guidelines Manual § 1B1.1 (2004). The Washington Reform Act similarly set forth a narrow “standard range” corresponding to the jury’s verdict. See Wash. Rev. Code Ch. 9.94A.530 (2004). After determining the starting point based upon the jury’s verdict, both sentencing systems then required a judge to consider a host of factors in addition to the jury’s verdict to determine whether a defendant should receive an enhanced sentence. Under the federal Guidelines, judicial findings of enhancement factors required a judge to move the defendant up from the base range to higher ranges. This system was mandatory, so that its effect was to overlay the full statutory range with a series of mandatory “mini-ranges.” Under the Washington system, however, a judge was permitted, but not required, to enhance a sentence beyond the standard range if he or she determined that aggravating factors justified a departure. The result was that both the federal Guidelines and the Washington Reform Act specified a “base” or “standard” range as the starting point based upon the jury’s verdict. Any upward departures from that starting point could only be made upon a judge’s finding of fact. See Blakely, 124 S. Ct. at 2535; Booker, 125 S. Ct. at 750-51. Prior to Blakely and in light of Harris, Apprendi was generally understood only to prohibit a judge from departing beyond the upper limit of a statutorily-defined range based on facts not found by a jury. Apprendi did not appear to affect sentencing schemes where a judge made findings that moved a defendant out of the base range or from one “mini-range” to another, as long as the sentence did not go outside the statutory range. See Simpson v. United States, 376 F.3d 679, 681 (7th Cir. 2004) (documenting that “before Blakely was decided, every federal court of appeals had held that Apprendi did not apply to guideline calculations made within the statutory maximum”); see also, e.g., United States v. Helton, 349 F.3d 295, 299 (6th Cir. 2003) (“[O]nce the jury has determined guilt, the district court may sentence the defendant to the statutory minimum, the statutory maximum, or anything in between, based on its (proper) application of the Guidelines and based on its (permissible) preponderance-of-the-evidence findings under the Guidelines.”). -3- The Blakely decision, released in June 2004, held that – contrary to the widely-held interpretation of Apprendi – because the base range or standard range created by a sentencing scheme constitutes the “statutory maximum” under Apprendi, “the relevant statutory maximum is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings.” Blakely, 124 S. Ct. at 2537. In other words, any fact (other than facts admitted by a defendant or a prior conviction) that increases a defendant’s sentence beyond the prescribed base or standard range for that particular offense must be found by a jury. Blakely thus radically constricted the ability of judges to go outside the narrow basic range of punishment specified by the legislature.1 The effect of Blakely was to reduce the applicable range to the base range or standard range set forth in a sentencing scheme, as opposed to the full range of years set forth in the criminal statutes. However, although it rendered a narrow definition of what constitutes the “maximum range,” the court left intact a judge’s ability to exercise discretion in sentencing within that greatly-reduced range. Indeed, in Apprendi, the court had stated that judges are free to exercise discretion in sentencing “in imposing a judgment within the range prescribed by statute. We have often noted that judges in this country have long exercised discretion of this nature in imposing sentence within statutory limits in the individual case.” Apprendi, 530 U.S. at 481 (emphases in original) (citation omitted). This year’s Booker decision reaffirmed that this language in Apprendi was still good law after Blakely, clarifying that “when a trial judge exercises his discretion to select a specific sentence within a defined range, the defendant has no right to a jury determination of the facts that the judge deems relevant.” Booker, 125 S. Ct. at 750. In other words, as long as a judge stays within the appropriate range, the decision may be based on facts not found by a jury. The court’s solution was to excise the portion of the Federal Sentencing Guidelines making them binding on judges. Id. at 756-57. In effect, then, by making the Guidelines advisory, the court restored the full statutory range as the applicable range of punishment. With the elimination of the mandatory base range and mini- ranges created by the Guidelines, a jury’s verdict will support punishment anywhere within the range set forth in the statute, and a trial judge will be free to exercise his or her discretion to impose a sentence anywhere within that range, based on whatever facts “the judge deems relevant.” Booker, 125 S. Ct. at 750. Having explained the holdings of Apprendi, Blakely, and Booker, I now discuss why, in my view, Booker does not salvage the constitutionality of the Tennessee Reform Act. 1 W ashington’s Sentencing Reform Act is embodied in the state code. See W ash. Rev. Code Ch. 9.94A. Although not embodied in the United States Code, because the Federal Sentencing Guidelines “are binding on judges,” the court has “consistently held that the Guidelines have the force and effect of laws.” Booker, 125 S. Ct. at 750 (citations omitted); see also id. at 752. -4- B. Relying on Booker, the majority concludes that Tennessee’s Reform Act provides the sort of indeterminate, discretionary range within which the Supreme Court has held that a judge may exercise discretion. The majority concludes that Tennessee Code Annotated section 40-35-210 “merely requires judges to consider enhancement factors . . . but [it] does not mandate an increased sentence upon a judge’s finding of an enhancement factor.” I agree with the majority that, on its face, Booker made the constitutionality of the Tennessee Reform Act a closer question than it was considering Blakely alone. In applying Booker to the statutory ranges set forth in the Tennessee Reform Act, however, the majority ignores the fact that the Reform Act sets a “presumptive sentence” for each class of felony within each range. Tenn. Code Ann. § 40-35-210(c) (“The presumptive sentence for a Class B, C, D and E felony shall be the minimum sentence in the range if there are no enhancement or mitigating factors. The presumptive sentence for a Class A felony shall be the midpoint of the range if there are no enhancement or mitigating factors.”). The presumptive sentence is comparable to the base range of the federal Guidelines and the standard range of the Washington Reform Act. As we have often observed, Tennessee’s “presumptive sentences” are not merely advisory. Rather, “[t]he minimum sentence is the presumptive sentence. The sentence imposed cannot exceed the minimum sentence in the range unless the State proves enhancement factors.” State v. Jones, 883 S.W.2d 597, 601 (Tenn. 1994) (citation omitted);2 see also State v. Gutierrez, 5 S.W.3d 641, 644 (Tenn. 1999); State v. Carico, 968 S.W.2d 280, 288 (Tenn. 1998). In other words, “[i]f there are no enhancement or mitigating factors, then the court must impose the minimum sentence within the appropriate range.” Sentencing Comm’n Comments to Tenn. Code Ann. § 40-35-210 (emphasis added). Thus, the effect of the mandatory presumptive sentence is to create a determinate sentence, not a range. In this respect, the Tennessee Reform Act is even more restrictive than the Washington sentencing scheme or the Federal Sentencing Guidelines, because rather than creating a base or standard range, the Reform Act authorizes only a single sentence based on the jury’s verdict – the minimum sentence, in the case of Class B, C, D, or E felonies, and the midpoint of the range in the case of Class A felonies. Under Tennessee’s Reform Act, the jury verdict alone does not allow “a trial judge [to] exercise[] his discretion to select a specific sentence within a defined range.” Booker, 125 S. Ct. at 750. The presumptive sentence fixes a determinate point, not a range, and the trial judge has no discretion to deviate from this determinate point unless he or she makes additional findings that enhancement factors are present. 2 At the time we decided Jones, the presumptive sentence for all felonies was the minimum within the range. The statute has since been amended to make the presumptive sentence for Class A felonies the midpoint of the range rather than the minimum. 1995 Pub.Acts. c. 493, § 1, eff. July 1, 1995; 1998 Pub.Acts, c. 914, § 1, eff. May 7, 1998. -5- Because enhancement factors must be factors separate from the elements of the crime, see Tenn. Code Ann. § 40-35-114, they are by definition facts not found by the jury and are therefore invalid under Apprendi and Blakely, even as clarified in Booker. The only exception, of course, is prior convictions, which need not be found by the jury in order to be used as enhancement factors. Apprendi, 530 U.S. at 490. However, because the Reform Act does not require a judge to apportion a sentence enhancement among the various enhancement factors, it is often impossible to parse the degree to which an enhanced sentence is based on prior convictions and the degree to which it is based on impermissible enhancement factors. My view of the United States Supreme Court’s reasoning in Booker differs from the majority’s. The majority reads Booker to permit any range-based sentencing scheme as long as the scheme does not require a judge to increase a defendant’s sentence based upon a finding of an enhancement factor. Because Tennessee’s Reform Act does not mandate, but merely permits, an increased sentence based upon a judge’s finding of an enhancement factor, the majority concludes that it is constitutional. However, the “mandatory” facet of the Federal Sentencing Guidelines to which the court in Booker objected was not the fact that the Guidelines mandated upward departures based upon particular judicial findings of fact. Rather, it was the fact that no departures could be justified based on the jury verdict alone, because the jury verdict alone authorized only the base range sentence. “Whether the judicially determined facts require a sentence or merely allow it, the verdict alone does not authorize the sentence.” Blakely, 124 S. Ct. at 2538 n.8. The solution adopted by the Booker majority, excision of the provisions making the federal Guidelines binding upon judges, eliminated the mandatory base range sentence, restoring a judge’s discretion to impose a sentence anywhere within the entire statutory range. See 125 S. Ct. at 756-57. The Washington state scheme struck down in Blakely was effectively the same as Tennessee’s Reform Act. It mandated a “standard range” based upon the jury’s verdict and then permitted, but did not require, a judge to enhance the defendant’s sentence in response to judicially- determined enhancement factors. Critically, Booker did not change Blakely’s holding that the Washington state scheme was unconstitutional. Indeed, Booker noted that “there is no distinction of constitutional significance between the Federal Sentencing Guidelines and the Washington procedures at issue” in Blakely. Booker, 125 S. Ct. at 749. Again, then, under Apprendi, Blakely, and Booker, the Sixth Amendment is implicated not when judicial discretion is constrained, but when a judge departs beyond the upper limit of the sentence authorized by the jury’s verdict alone. Because Tennessee’s Reform Act is functionally identical to the Washington Reform Act in that it constricts the statutory range from a range of years to a mandatory, determinate point, any sentences imposed beyond that point based upon facts not found by a jury are unconstitutional. Were the legislature simply to eliminate the presumptive sentence, in my view, Tennessee’s Reform Act would be constitutional.3 3 This is the solution proposed by the Governor’s Task Force on the Use of Enhancement Factors in Criminal Sentencing. -6- In sum, the Tennessee Reform Act does not provide the sort of open, indeterminate sentencing range envisioned in Booker. Rather, as this Court has consistently interpreted it, the Reform Act sets forth a presumptive sentence and constrains a judge’s discretion in departing from that sentence. Therefore, the Reform Act does not pass constitutional muster under Apprendi, Blakely, and Booker because it permits a trial judge to impose a sentence in excess of the maximum sentence authorized by the jury verdict alone.4 The majority’s conclusion that the Reform Act is a discretionary sentencing procedure with“merely advisory” statutory enhancement factors may come as a surprise not only to both parties in this case but also to trial and appellate judges throughout the state. For fifteen years, we have emphasized that the purposes of the Reform Act included consistency and uniformity in sentencing. Tenn. Code Ann. §§ 40-35-102, -103. Trial courts have been admonished to adhere to the procedures of the Reform Act and to make detailed findings of fact whenever applying enhancement factors to enhance a sentence. The majority’s conclusion that the application of these principles has been merely advisory and fully discretionary throughout the entire sentencing range is inconsistent with both the Reform Act and this Court’s interpretation of it over the past fifteen years. In the case before us, the record reveals that the defendants’ sentences were enhanced by fifteen years, or 44%, based on facts not found by a jury. The sentencing judge relied on a number of factors in enhancing both defendants’ sentences, to wit: the trial judge found that both defendants had prior criminal convictions; that both were leaders in the commission of the offense; that, as to three of the four counts, the amount of property taken was great; and that, as to Count Two, the defendants possessed or employed a firearm. Tellingly, the trial judge acknowledged that her decision that the defendants were leaders in the offense was not consistent with the jury’s verdict. She stated, however, that “we must keep in mind that enhancing factors must only be proven by preponderance of the evidence, not beyond a reasonable doubt, so that even though the jury’s verdict might have been different,” she was electing to apply the enhancement factor. This discrepancy between a jury’s findings and a judge’s findings is precisely what Apprendi and Blakely held that the Sixth Amendment is intended to guard against. The trial judge noted that she was giving great weight to the prior criminal convictions, but did not make sufficient findings to reveal the portion of the enhancement attributable to the prior convictions. The judge applied the enhancement factors to impose the maximum sentence for each count and ordered that the sentences run consecutively, for an effective total sentence of forty-nine years. By applying the Reform Act to sentence the defendants to a total of fifteen years more than 4 Moreover, Booker explained that in a true range scheme, a judge may consider any factors he or she deems relevant in assessing a sentence. However, under the T ennessee Reform Act, the judge’s discretion is restricted in a number of ways. First, “[t]he State has the burden of proving any enhancement factors.” Gutierrez, 5 S.W .3d at 644. Additionally, “only those enhancement factors specifically authorized by statute may be used to increase a sentence.” Jones, 883 S.W .2d at 601. Finally, the propriety of applying a particular enhancement factor to a particular case is subject to appellate review. See, e.g., Gutierrez, 5 S.W .3d at 645 (examining sentence enhancement based on abuse of a position of private trust). -7- the maximum sentences authorized by the jury’s verdict, the trial judge violated the defendants’ Sixth Amendment rights. Because, as I explain below, I would hold that Blakely announced a new rule and that the defendants timely raised Blakely claims such that they are entitled to review, I would vacate their sentences and remand for resentencing. II. New Rule In Griffith v. Kentucky, 479 U.S. 314, 328 (1987), the Supreme Court held that “a new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases, state or federal, pending on direct review or not yet final . . . .” In my view, Blakely announced a “new rule” within the meaning of Griffith. Following Apprendi, it was widely understood that the relevant “statutory maximum” was the full statutory range of punishment available for a particular offense. See, e.g., Simpson, 376 F.3d at 681. As explained above, Blakely fundamentally altered this widely-held understanding. Apprendi was decided by a 5-4 split, with the Justices filing five separate opinions. The court itself seemed to struggle with the precise scope of Apprendi, as is evidenced by the four separate opinions filed in Harris only two years later and the lack of a controlling rationale in Harris. See 536 U.S. 545. Apprendi’s scope and ramifications, therefore, were certainly open to debate. In constricting the definition of statutory maximum, “Blakely radically reshaped our understanding of a critical element of criminal procedure.” Smylie v. State, 823 N.E.2d 679, 687 (Ind. 2005). Several courts have recognized that this “radical[] reshap[ing]” of Apprendi constituted a new rule. See, e.g., Simpson, 376 F.3d at 681; United States v. Price, 400 F.3d. 844, 847 (10th Cir. 2005); Smylie, 823 N.E.2d at 687. Our Tennessee Court of Criminal Appeals has repeatedly so held. See, e.g., State v. Walters, 2004 WL 2726034 at *20 (Tenn. Crim. App. Nov. 30, 2004). Most significant to defendants’ appeal, this Court failed to predict the extension of Apprendi wrought in Blakely. See Graham v. State, 90 S.W.3d 687, 691-92 (Tenn. 2002) (rejecting Apprendi-based challenge to the Reform Act). Certainly, then, for purposes of Tennessee law, Blakely announced a new rule. Additionally, in this year’s decision applying Blakely to the Federal Sentencing Guidelines, the Supreme Court itself stated that it was announcing a new rule. United States v. Booker, 125 S. Ct. at 769 (commenting that holding would apply to all federal cases on direct review). If Booker, which was merely an application of Blakely, stated a new rule, then surely Blakely did, too. I agree with the majority that when the United States Supreme Court announces a new constitutional rule, that rule is retroactively applicable to all cases on direct review. Griffith, 479 U.S. at 328; see also United States v. Johnson, 457 U.S. 537, 562 (1982). For this reason, I concur -8- in Part II of the Court’s opinion, concluding that Crawford announced a new rule but that the defendants are limited to plain error review because they failed to preserve the issue below.5 I part ways with the majority, however, when it reaches its subsequent analysis. After the majority concludes that Blakely did not announce a new rule, it concludes that defendants are nevertheless entitled to plain error review. Moreover, the majority suggests that defendants who preserved an issue below – even if that issue is not the subject of a new constitutional rule – are still entitled to plenary appellate review. See maj. op. at ___ (“[B]ecause the defendants failed to raise and preserve for review their Sixth Amendment challenge, the defendants are limited to seeking relief via plain error review.”).6 Under the majority's reasoning, the determination of whether or not a decision constitutes a “new rule” is irrelevant to the issue of retroactivity. Indeed, all decisions are now retroactive, whether they constitute a new constitutional rule or not. The only question is whether or not the defendant properly preserved the issue, entitling him to plenary review, or whether the defendant failed to preserve the issue, entitling him only to plain error review. As a result, the Court has created a framework under which two starkly different scenarios, one, the new constitutional rule in Crawford and the other, a not-new constitutional rule in Blakely, are treated identically. Because the majority has therefore embarked on a new course that renders traditional analysis of “retroactivity” obsolete, I dissent from Part III of the majority opinion in its entirety. III. Preservation of Issue for Review The majority concludes that courts need only apply new rules to cases on direct review (so- called “pipeline” cases) if the issue to which the new rule pertains was properly preserved for review. Although I agree with the proposition that plenary retroactive application of Blakely should be tempered by application of our prudential issue preservation rules, I do not agree with the majority’s restrictive view of what is necessary to preserve a Blakely claim. The U.S. Supreme Court has indicated that application of prudential review doctrines such as waiver and forfeiture will not run afoul of Griffith. Booker, 125 S. Ct. at 769. I do not believe the preservation requirement should be applied so stringently, however, as to require clairvoyance on the part of defendants or their attorneys. As explained above, the decision in Blakely was a widely-unforseen consequence of Apprendi. In my view, then, “requiring a defendant or counsel to have prognosticated the outcome of Blakely . . . would be unjust.” Smylie, 823 N.E.2d at 689; see 5 The majority suggests that it does not understand my concurrence in its Crawford analysis in light of my dissent from its Blakely analysis. The majority, however, errs in treating cases that do not announce “new rules” the same as cases that do announce “new rules.” Moreover, unlike the majority, I would hold that the Blakely issue has been sufficiently preserved for the reasons explained in part III of my dissent. For these reasons, I cannot agree with the majority’s application of plain error review to the defendants’ Blakely claims. 6 The case the majority cites for the proposition that plain error is determined with reference to the state of the law at the time of appeal, Johnson v. United States, 520 U.S. 461, 468 (1997), was a case applying a new rule retroactively and so does not support the majority's position. Similarly, the majority’s view that Johnson supports its conclusion that all decisions apply retroactively, whether or not based on a new constitutional rule, is misplaced; as I have noted, Johnson was based on a new constitutional rule. -9- also United States v. Henningsen, 387 F.3d 585, 591 (7th Cir. 2004) (adopting lenient review standard with regard to Blakely issues). Although the majority asserts that “this Court has regularly limited retroactive application of new rules to only those cases pending on direct review in which the issue has been timely raised and properly preserved,” majority op. at n.9, a closer examination of the only two criminal cases cited by the majority reveals that our past practice has been to take a flexible approach to issue preservation requirements. In Farris v. State, 535 S.W.2d 608, 614 (Tenn. 1976), a 3-2 majority of this Court invalidated a statute requiring that jury charges include instruction on the intricacies of parole eligibility after concluding that the body of the statute was broader than its caption. One year later, in Adams v. State, 547 S.W.2d 553, 557 (Tenn. 1977), the Court addressed application of the Farris holding to petitioners on direct review. Although the defendants in Adams appealed their sentences on the basis that the challenged statute was unconstitutionally vague – a rationale not supported by the majority decision in Farris – this Court concluded that review had been preserved: We recognize that our own rules, reflective of the case law of the state, require specificity in assignments. They also demand equitable and practical interpretation. . . . We are not willing to penalize a criminal defendant for an incomplete and/or inaccurate assignment. Especially would we not do this in a case wherein this very Court has been sharply divided, with at least four different views, all supportable by recognized legal principles, but only one of which was able to command even a bare majority. Adams, 547 S.W.2d at 557. Moreover, a hard-line application of preservation principles to Blakely claims may have the unintended consequences of burdening defense counsel with raising numerous speculative claims and burdening trial and appellate courts with disposing of them. As the Indiana Supreme Court recently observed in Smylie, A very tough Blakely preservation rule would prompt practitioners to fill trial time and appellate briefs with all imaginable contentions, contrary to the general advice that it is good practice to focus on the most viable issues. It would also drastically alter the burden imposed on counsel as to what constitutes effective assistance to their clients. . . . An attorney is not required to anticipate changes in the law and object accordingly in order to be considered effective. . . . [A] trial lawyer or an appellate lawyer would not be ineffective for proceeding without adding a Blakely claim before Blakely was decided. Consequently, we do not deem the failure to raise a Sixth Amendment objection to the trial court as it proceeded through -10- sentencing to constitute forfeiture of a Blakely issue for purposes of appellate review. 823 N.E.2d at 690 (quotations and citations omitted). As another practical point, I note that we have implicitly held that Blakely/Apprendi claims are cognizable on post-conviction review pursuant to Tennessee Code Annotated section 40-30-117 (2003). See Graham, 90 S.W.3d at 692 (considering whether enhancement of petitioner’s sentence based on factors not found by a jury, but still within the statutory range, violated Apprendi). Because there is no issue preservation requirement for post-conviction claims brought under section 40-30- 117, a petitioner whose sentence becomes final within one year of the Blakely decision will have the opportunity to raise a Blakely claim on collateral review, whereas petitioners still on direct review who have not preserved the issue will not be able to obtain plenary review of a Blakely claim.7 Because I believe that both equity and practical considerations weigh in favor of a more lenient standard, I would require only that a petitioner have made some objection to his sentence at trial and have timely raised the Blakely claim on appeal. See Smiley, 823 N.E.2d at 690 (“[I]t does not ask too much that a criminal defendant have contested his or her sentence on appeal, even if the Blakely element of that contest is added later . . . .”). In my view, such a rule would strike a sound balance between fairness and equity on the one hand, and gatekeeping and consistency concerns on the other. IV. Application to Defendants’ Sentences The record reveals that, during the sentencing hearing, both defendants argued against application of the enhancement factors and against consecutive sentencing. The judge enhanced the defendants’ sentences using four different enhancement factors. The only factor that may be constitutionally applied without being found by a jury is the enhancement for prior convictions. The judge indicated that she was “going to give great weight” to the enhancement factor based on prior criminal conduct, but did not indicate the degree to which the increased sentences were based on that enhancement factor. Both defendants argued to the Court of Criminal Appeals that their sentences were excessive and the Court of Criminal Appeals decided those claims on the merits. Although the defendants did 7 The majority argues that, based on cases decided in the United States Supreme Court, Apprendi and Blakely will not apply retroactively to cases on collateral review. W hile I agree that the U.S. Supreme Court has so held, the fact remains that we considered such an argument on the merits in Graham. Although the majority states I have cited no authority for my position, the majority does not address Graham. Moreover, as we have often observed, this Court is free to interpret our State’s statutes and Constitution as affording greater protection than does federal law. See, e.g., State v. Harris, 919 S.W .2d 323, 333 (Tenn. 1993) (“W e, as the Supreme Court of Tennessee, have the full and final power to interpret our state constitution. Tennessee, and every state, has the sovereign right to adopt in its own Constitution individual liberties more expansive than those conferred by the Federal Constitution.”) (citations and internal quotation omitted). -11- not challenge their sentences on Sixth Amendment grounds, I would not fault them for failing to “have prognosticated the outcome of Blakely,” Smylie, 823 N.E.2d at 689, particularly in light of our decision in Graham. Because they timely raised Blakely challenges in this Court, I would vacate their sentences as constitutionally invalid and remand to the trial court for resentencing. Conclusion Although I concur in the majority opinion as to its resolution of the defendants’ Crawford issues, I disagree with the majority’s discussion and resolution of the Blakely issues. I therefore dissent. I would hold, first, that Blakely invalidates sentences under Tennessee Code Annotated section 40-35-210 to the extent that a judge enhances the sentence beyond the presumptive sentence based on facts, other than the fact of a prior conviction, not found by a jury; second, that Blakely announced a new rule; and third, that defendants on direct review are entitled to raise Blakely claims as long as they challenged their sentences below and as long as they timely added a Blakely claim to their appeal. I would therefore vacate Gomez’s and Londono’s sentences and remand to the trial court for appropriate resentencing. I am authorized to state that Justice Birch joins with me in this concurring and dissenting opinion. ___________________________________ E. RILEY ANDERSON, JUSTICE -12-	{ "pile_set_name": "FreeLaw" }
United States Court of Appeals For the Eighth Circuit ___________________________ No. 13-2173 ___________________________ United States of America lllllllllllllllllllll Plaintiff - Appellee v. Scott Allen Gibbons lllllllllllllllllllll Defendant - Appellant ____________ Appeal from United States District Court for the Southern District of Iowa - Council Bluffs ____________ Submitted: December 30, 2013 Filed: January 9, 2014 [Unpublished] ____________ Before LOKEN, BOWMAN, GRUENDER, Circuit Judges. ____________ PER CURIAM. Scott Gibbons pleaded guilty to receiving child pornography in violation of 18 U.S.C. § 2252(a)(2). The district court1 imposed a sentence of 168 months in prison 1 The Honorable Stephanie M. Rose, United States District Judge for the Southern District of Iowa. and 10 years of supervised release. On appeal, Gibbons’s counsel has filed a brief under Anders v. California, 386 U.S. 738 (1967), arguing that the sentence is substantively unreasonable because it was greater than necessary to achieve the goals of sentencing. We will apply a presumption of reasonableness to the sentence, which fell within the uncontested Guidelines range, and we therefore conclude that the district court did not abuse its discretion. See United States v. Feemster, 572 F.3d 455, 461 (8th Cir. 2009) (en banc) (standard of review). Further, having independently reviewed the record under Penson v. Ohio, 488 U.S. 75, 80 (1988), we have found no nonfrivolous issues. Accordingly, we affirm the judgment. ______________________________ -2-	{ "pile_set_name": "FreeLaw" }
IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS, AT AUSTIN NO. 3-93-212-CV AND NO. 3-93-213-CV JANE MATYASTIK, BOB MATYASTIK AND HARVEY VORWERK, APPELLANTS vs. THE STATE OF TEXAS, APPELLEE FROM THE COUNTY COURT OF MILAM COUNTY NOS. 7309 & 7310, HONORABLE CHARLES E. LANCE, JUDGE PRESIDING PER CURIAM These are bond-forfeiture cases. (1) Appellant Jane Matyastik failed to appear for the trial on her appeal de novo (2) of misdemeanor charges that she violated certain traffic regulations. Tex. Rev. Civ. Stat. Ann. art. 6701d, § 143 (West 1977 & Supp. 1994). The trial court rendered judgments nisi forfeiting Jane's "bail" bonds (3) on which Jane Matyastik is the principal and appellants Bob Matyastik and Harvey Vorwerk are the sureties. On January 22, 1993, a jury trial was held to decide whether the judgments nisi should be made final. (4) After both sides rested, the State moved for a directed verdict. The trial court granted the motion and instructed the jury to return a directed verdict in favor of the State. The jury returned its verdict in accordance with the instructions of the court and the court rendered judgments in favor of the State. This appeal followed. DISCUSSION The appellants bring ten points of error. Appellants assert in their first point of error that the trial court erred in ignoring the requirements of Texas Government Code section 26.022 regarding the appointment of a special judge. Section 26.022 provides: Appointment for Particular Matters (a) The county judge for good cause may at any time appoint a special judge with respect to any pending civil or criminal matter. (b) The special judge may be appointed on motion of the court or on motion of any counsel of record in the matter. Each counsel of record is entitled to notice and hearing on the matter. (c) To be appointed a special judge, a person must be: (1) a licensed attorney; and (2) agreed on by the counsels of record, if the counsels of record are able to agree. (d) The motion for appointment and the order appointing the special judge shall be noted on the docket. A written motion or order may be filed among the papers of the case. (e) The special judge has the powers of the county judge in relation to the matter involved. Tex. Gov't Code Ann. § 26.022 (West 1988). The State argues appellants have not preserved this point for review because they did not object to the appointment in the trial court. The complaint that a special judge was not appointed in compliance with section 26.022 may be raised for the first time on appeal. Saylors v. State, 836 S.W.2d 769, 772 (Tex. App.--Waco 1992, pet. ref'd); see also Reed v. State, 114 S.W. 834 (Tex. Crim. App. 1908); Williams v. State, 677 S.W.2d 584, 587 (Tex. App.--Austin 1984, no pet.) (complaint that special judge lacked authority to act raised for first time on appeal and merits addressed). But see Janecka v. State, 823 S.W.2d 232, 243-44 (Tex. Crim. App. 1990) (complaint that special master lacked authority to conduct hearing raised for first time on motion for rehearing waived); (5) McFarland v. State, 834 S.W.2d 481, 486 (Tex. App.--Corpus Christi 1992, no pet.) (failure to object in trial court to assignment of special judge to conduct competency hearing waived complaint). (6) The record reflects that on November 16, 1992, the Milam County county court judge signed an order recusing himself from the cause and appointing the Milam County district court judge as "County Judge Pro-Tem" to serve "as the County Judge" in the cause. Neither the order nor the record reflect (1) the reason for the constitutional county court judge's recusal or (2) that the county court judge appointed the district court judge pursuant to section 26.022. The appellants and the State limit their arguments regarding the statutory basis for appointment to section 26.022. Accordingly, we review the appointment as one made pursuant to that provision. The record does not reflect notice to each counsel of record, (7) a hearing on the matter, that counsel of record agreed to the appointment, or that the county judge considered the recommendations of attorneys "of the court" in making the appointment. Tex. Gov't Code Ann. §§ 26.022, .028 (West 1988); Saylors, 836 S.W.2d at 772 (failure of record to show notice, hearing, or that county judge considered recommendations of attorneys in his appointment of special judge reversible error). Additionally, the procedure used to appoint the district court judge does not comply with any other applicable constitutional or statutory provision for appointment or selection of a special judge or for exchange of benches. See Tex. Const. art. V, § 11 (providing that district judges may hold court for each other when they deem it expedient), § 16 (when county court judge is disqualified, parties may by consent appoint a proper person, or upon their failing to do so a competent person may be appointed as prescribed by law); Tex. Code Crim. Proc. Ann. art. 30.03 (West 1989) (parties may agree, practicing attorneys may elect, or commissioners' court may appoint special judge); Tex. Gov't Code Ann. § 74.054(a) (West Supp. 1994) (regular district, constitutional county, or statutory county court judges may be assigned by presiding judge of administrative region in which assigned judge sits); Tex. Gov't Code Ann. § 74.094 (West Supp. 1994) (providing that district court judge may hear and determine a matter pending in any district or statutory county court in the county); Tex. Gov't Code Ann. § 74.121 (West Supp. 1994) (providing that constitutional county, statutory county, justice, and small claims court judges within the county may exchange benches and courtrooms with each other so that if one is absent, disabled, or disqualified, another may hold court without necessity of transferring case). The State argues that the district judge acted as a de facto judge. We disagree. A de facto judge is a judge acting under color of authority and who is regarded as exercising the functions of the judicial office he or she assumes. Miller v. State, 866 S.W.2d 243, 246 n.6 (Tex. Crim. App. 1993). The court of criminal appeals has treated a special judge as a de facto judge where the record (1) showed that the judge was properly elected and (2) appeared regular, even though facts outside the record disclosed some irregularities. White v. State, 34 S.W.2d 286, 288 (Tex. Crim. App. 1931); Whitehead v. State, 22 S.W.2d 921, 922 (Tex. Crim. App. 1930). (8) That is not the case here. The record does not appear regular and does not reflect that the special judge was properly selected. The order recites: "I, [judge's name], Milam County Judge hereby recuse myself from the above named and numbered causes and do hereby appoint [judge's name] as County Judge Pro-Tem to serve as County Judge in the above named and numbered causes." The order does not recite the "good cause" for appointing the special judge; that is, the basis for the county judge's recusal. The record does not reflect (1) notice to the parties, (2) that the court held a hearing on the appointment or, (3) that counsel of record agreed to the appointment. Tex. Gov't Code Ann. § 26.022 (West 1988). Additionally, the record does not show that the county judge considered the recommendations of the attorneys of the court. Tex. Gov't Code Ann. § 26.028 (West 1988); Saylors, 836 S.W.2d at 772. Rather, the order reflects that the county judge sua sponte recused himself and, contemporaneously, appointed the special judge. Accordingly, we hold that the constitutional county court judge did not act with color of authority and, thus, on the state of this record, the district court judge should not be treated as a de facto judge. The appointment of the special judge is not in compliance with constitutional or statutory authority and constitutes reversible error. Miller, 866 S.W.2d at 247; Saylors, 836 S.W.2d at 772. Accordingly, we sustain appellants' first point of error. Because of our disposition of appellants' first point of error, we need not address their remaining points of error. The trial court's judgments are reversed and the causes are remanded for new trial. Before Justices B. A. Smith, Jones and Kidd Reversed and Remanded on Both Causes Filed: November 2, 1994 Do Not Publish 1. 1 The trial court consolidated for trial causes number 7309 and 7310. These two causes are docketed on appeal as causes number 3-93-212-CV and 3-93-213-CV, respectively. 2. 2 Jane Matyastik failed to appear in the County Court of Milam County, which is a constitutional county court. Tex. Const. art. V, § 15. The Milam County Court has appellate jurisdiction in criminal cases of which justice courts and other inferior courts have original jurisdiction. Tex. Const. art. V, § 16; Tex. Gov't Code Ann. § 26.046 (West 1988); Tex. Code Crim. Proc. Ann. § 4.08 (West 1977). At the time Jane Matyastik posted her appeal bond, the justice court's original jurisdiction over criminal misdemeanor cases was limited to those cases punishable only by fine not to exceed two hundred dollars. Tex. Const. art. V, § 19; Act of May 27, 1965, 59th Leg., R.S., ch. 722, 1965 Tex. Gen. Laws 317, 331 (Tex. Code Crim. Proc. Ann. § 4.11, since amended). Jane Matyastik was originally charged with speeding and allowing a child less than fifteen years old to ride without a safety restraint. Tex. Rev. Civ. Stat. Ann. § 107C(c)(2) (West Supp. 1994); Act of April 14, 1971, 62d Leg., R.S., ch.72, § 1, 1971 Tex. Gen. Laws 708 (Tex. Rev. Civ. Stat. Ann. art. 6701d, § 166, since amended). These offenses are misdemeanors punishable only by fine of not more than two hundred dollars. Tex. Rev. Civ. Stat. Ann. § 143(b) (West 1977). Thus, the cases could only have been before the county court pursuant to its appellate jurisdiction. Tex. Code Crim. Proc. Ann. art. 44.17 (West Supp. 1994) (in all appeals to county court from justice courts and municipal courts other than municipal courts of record, trial shall be de novo). 3. 3 The bond recites that it is a bail bond and is subject to forfeiture if Jane Matyastik fails to appear at the county court hearing. It appears from the record that Jane Matyastik posted the bond for appeal de novo to the county court. 4. 4 The proceeding for forfeiture of bail is a criminal action but after the rendition of a judgment nisi, all proceedings, unless otherwise expressly provided, are governed by applicable rules of civil procedure. Blue v. State, 341 S.W.2d 917, 919 (Tex. Crim. App. 1960) (on motion for rehearing). 5. 5 In Janecka, the appellant was convicted of murder and sentenced to death. He filed a direct appeal to the court of criminal appeals. The court of criminal appeals remanded the cause to the trial court so that the appellant could have the opportunity to demonstrate harm as a result of the trial court's error in overruling a motion to quash. The trial judge appointed a special master to preside over the hearing. The special master made findings of fact and conclusions of law that the trial court later adopted. The State complained for the first time on motion for rehearing in the court of criminal appeals that the special master lacked authority to preside over the hearing. Janecka at 243. The Janecka court relied on Texas Rule of Appellate Procedure 52(a) to hold that the complaint was waived, because the State did not object to the judge making the appointment at the time of the appointment or at the earliest feasible opportunity thereafter. Id. at 244. Janecka suggests, however, that had the State raised the complaint on submission to the court of criminal appeals, the court might have reached the merits of the claim. Id. at 243. 6. 6 McFarland apparently involved an appointment made pursuant to chapter seventy-four of the Texas Government Code, as the McFarland court cited to section 74.053 as authority for the waiver. Section 74.053(b) provides, in pertinent part, that if a party to a civil case files a timely objection to the assignment, the judge shall not hear the case. Tex. Gov't Code Ann. § 74.053(b) (Supp. 1994). Section 74.053(c) provides that the objection must be filed before the first hearing or trial, including pretrial hearings. Tex. Gov't Code Ann. § 74.053(c) (Supp. 1994). These waiver provisions, however, apply only to judges assigned under chapter seventy-four. Tex. Gov't Code Ann. § 74.053(a) (Supp. 1994). Assignment under chapter seventy-four is by the presiding judge of the administrative region in which the judge resides. Tex. Gov't Code Ann. § 74.054(a) (Supp. 1994). The record here reflects that the constitutional county court judge appointed the district judge to sit in this cause and, thus, the appointment was not made by the presiding judge of the administrative region. Accordingly, chapter seventy-four does not apply. 7. 7 The order itself is not sufficient notice. See Saylors, 836 S.W.2d at 772 (letter notice issued contemporaneously with appointment of special judge hardly satisfies statutory provision that each counsel of record is entitled to notice and hearing on matter). 8. 8 The State relies on two civil cases to support its argument that the district court judge was at least a de facto judge of the county court, Dismuke v. Reid, 188 S.W.2d 255 (Tex. Civ. App.--Beaumont 1945, no writ), and Jones v. State Bd. of Trustees of Employee Retirement Syst. of Texas, 505 S.W.2d 361 (Tex. Civ. App.--Dallas 1974, no writ). Jones involved the question of the de facto status of officers of a reserve police force when the city had never officially created the reserve unit. Jones stands for the proposition that there can be no de facto officer of an office that never officially existed. See Jones, 505 S.W.2d at 365. Jones is inapplicable here, since the de facto status of the judge depends on whether the record regarding the judge's appointment appears regular. In Dismuke, a district judge rendered an order suspending a county judge from office and appointed another to sit as county judge. The orders of removal and appointment were later held void. Appellees challenged the validity of the acts of the county judge appointed pursuant to the void orders and the Beaumont Court of Appeals concluded that the record was sufficient to show the judge should be treated as a de facto judge. Dismuke, 188 S.W.2d at 256. Dismuke is applicable to the extent that it stands for the proposition that we determine whether the district judge acted as the de facto county court judge by reference to the record.	{ "pile_set_name": "FreeLaw" }
132 T.C. No. 10 UNITED STATES TAX COURT DENISE MANNELLA, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent Docket No. 17531-07. Filed April 13, 2009. R mailed P a notice of intent to levy and notice of the right to a hearing pursuant to sec. 6330, I.R.C. (notice of intent to levy), on June 4, 2004. On Nov. 1, 2006, P requested relief from joint and several liability under sec. 6015, I.R.C. R denied P’s request as untimely. P then petitioned this Court for relief under sec. 6015, I.R.C., and R moved for summary judgment. R argues that P is ineligible for relief under sec. 6015(b), (c), and (f), I.R.C., because she did not request relief within 2 years of R’s mailing the notice of intent to levy. P argues that the 2-year limitations period should not apply because she did not receive the notice of intent to levy and she was not informed of the right to request sec. 6015, I.R.C., relief. Held: Actual receipt of the notice of intent to levy or of the notice of the right to request relief -2- from joint and several liability is not required for the 2-year period in which to request relief under sec. 6015(b) and (c), I.R.C., to begin. Therefore, P’s requests for relief under sec. 6015(b) and (c), I.R.C., were not timely under sec. 6015(b)(1)(E) and (c)(3)(B), I.R.C. Held, further: Sec. 1.6015-5(b)(1), Income Tax Regs., which R relied upon in denying P relief under sec. 6015(f), I.R.C., is an invalid interpretation of sec. 6015, I.R.C. Lantz v. Commissioner, 132 T.C. ___ (2009). Therefore, P is not barred from receiving relief under sec. 6015(f), I.R.C., on the ground that her request for relief was untimely. Held, further: R’s motion for summary judgment will be granted in part and denied in part. Denise Mannella, pro se. Russell F. Kurdys, for respondent. OPINION HAINES, Judge: This case is before the Court on respondent’s motion for summary judgment. Petitioner brought this action under section 6015 seeking relief from joint and several liability for unpaid taxes.1 Background Petitioner resided in Pennsylvania at the time her petition was filed. 1 Section references are to the Internal Revenue Code, as amended. Rule references are to the Tax Court Rules of Practice and Procedure. -3- Petitioner and her husband, Anthony J. Mannella, filed joint Federal income tax returns for the years 1996 through 2000 (years at issue). Because petitioner and Mr. Mannella failed to pay the taxes due for the years at issue,2 respondent issued each of them a separate Final Notice, Notice of Intent to Levy and Notice of Your Right to a Hearing (notice of intent to levy), on June 4, 2004. The notices were sent to petitioner and her husband at their correct address by certified mail. Petitioner contends that she did not receive her notice of intent to levy because on June 17, 2004, Mr. Mannella received the notices, signed the certified mail receipts, and failed to deliver petitioner’s notice to her or otherwise inform her of the notice. Petitioner represents that if the case goes to trial, Mr. Mannella will testify that he signed petitioner’s name on the certified mail receipt and did not inform petitioner of the notice until more than 2 years after he received the notice. She contends that she then sought legal advice and decided to seek relief from the joint tax liabilities. On November 1, 2006, petitioner filed two Forms 8857, Request for Innocent Spouse Relief, for the years at issue. On May 3, 2007, respondent issued petitioner a Notice of 2 The outstanding liability for 1996 relates to an agreed deficiency. For 1997 through 2000 petitioner and her husband failed to make full payment of the taxes shown as due on their returns. -4- Determination Concerning Relief from Joint and Several Liability for the years at issue, which stated: We’ve determined, for the above tax year(s), that you do not qualify for Innocent Spouse relief. We received your request more than two years after the date we began collection activity. Internal Revenue Code Section 6015 requires an innocent spouse claim to be filed no later than 2 years after the start of collection activity. Collection activity began on 6/4/2004, you filed Form 8857 on 11/1/2006. Petitioner filed a timely petition with this Court seeking relief from joint and several liability under section 6015. Respondent then moved for summary judgment. Petitioner filed her objection with the Court, and a hearing on respondent’s motion was held in Pittsburgh, Pennsylvania. Discussion Summary judgment is intended to expedite litigation and avoid unnecessary and expensive trials. Fla. Peach Corp. v. Commissioner, 90 T.C. 678, 681 (1988). The Court may grant summary judgment when there is no genuine issue of material fact and a decision may be rendered as a matter of law. Rule 121(b); Sundstrand Corp. v. Commissioner, 98 T.C. 518, 520 (1992), affd. 17 F.3d 965 (7th Cir. 1994); Zaentz v. Commissioner, 90 T.C. 753, 754 (1988). The moving party bears the burden of proving that there is no genuine issue of material fact. Dahlstrom v. Commissioner, 85 T.C. 812, 821 (1985); Naftel v. Commissioner, 85 T.C. 527, 529 (1985). The Court will view any factual material and inferences in the light most favorable to the nonmoving -5- party. Dahlstrom v. Commissioner, supra at 821; Naftel v. Commissioner, supra at 529. Section 6013(d)(3) provides that married individuals who file a joint return are jointly and severally liable for the tax arising from the return. Notwithstanding section 6013(d)(3), a spouse may seek relief from joint and several liability under subsections (b), (c), and (f) of section 6015. An election for relief under section 6015(b) or (c) must be made within 2 years of the Commissioner’s first collection activity taken after July 22, 1998, against the taxpayer making the election.3 Internal Revenue Service Restructuring and Reform Act of 1998 (RRA), Pub. L. 105-206, sec. 3201(g)(2), 112 Stat. 740; sec. 6015(b)(1)(E), (c)(3)(B). The issuance of a notice of intent to levy under section 6330 is a collection activity. Sec. 1.6015-5(b)(2), Income Tax Regs. RRA section 3501, 112 Stat. 770, provides that the Commissioner include information regarding the procedures 3 Sec. 6015(b) provides relief for a requesting spouse who files a joint return which contains an understatement of tax attributable to the erroneous items of the nonrequesting spouse if the requesting spouse did not know or have reason to know that there was an understatement and, taking into account all the facts and circumstances, it is inequitable to hold the requesting spouse liable for the deficiency. Sec. 6015(c) provides that an individual who is divorced or legally separated from the person she filed a joint return with or has not resided with that individual as a member of the same household at any time within the 12-month period before an election is made, may elect to limit her liability for any deficiency to the amount properly allocable to her. -6- necessary to claim section 6015 relief whenever he sends a collection-related notice, such as a notice of intent to levy.4 In McGee v. Commissioner, 123 T.C. 314, 319 (2004), we held that when the Commissioner fails to include such information with a collection-related notice that is the Commissioner’s first collection activity, the 2-year limitations period may not be applied.5 There is no dispute that respondent sent petitioner a notice of intent to levy by certified mail on June 4, 2004, and that the notice was received on June 17, 2004. Furthermore, the notice included information about the right to request section 6015 4 The Internal Revenue Service Restructuring and Reform Act of 1998, Pub. L. 105-206, sec. 3501, 112 Stat. 770, provides as follows: SEC. 3501. EXPLANATION OF JOINT AND SEVERAL LIABILITY. (a) In General.–-The Secretary of the Treasury or the Secretary’s delegate shall, as soon as practicable, but not later than 180 days after the date of the enactment of this Act, establish procedures to clearly alert married taxpayers of their joint and several liabilities on all appropriate publications and instructions. (b) Right To Limit Liability.–-The procedures under subsection (a) shall include requirements that notice of an individual’s right to relief under section 6015 of the Internal Revenue Code of 1986 shall be included in the statement required by section 6227 of the Omnibus Taxpayer Bill of Rights (Internal Revenue Service Publication No. 1) and in any collection-related notices. 5 In McGee v. Commissioner, 123 T.C. 314 (2004), the taxpayer sought relief only under sec. 6015(f). -7- relief.6 However, petitioner contends that her husband signed for her notice and never gave it to her or informed her about it. Petitioner argues that the 2-year limitations period should not apply because she did not receive the notice of intent to levy and she was not informed of the right to request section 6015 relief. Because this case is before the Court on respondent’s motion for summary judgment, we assume that Mr. Mannella signed for petitioner’s notice of intent to levy and that petitioner did not receive the notice. See Dahlstrom v. Commissioner, supra at 821; Naftel v. Commissioner, supra at 529. Sections 6330(a) and 6331(d) provide that before the Commissioner may levy on any property or property right of a taxpayer, the taxpayer must be provided a final notice of intent to levy and notice of the right to request a hearing and such notice must be provided no less than 30 days before the levy is made. The notice of intent to levy must be given in person, left at the person’s dwelling or usual place of business, or sent by certified or registered mail to the person’s last known address. Secs. 6330(a)(2), 6331(d)(2); secs. 301.6330-1(a), 6 The notice was accompanied by Publication 594, What You Should Know About The IRS Collection Process, and Form 12153, Request for a Collection Due Process Hearing. Both documents informed petitioner of her right to request relief from joint and several liability under sec. 6015. Publication 594 directed petitioner to Publication 971, Innocent Spouse Relief, for further information about relief from joint and several liability. Form 12153 informed petitioner she could elect the benefits of sec. 6015 by filing Form 8857, Request for Innocent Spouse Relief. -8- 301.6331-2(a)(1), Proced. & Admin. Regs. If the notice is properly sent to the taxpayer’s last known address or left at the taxpayer’s dwelling or usual place of business, it is sufficient to start the 30-day period within which an Appeals hearing may be requested. Sec. 301.6330-1(a)(3), A-A9, Proced. & Admin. Regs. Actual receipt of the notice of intent to levy is not required for the notice to be valid for purposes of starting the 30-day period. Id. We see no reason the notice of intent to levy, including information about her right to section 6015 relief, mailed to petitioner at her last known address but not received by her should start the 30-day period to request an Appeals hearing but not start the 2-year period to request relief under section 6015(b) or (c). Nothing in section 6015 or the corresponding regulations requires that petitioner actually receive the notice of intent to levy for the 2-year period to begin. We conclude that her actual receipt of the notice of intent to levy is not required for the 2-year period in which to request relief under section 6015(b) or (c) to begin. With respect to the required notice of the right to request section 6015 relief, neither RRA section 3501 nor McGee v. Commissioner, supra, requires that the taxpayer actually receive notice of the right to request relief. RRA section 3501 requires that the Commissioner implement procedures to notify taxpayers -9- subject to joint liability of their rights when he attempts to collect unpaid taxes. In McGee the Commissioner did not comply with RRA section 3501, and for that reason the Court found the 2- year period did not begin with the Commissioner’s first collection activity. Respondent included information about the right to request section 6015 relief with the collection notice and therefore complied with RRA section 3501. Once the required notice was mailed to petitioner’s last known address, nothing in the Internal Revenue Code, regulations, or public law required that respondent take additional steps to effect delivery. See Sebastian v. Commissioner, T.C. Memo. 2007-138; Howard v. Commissioner, T.C. Memo. 1993-315 (citing Pomeroy v. United States, 864 F.2d 1191, 1195 (5th Cir. 1989)). Collection against petitioner began with the issuance of a notice of intent to levy on June 4, 2004. Petitioner submitted her requests for section 6015 relief on November 1, 2006, more than 2 years later. Petitioner’s requests for relief under section 6015(b) and (c) were not timely, and therefore she does not qualify for relief from joint and several liability under section 6015(b)(1)(E) and (c)(3)(B). -10- In contrast to section 6015(b) and (c), section 6015(f)7 does not provide a 2-year limitations period. Respondent relies on section 1.6015-5(b)(1), Income Tax Regs., which purports to limit the period for requesting relief under section 6015(f) to 2 years from the first collection activity against the requesting spouse in the same manner as the restrictions of section 6015(b)(1)(E) and (c)(3)(B). We have recently held that section 1.6015-5(b)(1), Income Tax Regs., is an invalid interpretation of section 6015. Lantz v. Commissioner, 132 T.C. ___, ___ (2009) (slip op. at 33). Accordingly, we refused to apply the 2-year limitations period to a taxpayer’s request for relief under section 6015(f). Id. Under Golsen v. Commissioner, 54 T.C. 742 (1970), affd. 445 F.2d 985 (10th Cir. 1971), we apply the law of the Court of Appeals to which an appeal would ordinarily lie. Because the U.S. Court of Appeals for the Seventh Circuit, to which an appeal in Lantz would ordinarily lie, analyzes agency regulations under the standards set forth in Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-843 (1984), we reviewed the validity of section 1.6015-5(b)(1), Income Tax Regs., under Chevron. Lantz v. Commissioner, supra at ___ (slip op. at 11). 7 Sec. 6015(f) provides that a taxpayer may be relieved of joint and several liability if, taking into account all the facts and circumstances, it would be inequitable to hold the taxpayer liable for the unpaid tax or deficiency (or any portion of either) and relief is not available under subsec. (b) or (c). -11- In Swallows Holding, Ltd. v. Commissioner, 126 T.C. 96 (2006), vacated 515 F.3d 162 (3d Cir. 2008), we reviewed the validity of a regulation under the standards set forth in Natl. Muffler Dealers Association v. United States, 440 U.S. 472 (1979). The U.S. Court of Appeals for the Third Circuit vacated our judgment and held that the regulation was properly analyzed under Chevron, not Natl. Muffler. Swallows Holding, Ltd. v. Commissioner, 515 F.3d at 167-168, 172. This case is appealable to the United States Court of Appeals for the Third Circuit. Accordingly, in this case as well as Lantz the regulation is properly analyzed under Chevron. In Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., supra at 842-843, the Supreme Court set forth a two-step analysis: When a court reviews an agency’s construction of the statute which it administers, it is confronted with two questions. First, always, is the question whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency must give effect to the unambiguously expressed intent of Congress [Chevron step one]. If, however, the court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction of the statute, as would be necessary in the absence of an administrative interpretation. Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute [Chevron step two]. See also Swallows Holding, Ltd. v. Commissioner, 515 F.3d at 167. -12- For the reasons more fully discussed in Lantz, section 1.6015-5(b)(1), Income Tax Regs., is invalid under Chevron step 1 because Congress has spoken to the precise question at issue and the regulation runs directly contrary to the nature of the relief provided in section 6015(f). Lantz v. Commissioner, supra at ___ (slip op. at 17). If section 6015(f) is construed as silent or ambiguous, a 2-year limitations period is not a permissible construction of section 6015(f), and therefore section 1.6015- 5(b)(1), Income Tax Regs., is invalid under Chevron step 2. Lantz v. Commissioner, supra at ___ (slip op. at 18-19, 30). Respondent’s only argument in support of his motion for summary judgment is that petitioner’s requests for relief were untimely. Because the regulation upon which respondent relies in denying relief under section 6015(f) is an invalid interpretation of section 6015, respondent has failed to meet his burden of proving that no genuine issue of material fact exists and that he is entitled to judgment as a matter of law on the issue of whether petitioner is entitled to relief under section 6015(f). Accordingly, respondent’s motion for summary judgment will be granted in part and denied in part. To reflect the foregoing, An appropriate order will be issued.	{ "pile_set_name": "FreeLaw" }
17 B.R. 115 (1981) In re Andrew L. STOFKO, Jr. and Catherine P. Stofko i/a/t/d/b/a West End Electric Supply, Debtors. WESTINGHOUSE CREDIT CORPORATION, Plaintiff, v. Stephen L. DUGAS, Trustee and Andrew L. Stofko, Jr. and Catherine P. Stofko i/a/t/d/b/a West End Electric Supply, Defendants. Bankruptcy No. 80-1585, Adv. No. 81-0086. United States Bankruptcy Court, W.D. Pennsylvania. December 23, 1981. 116 Christopher A. Beck, Pittsburgh, Pa., for debtors/defendants. Donald R. Calaiaro, Pittsburgh, Pa., trustee. David Abrams, Monroeville, Pa., for plaintiff. MEMORANDUM OPINION JOSEPH L. COSETTI, Bankruptcy Judge. This case was commenced by the filing of a Petition by the Debtors under Chapter 13 of the Bankruptcy Code on October 1, 1980. This adversary action comes before the Court on a Complaint by Westinghouse Credit Corporation (hereinafter "Westinghouse" or the "Plaintiff") asking for relief from the automatic stay under Section 362 of the Bankruptcy Code so that it could foreclose on collateral in which it claims to have a security interest. An Answer was filed by the Debtors alleging that while Westinghouse did have a security interest in some of the Debtors' collateral, that had been repossessed in July of 1980. Further, the Debtors answered that Westinghouse had failed to perfect a security interest in any collateral that remained in the Debtors' possession. The Trustee did not file an Answer. The basis of the Debtors' claim that Westinghouse failed to perfect its security interest is that Westinghouse's financing statement does not contain a description of the disputed collateral. Westinghouse and the Debtors entered into a security agreement (UCC Security AgreementInventory) which describes the disputed collateral at paragraph 4. The disputed collateral is "all of the Dealer's present and future inventory." The Plaintiff's position is that while the standard form Form UCC/1 Financing Statement does not contain the words "all of the Dealer's present and future inventory," that the Financing Statement which shows the Plaintiff's security interest at paragraph 5 would put third parties on notice that Westinghouse would have a security interest in all inventory. Since the crux of the dispute is the scope of the language involved, the pertinent language from the Security Agreement and the Financing Statement is printed below. Security Agreement 3. COLLATERAL. As security for all present and future obligations to WCC, Dealer grants WCC a continuing security interest in inventory against which WCC has advanced, all replacements and substitutions and proceeds of such inventory, and all returned and repossessed goods. The collateral under this agreement described by type consists of refrigerators, freezers, dish and clothes washers and dryers, ranges, water heaters and coolers, garbage disposers, vacuum cleaners, furniture, television sets, radios, phonographs, tape recorders, speakers, amplifiers and any combination thereof, air conditioners, furnaces, humidifiers, dehumidifiers, air cleaners, heat pumps, organs, pianos, guitars, band instruments, power mowers, tillers and other power lawn tools, snow blowers, tractors, snow vehicles, all terrain vehicles, boats, boat motors and boat trailers, camper bodies, camping trailers, travel trailers, motor homes, mobile homes and all furniture, appliances, floor coverings and fixtures 117 contained therein including without limitation the types of property listed above. 4. ADDITIONAL COLLATERAL. As additional collateral, Dealer assigns to WCC all present and future credits payable by those who sell to Dealer inventory financed by WCC and rental payments from those who lease inventory from Dealer. Dealer authorizes each lessee and seller to pay these directly to WCC. Also as additional collateral, Dealer grants WCC a security interest in all of Dealer's present and future inventory. Financing Statement 5. This Financing Statement covers the following types (or items) of property: Refrigerators, freezers, dish and clothes washers and dryers, ranges, water heaters and coolers, garbage disposers, vacuum cleaners, furniture, television sets, radios, phonographs, tape recorders, speakers, amplifiers and any combination thereof, air conditioners, furnaces, humidifiers, dehumidifiers, air cleaners, heat pumps, organs, pianos, guitars, band instruments, power motors, tillers and other power lawn tools, snow blowers, tractors, snow vehicles, boats, outboard motors and boat trailers, camper bodies, camping trailers, travel trailers and mobile homes and all furniture, appliances, floor coverings and fixtures contained therein. Accounts, contract rights and general intangibles arising from purchase of the foregoing items by debtor when such items have been financed by Westinghouse Credit Corporation. DISCUSSION Under the Uniform Commercial Code, if Westinghouse has not perfected its interest in the disputed collateral, it becomes an unsecured creditor as of the date of the filing of the bankruptcy petition when the Trustee becomes a perfect lien creditor without knowledge. See 11 U.S.C. § 544(a) and 13 Pa.C.S.A. § 9301(a)(2). In this case the Debtor has asserted the defense of nonperfection to Westinghouse's Complaint for Relief from Stay. The Bankruptcy Code does not provide for the Debtors to attack Westinghouse's security in their own right. Therefore, if Westinghouse is found to be unsecured, the property would become property of the estate to be administered by the Trustee, except to the extent it is declared exempt by the Debtors. See In re Carter, 4 B.R. 692, 1 CBC 381 (Bkrtcy.D. Colo.1980). In order for a security interest to be valid under the Uniform Commercial Code, both attachment and perfection must occur. A security interest or attachment arises upon the last of three events: (1) when a creditor gives value; (2) when a creditor and debtor enter into an agreement for the debtor to give a security interest to the creditor; and (3) when the debtor has interests in the property being secured. Perfection is accomplished upon the filing of a financing statement as provided in Section 9402 (13 Pa.C.S.A. § 9402). It is immaterial which of the two steps, attachment or perfection, occur first. In re Southwest Pennsylvania Natural Resources, Inc., 11 B.R. 900 (BC W.D.Pa.1981). The financing statement serves as notice to third parties. The notice function of the financing statement is stated in the official comments to Section 9402 as follows: 2. This section adopts the system of a notice filing which has proved successful under the Uniform Trust Receipts Act. What is required to be filed is not, as under chattel mortgage and conditional sales acts, the security agreement itself, but only a simple notice which may be filed before a security interest or thereafter. The notice itself indicates merely that the secured party who has filed may have a security interest in the collateral described. Further inquiry from the parties concerned will be necessary to disclose the complete state of affairs. Section 9-208 provides a statutory procedure under which the secured party, at the debtor's request, may be required to make complete disclosure. Notice filing 118 has proved to be of great use in financing transaction involving inventory, accounts and chattel paper, since it obviates the necessity of refiling on each of a series of transactions in a continuing arrangement where the collateral changes from day to day. Where other types of collateral are involved, the alternative procedure of filing a signed copy of the security agreement may prove to be the simplest solution. See also Industrial Packaging Products Co. v. Fort Pitt Packaging International, Inc., 399 Pa. 643, 161 A.2d 19, 21 (1960). Does the security agreement filed by Westinghouse give sufficient notice that Westinghouse had a security interest in all of the present and future inventory of the Debtors? Westinghouse cites the Court to Heights v. Citizens National Bank, 463 Pa. 48, 342 A.2d 738 (1975), for the proposition that: [A financing statement] is sufficient if it provides enough information to put a person on notice of the existence of a security interest in a particular type of property so that further inquiry can be made about the property subject to the security interest. Heights v. Citizens National Bank, supra, at 342 A.2d 743. The Heights court then quotes from the second comment to U.C.C. Section 9402 cited above. In the instant case, the problem for subsequent creditors is whether the notice that was given by Westinghouse's Financing Statement gave third parties notice that it had a security interest in all inventory or only in specific items of inventory financed by Westinghouse. The description of collateral in a financing statement need not be specific or exact as long as it reasonably identifies the type of property in which a security interest attaches. Heights v. Citizens National Bank, supra, 342 A.2d at 743. In the Heights case the financing statement stated that there was a security interest in all present and after acquired accounts receivable, inventory, and the proceeds arising therefrom. The actual words used in the financing statement in Heights were: All accounts receivable and inventory including proceeds both present and future but not limited to proceeds from inventory and receivables both present and future. Ibid. In the instant case the financing statement does not specify future inventory and therefore this case although giving the Court guidance on the notice issue is not dispositive of the case here. The Fifth Circuit Court of Appeals was called on to decide an issue under the Uniform Commercial Code as enacted in Mississippi that helps to clarify the issue in this case. The pertinent code provisions are also applicable in Pennsylvania. Section 9-402(1) provides that the financing statement is sufficient if it "contains a statement indicating the types, or describing the items, of collateral." In the financing statement filed by the bank the collateral covered was described as "all accounts and contracts owned by the Debtor or arising from the sale of inventory or performance." On the security agreement itself the Bank had checked the appropriate boxes to acquire a security interest in inventory as well as contract rights and accounts. Nevertheless, the bank could perfect a security interest only in those types of collateral listed in the financing statement. See In re Levine, 6 U.C.C. Reporting Service 238, 2401, 244 (D.Conn.1969). Neither "Accounts" nor "contracts" (or "contract rights" in U.C.C. terminology) includes inventory. Section 9-106 of the U.C.C. defines "account" as "any right to payment for goods sold or leased or for services rendered which is not evidenced by an instrument or chattel paper." The same section of the U.C.C. defined "contract right" as "any right to payment under a contract not yet earned by performance which is not evidenced by an instrument or chattel paper. [The same section of the U.C.C. defines general intangibles as "any personal property (including things in action) other than goods, accounts, contract rights, chattel 119 paper, documents and instruments.] That neither term includes inventory is apparent from the inclusion of inventory within the general category of "goods" in § 9-109. "Goods" is defined in § 9-105(1)(f) as including all things which are movable at the time the security interest attaches or which are fixtures and excluding "accounts . . . [general intangibles] contract rights and other things in action." In short inventory is tangible collateral while accounts are intangible. See U.C.C. § 9-105 Official comment 3. Thus, when the bank listed the types of collateral on the financing statement, it did not include inventory. A subsequent potential secured party who looked at the financing statement could reasonably have concluded that the Bank was financing accounts receivable and that the inventory was unencumbered. The financing statement would not have alerted him to the need for additional inquiry. Gulf National Bank v. Franke, 563 F.2d 766, 66 U.C.C. Reporting Service 1282, 1285-6 (C.A. 5th Cir. 1977). [Bracketed material added] The language contained in the financing statement before us, however, while referring in the last sentence to accounts, contract rights and general intangibles, is preceded by an extensive listing of tangible goods. There is no doubt that the final sentence of paragraph 5 of the financing statement is very inartfully drafted and misleading but it does not qualify the previous listing of inventory terms but is in addition to it. Therefore, it is the opinion of this Court that the list of inventory items in the Debtors' possession at the time of the loan is sufficient notice to third parties. The whole purpose of notice filing would be nullified if a financing statement had to be filed whenever a new transaction took place between a secured party and a debtor. Once a financing statement is on file describing property by type, the entire world is warned not only that the secured party may already have a security interest in property of that type (as did plaintiff in the property originally financed) but that it may later acquire a perfected security interest in property of that type acquired by the debtor in the future. When the debtor does acquire more property of the type referred to in the financing statement already on file, and when a security interest attaches to that property, the perfection is instantaneous and automatic. § 9-303(1). James Talcott, Inc. v. Franklin National Bank of Minneapolis, 10 U.C.C. Reporting Service 11, 24 (Minn.1972). See comment number 2 to U.C.C. Section 9402, supra. Since Westinghouse's financing statement provides an extensive list of inventory items, it is sufficient to have put third parties on notice that Westinghouse could be secured in future inventory as is made clear in the security agreement. The Debtors cite a line of cases which suggest that if there is a conflict between the financing statement and the security agreement the narrower document will control. This, however, is not dispositive of the issue here, since we have determined that the language of the financing statement is broad enough to put third parties on notice that Westinghouse's security agreement includes after acquired inventory of the Debtors. An appropriate Order will issue.	{ "pile_set_name": "FreeLaw" }
706 N.W.2d 18 (2005) 474 Mich. 930-42 PEOPLE v. COULTER. No. 129121. Supreme Court of Michigan. November 29, 2005. Application for Leave to Appeal. SC: 129121, COA: 254343. On order of the Court, the application for leave to appeal the June 2, 2005 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court. KELLY, J., would hold this case in abeyance for People v. Drohan, lv. gtd. 472 Mich. 881, 693 N.W.2d 823 (2005).	{ "pile_set_name": "FreeLaw" }
SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department 481 TP 14-01811 PRESENT: SCUDDER, P.J., SMITH, PERADOTTO, LINDLEY, AND DEJOSEPH, JJ. IN THE MATTER OF RICARDO RICHARDS, PETITIONER, V ORDER THOMAS STICHT, SUPERINTENDENT, GOWANDA CORRECTIONAL FACILITY AND ANTHONY J. ANNUCCI, ACTING COMMISSIONER, NEW YORK STATE DEPARTMENT OF CORRECTIONS AND COMMUNITY SUPERVISION, RESPONDENTS. RICARDO RICHARDS, PETITIONER PRO SE. ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (PETER H. SCHIFF OF COUNSEL), FOR RESPONDENTS. Proceeding pursuant to CPLR article 78 (transferred to the Appellate Division of the Supreme Court in the Fourth Judicial Department by order of the Supreme Court, Erie County [M. William Boller, A.J.], entered June 17, 2014) to review a determination of respondents. The determination found after a tier III hearing that petitioner had violated various inmate rules. It is hereby ORDERED that the determination is unanimously confirmed without costs and the petition is dismissed. Entered: May 1, 2015 Frances E. Cafarell Clerk of the Court	{ "pile_set_name": "FreeLaw" }
510 U.S. 995 Kendallv.Kendall. No. 93-5299. Supreme Court of United States. November 29, 1993. 1 Appeal from the Ct. App. Wash. 2 Certiorari denied. Reported below: 67 Wash. App. 1001.	{ "pile_set_name": "FreeLaw" }
COURT OF APPEALS FOR THE FIRST DISTRICT OF TEXAS AT HOUSTON ORDER OF CONTINUING ABATEMENT Appellate case name: Brodereck Hearne v. The State of Texas Appellate case number: 01-12-00243-CR Trial court case number: 1330405 Trial court: 230th District Court of Harris County On August 20, 2012, this case was abated so that the trial court could appoint appellate counsel. The appointment was due in this Court by September 5, 2012. No appointment has been received. We hereby direct the trial court to appoint appellate counsel for appellant in writing, and direct that the written order appointing counsel be submitted to this Court in a supplemental clerk’s record within 5 days of the date of this order. The appeal continues in abatement, treated as a closed case, and removed from this Court’s active docket. The appeal will be reinstated on this Court’s active docket when the supplemental clerk’s record containing the trial court’s written order appointing counsel is filed in this Court. It is so ORDERED. Judge’s signature: /s/ Justice Rebeca Huddle Date: September 25, 2012	{ "pile_set_name": "FreeLaw" }
NO. 4-06-1014 Filed 8/15/07 IN THE APPELLATE COURT OF ILLINOIS FOURTH DISTRICT JERRY REPPERT and the GAZETTE DEMO- ) Appeal from CRAT, ) Circuit Court of Plaintiffs-Appellants, ) Sangamon County v. ) No. 06MR481 SOUTHERN ILLINOIS UNIVERSITY and ) WALTER V. WENDLER, ) Honorable Defendants-Appellees. ) Leo J. Zappa, Jr., ) Judge Presiding. _________________________________________________________________ PRESIDING JUSTICE STEIGMANN delivered the opinion of the court: In August 2006, plaintiffs, Jerry Reppert and the Gazette Democrat, filed a complaint against defendants, Southern Illinois University (SIU) and SIU chancellor Walter V. Wendler, seeking disclosure of the employment contracts of several SIU employees. In October 2006, the trial court granted defendants' motion for summary judgment on plaintiffs' claim that the Freedom of Information Act (FOIA) (5 ILCS 140/1 through 11 (West 2004)) compelled disclosure of the requested documents. In November 2006, the court granted defendants' motion to dismiss the remain- ing counts with prejudice. Plaintiffs appeal, arguing that the trial court erred by granting summary judgment on their FOIA claim. We agree and reverse and remand for further proceedings. I. BACKGROUND The following facts were gleaned from the parties’ pleadings and exhibits. In March 2006, plaintiffs submitted a request to SIU under the FOIA for the following: "1. Employment contracts covering the time period of January 1, 2000, to the pres- ent for [SIU] President Glenn Poshard, [f]ormer [SIU] President James Walker, [Wendler,] and [SIU] employees John Jackson and Mike Lawrence. 2. Independent contractor contracts, if applicable, covering the time period of Janu- ary 1, 2000, to the present for [SIU] employ- ees John Jackson and Mike Lawrence." In April 2006, SIU denied plaintiffs' request, and plaintiffs appealed the denial. Wendler denied the appeal and informed plaintiffs of their right to appeal the denial through the judicial-review process. In August 2006, plaintiffs filed a three-count com- plaint against defendants, seeking the disclosure of the docu- ments in question. The complaint alleged as follows: (1) the Illinois Constitution required the disclosure of any contract that obligated the expenditure of public funds (count I), (2) the FOIA compelled disclosure of any such documents (count II), and - 2 - (3) Wendler had a ministerial duty to release the documents to the public (count III). In September 2006, defendants filed a motion to dismiss counts I and III of plaintiffs' complaint and a motion for summary judgment as to count II. In their summary-judgment motion, defendants argued that (1) the employment contracts were part of each employee's personnel file and (2) the contracts were thus per se exempt from disclosure under section 7(1)(b)(ii) of the FOIA (the personnel-file exemption) (5 ILCS 140/7(1)(b)(ii) (West 2004)). In October 2006, plaintiffs filed a response to the summary-judgment motion, arguing, in part, that the fact that the contracts were included in personnel files did not mean that they were exempt from disclosure under the FOIA. Later in October 2006, the trial court granted defendants' motion for summary judgment as to count II. In so doing, the court found that the requested employment contracts were exempt from disclo- sure under the FOIA, pursuant to the personnel-file exemption (5 ILCS 140/7(1)(b)(ii) (West 2004)). In November 2006, the court granted with prejudice defendants' motion to dismiss counts I and III. This appeal followed. II. ANALYSIS A. Summary Judgments and the Standard of Review Summary judgment is proper if, "when viewed in the - 3 - light most favorable to the nonmoving party, the pleadings, depositions, admissions, and affidavits on file demonstrate 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." Illinois State Chamber of Commerce v. Filan, 216 Ill. 2d 653, 661, 837 N.E.2d 922, 928 (2005); see 735 ILCS 5/2-1005(c) (West 2004). "Summary judgment should only be granted if the movant's right to judgment is clear and free from doubt." Bluestar Energy Services, Inc. v. Illinois Commerce Comm'n, No. 1-06-1277, slip op. at 5 (June 29, 2007), ___ Ill. App. 3d ___, ___, ___ N.E.2d ___, ___. We review de novo the trial court's grant of summary judgment. Big Sky Excavating, Inc. v. Illinois Bell Telephone Co., 217 Ill. 2d 221, 234, 840 N.E.2d 1174, 1182 (2005). B. The FOIA Aside from our de novo standard of review being dic- tated by the summary-judgment posture of this case, this case involves a question of statutory interpretation. We review de novo issues of statutory interpretation. NDC LLC v. Topinka, No. 2-05-1206, slip op. at 23 (June 15, 2007), ___ Ill. App. 3d ___, ___, ___ N.E.2d ___, ___. In Southern Illinoisan v. Illinois Department of Public Health, 218 Ill. 2d 390, 415, 844 N.E.2d 1, 14 (2006), the supreme court discussed statutory interpretation of the FOIA, as follows: "Our review of the FOIA * is guided by - 4 - several well-established principles of statu- tory construction. It is well settled that the primary objective of [a] court when con- struing the meaning of a statute is to ascer- tain and give effect to the intent of the General Assembly. [Citation.] In determin- ing legislative intent, our inquiry begins with the plain language of the statute, which is the most reliable indication of the legis- lature's objectives in enacting a particular law. [Citation.] A fundamental principle of statutory construction is to view all provi- sions of a statutory enactment as a whole. Accordingly, words and phrases should not be construed in isolation, but must be inter- preted in light of other relevant provisions of the statute. [Citation.] In construing a statute, we presume that the legislature, in its enactment of legislation, did not intend absurdity, inconvenience[,] or injustice." The purpose of the FOIA is to open governmental records to the light of public scrutiny. Thus, under the FOIA, a pre- sumption exists that public records be open and accessible. Bluestar Energy Services, slip op. at 6, ___ Ill. App. 3d at ___, - 5 - ___ N.E.2d at ___. The legislative intent is set forth in section 1 of the FOIA, which provides, in pertinent part, as follows: "Pursuant to the fundamental philosophy of the American constitutional form of gov- ernment, it is declared to be the public policy of the State of Illinois that all persons are entitled to full and complete information regarding the affairs of govern- ment and the official acts and policies of those who represent them as public officials and public employees consistent with the terms of this Act. Such access is necessary to enable the people to fulfill their duties of discussing public issues fully and freely, making informed political judgments and moni- toring government to ensure that it is being conducted in the public interest." 5 ILCS 140/1 (West 2004). Based upon the legislature's clearly stated public policy and intent, the supreme court has held that "the FOIA is to be accorded 'liberal construction.'" Southern Illinoisan, 218 Ill. 2d at 416, 844 N.E.2d at 15, quoting Bowie v. Evanston Community Consolidated School District No. 65, 128 Ill. 2d 373, 378, 538 - 6 - N.E.2d 557, 559 (1989). Thus, "the exceptions to disclosure set forth in the FOIA are to be read narrowly so as not to defeat the FOIA's intended purpose." Southern Illinoisan, 218 Ill. 2d at 416, 844 N.E.2d at 15. Accordingly, "[e]ach public body shall make available to any person for inspection or copying all public records, except as otherwise provided in [s]ection 7 of this Act." 5 ILCS 140/3(a) (West 2004); see also Southern Illinoisan, 218 Ill. 2d at 417, 844 N.E.2d at 15 (noting that when a public body receives a request for information, it must comply unless one of the narrow statutory exceptions applies). Section 2(c) of the FOIA defines "public re- cords," in pertinent part, as follows: "(c) * 'Public records' includes, but is expressly not limited to: * (vii) all information in any account, voucher, or contract dealing with the receipt of expenditure of public or other funds of public bod- ies; (viii) the names, salaries, ti- tles, and dates of employment of all employees and officers of public bod- ies ." 5 ILCS 140/2(c) (West - 7 - 2004). Section 7 of the FOIA provides, in pertinent part, as follows: "(1) The following shall be exempt from inspection and copying: (b) Information that, if dis- closed, would constitute a clearly unwarranted invasion of personal privacy, unless the disclosure is consented to in writing by the individual subjects of the informa- tion. The disclosure of informa- tion that bears on the public du- ties of public employees and offi- cials shall not be considered an invasion of personal privacy. Information exempted under this subsection (b) shall include but is not limited to: * (ii) personnel files and per- sonal information maintained with respect to employees, appointees or - 8 - elected officials of any public body[,] or applicants for those positions[.]" (Emphasis added.) 5 ILCS 140/7(1)(b)(ii) (West 2004). If the public body seeks to invoke one of section 7's exemptions, it must give written notice setting forth the particular exemp- tion claimed to authorize the denial. Then, the party seeking disclosure of information under the FOIA can challenge the public body's denial at the trial level. The burden of proof at the trial level is on the public body to establish that the requested documents are exempt from disclosure. Bluestar Energy Services, slip op. at 7, ___ Ill. App. 3d at ___, ___ N.E.2d at ___. In addition, section 8 of the FOIA provides as follows: "If any public record that is exempt from disclosure under [s]ection 7 of this Act contains any material which is not exempt, the public body shall delete the information which is exempt and make the remaining infor- mation available for inspection and copying." 5 ILCS 140/8 (West 2004). C. Plaintiffs' Claim That the Trial Court Erred by Granting Summary Judgment in Defendants' Favor as to Count II Plaintiffs argue that the trial court erred by granting summary judgment in defendants' favor as to count II. We agree. Liberally construing the FOIA in accord with its - 9 - intended purpose, we conclude that the statutory definition of "public records" includes the information contained in the employment contracts at issue. Indeed, at oral argument, defendants' counsel conceded that the information contained in the contracts was not confidential. In addition, reading section 7(1)(b) of the FOIA narrowly, as we must, we conclude that the individual contracts constitute "information that bears on the public duties of public employees and offi- cials" (5 ILCS 140/7(1)(b) (West 2004)). Thus, such documents "shall not be considered an invasion of personal privacy" and, as a matter of law, are not exempt from disclosure under section 7 (5 ILCS 140/7(1)(b) (West 2004)). Contrary to defendants' suggestion, the mere fact that personnel files are per se exempt from disclosure under section 7(1)(b)(ii) does not mean that the individual contracts are also per se exempt simply because they are kept in those files. See CBS, Inc. v. Partee, 198 Ill. App. 3d 936, 942, 556 N.E.2d 648, 651 (1990) ("To hold that all information contained in a personnel file is exempt from public disclosure simply because it is in a personnel file would permit a subversion of the broad purposes of the [FOIA]"). In that regard, we note that section 8 of the FOIA (5 ILCS 140/8 (West 2004)) explicitly permits the disclosure of nonexempt documents (such as the employment contracts here) that are contained within exempt public records (such as personnel files). Accordingly, we - 10 - conclude that the trial court erred by granting summary judgment in defendants' favor, and we reverse and remand for further proceedings consistent with this opinion. In so concluding, we decline to follow the Third District's decision in Copley Press, Inc. v. Board of Education for Peoria School District No. 150, 359 Ill. App. 3d 321, 834 N.E.2d 558 (2005). In that case, the Third District concluded that performance evaluations and a letter summarizing the evalua- tions were exempt under the personnel-file exemption of the FOIA (5 ILCS 140/7(1)(b)(ii) (West 2004)). In so doing, the Copley court also stated as follows: "Given its plain and ordinary meaning, a 'personnel file' can reasonably be expected to include documents such as a resume or application, an employment contract, policies signed by the employee, payroll information, emergency contact information, training re- cords, performance evaluations[,] and disci- plinary records." Copley Press, Inc., 359 Ill. App. 3d at 324, 834 N.E.2d at 561. We view the above-quoted language as broad dicta. Further, to the extent that the Copley court purported to hold that employ- ment contracts are per se exempt from disclosure under the FOIA, we decline to follow it. - 11 - III. CONCLUSION For the reasons stated, we reverse the trial court's judgment and remand for further proceedings consistent with this opinion. Reversed and remanded. MYERSCOUGH and KNECHT, JJ., concur. - 12 -	{ "pile_set_name": "FreeLaw" }
124 F.2d 288 (1941) PHIPPS v. HELVERING, Com'r of Internal Revenue. No. 7758. United States Court of Appeals for the District of Columbia. December 8, 1941. 289 Mr. Thomas P. Johnson, of Pittsburgh, of the bar of the State of Pennsylvania pro hac vice, by special leave of court, with whom Mr. David A. Reed, of Pittsburgh, Pa., was on the brief, for petitioner. Mr. Edward Hopkins Hammond, Sp. Asst. to the Attorney General, with whom Messrs. Samuel O. Clark, Jr., Asst. Atty. Gen., and Sewall Key, Sp. Asst. to the Atty. Gen., were on the brief, for respondent. Messrs. J. Louis Monarch, Sp. Asst. to the Atty. Gen., and J. P. Wenchel, Chief Counsel, and John M. Morawski, Sp. Atty., both of the Bureau of Internal Revenue, all of Washington, D. C., also entered appearances for respondent. Before MILLER, VINSON and EDGERTON, Associate Justices. MILLER, Associate Justice. The following facts, found by the Board of Tax Appeals, are undisputed: Petitioner is a resident of Denver, Colorado. She filed her Federal income tax return for each of the taxable years with the Collector of Internal Revenue for the District of Colorado. By a trust agreement entered into on or about February 27, 1923, between petitioner, as grantor, and The International Trust Co., as trustee, petitioner created an irrevocable funded insurance trust. Petitioner transferred to the trustee bonds of the par value of $185,000, and caused three policies of insurance on the life of her husband, Lawrence C. Phipps, to be issued to the trustee. The face amounts of the three policies totaled $145,000. Petitioner made the application for each policy, paid the first annual premium on each policy, and named the trustee as the beneficiary in each policy. The trustee was to use the income from the trust estate to pay the annual premiums on the three policies. If the income from the trust estate was insufficient to pay the premiums, the trustee was directed to use so much of the corpus of the trust estate as was necessary to pay the premiums in full. If the income from the trust estate was more than sufficient to pay the premiums, the trustee was directed "to accumulate the excess of income and add the same to the corpus of the trust fund or estate, and thereupon to invest and keep the same invested pursuant to the terms hereof as a part of the corpus of said trust fund." On the death of petitioner's husband, "leaving the grantor surviving him * ," the trustee was to use the proceeds of the policies "together with such bonds and securities or other property as may then be a part of the trust estate hereby created and the accumulated income, if any, therefrom * ." to pay: " * * all inheritance, succession, transmission, estate and transfer taxes or death duties which may be assessed or levied upon or chargeable against or in connection with the distributable share or portion of the estate of the said Lawrence C. Phipps, or other interest therein, which may be inherited by or devised or bequeathed to the grantor from the general estate of the said Lawrence C. Phipps or under the provisions of his will or otherwise, or for which said grantor as an heir at law or beneficiary of said estate may be liable or required or permitted to pay thereon or in connection therewith, or on the right to receive the same, or as a condition to the receipt thereof * * ." One year after the date of the death of petitioner's husband the trustee was to transfer to petitioner the trust assets remaining after payment of the taxes on petitioner's share of her husband's estate. If petitioner predeceased her husband, the trustee was to use the proceeds from the policies, together with the other trust assets, to pay " * * all inheritance, succession, transmission, estate and transfer taxes and death duties which may be assessed or levied upon or chargeable against or in connection with the distributive shares or portions of the estate of Lawrence C. Phipps, or interests therein which may be inherited by or devised or bequeathed to the beneficiaries hereof other than the grantor, or for which said beneficiaries, other than said grantor, as heirs at law or beneficiaries of said estate may by law be liable or required or permitted to pay thereon or in connection therewith, or on the right to receive the same or as a condition to the receipt thereof * * ." The beneficiaries of the trust other than petitioner were six children of petitioner's husband. The trust assets remaining after payment of the taxes on their shares of their father's estate were to be divided into six equal shares, one of which was to be distributed to, or held in trust for, each of the six children as provided in the trust agreement. Likewise, if petitioner died within the period of one year from the date of her husband's death, the trust assets remaining after payment of the taxes on petitioner's share of her husband's estate were to be divided into six equal shares, one of which was to be distributed to, or held in 290 trust for, each of the six children as provided in the trust agreement. The trust agreement also provided in part as follows: "* * * The trustee, in the event that the inheritance or estate taxes hereinabove referred to are required by law to be paid by the beneficiaries hereof entitled to taxable interests in the estate of the said Lawrence C. Phipps, or by the executor, administrator or other personal representative of said estate, shall furnish to, or make available for use by, such beneficiaries, or personal representative, from the trust estate, including the proceeds of said insurance policies, cash funds with which to pay said inheritance or estate taxes as the same become due and payable as provided by law." The net income of the trust for income tax purposes was $10,084.03 in 1933 and $10,669.95 in 1934. The trustee used $9,164.05 in 1933 and $9,247.70 in 1934 to pay the premiums on the three policies of insurance. The trustee filed with the Collector of Internal Revenue for the District of Colorado a fiduciary return for each of the taxable years, in which it reported the entire net income of the trust. In the individual returns filed by petitioner for each of the taxable years she did not report any part of the net income of the trust. Lawrence C. Phipps, husband of petitioner, is living. The Board of Tax Appeals upheld the determination of the Commissioner that the petitioner was taxable on the entire net income of the trust for the two years of 1933 and 1934. On this appeal error is assigned on the ground that the Board erred (1) in holding that the income of the trust was being held or accumulated within the meaning of Section 167(a) (1) of the Revenue Acts of 1932 and 1934, 26 U.S.C.A. Int.Rev.Code, § 167(a) (1), and (2) in holding that such income was being held or accumulated for future distribution to the grantor within the meaning of that section. The applicable language of the section is as follows: "(a) Where any part of the income of a trust "(1) is, or in the discretion of the grantor or of any person not having a substantial adverse interest in the disposition of such part of the income may be, held or accumulated for future distribution to the grantor; * * * * * * then such part of the income of the trust shall be included in computing the net income of the grantor." In answering the first question, it will be noted that the trustee, pursuant to the instructions contained in the trust indenture, used a portion of the income for each of the two years to pay the annual premiums on the three policies of insurance. It is not disputed that the balance of the income in each case was accumulated and added to the corpus of the trust fund, also pursuant to the express language of the trust indenture. The question here presented, therefore, is whether there was an accumulation of that portion of the income which was used to pay the annual premiums on the insurance policies. In our opinion, the Board correctly held that as the payment of the annual premium on a policy of life insurance results in an increase of the surrender value of the policy, the value of the trust corpus is thus increased. The Board correctly pointed out that this increase of the trust corpus is proven also by the fact that an insurance company sets aside and accumulates a portion of the annual premiums paid on a policy of insurance as a reserve fund for the policy. Moreover, as the payment of the premiums is made for the express purpose of preserving that portion of the corpus of the trust which is represented by the face value of the insurance policies, and without the payment of which premiums the corpus of the trust would be destroyed,[1] it can be fairly said that in this sense, also, the use of the income for the payment of premiums constitutes an accumulation within the meaning of the section. In our opinion, the Board correctly decided that the accumulation of income came also within the meaning of that language of Section 167, which speaks of future distribution to the grantor.[2] Petitioner contends that (1) the Revenue Act must be read as a whole; (2) when it is uncertain, in the taxable year, who is to receive the accumulated income of a trust estate, the "trust is taxable to the trustee * * " under Section 161(a) (1), which taxes to the trustee "income accumulated in trust for the benefit of unborn or unascertained persons or persons with contingent interests, and income accumulated or held for future distribution under the terms 291 of the will or trust;" (3) such income is not income held or accumulated for future distribution to the grantor; (4) hence, only accumulated income which is indefeasibly vested in the grantor can be taxed to the grantor under Section 167(a) (1). The Government answers that the grantor is liable for taxation upon the accumulated income, if she has the right to receive it at any time, or upon the happening of any specified event. In our opinion the Government's position is clearly correct.[3] We see no compelling or even persuasive reason for giving to Section 161 the comprehensive and controlling effect for which petitioner contends. And we see very good reasons for giving to Section 167 the effect for which the Government contends. The purpose of Congress in enacting Section 167(a) (1) was to prevent evasion of taxes by the use of trusts which permitted distribution of their income for the use or benefit of the grantor.[4] "One can read in the revisions of the revenue acts the record of the Government's endeavor to keep pace with the fertility of invention whereby taxpayers had contrived to keep the larger benefits of ownership and be relieved of the attendant burdens."[5] If we were to read into Section 167 the restricted meaning contended for by petitioner, we would destroy its practical utility as a means for preventing tax evasion.[6] The interpretation of the section which appears in the Treasury Regulations is much more consistent with the legislative purpose and intent.[7] Section 167 of the 1934 Act has been several times reenacted without change; consequently, under the familiar rule, the regulation referred to has the force and effect of law,[8] so far as concerns the 1934 Act, and it is at least persuasive as to the meaning of the same section in the 1932 Act. Neither are we impressed by petitioner's argument which is based upon cases interpreting Section 166.[9] The purpose of Congress in enacting that section was, apparently, the limited one of providing the formula for taxing income of a trust, with respect to the corpus of which, power, to revest title in the grantor, is vested either in the grantor alone, or in a person having no substantial adverse interest, or in both the grantor and such a person. Congress used appropriate limiting language to express that purpose. But there is no reason for imputing to Congress any intention to require that, in interpreting Section 167, consideration should be given either to the limiting language of Section 166 or to cases applying it. On the contrary, the broad language of Section 167 reveals the purpose to tax, to the grantor, all income of the trust accumulated for distribution to him, without the slightest reference to the vesting or revesting of title to the corpus. For this reason, in our opinion, the language of Jones v. Norris,[10] upon which petitioner relies, must be limited to Section 166. It is obviously inapplicable to Section 167. Similarly, the language of the District Court in Kent v. Rothensies,[11] upon which petitioner relied, must be disregarded, 292 especially in view of the compelling language used by the Circuit Court of Appeals[12] in reversing that decision of the District Court. It is not necessary to recapitulate the agreed facts in order to demonstrate the various eventualities under which the income of the trust may come to petitioner. It will be used for her benefit whether her ultimate receipt of it results from a vested or contingent right. We see here a continuing exercise by petitioner of a power to direct the application of her income along predetermined lines by keeping alive the contracts of insurance;[13] enjoying the full security of the accumulated income if she should outlive her husband and disposing of it by her personal direction, if she should predecease him. We think this brings the case clearly within the provisions of Section 167. The Government urges, also, for the first time on this appeal,[14] that the income from the trust is taxable to the grantor under Section 22(a) of the Revenue Acts of 1932 and 1934, 26 U.S.C.A. Int.Rev.Acts, pages 487, 669. In view of our determination of the earlier question, it is not necessary for us to consider this contention. Affirmed. NOTES [1] Burnet v. Wells, 289 U.S. 670, 680, 53 S.Ct. 761, 77 L.Ed. 1439. [2] Commissioner of Internal Revenue v. Morton, 7 Cir., 108 F.2d 1005. See White v. Higgins, 1 Cir., 1, 116 F.2d 312, 318. [3] Kent v. Rothensies, 3 Cir., 120 F.2d 476, 478, 479; Kaplan v. Commissioner of Internal Revenue, 1 Cir., 66 F.2d 401, 402; Altmaier v. Commissioner of Internal Revenue, 6 Cir., 116 F.2d 162, 165, certiorari denied, 312 U.S. 706, 61 S.Ct. 827, 85 L.Ed. 1138; Graff v. Commissioner of Internal Revenue, 7 Cir., 117 F.2d 247, 248, 249. [4] Sen.Rep.No. 675, 72d Cong., 1st Sess. (1932) 34-35; H.R.Rep.No. 179, 68th Cong., 1st Sess. (1924) 21; Sen.Rep.No. 398, 68th Cong., 1st Sess. (1924) 25-26. [5] Burnet v. Wells, 289 U.S. 670, 675, 676, 53 S.Ct. 761, 763, 77 L.Ed. 1439. [6] Kent v. Rothensies, 3 Cir., 120 F.2d 476, 478. [7] U.S.Treas.Reg. 86, Art. 167-1(b) (as approved by the Secretary, February 11, 1935): "The test of the sufficiency of the grantor's retained interest in the trust income, resulting in the taxation of such income to the grantor, is whether the grantor has failed to divest himself, permanently and definitively, of every right which might, by any possibility, enable him to have the income, at some time, distributed to him, actually or constructively. * * * * "If the grantor has retained any such interest in the income, such income is taxable to the grantor regardless of * * * * * "(5) the time or times of such distribution, whether within or without the taxable period, whether conditioned on the precedent giving of notice, or on the elapsing of an interval of time, or on the happening of a specified event, or otherwise; * * *." [8] Taft v. Commissioner of Internal Revenue, 304 U.S. 351, 357, 58 S.Ct. 891, 82 L.Ed. 1393, 116 A.L.R. 346; Helvering v. R. J. Reynolds Tobacco Co., 306 U.S. 110, 115, 59 S.Ct. 423, 83 L.Ed. 536. [9] Helvering v. Wood, 309 U.S. 344, 60 S.Ct. 551, 84 L.Ed. 796. [10] 10 Cir., 122 F.2d 6, 9. [11] D.C.E.D.Pa., 35 F.Supp. 291. [12] 3 Cir., 120 F.2d 476, 478. [13] Burnet v. Wells, 289 U.S. 670, 681, 682, 53 S.Ct. 761, 77 L.Ed. 1439. [14] Hormel v. Helvering, 312 U.S. 552, 61 S.Ct. 719, 85 L.Ed. 1037.	{ "pile_set_name": "FreeLaw" }
49 Cal.Rptr.3d 447 (2006) 143 Cal.App.4th 718 GOLDEN STATE BORING & PIPE JACKING, INC., Plaintiff and Appellant, v. ORANGE COUNTY WATER DISTRICT, Defendant and Respondent; Colich Construction, Real Party in Interest. No. G035795. Court of Appeal of California, Fourth District, Division Three. September 28, 2006. 448 Schoth, Creyaufmiller & Associates and Timothy P. Creyaufmiller, Glendora, for Plaintiff and Appellant. Rutan & Tucker, Joel D. Kuperberg, John A. Ramirez, and Peter J. Howell, Costa Mesa, for Defendant and Respondent, Orange County Water District. Weston, Benshoof, Rochefort, Rubalcava & MacCuish, Kevin S. Collins, and Stephanie A. Jones, Los Angeles, for Real Party in Interest Colich Construction, L.P. OPINION IKOLA, J. Colich Construction, L.P. (Colich), a general contractor, submitted a bid for a public works contract to construct Orange County Water District's (OCWD) Groundwater Replenishment System Unit II Pipeline Project (the project). Colich's bid listed Golden State Boring and Pipe Jacking, Inc. (GSB), as a subcontractor. After OCWD awarded the contract to Colich, GSB persistently refused to sign the subcontract requiring it to obtain a performance bond as GSB gratuitously had offered to do in its successful bid for the subcontract. The impasse led Colich to seek OCWD's approval of its request to substitute GSB out of participation in the project. After an evidentiary hearing, OCWD authorized the substitution, finding under Public Contract Code section 4107, subdivision (a)(1),[1] that GSB's unjustified intransigence constituted an "unwillingness to execute a written subcontract for the scope of work specified in its sub-bid." GSB's petition for writ in mandamus proceedings (Code Civ. Proc., § 1094.5) was denied by the superior court. On appeal, GSB argues Colich had no right to insist on a performance bond because Colich failed to make a statutory request for bond under section 4108. We conclude the superior court did not err in rejecting GSB's argument and finding the bond was a condition GSB imposed upon itself as part of the consideration for Colich's acceptance of its bid for the subcontract. FACTS Statutory Background The Subletting and Subcontracting Fair Practices Act, sections 4100 et seq. (the Act), establishes a detailed mandatory framework for competitive bids on public works contracts. The Act requires general contractors to identify in their bids all subcontractors "who will perform work or labor or render service to the prime contractor" in excess of one-half of 1 percent of the total bid of the prime contract. (§ 4104, subd. (a)(1).)[2] The requirement 449 emanates from the Legislature's finding "that the practices of bid shopping and bid peddling in connection with the construction, alteration, and repair of public improvements often result in poor quality of material and workmanship to the detriment of the public, deprive the public of the full benefits of fair competition among prime contractors and subcontractors, and lead to insolvencies, loss of wages to employees, and other evils."[3] (§ 4101.) "The Act thus binds a contractor to its listed subcontractors, even though the parties have not yet entered into a contractual relationship." (E.F. Brady Co. v. M.H. Golden Co. (1997) 58 Cal.App.4th 182, 189, 67 Cal.Rptr.2d 886.) It confers a statutory right on the listed subcontractor to perform the specified work. (§ 4107; R.J. Land & Associates Construction Co. v. Kiewit-Shea (1999) 69 Cal.App.4th 416, 421, 81 Cal.Rptr.2d 615.) "Once a subcontractor has been designated, the prime contractor cannot substitute another subcontractor unless the awarding authority consents and one of certain situations exists." (Valley Crest Landscape, Inc. v. City Council (1996) 41 Cal.App.4th 1432, 1438, 49 Cal.Rptr.2d 184.) The circumstances justifying substitution are set forth in sections 4107 and 4107.5. As relevant here, grounds for substitution exist "[w]hen the subcontractor listed in the bid, after having had a reasonable opportunity to do so, fails or refuses to execute a written contract for the scope of work specified in the subcontractor's bid . . ., when that written contract, based upon the general terms, conditions, plans, and specifications for the project involved or the terms of that subcontractor's written bid, is presented to the subcontractor by the prime contractor." (§ 4107, subd. (a)(1).) When notified of the prime contractor's request for substitution, the subcontractor may submit written objections to the awarding agency and obtain an administrative hearing. (§ 4107, subd. (a).) Thereafter, "a subcontractor that believes an awarding authority has violated the Act's statutory mandate may be entitled to bring an administrative mandamus under Code of Civil Procedure section 1094.5." (E.F. Brady Co. v. M.H. Golden Co., supra, 58 Cal.App.4th at p. 192, fn. 8, 67 Cal.Rptr.2d 886.) The Bid and the Parties' Negotiations In August 2003, OCWD issued a notice inviting bids for construction of a years-long, wide-ranging, multi-million dollar project designed to assist the district's groundwater replenishment operations for recharging OCWD's groundwater basin. Bids were due by 1:00 p.m. on October 21, 2003. Colich, the bidding prime contractor, neither advertised for subcontract bids (subbids) nor issued any written invitations for bids. The parties agree Colich informally requested bids for subcontracts. On the final day for bidding on the prime contract, just a few minutes before the deadline, GSB faxed to Colich the low bid for subcontracting about $3 million of tunneling and grout work. The proposal stated, 450 inter alia, "If bond is required, a fee of 2.5% of the contract price will be added." Colich promptly submitted its $16 million prime bid, listing GSB as a subcontractor. GSB's unilateral offer to obtain bonding was to take center stage as the parties further negotiated the terms of the subcontract. For instance, when GSB twice faxed to Colich revised proposals inserting terms omitted from the initial subbid, it reiterated its offer to provide a bond if required, and with the second fax transmission, GSB further memorialized the proposal under a formal heading labeled "Bonds," setting forth the matter in standardized format, as follows: "The cost of a bond premium is not included in the contract price. If desired by and paid by others, GSB will furnish a Payment and Performance bond at 2.5% of the contract value." (Italics indicate filled-in blanks.) Thus, all of GSB's subbid negotiations referred to the bonding offer. OCWD awarded Colich the prime contract, and in January 2004, Colich sent GSB a letter of intent advising GSB it had been selected and a subcontract would soon follow. Thereafter, apparently concerned with GSB's performance on another project, Colich asked the subcontractor to sign a written "statement of understanding" "agree[ing] to bare [sic] responsibility for your contractual obligations and the potential delays and damages caused by [GSB]." The statement of understanding recited that GSB agreed to reimburse Colich for any delay costs or damages pertaining to the project, and warned that if GSB failed to do so, Colich would "diligently pursue contractor substitution on this basis." GSB executed the statement of understanding. In mid-March 2004, Colich sent GSB the subcontract agreement containing, inter alia, a verbatim provision for the bonding as proposed by GSB in its subbid, to wit, "If bond is required, a fee of 2.5% of the contract price will be added." In early April 2004, Colich orally asked GSB to submit a bond on the project. In response, GSB's president, Jeffrey Johnson, wrote: "[We] will make every effort to provide the requested bond. Before a bond can be obtained, the bonding agent is requiring updated financial statements. [GSB's] accountant is aware of the project and will complete the financials as soon as possible. [¶] Colich Construction has waited over 5 months to request a bond. Colich Construction and Colich & Sons have never asked for a bond in the last 10 years the company owners have done business. [¶] Per the proposal, the bond will be 2.5% of the contract total. The amount to be made payable to [GSB] upon issuance of bond. If you have any further questions, please feel free to contact our office." That letter was contradicted two days later by GSB's attorney, who wrote of GSB's position that Colich had waived any right to demand a bond, to wit: "At this time I have been informed by [GSB] that your firm is requiring [GSB] to submit a performance and a payment bond on the subject matter contract, which requirement [GSB] contends, was just recently made after [GSB] had already provided submittals pursuant to your request. [¶] It is [GSB's] position that it is not required to provide a bond on this project since [Colich] failed to clearly specify the amount and requirement of the bond in its written and/or published request for subbids on the subject matter project. Pursuant to Public Contract Codes Section 4108(c), if your firm fails to make such demand, your firm is precluded from imposing any bond requirements upon [GSB]." As discussed more fully, post, the statute to which GSB's attorney alluded, section 4108, subdivision (c)(3), precludes a 451 prime contractor from imposing bond requirements where it has failed "to specify bond requirements, in accordance with this subdivision, in the written or published request for subbids." Here, it is undisputed Colich never issued a written or published request for subbids. It simply considered subcontractors' responses to an informal invitation for subbids and chose the lowest bid, which was submitted by GSB only minutes before Colich's deadline to submit its project bid to OCWD. Responding to the letter from GSB's attorney, on April 16, 2004, Colich advised GSB it disagreed with GSB's "intended use and interpretation of" section 4108, subdivision (c): The statute was inapt because Colich had never issued a written or published request for subbids. Rather, GSB itself had gratuitously stated its ability and readiness to provide bonds at a specified rate a condition that Colich asserted "was certainly a factor that was looked at and considered when Colich evaluated the proposals for this work." Colich reiterated it was simply asking GSB to obtain bonds at Colich's expense, just as GSB had proposed in its subbid. Colich further urged GSB to respond promptly, and it cautioned, "If there is a problem with the subcontract agreement, we must be notified immediately so that we can either attempt to remedy the problem or seek subcontractor substitution." The parties then exchanged more letters and revised subcontracts, but each held its ground on the bonding requirement. Finally, in May 2004, GSB rejected the most recent subcontract put forward by Colich, noting, "[W]e are aware of each other's position [regarding the bond issue] and are at an impasse." The Administrative Proceedings and Superior Court Review Re: Substitution The bonding controversy resulted in Colich's request to OCWD, pursuant to section 4107, subdivision (a)(1), "to substitute its listed tunneling subcontractor, [GSB], on the grounds that [GSB] has refused to execute a contract for the performance of the work in accordance with the terms of its sub-bid to Colich for the Project." Colich argued that "[b]ecause [GSB] promised in its sub-bid to provide bonds, its refusal now to honor that commitment is grounds for substitution under the above-referenced provision of the Public Contract Code. To be clear, the bonding requirement is not one that Colich imposed unilaterally. Rather, Colich merely seeks to accept [GSB's] sub-bid in accordance with the terms set out by [GSB]." GSB urged OCWD to deny the substitution request. It contended Colich had failed to comply with the prime contractor's duties under section 4108, subdivision (c), regarding a demand for bonding. It argued, inter alia, that GSB could not provide a bond "even if it wanted to because of the necessary lead time and the current bonding capacity which became more limited within the recent months," and it explained that a dispute with Colich on another project "has made [it] even more difficult for [GSB] to obtain a bond in such a short time span." The matter was heard in July 2004. The next month, OCWD issued its statement of decision approving Colich's substitution request. In pertinent part, that decision states: "The underlying question is whether Colich was `imposing' the bond requirement as prescribed in [section] 4108. In its original sub-bid to Colich, [GSB] included the following statement regarding [GSB's] provision of bonds: `If bond is required, a fee of 2.5% of the contract price will be added.' In this case, there is no evidence that Colich published or otherwise transmitted a written request for sub-bids; rather, [GSB] sent its subbid 452 to Colich without a formal solicitation. It is not unusual on public works projects that a general contractor rely on such information contained in a sub-bid in making a determination as to which subcontractor to list in the bid submitted to the public agency. [GSB's] representation that it would provide a bond, and [GSB's] subsequent pieces of correspondence to Colich stating that [GSB] was making an effort to provide the bonds, make it apparent that the bond was not being required by Colich, but instead was part of the consideration offered by [GSB] and accepted by Colich; as a result, Section 4108 does not apply. [¶] [GSB's] unwillingness to execute a written subcontract for the scope of work specified in its sub-bid submitted to Colich is reason for [OCWD] consenting to Colich's requested substitution under [section] 4107[, subdivision] (a)(1)." Based on these findings, OCWD authorized Colich to substitute Pacific Boring, Inc., as the tunneling subcontractor for the project. The superior court denied GSB's petition for a writ of mandate seeking to overturn OCWD's decision. Specifically, it found OCWD's decision supported by substantial evidence, i.e., GSB unilaterally offered to provide a bond, and Colich did not issue a written or published request for sub-bids. Thus, section 4108 was inapplicable, and Colich's failure to request a bond under that statute did not preclude it from accepting GSB's offer to provide a bond. GSB appeals from judgment entered in favor of OCWD and Colich. DISCUSSION Standard of Review The parties argue about the appropriate standard of review. Colich and OCWD contend that if the public agency's findings are supported by substantial evidence in the administrative record, those findings are binding on us, as they were on the trial court. (Desmond v. County of Contra Costa (1993) 21 Cal.App.4th 330, 334-335, 25 Cal.Rptr.2d 842; Bixby v. Pierno (1971) 4 Cal.3d 130, 149, fn. 22, 93 Cal.Rptr. 234, 481 P.2d 242.) GSB argues the facts are undisputed, and the only question to be decided is one of law, to which we apply an independent or de novo review. (Bodell Construction Co. v. Trustees of Cal. State University (1998) 62 Cal.App.4th 1508, 1515, 73 Cal.Rptr.2d 450.) The judgment withstands scrutiny under both tests: (1) There is substantial evidence supporting OCWD's dispositive factual finding that Colich did not require the bond, but simply accepted GSB's offer to provide one, thus GSB's refusal to execute the subcontract containing its own gratuitous bond provision constituted grounds for substitution under section 4107, subdivision (a)(1); and (2) as a matter of fundamental statutory construction, i.e., a question of law (Rudd v. California Casualty Gen. Ins. Co. (1990) 219 Cal.App.3d 948, 951-952, 268 Cal.Rptr. 624), the Act prohibits a contractor from imposing on a subcontractor a bond requirement previously undisclosed in a written or published request for subbids, but it does not cover the fact situation here, where, as GSB concedes, there was no such request. Construction of the Statute The parties have advised us, and we concur, that this appeal presents a question of statutory interpretation that is one of first impression in California. Having found no California case construing section 4108's mandate pertaining to subcontractor bonds, we will utilize established principles to guide our statutory interpretation. "The process of interpreting the statute to ascertain [the lawmakers'] intent may involve up to three steps." (MacIsaac v. 453 Waste Management Collection & Recycling, Inc. (2005) 134 Cal.App.4th 1076, 1082, 36 Cal.Rptr.3d 650.) The first step is to look at the words of the statute itself as the "primary determinant" of legislative intent. (Janken v. GM Hughes Electronics (1996) 46 Cal.App.4th 55, 60, 53 Cal. Rptr.2d 741.) As stated by our Supreme Court in California School Employees Assn. v. Governing Board (1994) 8 Cal.4th 333, 338, 33 Cal.Rptr.2d 109, 878 P.2d 1321, "[O]ur function is to `ascertain the intent of the lawmakers so as to effectuate the purpose of the law.' [Citations.] We determine such intent by first focusing on the words used by the Legislature, giving them their ordinary meaning. [Citation.] This is because `it is the language of the statute itself that has successfully braved the legislative gauntlet.'" Section 4108, entitled "Faithful performance and payment bonds of subcontractors," provides, in its entirety, "(a) It shall be the responsibility of each subcontractor submitting bids to a prime contractor to be prepared to submit a faithful performance and payment bond or bonds if so requested by the prime contractor. [¶] (b) In the event any subcontractor submitting a bid to a prime contractor does not, upon the request of the prime contractor and at the expense of the prime contractor at the established charge or premium therefor, furnish to the prime contractor a bond or bonds issued by an admitted surety wherein the prime contractor shall be named the obligee, guaranteeing prompt and faithful performance of the subcontract and the payment of all claims for labor and materials furnished or used in and about the work to be done and performed under the subcontract, the prime contractor may reject the bid and make a substitution of another subcontractor subject to Section 4107.[¶] (c)(1) The bond or bonds may be required under this section only if the prime contractor in his or her written or published request for subbids clearly specifies the amount and requirements of the bond or bonds. [¶] (2) If the expense of the bond or bonds required under this section is to be borne by the subcontractor, that requirement shall also be specified in the prime contractor's written or published request for subbids. [¶] (3) The prime contractor's failure to specify bond requirements, in accordance with this subdivision, in the written or published request for subbids shall preclude the prime contractor from imposing bond requirements under this section." (Italics added.) GSB construes the statute as requiring the prime contractor always to specify the bond requirement, whether or not it issues a written or published request for subbids. In so doing, GSB reads out of the statute the thrice-appearing qualifying adjectives italicized, ante, namely, "written or published" and three times substitutes in their place an unqualified "all." Neither the deletions nor the substitutions are allowed. (Code Civ. Proc., § 1858 ["In the construction of a statute, . . . the office of the Judge is simply to ascertain and declare what is in terms or in substance contained therein, not to insert what has been omitted, or to omit what has been inserted"]; Warmington Old Town Associates v. Tustin Unified School Dist. (2002) 101 Cal. App.4th 840, 857, 124 Cal.Rptr.2d 744 ["We must avoid an interpretation that would make some of the words surplusage"]; O'Kane v. Irvine (1996) 47 Cal. App.4th 207, 211, 54 Cal.Rptr.2d 549 ["Where the words of the statute are clear, the court should not add to or alter them to accomplish a purpose that does not appear on the face of the statute or from its legislative history"].) GSB's deletions and insertions are not only impermissible under fundamental statutory interpretation principles, but they would do violence to the clear intent of the Legislature: In this *454 respect, we discern no ambiguity, doubt, or uncertainty about what the Legislature meant when it said that a contractor's written or published request for subbids on a public contract must specify bond requirements the contractor intends to impose on the subcontractor. That being the case, there is nothing in the subject section to interpret or construe (Katz v. Los Gatos-Saratoga Joint Union High School Dist. (2004) 117 Cal.App.4th 47, 61, 11 Cal.Rptr.3d 546), and we need not proceed to further analytical steps. We note, however, GSB's alternate argument that a contractor who does not advertise for subcontractor bids cannot under any circumstances require a subcontractor to provide bonds. In other words, a contractor's nonpublished or nonwritten request for subbids in and of itself precludes the contractor from enforcing bond provisions, regardless of how they came into being. GSB offers no insight as to how the language of section 4108 can possibly be stretched to embrace this concept. The statute itself is not susceptible of this interpretation. Finally, we disagree with GSB's contention there was no basis for substitution under section 4107, subdivision (a)(1) because GSB never really offered to obtain a bond, but simply represented it would do so if required by statute. Thus, GSB did not refuse to execute a subcontract reflecting its offer, and Colich had no legitimate basis for substitution. Of course, under GSB's reasoning, when GSB made its nowstyled nonoffer, it already knew bonding could not be a requirement of the subcontract because it already knew Colich had not issued a written or published request for subbids specifying the bond requirement. What GSB is really saying is that its qualified "offer" to obtain a bond only "if required" was purely illusory, and neither OCWD nor the trial court could utilize it as grounds for substitution. To state the proposition is to reject it. DISPOSITION The judgment is affirmed. Colich and OCWD shall recover costs on appeal. WE CONCUR: BEDSWORTH, Acting P.J., and O'LEARY, J. NOTES [1] All further statutory references are to the Public Contract Code unless otherwise stated. [2] If a prime contractor fails to specify a subcontractor or specifies more than one subcontractor for the same portion of work, "the prime contractor agrees that he or she is fully qualified to perform that portion himself or herself, and that the prime contractor shall perform that portion himself or herself." (§ 4106.) [3] "Bid shopping is the use of the low bid already received by the general contractor to pressure other subcontractors into submitting even lower bids. Bid peddling, conversely, is an attempt by a subcontractor to undercut known bids already submitted to the general contractor in order to procure the job. [Citations.] The statute is designed to prevent only bid shopping and peddling that takes place after the award of the prime contract." (Southern Cal. Acoustics Co. v. C.V. Holder, Inc. (1969) 71 Cal.2d 719, 726, fn. 7, 79 Cal.Rptr. 319, 456 P.2d 975.)	{ "pile_set_name": "FreeLaw" }
562 A.2d 109 (1989) Laning R. DAVIDSON, M.D., Petitioner, v. DISTRICT OF COLUMBIA BOARD OF MEDICINE, Respondent. No. 87-1347. District of Columbia Court of Appeals. Argued March 14, 1989. Decided July 13, 1989. Cary M. Feldman, with whom Douglas C. McAllister, Washington, D.C., was on the brief, for petitioner. Susan S. McDonald, Asst. Corp. Counsel, with whom Frederick D. Cooke, Jr., Corp. Counsel, and Charles L. Reischel, Deputy Corp. Counsel, Washington, D.C., were on the brief, for respondent. 110 Before ROGERS, Chief Judge, MACK, Associate Judge, and PRYOR, Senior Judge. ROGERS, Chief Judge: Petitioner Laning R. Davidson appeals from the decision of the District of Columbia Board of Medicine that he violated D.C. Code § 2-3305.14(a)(1), (a)(8) (1988 Repl.) by willfully making a false statement in his application for a renewal of a license to practice medicine in the District of Columbia. The Board reprimanded him and imposed a fine of $1250. Petitioner contends first, that the Board lacked jurisdiction over him because its notice of intent to revoke his license cited repealed statutes and because his license to practice medicine had expired before the Board held a hearing or issued its final decision; second, that he did not receive adequate notice of the factual basis of the charges against him; and third, that a critical finding of the Board, that he had received actual notice of the Florida Board of Medical Examiners' order denying his application for licensure, is unsupported by the record and requires reversal. We affirm. I Petitioner was licensed to practice medicine in the District of Columbia in 1980. On September 6, 1985, he submitted an application to renew his license for the 1985-86 license period. In response to the question in the application, "Has any state denied your application for license, suspended or revoked your license, or informed you of any pending charges not previously reported?" he answered "No," and his license was thereafter renewed through December 31, 1986. On July 21, 1986, the District of Columbia Board of Medicine ("Board") issued a notice of proposed intent to revoke petitioner's license based on the charges that he had "committed professional misconduct, as defined in D.C.Code 1981 § 2-1326(d)(1), in that [he] used a false statement in connection with the District of Columbia licensing requirements," and because he had "violated D.C.Code 1981 § 2-1327(a)" by filing with the Board a statement when he "knew it was false and misleading." The notice also stated On August 12, 1985, you knew that the Florida Board of Medical Examiners had denied your application for licensure as a physician because a copy of their January 9, 1985 Order denying your application for licensure by endorsement was mailed to you by certified mail on January 17, 1985. The hearing before a panel of the Board which was originally scheduled for September 16, 1986, was continued several times, including once to permit petitioner to get further information about the Florida proceedings and another time to obtain new counsel. Petitioner denied having applied for licensure by endorsement in Florida, notwithstanding what appeared to be such an application with his signature on it, and denied having had a hearing before the Florida Board of Medical Examiners ("Florida Board"). He later changed his testimony to admit that he had been present at the hearing held on November 30 and December 1, 1984, before the Florida Board and stipulated to the authenticity of the transcript of that hearing. He denied, however, that the Florida Board had given him any indication of its decision on his application. The transcript revealed that when petitioner arrived late at the hearing, the Florida Board informed him that in his absence, based on materials presented, "[t]he Board voted to not allow you to have a license....," but that it would reopen his case since he had arrived. At the conclusion of the hearing the next day, the Florida Board informed petitioner, "Again, you don't have a license to practice in this State." A month and a half later, on January 17, 1985, the Florida Board sent a copy of its decision to petitioner by certified mail, but despite two notices left at his home, petitioner never picked up the mail, claiming later that he had been on a prolonged absence from his Florida home. The Board issued its final decision on November 4, 1987, after considering petitioner's exceptions to its proposed decision. It found that because petitioner was 111 present at the Florida hearing, he knew or should have known that his Florida application had been denied and, therefore, that he made a willful misstatement in violation of D.C.Code § 2-3305.14(a)(1), (a)(8) (1987 Supp.),[1] when he stated in his application for license renewal in the District of Columbia that he had never had an application denied in another state. It also found that he had been meaningfully notified of the charges against him despite the erroneous citations to repealed statutes since the replacement statutes were substantively the same. The Board rejected petitioner's claim that the proceedings were moot because of the expiration of his license and concluded as a matter of law that it had jurisdiction to discipline him. The Board reprimanded petitioner and fined him $1250. D.C.Code §§ 2-3305.14(c)(4), (c)(5), 2-3310.9 (1988 Repl.). II. We first address petitioner's jurisdictional contentions. A. Petitioner contends that the Board lacked jurisdiction to discipline him because its notice of intent to revoke his license erroneously cited statutes that had been repealed. The court recently rejected a similar claim, holding that in the absence of a showing of prejudice, an erroneous citation in a revocation notice to a statute repealed by the Revision Act will not divest the Board of jurisdiction to discipline an applicant where "[t]he same conduct was cause for discipline under both statutes and the same disciplinary sanctions existed for such conduct." Mannan v. District of Columbia Bd. of Medicine, 558 A.2d 329, 331-332 (D.C.1989) (citing New Palm Gardens, Inc. v. Alcoholic Beverages Control Comm'n, 11 Mass.App.Ct. 785, 786-790, 420 N.E.2d 8, 11-12 (1981) (no showing of prejudice where licensee aware of charges against it and commission referred to correct statute in its statement of reasons)). In the instant case, the Board's notice referred to D.C.Code §§ 2-1326(d)(1),[2] 2-1327(a)[3] (1981), which were part of the statutory scheme replaced as of March 25, 1986, by the District of Columbia Health Occupations Revision Act of 1985, D.C. Law 6-99, 33 D.C. Reg. 729 (1986) ("Revision Act") (codified at D.C.Code § 2-3301.1 et seq. (1988 Repl.)). These provisions were carried forward in the Revision Act, which provides that the Board, which replaced the Commission on Licensure to Practice the Healing Art, is authorized to take disciplinary action against any applicant, licensee, or person permitted by this subchapter to practice the health occupation regulated by the board in the District who (1) Fraudulently or deceptively obtains or attempts to obtain a license for an applicant or licensee ... (8) Willfully makes or files a false report or record in the practice of a health occupation. D.C.Code § 2-3305.14(a)(1), (a)(8) (1988 Repl.). Furthermore, in its final decision, the Board cited the provisions of the Revision Act in addition to the repealed statutes. Accordingly, petitioner has failed to demonstrate that there is any "material difference" between the old and new statutory provisions or any prejudice resulting from this error. Mannan, supra, at 334 n. 14. 112 B. Petitioner also contends that the Board lost jurisdiction over him after his license expired on December 31, 1986. Since he has not submitted a new application for renewal of license and has testified that he has no intention of doing so, he maintains that he is no longer "an applicant, licensee, or person permitted by this subchapter [the Revision Act] to practice the health occupation regulated by the board in the District."[4] D.C.Code § 2-3305.14(a) (1988 Repl.). He interprets the Revision Act to be more restrictive than the repealed statute, D.C.Code § 2-1326(d) (1981), which provided, in describing the penalties that could be imposed, that the Commission had authority over a "present or former licensee." While under the repealed statute the Commission might have authority over him as a "former licensee," petitioner contends that the language of the Revision Act, which omits the word "former," indicates that the Board no longer has authority over him.[5] The Board as a statutory creation has only those powers given to it by statute, Stark v. Wickard, 321 U.S. 288, 309, 64 S.Ct. 559, 570, 88 L.Ed. 733 (1944); Office of Consumers' Counsel v. Federal Energy Reg. Comm'n, 210 U.S.App.D.C. 315, 332 n. 32, 655 F.2d 1132, 1149 n. 32 (1980), and may not ignore the statute under which it operates. Berger v. Bd. of Psychologist Examiners, 172 U.S.App.D.C. 396, 402, 521 F.2d 1056, 1062 (1975). Absent express statutory or regulatory authority, a regulatory agency may not impose remedial measures. Kuflom v. District of Columbia Bureau of Motor Vehicle Servs., 543 A.2d 340, 346 (D.C.1988) (Terry, J., concurring) (authority to hold license revocation hearing). We hold, upon reviewing the plain language of the statute, the statutory scheme and the legislative history, that the Revision Act authorized the Board to discipline petitioner. See In re Burton, 472 A.2d 831, 838 (D.C.) (statutory scheme), cert. denied, 469 U.S. 1071, 105 S.Ct. 563, 83 L.Ed.2d 504 (1984); Citizens Ass'n of Georgetown v. Zoning Comm'n of the District of Columbia, 392 A.2d 1027, 1033 (D.C.1978) (en banc); Auger v. District of Columbia Bd. of Appeals and Review, 477 A.2d 196, 210-11 (D.C. 1984) (citing Peoples Drug Stores v. District of Columbia, 470 A.2d 751, 753-54 (D.C.1983) (en banc)). The Revision Act is a comprehensive reorganization and modernization of the District's professional and business licensing laws. REPORT OF THE D.C. COUNCIL COMMITTEE ON CONSUMER AND REGULATORY AFFAIRS ON BILL 6-317, at 2 (November 26, 1985) ("Legislative History"). Based on the recognition by the Council of the District of Columbia of the "fast-paced change in the science and economics of the health care professions" in the last decade, the legislation was designed to address modern advances and community needs with the paramount consideration of protecting the public interest. Id. at 7. The bill was the outgrowth of a study by the D.C. Law Revision Commission and was designed to eliminate problems that had arisen as a result of inconsistent and outdated provisions. Id. at 72-73. The Executive Branch of the District government testified in favor of the consolidation of statutory provisions, 113 the improvement of standards of practice for the health professions and allied fields, and the uniform administration and discipline of the licensing programs. Id. at 74-75. In particular, it endorsed the provisions which strengthened enforcement. Id. at 9. A review of the Revision Act makes clear that the Council intended to strengthen enforcement of its licensing laws. The Act modernized standards and enforcement procedures and authorized the various boards governing health occupations to issue cease and desist orders and provided for the voluntary surrender of a license to encourage impaired professionals to seek treatment. Id. at 47; D.C.Code §§ 2-3305.14(c)(8), 2-3305.16, 2-3305.18 (1988 Repl.). Contrary to any suggestion of a break with the past, the transition provisions in the Act provided for existing rules and regulations to remain in effect until new ones could be promulgated and for the members of existing boards to serve out their terms on the successor boards. Legislative History at 59; D.C.Code §§ 2-3311.2, 2-3311.3 (1988 Repl.). The relevant substantive provisions defining unprofessional acts and penalties authorized to be imposed were carried forward in the Revision Act, and actions commenced under the former statute and pending at the time the Revision Act took effect were not to abate. D.C. Code § 2-3311.3 (1988 Repl.). These are not the actions of a legislature intending to weaken the authority of licensing boards to discipline persons whose conduct violates the statute that the boards are to enforce. Nor are they consistent with petitioner's contention that the Board did not have jurisdiction to discipline him once his license expired. Inclusion of the type of amnesty provision urged by petitioner would hardly have been consistent with the Council's enactment of the Revision Act. Petitioner's reliance on the absence of language in the Revision Act that was a part of the penalty provision of the prior law is misplaced. The prior law provided that "[t]he Commission [on the Healing Art] shall impose a penalty or sanction only upon a present or former licensee whom the Commission finds has committed professional misconduct or incapacity...." D.C.Code § 2-1326(d) (1981) (emphasis added); see also D.C.Code § 2-1326(a)(10) (1981). As we understand petitioner's argument, the absence of similar language in the Revision Act demonstrates the intent of the Council to deprive the Board of jurisdiction to impose discipline on a person whose license has expired even though the alleged unprofessional conduct occurred while the license was still in effect.[6] This argument goes too far. Since the repealed statute referred not only to "former licensees" but also to "present licensees," under petitioner's argument, the Board would be without authority to impose discipline on former and present licensees. We will not construe a statute to reach an unreasonable result. Berkley v. United States, 370 A.2d 1331, 1332 (D.C.1977). Moreover, nothing in the Revision Act or its legislative history indicates that "licensee" was intended to refer only to someone who is licensed at the time the Board issues its final decision or order. Other provisions in the Revision Act support this conclusion. Thus, D.C.Code § 2-3305.14(a), provides that the Board "may take 1 or more disciplinary actions provided in subsection (c) of this section against any applicant, licensee, or person permitted by this subchapter to practice the health occupation regulated by the board in the District who [is found to have done certain acts set forth in the statute]." The Board did not revoke petitioner's license, and hence he is a "person permitted... to practice" provided he periodically renews his license. That is, upon renewal, without further comprehensive examination, petitioner can practice his profession. 114 No reason has been brought to our attention why the phrase "permitted by this subchapter" must necessarily be interpreted to preclude action by the Board after a license has expired. See Peoples Drug Stores, supra, 470 A.2d at 755. Nothing in the plain language of § 2-3305.14(a) nor the legislative history precludes the Board from having jurisdiction to discipline former licensees for misconduct occurring while licensed where the Board initiates action during the life of the license. The Revision Act also authorizes discipline to be imposed after a voluntary surrender of a license, D.C.Code § 2-3305.17(c) (1988 Repl.). A person who voluntarily allows his license to expire accomplishes the same result. Moreover, part of petitioner's argument is disingenuous. Petitioner's license did not expire until December 31, 1986. The hearing was scheduled for October 9, 1986, and was only continued so petitioner could present evidence to rebut the government's documentary evidence of a Florida application for licensure by endorsement, signed by petitioner, and the transcript of the Florida proceeding. Another continuance was granted to permit petitioner to retain new counsel. Cf. In re Williams, 513 A.2d 793, 796 (D.C.1986) (reversing dismissal for reason of undue delay in prosecuting attorney disciplinary charges). In short, to accept petitioner's contention would require us to find that the D.C. Council, in enacting the Revision Act, intended to undermine the dual purposes of licensure: to protect the licensee and the public. See Mannan, supra, at 333; Sherman v. Commission on Licensure to Practice Medicine, 407 A.2d 595, 601 (D.C. 1979) (license revocation). Not only does petitioner not dispute that he was subject to the jurisdiction of the Board at the time he committed the alleged unprofessional conduct and at the time the Board issued its intent to revoke his license, but he is a classic illustration of why the expiration of a license cannot be grounds for stripping the Board of jurisdiction to act. Petitioner has not limited his efforts to obtain licensure to the District of Columbia. Yet he seeks to defeat the jurisdiction of the Board, as well as the Florida medical licensure body, by allowing his license to expire in the District and by attempting to withdraw his application for licensure in Florida.[7] The remedial scheme underlying licensure statutes includes not only preventing that individual from practicing medicine in the jurisdiction in which there is an application pending, but also alerting other jurisdictions of a person's conduct. See 42 U.S.C. §§ 11132, 11134 (1988 Supp.) (effective November 4, 1987) (requiring state boards of medicine to report disciplinary actions to central national data bank). Obviously, these purposes would be defeated if a person otherwise subject to the Board's jurisdiction could evade discipline by voluntarily surrendering his license under D.C. Code § 2-3305.17(c) or allowing the license to expire. See Harrison v. J.H. Marshall & Assocs., Inc., 271 A.2d 404, 406 (D.C. 1970) (definitions in regulatory statute to prevent fraud generally read broadly). III Petitioner further contends that he received inadequate notice of the factual basis of the Board's charges against him because the Board based its charges on the purported receipt of a certified letter rather than on his actual knowledge of the Florida Board's order. The record is replete with evidence that petitioner had an "adequate opportunity to prepare and present" his position to the Board, and he can demonstrate no prejudice from the original deficient notice. Watergate Improvement Assocs. v. Public Serv. 115 Comm'n, 326 A.2d 778, 786 (D.C.1974). The notice informed him of the grounds for the Board's charges so he knew that the primary focus of the hearing would be whether he had been denied a license in Florida. That his attorney did not see the copy of the Florida transcript in one of the Board's files is unfortunate, but petitioner can show no prejudice. Indeed, he does not even suggest how he would have been in a better position to present his position to the Board. Nor does he allege that the Board told his counsel that the transcript did not exist or that it subsequently denied him an opportunity to see a copy. His reliance on Babazadeh v. District of Columbia Hackers' License Appeal Bd., 390 A.2d 1004 (D.C.1978), in which the Board denied a pro se petitioner an opportunity to examine his files and refused to identify the complainant, is plainly misplaced.[8] Petitioner had notice that the charges against him involved his giving a false statement when he answered that he had never been denied a license in another state. He also had notice that the Florida proceedings would be the primary focus of the inquiry. That he did not know that the D.C. Board had the transcript of the Florida proceedings did not deprive him of "fair and adequate notice."[9]See Ridge v. Police & Firefighters Retirement Bd., 511 A.2d 418, 424 (D.C.1986) (quoting Carroll v. District of Columbia Dept. of Employment Servs., 487 A.2d 622, 623 (D.C.1985)). Petitioner was granted a continuance so he could prepare his defense after the prosecutor introduced the transcript of the Florida proceeding.[10] IV Finally, petitioner contends that the Board's finding that he had received actual notice of the Florida Board's decision was clearly erroneous. He argues that there was uncontradicted evidence that he never received a copy of the Florida Board's order. He relies on his testimony and on a return receipt from the Florida Board's files showing non-delivery of the certified mail envelope which was introduced in evidence. In reviewing agency findings, the court will affirm the agency's decision if it is "supported by and in accordance with reliable, probative and substantial evidence in the record, and the agency's conclusions flow rationally from its findings." Becker v. District of Columbia Dept. of Consumer and Regulatory Affairs, 518 A.2d 93, 94 (D.C.1986) (citing Saah v. District of Columbia Bd. of Zoning Adjustment, 433 A.2d 1114, 1116 (D.C.1981)). The Board found that petitioner "was served with the Florida Board's Order denying him application on January 17, 1985." Petitioner concedes that a certificate of service gives rise to the presumption that service has occurred, but he contends that the presumption was rebutted by his testimony that he had not in fact received the Florida Order. What he fails to appreciate, however, is that there was sufficient evidence on which the Board could find that he knew or should have known of the denial of his licensure application in Florida prior to filing his application in the District of Columbia. Generally, service is complete upon mailing. 4A Wright & Miller, Federal Practice and Procedure, § 1148 at 430-31 (1987); Carter v. McGowan, 524 F.Supp. 1119, 1121 (D.Nev.1981) (mailing of notice of deposition to plaintiff at last known address *116 constituted service and non-receipt did not affect its validity); Rifkin v. U.S. Lines, 24 F.R.D. 122, 123 (S.D.N.Y.1959) ("Service by mail is complete upon mailing even though it is not received"). But see Russell v. American Tobacco Co., 528 F.2d 357, 365 (4th Cir.1975), cert. denied, 425 U.S. 935, 96 S.Ct. 1666, 1667, 48 L.Ed.2d 176 (1976) (mailing does not constitute notice). Regardless of whether mailing constitutes service, however, there was uncontradicted evidence that petitioner was present before the Florida Board when it told him that it was denying his application for a license. The written notice which he did not receive would only have served to confirm what he already knew. Petitioner has failed, therefore, to demonstrate that an erroneous finding by the Board that he was served with the Florida order would have materially affected the Board's decision. See Wisconsin Ave. Nursing Home v. District of Columbia Comm'n on Human Rights, 527 A.2d 282 (D.C.1987) (citing Arthur v. District of Columbia Nurses' Examining Bd., 459 A.2d 141, 146 (D.C. 1983)). Accordingly, the decision of the Board is affirmed.[11] Affirmed. NOTES [1] The provisions appearing in the 1987 Supplement to the D.C.Code (1981) are identical to those appearing in the 1988 Replacement volume. [2] D.C.Code § 2-1326(d)(1) (1981) provided: The Commission [on Licensure to Practice the Healing Art] shall impose a penalty or sanction only upon a present or former licensee whom the Commission finds has committed professional misconduct or incapacity, which means any of the following: (1) Use of any false, fraudulent or forged statement or document, or dishonest practice in connection with any of the licensing requirements.... [3] D.C.Code § 2-1327(a) (1981) provided: No person shall file or attempt to file with the Commission any statement, diploma, certificate, credential, or other evidence when he knows, or when he might by reasonable diligence ascertain, that it is false and misleading. [4] Petitioner also maintains, for the same reason, that this proceeding is moot. We disagree. The remedial purposes of the statute extend to assuring that the public is protected. The record demonstrates that petitioner has made several efforts to obtain licensure elsewhere. See infra p. 114. [5] Petitioner also maintains that this interpretation of the change makes clear that the regulation promulgated under the Revision Act by the Department of Consumer and Regulatory Affairs on which the Board relied in its final order is invalid as being contrary to the clear language of the statute. The regulation provides: A board, in addition to taking other disciplinary action, may revoke the license of a health professional whose license has expired if the decision was based on conduct that occurred while the health professional was licensed. 17 DCMR § 4117.3; 34 D.C.Reg. 5887 (Sept. 11, 1987). Because of our holding, we need not reach the issue of whether the regulation, which the Department of Consumer and Regulatory Affairs promulgated during the pendency of the proceedings before the Board, would apply retroactively to proceedings commenced before its effective date. [6] Petitioner relies on a canon of statutory construction for his argument that the replacement of D.C.Code § 2-1326 (1981) by § 2-3305.14 under the Revision Act makes clear that the Board does not have jurisdiction to discipline a person whose license has expired. See 1A J. Sutherland, Statutes and Statutory Construction § 23.30 (4th ed. 1985) (a change in a statute indicates that the legislature "intended to change the original act by creating a new right or withdrawing an existing one"). [7] In support of his contention that he did not know at the time he filed the renewal application in the District of Columbia that his application in Florida had been denied, petitioner maintained that he was confused about the state of the Florida proceedings since he had written a letter in 1984 withdrawing his Florida application. See note 10, infra. Petitioner is also challenging the validity of the Florida Board's findings. However, whether or not the Florida Board's findings are ultimately upheld does not vindicate petitioner's misconduct in willfully filing a false report to the Board in the District of Columbia. [8] In that case the central issue at the hearing was whether the taxi driver had picked up the complainant passenger before rush hour fares were in effect. Without the complainant's name he was unable to locate documentary evidence to refute the complainant's testimony. [9] There is no basis for imputing bad faith to the Board's exclusion of the Florida transcript from the files which petitioner's counsel examined. The Board's executive director explained that the transcript had been put in a different file on petitioner. Indeed, the prosecutor apparently was unaware of the existence of the transcript until the morning of the hearing. She did not rely on the transcript until after petitioner had testified that he had not received the Florida order sent to him by certified mail. [10] Petitioner argues that uncertainty arose because he had withdrawn his application for a Florida license in 1984; however, that is irrelevant since the hearing before the Florida Board was in 1985. [11] Petitioner's contention that the Board used gratuitous, vituperative and insulting language in its findings and order is without merit. The Board has broad discretion to reprimand someone who has violated one of the statutes or regulations which it has been charged with enforcing. The Board acted well within its statutory mandate to regulate the medical profession and protect the public from misconduct. That it chose to express itself forcefully is not error.	{ "pile_set_name": "FreeLaw" }
UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 18-6569 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JAMES MORROW COLLINS, JR., Defendant - Appellant. Appeal from the United States District Court for the District of South Carolina, at Columbia. Cameron McGowan Currie, Senior District Judge. (3:09-cr-01295-CMC-2) Submitted: July 26, 2018 Decided: July 31, 2018 Before GREGORY, Chief Judge, FLOYD, Circuit Judge, and HAMILTON, Senior Circuit Judge. Affirmed by unpublished per curiam opinion. James Morrow Collins, Jr., Appellant Pro Se. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: James Morrow Collins, Jr., appeals the district court’s order denying his petition for a writ of error coram nobis. Collins maintained in his petition—filed in January 2018—that his prosecution in 2009 and 2010 * was based on “political revenge, corruption, extortion, civil rights violations, bigotry[,] and intolerance of powerful government officials” and that his political enemies conspired with others and paid law enforcement officials to investigate and prosecute him due to ideological differences. We affirm. On appeal from the district court’s denial of a petition for a writ of error coram nobis, we review factual findings for clear error, questions of law de novo, and the court’s ultimate decision to deny the writ for an abuse of discretion. Bereano v. United States, 706 F.3d 568, 575 (4th Cir. 2013). Further, we may affirm on any ground apparent in the record. United States ex rel. Drakeford v. Tuomey, 792 F.3d 364, 375 (4th Cir. 2015). * Following a jury trial, Collins was convicted in May 2010 of conspiracy to violate the Animal Welfare Act and to engage in an illegal gambling business, in violation of 18 U.S.C. § 371 (2012), two counts of participation in an unlawful animal fighting venture, in violation of 7 U.S.C. § 2156 (2012) and 18 U.S.C. § 2 (2012), and two counts of operating an illegal gambling business, in violation of 18 U.S.C. §§ 2, 1955 (2012). He was sentenced to 21 months in prison. On direct appeal, this court affirmed the conspiracy and gambling convictions, vacated the animal fighting convictions, and remanded for further proceedings. United States v. Lawson, 677 F.3d 629, 656 (4th Cir. 2012). On remand in 2012, the animal fighting charges were dismissed, and Collins was resentenced to 21 months in prison. Collins appealed this sentence, and this court affirmed. United States v. Collins, 550 F. App’x 143, 148 (4th Cir. 2014) (No. 12-4940). 2 Coram nobis is an extraordinary remedy that is available only under circumstances compelling relief in order to achieve justice. United States v. Morgan, 346 U.S. 502, 512-13 (1954). To obtain coram nobis relief, the petitioner must satisfy “four essential prerequisites.” Bereano, 706 F.3d at 576. First, “a more usual remedy (such as habeas corpus) must be unavailable.” Id. Second, there must be a “valid basis” for the petitioner having not attacked his convictions earlier. Id. Third, “the consequences flowing to the petitioner from his convictions must be sufficiently adverse to satisfy Article III’s case or controversy requirement.” Id. Fourth and finally, “the error that is shown must be of the most fundamental character.” Id. (internal quotation marks omitted). We conclude after review of the record that Collins’ coram nobis effort fails because he has not shown that valid reasons exist for not attacking his convictions earlier. Although there is no firm limitation of time within which a writ of error coram nobis will lie, a petitioner seeking such relief is required to demonstrate that “sound reasons exist[] for failure to seek appropriate earlier relief.” Morgan, 346 U.S. at 512. Collins could have challenged the propriety of his prosecution on the bases alleged in his petition in the trial proceedings, on direct appeal, or in his 28 U.S.C. § 2255 (2012) motion to vacate but did not do so. Collins’ petition relies on events allegedly occurring and documents dated no later than 2010. He does not explain, however, why he brought his challenges in the coram nobis petition over seven years later. Accordingly, we affirm the district court’s order denying Collins’ petition. United States v. Collins, No. 3:09-cr-01295-CMC-2 (D.S.C. May 2, 2018). We dispense with 3 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. AFFIRMED 4	{ "pile_set_name": "FreeLaw" }
842 P.2d 528 (1992) CSP, formerly CSC, Appellant (Plaintiff), v. DDC, Appellee (Defendant). No. C-91-10. Supreme Court of Wyoming. November 30, 1992. 529 John M. Burman, Faculty Supervisor, University of Wyoming Legal Services Program, and Kevin D. Huber (argued), Student Intern, for appellant. John M. Scorsine and William Ince (argued), Legal Asst., Rock Springs, for appellee. Before MACY, C.J., and THOMAS, CARDINE, URBIGKIT[] and GOLDEN, JJ. CARDINE, Justice. CSP appeals from an order of the trial court which denied her petition to modify her decree of divorce to give her custody of her minor children, FP and MJP. She specifically challenges the court's refusal to declare the non-existence of a father-child relationship between her ex-husband, DDC, and MJP. The trial court found that CSP was barred by res judicata and collateral estoppel from challenging the provision of a previously-stipulated modification establishing DDC's paternity of MJP. We affirm the order of the trial court. CSP states the issues in this way: I. Whether the failure to comply with the Wyoming Parentage Statutes renders a determination of paternity void? II. Whether an order of dismissal may be based on a void judgment? III. Whether a party with "unclean hands" may invoke the doctrines of res judicata or collateral estoppel? Appellee's statement of the issues perhaps better identifies the issues to be considered as they relate to the particular facts and circumstances of this case: I. Whether the stipulation agreement entered into by [CSP] and [DDC] and the resulting modification order entered by the District Court violate the Wyoming Parentage Act? II. Whether the doctrines of res judicata, collateral estoppel, and judicial estoppel operate to prevent appellant from further litigating the issue of paternity of [MJP]? III. Whether appellee is barred from asserting the equitable theories of res judicata, collateral estoppel and judicial estoppel by the unclean hands doctrine? IV. Whether the district court committed reversible error in dismissing appellant's Motion to Modify Divorce Decree? No transcription of the proceedings in this case was made; instead, the essential facts are presented for our review by means of a "Settled and Approved Statement of Evidence and Proceedings." See W.R.A.P. 4.03. CSP is the mother of three children: NP, born May 8, 1984; FP, born September 20, 1985; and MJP, born (one month prematurely) on December 5, 1986. CSP married DDC, the appellee, on March 1, 1985. DDC is not the biological father of NP, who was born before the marriage. He is, however, the father of FP, who was born during the marriage. 530 The parties were divorced on July 11, 1986. The divorce decree recited that one child, FP, had been born as the result of the marriage. The court awarded custody of FP to CSP. Approximately five months after the entry of the decree, MJP was born. Because MJP was born within 300 days (148 days to be exact) of the end of the marriage, DDC is presumed to be her natural father. W.S. 14-2-102(a)(i) (July 1986 Repl.). CSP underwent some hard times after the divorce. She began receiving welfare in September 1986. By January 1988, she found herself and the children in an unhealthy living arrangement. She and her boyfriend were both using drugs, and her boyfriend was selling them. CSP arranged for her children to be taken care of by relatives: NP went to live with CSP's father in Oklahoma, FP went to live with DDC, and MJP went to live with CSP's mother, SG. CSP was later convicted of using marijuana. She also failed to appear on a felony forgery charge in Nebraska. Apparently, these crises convinced her to try to fix her life situation. She returned to Wyoming, got off the drugs, and started to collect her children back together. She got NP and FP back, but her mother did not want MJP to return living with CSP because CSP was living in the home of DDC's mother. CSP's mother, SG, sent a letter to CSP threatening to start an adoption of MJP. When DDC and his mother learned of this, DDC took CSP to Mr. Pickett, the attorney who had represented him in the divorce from CSP. Mr. Pickett advised CSP that if she and DDC would stipulate to DDC being MJP's father, that might stop the adoption proceedings. CSP knew that DDC was not MJP's natural father, but she agreed to sign an acknowledgement of paternity which named DDC as the father. CSP claims Mr. Pickett was made aware that DDC was not MJP's father prior to the filing of the acknowledgement with the court. This acknowledgement, along with a verified petition to establish paternity and a stipulation to modify the divorce decree, was filed with the court on November 10, 1988. That same date, the court signed an order adopting the stipulation to modify the divorce decree, which named MJP as a child of the marriage and granted physical custody of both children to DDC. CSP then retrieved MJP from SG. SG went ahead with the adoption proceedings for MJP, but abandoned them after CSP was granted temporary custody of MJP at a temporary custody hearing in the adoption proceeding. CSP thought that, since she had won at the adoption proceedings, the modification was no longer necessary and would not be filed. After reuniting all of CSP's children, CSP and DDC lived together briefly in the same house. However, they were soon driven apart by disagreements about the treatment of MJP, and by DDC's drinking. CSP became concerned when DDC, who had legal custody of MJP and FP because of the modification proceedings, said he might try to take them away from her. CSP claims this is the first notice she had that the modification had been filed with the court and custody was now with DDC. She shifted her alliance from DDC back to SG. SG took CSP to her attorney, Mr. Finn, who she had employed in the abandoned adoption proceeding. Mr. Finn advised CSP that she had to return the children to DDC, and that her only means of keeping MJP would be to consent to adoption of MJP by SG. CSP signed the consent to adoption. However, she soon despaired of any action being taken by that route. Instead, she hired her trial counsel, Mr. Hjelmstad, to try to "straighten out the mess." On March 15, 1990, CSP filed a motion to modify the divorce decree and previous modification alleging that her previous consent to modification declaring DDC the father and granting him custody had been obtained by duress and fraud. Meanwhile, the State of Wyoming had filed a petition to establish paternity and support for MJP on November 15, 1989. With the petition, CSP filed an affidavit naming GM as the father of MJP and stating that she had had a sexual relationship with GM during her marriage to DDC. 531 GM filed an answer to the petition stating that he was not the father of MJP. The State of Wyoming filed a motion to dismiss the petition when it learned that DDC had been declared the father in the earlier divorce modification. Mr. Hjelmstad filed an objection to the State's motion to dismiss, contending that CSP's signature on the stipulation to modify the divorce decree had been obtained by fraud, duress and undue influence. On CSP's motion, the trial court consolidated the divorce and paternity cases, and ordered that paternity testing be performed. The tests showed that there was a 99.32% probability that GM was the father of MJP. After a hearing and written submission of closing arguments, the trial court entered a decision letter on July 23, 1991. The court found that CSP had voluntarily entered into the stipulation declaring DDC the father of MJP, and that her actions were free of the influence of fraud and deception. It held that she was prevented from raising the issue of MJP's paternity by the doctrines of res judicata and collateral estoppel. After an order was entered on the court's decision letter, CSP took timely appeal to this court. Appellant first argues that the stipulation she and DDC entered into was void for failure to comply with the procedural requirements of the Wyoming Parentage Act, W.S. 14-2-101 et seq. She claims that since the stipulation had the effect of adjudicating DDC's paternity of MJP, it was subject to the procedural rules for paternity actions. Specifically, appellant complains that the stipulation procedure was deficient in three respects: (1) MJP was not made a party to the action for paternity; (2) no guardian ad litem was appointed to represent her interests; and (3) no notice or opportunity to be heard in the paternity action was given to GM. See W.S. 14-2-107 (July 1986 Repl.). We agree with CSP that the Wyoming Parentage Act provides the exclusive means of establishing the parent-child relationship between a child and his natural father. AEI v. JDM, 758 P.2d 22 (Wyo. 1988). There is no common-law authority for determination of paternity. Blanton v. Warn, 444 P.2d 325, 327 (Wyo.1968). Compliance with the statutory procedure is mandatory in actions for adjudication of paternity. Matter of TLB, 771 P.2d 811, 813 (Wyo.1989). However, these rules do not apply where, as here, paternity of a child presumed to be a child of the marriage is determined in a divorce action by consent of the parties. In Matter of Paternity of JRW, 814 P.2d 1256, 1261 (Wyo. 1991), we stated that: While genetic testing, appointment of a guardian ad litem and an informal hearing are mandatory in the case of an initial, contested paternity determination, the Act does not mandate that the same procedures be used when paternity has already been established with the consent of the parties in a prior adjudication. * * * Where, as here, appellant and the mother agreed that the children were born of the marriage and this agreement was reflected in the divorce decree, there has been no violation of the mandatory language in the Act. The Act, as applied to the circumstances of this case, made appellant the "presumed father" and, as such, a blood test was not mandatory to establish paternity at the time of divorce. * * * [A]ppellant failed to exercise the statutory option of challenging his "presumed father" status in a parentage action joined with the divorce proceeding. We believe this same rule applies to a proceeding to modify a divorce decree to include a child conceived during the marriage but born afterward. Modifications of the custody and support provisions of a divorce decree are provided for by W.S. 20-2-113 (June 1987 Repl.), which states in part: On the petition of either of the parents, the court may revise the decree concerning the care, custody, visitation and maintenance of the children as the circumstances of the parents and the benefit of the children requires. The modification of a custody decree under this statute lies within the sound discretion of the trial court. Gaines v. Doby, 773 P.2d 442, 446 (Wyo.1989), and 532 cases cited therein. We will not disturb the modification unless there has been a grave abuse of discretion or violation of some legal principle. See Roberts v. Vilos, 776 P.2d 216, 217 (Wyo.1989). Courts in other jurisdictions have held that an action for custody and support of a child conceived during the marriage but born after the entry of a decree of divorce may be brought under a statute which authorizes modification of the decree, rather than under a paternity statute. See e.g., Perkins v. Perkins, 198 Neb. 401, 253 N.W.2d 42 (1977); Moore v. Moore, 231 Or. 302, 372 P.2d 981 (1962); and see generally Annotation, Opening or Modification of Divorce Decree as to Custody or Support of Child Not Provided for in the Decree, 71 A.L.R.2d 1370 § 19 (1960). We agree with the holding in these cases that the trial court has, as part of its continuing jurisdiction to modify a divorce decree, authority to declare valid a presumed parent-child relationship arising out of the marriage and to make orders of custody and support for the child conceived during the marriage, even after the divorce is final. The incidental fact that MJP was born within five months of the divorce rather than during the marriage did not strip the court of its authority to make provision for her as a child of the marriage. Since this determination was made pursuant to a stipulation by the parties in their divorce action, it was not necessary to comply with the procedural norms of the Wyoming Parentage Act. JRW, 814 P.2d 1256. To hold otherwise would open determinations of the parent-child relationship made in valid divorce decrees to unreasonable collateral attack on procedural grounds. CSP argues, however, that we must hold the modification void because GM, the child's natural father, was deprived of his due process right to notice of the paternity proceeding when DDC and CSP stipulated to paternity rather than adjudicating it through a proceeding under the Wyoming Parentage Act. CSP has no standing to make this argument for GM. We note, in any case, that GM had no right to such notice; W.S. 14-2-107 (July 1986 Repl.) governing notice states that "each man presumed to be the father under W.S. 14-2-102 and each man alleged to be the natural father may be made parties and shall be given notice of the [paternity] action * ." GM was neither statutorily presumed to be the father of MJP, nor was he alleged to be her father in the petition for modification. Thus, he would not have been entitled to notice even had the proceeding been brought under the Act. We hold that the stipulation and order entered upon it was not invalid or void for failure to comply with the procedural requirements of the Wyoming Parentage Act. In her next issue, CSP argues that the trial court erred in applying the doctrines of res judicata and collateral estoppel to her petition to modify her divorce decree. This issue also is governed by our decision in Matter of Paternity of JRW, cited above. In JRW, the presumed father of two minor children stipulated in a property settlement agreement that both children were the issue of his marriage to his ex-wife. When the State later sued him for failure to pay child support, he attempted to bring a petition to declare the non-existence of the father/child relationship, which the trial court dismissed. On appeal, we held that the father was barred from bringing the action by failure to commence it within a reasonable time. We also held that his action was barred by res judicata, collateral estoppel and judicial estoppel: Because of the potentially damaging effect that relitigation of a paternity determination might have on innocent children, the doctrines of res judicata and collateral estoppel are rigorously observed in the paternity context. * * * * * In Matter of Estate of Newell, 765 P.2d 1353 (Wyo.1988), we identified the four criteria used to determine the applicability of res judicata. They are: "`(1) the parties were identical; (2) the subject matter was identical; (3) the issues were the same and related to the subject matter; and (4) the capacities of the persons were identical in reference to both the 533 subject matter and the issues between them.'" Id. at 1355 (quoting Matter of Swasso, 751 P.2d 887, 890 (Wyo.1988)). JRW, 814 P.2d at 1265. In JRW, we found the Newell test satisfied under the circumstances. We also held that collateral estoppel was applicable because the paternity issue had been decided by stipulation of the parties and that judicial estoppel applied: The doctrine [of judicial estoppel] arises where, as here, the parties identified the children as "issue of [the] marriage" in the divorce proceeding. As defined in Black's Law Dictionary 761 (5th ed. 1979), judicial estoppel binds a party by his judicial declarations and he may not contradict them in a subsequent proceeding involving [the] same issues and parties. * * Under this doctrine, a party who by his pleadings, statements or contentions, under oath, has assumed a particular position in a judicial proceeding is estopped to assume an inconsistent position in a subsequent action. Thus, where appellant affirmatively asserted in the property settlement agreement that both children were "of [the] marriage," he is estopped from his current inconsistent claim that neither child is his. JRW, 814 P.2d at 1265-66. The same factors which made res judicata, collateral estoppel and judicial estoppel appropriate in JRW are applicable here: a parent's assertion that a child was born of the marriage, made in a divorce proceeding, which that parent later seeks to repudiate. CSP seeks to distinguish this case from JRW, in that she claims that DDC is barred from employing these doctrines because of his "unclean hands" in perpetrating a fraud upon the court and in obtaining her signature on the petition for modification through fraud. With regard to the alleged fraud upon the court, we note that CSP was as guilty of "unclean hands" as was DDC. She knew that GM, rather than DDC, was the probable natural father of MJP when she signed the petition to be filed with the court. She also must have known that the purpose of the petition was to stop the adoption, rather than to act in the best interests of the child, if that was its purpose as she now claims. Therefore, we cannot countenance her claim now that DDC has unclean hands because what was filed with the court was false or misleading; she was as guilty as he. Additionally, if we must balance equities in this situation, MJP's interests as the innocent party weigh heavily in the balance. We will not lightly reverse a finding of her legitimacy in favor of a stranger to her parents' marriage. As was said in Moore v. Moore, 372 P.2d at 983: The fact that plaintiff purposely concealed her pregnancy from the court cannot militate against the child's right to be supported by its father. In these proceedings the criterion for judgment is the child's welfare and not the fault of the parent. [emphasis added] CSP also claims that DDC has unclean hands because she was misled into signing the agreement through the ethical misconduct of DDC's attorney, Mr. Pickett. CSP claims that since Mr. Pickett was DDC's attorney, he could not adequately represent her conflicting interests in the modification action. She draws our attention to Wyoming Rule of Professional Conduct 1.7(b), which states: A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer's responsibilities to another client or to a third person, or by the lawyer's own interests, unless: (1) the lawyer reasonably believes the representation will not be adversely affected; and (2) the client consents after consultation. When representation of multiple clients in a single matter is undertaken, the consultation shall include explanation of the implications of the common representation and the advantages and risks involved. The evidence shows that Mr. Pickett did indeed represent both DDC and CSP in the 534 modification action. Regardless of what his formal agreements may have been concerning the representation, a representation of both parties was clearly created by implication. See Adger v. State, 584 P.2d 1056, 1060 (Wyo.1978) (representation may be created by implication). Whether such a representation is created depends on the facts and circumstances of each case. Chavez v. State, 604 P.2d 1341, 1346 (Wyo.1979), cert. denied, 446 U.S. 984, 100 S.Ct. 2967, 64 L.Ed.2d 841 (1980). Here, the Verified Petition for Order Establishing Paternity, the Acknowledgement of Paternity, and the Stipulation to Modify Divorce Decree were all signed both by DDC and CSP and prepared by Mr. Pickett. Therefore, we conclude that a joint or common representation was created, and that Rule 1.7 applies. Adherence to Rule 1.7 is especially important in the domestic relations context because [i]n a common representation, the lawyer theoretically owes both parties a duty of confidentiality and loyal and diligent representation. These duties conflict when the parties' interests are as diametrically opposed as in most divorce situations. F. Gibbard and F. Hartmeister, Mediation and Wyoming Domestic Relations CasesPractical Considerations, Ethical Concerns and Proposed Standards of Practice, XXVII Land & Water L.Rev. 435, 452-53 (1992) (emphasis in original; footnotes omitted). The trial court found that the joint representation did not justify setting aside the stipulation or the modification entered on it because: (1) CSP was fully advised of the consequences of signing the agreement; (2) she had an independent attorney available; and (3) she contacted that attorney before action was taken. The stipulation shows that CSP did, indeed, confer with an independent attorney prior to signing the agreement. However, we do not find any evidence of what Mr. Pickett told CSP, if anything, concerning the conflict of interest between her and DDC and the advantages and disadvantages of common representation. CSP claims he gave her no advice on these points. The question before us is whether the modification ought to be set aside based on all the facts and circumstances surrounding the signing of the stipulation. As previously mentioned, CSP telephoned her attorney from Mr. Pickett's office prior to signing the agreement. She also consulted with him by phone outside Mr. Pickett's office on at least one other occasion, presumably concerning the stipulation. It must also be noted that the stipulation did benefit CSP, in that at the time she sought it, she was trying to reconcile with DDC and feared the adoption proceedings brought by SG. That circumstances would later ally CSP with SG and against DDC, might not reasonably have been anticipated when the stipulation was signed. We therefore hold that the opportunity to consult her own attorney, coupled with the benefit conferred on CSP, sufficiently removed any taint which may have been present due to the conflict-of-interest problem so that the modification must be allowed to stand. In addition to its findings concerning the validity and preclusive effect of the prior modification of the divorce decree, the trial court specifically found that CSP failed to establish a change of circumstances which would justify a modification of the divorce decree and its earlier modification. Our review indicates that the trial court did not abuse its discretion in making this finding. CSP's challenge to the agreement to modify is barred by res judicata, collateral estoppel, and judicial estoppel. Her petition to modify was properly dismissed. NOTES [] Chief Justice at time of oral argument.	{ "pile_set_name": "FreeLaw" }
UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 99-1322 THERESA C. DEWS; EDGAR B. DEWS, JR., Plaintiffs - Appellants, versus DENNY’S RESTAURANT, INCORPORATED, Defendant - Appellee. Appeal from the United States District Court for the District of Maryland, at Greenbelt. J. Frederick Motz, Chief District Judge. (CA-98-1636-JFM) Submitted: July 30, 1999 Decided: August 12, 1999 Before HAMILTON and WILLIAMS, Circuit Judges, and BUTZNER, Senior Circuit Judge. Affirmed by unpublished per curiam opinion. Jonathan E. Halperin, REGAN, HALPERIN & LONG, P.L.C., Washington, D.C., for Appellants. Kevin Karpinski, ALLEN, JOHNSON, ALEXANDER & KARP, Baltimore, Maryland, for Appellee. Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). PER CURIAM: Theresa C. Dews and her husband appeal the district court’s order dismissing their civil action. We have reviewed the record and the district court’s opinion and find no reversible error. Accordingly, we affirm on the reasoning of the district court. See Dews v. Denny’s Restaurant, Inc., No. CA-98-1636-JFM (D. Md. Feb. 8, 1999). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED 2	{ "pile_set_name": "FreeLaw" }
In the United States Court of Appeals For the Seventh Circuit No. 09-2288 A DNAN I. ISSAQ, Petitioner, v. E RIC H. H OLDER, JR., Attorney General of the United States, Respondent. Petition for Review from an Order of the Board of Immigration Appeals. No. A 075 056 464 A RGUED D ECEMBER 4, 2009—D ECIDED A UGUST 17, 2010 Before P OSNER, R IPPLE, and W OOD , Circuit Judges. W OOD , Circuit Judge. In 1997, Adnan Issaq, a citizen of Iraq, moved with his parents and three siblings from Syria to the United States, where they were admitted as refugees. Issaq and his family are Christians of Assyrian descent. His father, a native of Iraq, and his mother, a Syrian, were married in Syria but settled in Baghdad, Iraq, where Issaq was born in 1978. Fearing 2 No. 09-2288 religious persecution, Issaq’s parents took the family to Syria in 1991. There they remained through late 1997, until their application for refugee status was approved and they came to the United States. Once here, the family settled in DuPage County, Illinois, just west of Chicago. Issaq became a permanent resident of the United States in 2001. Unfortunately, Issaq developed a drug habit, which led to other crimes and ultimately to the removal pro- ceedings now before us. Issaq was charged with com- mitting a number of residential burglaries near his home in late 2005. He pleaded guilty to one count, and in March 2007 an Illinois court sentenced him to 180 days in prison and two years of probation, including inpatient substance-abuse treatment. In May 2007, after Issaq had served his prison term, the DuPage County Jail released him to a rehabilitation program called the Treatment Alternatives for Safe Communities. Issaq soon blew the chance he had been given. Two months into the program, Treatment Alternatives expelled him for using drugs and for arranging with others to bring drugs into the treatment facility. Issaq’s expulsion violated the terms of his probation, and a warrant issued for his arrest. He remained on the loose until December 2007, when a local police officer pulled his car over after a traffic violation. Issaq gave the officer his brother’s driver’s license and attempted to flee when he was asked to follow the officer to the police station. This led to new charges, to which Issaq pleaded guilty. The court sentenced him to five years’ imprisonment as the penalty for violating his probation for the residential No. 09-2288 3 burglary, and it imposed an additional year, to run con- currently, for obstruction of justice in connection with the new conviction for the traffic violation. I When Issaq’s problems with the law came to the at- tention of the Department of Homeland Security (“DHS”), it initiated proceedings in which it charged that Issaq was removable as an alien convicted of an aggravated felony. 8 U.S.C. § 1227(a)(2)(A)(iii). At an October 2008 hearing before an Immigration Judge (“IJ”), Issaq con- ceded that residential burglary, a Class 1 felony in Illinois, 720 ILCS 5/19-3(b), is an “aggravated felony” within the meaning of the Immigration and Nationality Act (“INA”), see 8 U.S.C. §§ 1101(a)(43)(G) and 1227(a)(2)(A)(iii). A month later, Issaq applied for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In his application, Issaq asserted that because of his identity as an Assyrian Christian, he faced life- threatening persecution and torture at the hands of Muslim extremists if he were returned to Iraq. The IJ held a hearing on Issaq’s case on December 17, 2008. The judge began by confirming that Issaq was ineligible for asylum because his residential burglary offense was an aggravated felony. Next, the judge found that Issaq’s crime was “particularly serious” (an- other term of art under the INA), and thus he was barred from withholding of removal by 8 U.S.C. § 1231(b)(3)(B)(ii). This left just one question: whether 4 No. 09-2288 Issaq was entitled to relief in the form of withholding of removal under the CAT. Issaq testified that he believed that he would be tortured in Iraq on account of his religion. His belief was based solely on his membership in the group of Assyrian Christians; he offered no reason why he in particular would be singled out. Cross-examination revealed that he was unaware of the fact that there are approximately a million Christians currently living in Iraq. Issaq’s father, Isho Shamoon, testified that the entire extended family has now left Iraq. Shamoon shared the opinion that his son would be killed if he were returned. Radicals, he stated, had been asking about the family, and a former neighbor warned him that “they” were looking for Shamoon. This was enough to endanger the son as well, Shamoon thought. Issaq’s mother, Leila Youkhana, also testified. She mentioned pressure on Christian women in Iraq to adopt Muslim dress, and she too predicted that Issaq would be killed if he were sent back. The IJ found all of this testimony credible but insuf- ficient to warrant relief under the CAT. Iraq, the judge observed, has undergone “vast changes” since 1991, when Issaq’s family left the country. Given the number of Christians, and even Christians of Assyrian ethnicity, the court found no basis for the family’s dire predictions of death or torture. Indeed, the court found no evidence apart from these opinions about the likelihood of tor- ture. He acknowledged the fact that there is social fric- tion and violence in Iraq today, but that alone was not No. 09-2288 5 enough to show that Issaq would be tortured by a public official, or that the government would condone his torture by others. Notably, however, the IJ had nothing to say about an International Religious Freedom Report that Issaq had tendered in support of his petition on the day of the hearing. See http://www.state.gov/g/drl/rls/ irf/2008/ 108483.htm (last visited August 13, 2010). That Report catalogued several incidents in Iraq of abuse against Assyrian Christians. It also noted, under the heading “Abuses by Rebel or Foreign Forces or Terrorist Organi- zations” that [m]any individuals from various religious groups were targeted because of their religious identity or secular leanings. Acts committed against them in- cluded not only harassment and intimidation but also kidnapping and murder. The general lawless- ness that permitted criminal gangs, terrorists, and insurgents to victimize citizens with impunity af- fected persons of all ethnicities and religious groups. The magnitude of sectarian attacks, while difficult to track, appeared to decline during the reporting period. While such incidents were progressively fewer, Shi’a in Sunni-dominated neighborhoods, Sunnis in Shi’a-dominated neighborhoods, and reli- gious minorities in both Sunni- and Shi’a-dominated neighborhoods reported receiving death threat letters demanding that they leave their homes, and in many cases individuals either complied or were killed. The IJ concluded by denying Issaq’s request for relief under the CAT and ordering him removed to Iraq. 6 No. 09-2288 The Board of Immigration Appeals (“Board”) found that the IJ had “adequately and correctly addressed the issues presented.” In response to Issaq’s objection to the finding that he was ineligible for withholding of removal, the Board noted that once a crime is determined to be particularly serious, there is no need for an additional finding that the person is a danger to the community. Even if he were not ineligible for withholding, the Board continued, he could not prevail on the merits because the record did not establish that his life or freedom would be threatened in Iraq on the ground of his race, religion, nationality, membership in a par- ticular social group, or political opinion. See 8 U.S.C. § 1231(b)(3)(A). Nor did Issaq prove that it was more likely than not that he would be tortured for any cognizable reason if removed to Iraq. See 8 C.F.R. § 1208.16(c). Finally, the Board rejected without explana- tion Issaq’s complaint that the IJ erred by failing to con- sider the International Religious Freedom Report in his analysis. Overall, it thought, he had received a fair hearing and an acceptable explanation. Acting through a single member, the Board thus dismissed his appeal. II In his petition for review in this court, Issaq raises two arguments: first, that the Board erred when it charac- terized his crime as “particularly serious” and for that reason decided that he was ineligible for withholding of removal, and second, that it committed legal error when it determined that he could not qualify for relief under No. 09-2288 7 the CAT. Citing 8 U.S.C. § 1252(a)(2)(C), the government responds that this court lacks jurisdiction to adjudicate the petition. It acknowledges that we would be auth- orized to review the Board’s decision if Issaq’s petition raised a constitutional or other question of law, see 8 U.S.C. § 1252(a)(2)(D), but it asserts that his petition fails to do so. A We consider first Issaq’s effort to qualify for with- holding of removal. His initial problem arises because of the provision of the INA depriving the courts of juris- diction to review any part of a removal order based on a finding that the alien is an aggravated felon: Notwithstanding any other provision of law (statutory or nonstatutory) . . . and except as provided in sub- paragraph (D), no court shall have jurisdiction to review any final order of removal against an alien who is removable by reason of having committed a criminal offense covered in section . . . 1227(a)(2)(A)(iii) [which includes aggravated felonies] . . . of this title . . . . § 1252(a)(2)(C). Notwithstanding the superficially abso- lute nature of this language (apart from the exception for subparagraph (D)), we have decided that it still permits us to decide whether the person before the court is the one who committed the crime, and whether the crime was properly characterized as an aggravated felony. E.g., Guerrero-Perez v. INS, 242 F.3d 727, 730 (7th Cir. 2001). 8 No. 09-2288 More importantly for Issaq’s petition, subparagraph (D) carves out an exception to the jurisdictional bar for “constitutional claims or questions of law.” 8 U.S.C. § 1252(a)(2)(D). In applying this part of the statute, it is important to distinguish between legal claims that may be unlikely to prevail from claims that are so lacking in substance that they should not be adjudicated at all. In our view, Issaq’s arguments fall in the former category, not the latter. The first problem we must address, however, is whether Issaq’s legal arguments are beside the point, because the Board offered an alternative, fact-based reason for denying relief. In its order, the Board said: We further find that the respondent has not estab- lished his eligibility for withholding of removal even if he was not barred from consideration. He has not established that his life or freedom would be threat- ened in Iraq, a country he left 18 years ago, because of his race, religion, nationality, membership in a particular social group, or political opinion. Issaq’s only argument about this part of the case is that the Board’s decision rested on a flawed hearing before the IJ. He phrases this as a due process argument, al- though it would be better cast as an argument that he did not receive the fair hearing to which he is entitled under the statute. See Khan v. Mukasey, 517 F.3d 513, 518 (7th Cir. 2008). The key problem, as he sees it, was the IJ’s failure to consider the International Religious Freedom Report. Issaq has continued in his petition for review to pur- sue this argument. Although his brief does not make it No. 09-2288 9 clear whether he wishes to make this point with respect to both withholding and the CAT, or just the CAT, the Report is pertinent to both (setting aside the issue whether his crime was “particularly serious”), and so we will give him the benefit of the doubt and consider it for both theories. In our view, his contention that the record on which the IJ and Board relied was deficient is enough to support a legal argument with respect to the Board’s alternate holding. It is troublesome that the IJ made no mention of the Report. The Board seems to have relied on a presumption of procedural regularity and to have assumed that the IJ read and took ac- count of the Report, but we have no idea whether this is so. Normally, we require the Board to discuss the key evidence that the parties have presented. See, e.g., Gebreeyesus v. Gonzales, 482 F.3d 952, 954 (7th Cir. 2007) (citing Kay v. Ashcroft, 387 F.3d 664, 674 (7th Cir. 2004), and Mansour v. INS, 230 F.3d 902, 908 (7th Cir. 2000)). But Issaq cannot obtain a remand on this ground unless he can show prejudice from any violation that occurred. See Bayo v. Napolitano, 593 F.3d 495, 506 (7th Cir. 2010) (en banc). The excerpt of the Report that we set out above indicates that the problem of violence is pervasive throughout Iraq; nothing suggests that every Assyrian Christian faces a better than even chance of being tortured or killed, nor is there anything in it to suggest that Issaq faces a particular risk. Although the ques- tion seems close to us, we conclude that the Report is not enough on its own to support a finding that any persecution Issaq would face would occur at the hands of government agents, or would otherwise be con- doned by the government. 10 No. 09-2288 In case we are wrong about that, and the evidence including the Report would have supported withholding, we think it prudent to turn to Issaq’s other argument for this relief. The INA states that “an alien who has been convicted of an aggravated felony (or felonies) for which the alien has been sentenced to an aggregate term of imprisonment of at least 5 years shall be con- sidered to have committed a particularly serious crime.” 8 U.S.C. § 1231(b)(3)(B), final paragraph. It adds that the Attorney General is also entitled to determine that, “notwithstanding the length of sentence imposed, an alien has been convicted of a particularly serious crime.” Id. The question Issaq is raising is how to interpret the phrase “aggregate term of imprisonment.” Whether an agency correctly interprets a statute is a question of law. See Huang v. Mukasey, 534 F.3d 618, 620 (7th Cir. 2008). Issaq argues that the term refers only to the sen- tence that appears in the court’s initial judgment. With that in mind, he points out that his initial sentence for the residential burglary was 180 days’ imprisonment plus two years’ probation; it was not until he violated the terms of his probation that the sentence was ex- tended by another five years. Focusing exclusively on the initial sentence, he draws the conclusion that his crime was not a “particularly serious” one. Issaq’s position, however, disregards the use of the word “aggregate” in § 1231(b)(3)(B)’s final paragraph. If Congress had meant to look solely to the initial term of imprisonment, it would have used different language. Instead, it said “aggregate term,” a phrase that rules out No. 09-2288 11 such a narrow reading. We conclude that all periods of imprisonment associated with a particular conviction must be counted toward the five years specified in the statute. Issaq’s residential burglary crime thus led to an aggregate of more than five years’ imprisonment and was a “particularly serious” felony for purposes of § 1231(b)(3)(B). This makes it unnecessary for us to decide whether the Attorney General abused his discre- tion in characterizing the crime as “particularly seri- ous” notwithstanding the length of the sentence. The government complains that Issaq did not present his argument about the meaning of the statute to the Board, and thus (it says) our jurisdiction is barred on a different ground—failure to exhaust. It is true that an alien must exhaust “all administrative remedies avail- able to the alien as of right,” 8 U.S.C. § 1252(d)(1), and that this includes the obligation first to present to the Board any arguments that lie within its power to address. Ghaffar v. Mukasey, 551 F.3d 651, 655 (7th Cir. 2008). This is not, however, a jurisdictional rule in the strict sense that the Supreme Court has emphasized we must follow. See Marin-Rodriguez v. Holder, 2010 WL 2757321 (7th Cir. July 14, 2010) (No. 09-3105) (discussing Morrison v. Nat’l Austl. Bank Ltd., 130 S. Ct. 2869 (2010); Reed Elsevier, Inc. v. Muchnick, 130 S. Ct. 1237 (2010); and Union Pac. R.R. v. Bhd. of Locomotive Eng’rs, 130 S. Ct. 584 (2009). It is a case- processing rule that limits the arguments available to an alien in this court when those arguments have not been raised properly at the agency level. Korsunskiy v. Gonzales, 461 F.3d 847, 849-50 (7th Cir. 2006). 12 No. 09-2288 Before the IJ and the Board, Issaq stressed his argu- ment that disentitlement to withholding of removal should be conditioned on two findings, not just one: both the commission of a particularly serious crime and a finding that the person was a danger to the community. See § 1231(b)(3)(B)(ii) (no withholding when “the alien, having been convicted by final judgment of a partic- ularly serious crime is a danger to the community of the United States”). In addition, however, he did raise the point about his initial term of imprisonment. We are not inclined to find failure to exhaust, particularly as there is some value in clarifying the scope of the statute. B Issaq also argued that he was entitled to relief under the CAT. Once again, the government argues that we have no jurisdiction to consider his argument, this time be- cause Issaq was convicted of a “particularly serious” crime and also because of the Board’s finding that his case fails on the facts. In the end, we agree with the government that his case has no merit, but we reach that conclusion by a somewhat different path. Although petitions for withholding of removal and petitions for relief under the CAT are treated very simi- larly, the regulations governing the CAT add one addi- tional form of relief for a petitioner: Protection under the Convention Against Torture will be granted either in the form of withholding of removal or in the form of deferral of removal. No. 09-2288 13 8 C.F.R. § 1208.16(c)(4) (emphasis added). Section 1208.17 provides more details about the deferral of removal process: An alien who: has been ordered removed; has been found under § 1208.16(c)(3) to be entitled to protec- tion under the Convention Against Torture; and is subject to the provisions for mandatory denial of withholding of removal under § 1208.16(d)(2) or (d)(3) [which include commission of a particularly serious crime], shall be granted deferral of removal to the country where he or she is more likely than not to be tortured. 8 C.F.R. § 1208.17(a). Additional provisions of the regula- tion make it clear that deferral of removal is at least potentially a more restricted form of relief than with- holding. For example, deferral does not confer on the alien any lawful or permanent immigration status; deferral will not necessarily result in the alien being released from the custody if the alien is subject to such custody; and deferral does not protect against re- moval to a different country from the one in which the alien is likely to be tortured. § 1208.17(b). This court has struggled with the question whether judicial review of orders denying relief under the CAT based on the commission of an aggravated felony is jurisdictionally barred. Compare Tunis v. Gonzales, 447 F.3d 547, 549 (7th Cir. 2006) (stating that an aggravated felony bars review except under the CAT), with Petrov v. Gonzales, 464 F.3d 800, 802 (7th Cir. 2006) (holding that even a CAT claim is barred from review if it results 14 No. 09-2288 in a final order of removal that rests on a finding that an aggravated felony was committed). In Petrov, we pointed out that Tunis addressed only the effect of § 1252(a)(2)(B), which prohibits review of decisions com- mitted to the discretion of the Attorney General or the Secretary of Homeland Security, but that it was neces- sary also to take into account the effect of § 1252(a)(2)(C), which bars review of final orders of removal against certain criminal aliens. The Supreme Court’s decision in Negusie v. Holder, 129 S. Ct. 1159 (2009), underscores the need for precision in evaluating the many different kinds of claims that can arise under the immigration laws. There the Court was concerned with the so-called “persecutor bar” that applies to aliens who have persecuted others on a prohibited basis. See 8 U.S.C. § 1101(a)(42). The persecutor bar applies to those seeking asylum or with- holding of removal, but “[i]t does not disqualify an alien from receiving a temporary deferral of removal under the Convention Against Torture . . . .” 129 S. Ct. at 1162; see also id. at 1178 n.1 (Thomas, J., dissenting) (discussing the remedy of deferral of removal). This raises the question whether a decision under the CAT to deny even deferral of removal falls within the jurisdiction-stripping provisions of either § 1252(a)(2)(B) or § 1252(a)(2)(C). In our view, the answer is no. Once an alien succeeds in proving the factual prerequisites for relief under the CAT, we understand Negusie to hold that some kind of remedy (complete with judicial review) is available, even for persons such as persecutors, whose No. 09-2288 15 claims for asylum or withholding of removal are barred and unreviewable. Consistently with Tunis, then, relief under the CAT is not barred by the ban on reviewing discretionary decisions imposed by § 1252(a)(2)(B). No one argued in Petrov that the remedy of deferral of removal requires a distinct analysis, and so we cannot take Petrov as the last word on that point. And indeed, if an alien is attempting to challenge only a final order of removal, as opposed to a deferral of removal, then there is nothing to criticize in the holding of Petrov. If, however, the alien also sought and might have been entitled to the inherently non-final remedy of deferral of removal, then § 1252(a)(2)(C) (which speaks only of a final order) appears to be inapplicable. This possibility appears to be of little help for Issaq, because nothing in the record suggests that he was seeking a deferral of removal. He relied instead on the argument that his due process rights were violated by the IJ’s failure to read and take into account the facts in the International Religious Freedom Report. As we noted earlier, to the extent that the IJ indeed overlooked this evidence, there is a potential problem. But it is not one that allows Issaq to prevail in the end, because he cannot show how he was prejudiced by the IJ’s error. Even taking the Report into account, the link to govern- mental action is too weak, and the evidence showing that Issaq would be tortured or killed is too conclusory. For these reasons, the petition for review is D ENIED. 16 No. 09-2288 R IPPLE, Circuit Judge, concurring. I join in the judgment of the court, and its fine opinion with the exception of its jurisdictional discussion pertaining to claims for deferral of removal under the Convention Against Tor- ture. I understand the court to take the view that, in spite of 8 U.S.C. § 1252(a)(2)(C), which bars review of final orders of removal against certain criminal aliens, this court does have jurisdiction to review claims re- garding the denial of deferral of removal made by such aliens. Our jurisdiction extends, according to the majority opinion, not only to those petitions raising constitutional claims and questions of law, see id. § 1252(a)(2)(D), but also to claims by a covered alien that the Board’s determination regarding the likelihood of torture upon repatriation is not supported by substantial evidence, see Maj. op. at 14-15. As the court acknowledges, id. at 15, this question is not squarely presented in the case before us and, there- fore, need not be decided at this time. Furthermore, I find the court’s reliance on Negusie v. Holder, 129 S. Ct. 1159 (2009), Petrov v. Gonzales, 464 F.3d 800 (7th Cir. 2006), and Tunis v. Gonzales, 447 F.3d 547 (7th Cir. 2006), to be a relatively thin reed upon which to base the conclusion regarding our jurisdiction that the court reaches today. Moreover, although one of our sister circuits has indeed reached the same result on an entirely different basis, see Lemus-Galvan v. Mukasey, 518 F.3d 1081, 1083 (9th Cir. 2008), the court neither discusses nor criticizes that approach. Nor does it discuss the opposing view. See Saintha v. Mukasey, 516 F.3d 243, 248-49 (4th Cir. 2008) No. 09-2288 17 (dismissing, for lack of jurisdiction, a petition seeking review of a decision denying deferral of removal after concluding that § 1252(a)(2)(C) applied to the deferral claim and that the exception for constitutional claims or questions of law did not apply). I think the better course is to follow the approach of some of our other sister circuits and reserve judgment until the issue is squarely presented and fully briefed and argued before us. See De La Rosa v. Holder, 598 F.3d 103, 107 (2d Cir. 2010) (noting the Ninth Circuit posi- tion but expressly declining to decide the issue because the petition only presented a question of law concerning eligibility for deferral); Cherichel v. Holder, 591 F.3d 1002, 1009, 1017 (8th Cir. 2010) (noting that the jurisdiction- stripping provision generally applies to CAT claims, but deciding the case under the question of law exception without any discussion of further exemptions to the criminal alien jurisdiction-stripping provision that would preserve review of such aliens’ deferral claims). 8-17-10	{ "pile_set_name": "FreeLaw" }
In The Court of Appeals Sixth Appellate District of Texas at Texarkana No. 06-12-00151-CR TROY FRANKLIN LONG, III, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 276th District Court Marion County, Texas Trial Court No. F14217 Before Morriss, C.J., Carter and Moseley, JJ. Memorandum Opinion by Chief Justice Morriss MEMORANDUM OPINION When the late Donte 1 Mitchell, the ex-boyfriend of Terra Long 2 and father of Terra’s six- month-old son, appeared at his former residence allegedly intoxicated and demanding to know where his son and his money were, the confrontation went badly. As a result of the events that night at the residence, Troy Franklin Long, III, Terra’s father and another occupant of the residence, stands convicted of Mitchell’s murder, 3 a Marion County jury having rejected Long’s submitted issue of self-defense. Because legally sufficient evidence supports the jury’s rejection of that defensive issue, we affirm the trial court’s judgment. In evaluating legal sufficiency of the evidence, we review all the evidence in the light most favorable to the trial court’s judgment to determine whether any rational jury could have found the essential elements of the offense beyond a reasonable doubt. Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)); Hartsfield v. State, 305 S.W.3d 859, 863 (Tex. App.—Texarkana 2010, pet. ref’d). We examine legal sufficiency under the direction of the Brooks opinion, while giving deference to the responsibility of the jury “to fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.” Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (citing Jackson, 443 U.S. at 318–19); Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). 1 The indictment spells the victim’s first name as “Donte,” the spelling we use. The name is spelled “Dante” at other locations in the record. 2 We will refer to Terra Long by her first name and to Appellant as Long. 3 The jury assessed punishment at twenty years’ imprisonment. 2 Self-defense justifies the use of deadly force if certain circumstances are met. Morales v. State, 357 S.W.3d 1, 7 (Tex. Crim. App. 2011). Under the Texas Penal Code, deadly force is justified: (1) if the actor would be justified in using force against the other under Section 9.31; and (2) when and to the degree the actor reasonably believes the deadly force is immediately necessary: (A) to protect the actor against the other’s use or attempted use of unlawful deadly force. . . . TEX. PENAL CODE ANN. § 9.32(a) (West 2011). 4 Force is justified under Section 9.31 “when and to the degree the actor reasonably believes the force is immediately necessary to protect the actor against the other’s use or attempted use of unlawful force.” TEX. PENAL CODE ANN. § 9.31(a) (West 2011). 5 In raising the justification of self-defense, a defendant bears the burden of production, which requires the production of some evidence that supports the particular justification. Zuliani v. State, 97 S.W.3d 589, 594 (Tex. Crim. App. 2003); Saxton v. State, 804 S.W.2d 910, 913 (Tex. Crim. App. 1991). Once the defendant produces such evidence, the State then bears the burden of persuasion “to disprove the raised defense.” Zuliani, 97 S.W.3d at 594; Saxton, 804 S.W.2d at 913–14. The burden of persuasion does not require the production of evidence, but rather only requires that the State persuade the jury beyond a reasonable doubt that the defendant 4 None of the presumptions of reasonableness contained in Section 9.32(b) of the Texas Penal Code are at issue in this case. 5 None of the presumptions of reasonableness contained in Section 9.31(b) of the Texas Penal Code are at issue in this case. 3 did not act in self-defense. Allen v. State, 253 S.W.3d 260, 267 (Tex. Crim. App. 2008); Zuliani, 97 S.W.3d at 594. A jury verdict of guilt results in an implicit finding against the defensive theory. 6 Zuliani, 97 S.W.3d at 594; Saxton, 804 S.W.2d at 914. The record contains evidence that Mitchell, an African-American, had a criminal history involving violence, had threatened Long, a Caucasian, with a gun, and had exhibited aggression on the night of the murder. Although Mitchell’s name was on the lease, Long and his daughter had decided, without any judicial determination of Mitchell’s rights under the lease, that Mitchell no longer had any right to live at the residence. Long and his daughter had moved Mitchell’s belongings from the residence to Mitchell’s grandmother’s house. The police had been dispatched to the residence on three prior occasions. On the night in question, once Mitchell arrived at the residence intoxicated 7 and making demands, 8 Terra called the police as usual, but a shotgun blast ended Mitchell’s life. The State stipulated that Mitchell had been convicted of felony aggravated assault for shooting a man and was on felony community supervision for aggravated assault at the time of 6 Although Long uses the language “great weight and preponderance of all the trial evidence” in his brief, Long does not argue factual sufficiency should apply. Long’s sole legal argument is legal sufficiency under the Brooks opinion. The Texas Court of Criminal Appeals has recently clarified an appellant may pursue a factual sufficiency challenge to affirmative defenses. Matlock v. State, No. PD-0308-12, 2013 Tex. Crim. App. LEXIS 433 (Tex. Crim. App. Feb. 27, 2013). Because the defendant bears the burden of proving an affirmative defense by a preponderance of the evidence, the court reasoned a factual sufficiency review was appropriate. Id. Self-defense, though, is a defense rather than an affirmative defense, and the State has the burden of persuasion. See Zuliani, 97 S.W.3d at 594. 7 The record establishes that Mitchell had consumed alcohol and other drugs on the evening of his death. Dr. Robert Palmer testified the autopsy discovered the presence of alcohol, benzodiazephine, and amphetamines in Mitchell’s blood, but did not perform any quantitative analyses to determine the level of these substances. Long testified Mitchell was so drunk he could hardly stand up. 8 Terra testified that Mitchell never explained what he meant when he used the term “my money.” Terra testified she had sold some mineral interests and had approximately $30,000.00 in cash in the house. Terra believed this was the money Mitchell was looking for because some of the cash had gone missing in the past. 4 the murder. Long testified that Mitchell claimed to have shot a man regarding a cell phone charger. The State also stipulated that Mitchell had served sixty days for a terroristic threat against a family member “involving a threat to use a firearm” and had served sixty days in jail for an assault on his step-grandfather. The day before the shooting, Mitchell had returned to the house, removed an SKS assault rifle hidden underneath an ottoman, and left with the gun. Long and Terra testified that Mitchell pointed the gun at Long, or waved it in his direction, while leaving. 9 Terra testified that Mitchell, who could not legally possess firearms, had hidden a rifle underneath a propane tank when they lived with Terra’s step-parents. Mitchell exhibited aggression on the night of his death. When he was unable to get into the garage used as a pool room, Terra and Long claimed Mitchell kicked in the door. 10 Terra claimed Mitchell had been walking around the house cussing and had told Long, “I’ve got something for your bitch ass. I don’t give a damn about your heart condition.” The defense argues Mitchell, while unarmed, charged Long. Long testified that Mitchell was screaming at him and Terra, that he was afraid Mitchell might have a gun, and that Mitchell continued to walk toward him despite being ordered to stop at gunpoint. Long estimated that Mitchell was five feet away when he pulled the trigger. Long testified he feared for his life. 9 Kelly Story testified she accompanied Mitchell on the day he retrieved the SKS rifle from under the ottoman. Story testified Mitchell retrieved the gun, handed her the clip, put the strap over his shoulder, and followed her out of the house. Story denied ever seeing Mitchell point the gun at anyone. Long also testified Mitchell had removed the clip. 10 Deputy David McKnight, a criminal investigator for the Marion County Sheriff’s Office, testified he did not observe any damage to the door or face plate. 5 Terra had a similar version of the events. Terra testified that both she and her father had ordered Mitchell to leave, that Long told Mitchell not to “take another step closer,” and that Mitchell pushed her aside and “walking at a fast pace” approached Long. According to Terra, immediately before Mitchell was shot, he looked at Long and said, “[W]hat the [f___] are you going to do about it?” Terra testified that, at that time, Mitchell’s pockets were “bulging.” Stephany Murphy, a friend of both Terra and Mitchell, testified she was helping Terra clean the house when Mitchell arrived the night of the murder. When she returned from checking on her son sleeping in another room, Murphy testified she saw Mitchell and Terra standing in the living room arguing, heard Long tell Mitchell not to take another step, saw Mitchell take “[m]aybe one” step, and saw Long shoot Mitchell. Because Long satisfied his burden of production, the burden shifted to the State. The record, though, contains sufficient evidence for a rational juror to reject the claim of self-defense beyond a reasonable doubt. Deputy McKnight testified that police had been dispatched to the residence on three occasions in the months leading up to the May 15, 2011, shooting. On February 12, 2011, Mitchell called the police and reported being assaulted. The responding officers concluded the confrontation had not been physical and had not involved any assault, so they did not make any arrests. On April 16, 2011, Terra called the police, reported that Mitchell was on drugs, and requested assistance in making Mitchell leave. McKnight testified that the officers determined there were “really no verbal threats, no danger, they felt like, to either party.” McKnight testified that, because Mitchell signed the lease as a tenant, the police officers told Long and Terra that 6 “they needed to contact a judge if it was their intention to separate.” On April 27, 2011, Long called the police seeking to evict Mitchell. The responding officer told Long to contact the local justice of the peace. The record establishes that Long attempted to first borrow a gun a week before the murder. Edgar Belcher testified that Long requested to borrow a gun approximately a week before the murder, but Edgar refused Long’s request. Kelly Brook also testified Long requested to borrow a gun from Edgar. Clyde Belcher testified he loaned Long a shotgun the day Mitchell was shot. Clyde testified Long had complained about having problems with coyotes. The State introduced contrary evidence concerning whether Mitchell was intoxicated. Bobby Shepard and Wendell Barrett, II, testified they spent the day with Mitchell and dropped him off that night. Shepard testified Mitchell was in a great mood and estimated Mitchell had consumed about three beers. Barrett testified Mitchell was in a good mood, was unarmed, and was not intoxicated. The record indicates Long used racial slurs on at least two occasions. Over defense objection, 11 Deputy McKnight testified that, after Long had given the recorded statement to the police and the camera had been turned off, the following occurred: “Mr. Long stated to the effect y’all have got to understand, I had to do something. Every time I looked up, my pool room was full of [n__ers], and I didn’t know any of them besides Dante.” Long testified, due to his medical conditions and the anxiety following the shooting, 12 he was medicated on Dilaudid, 11 “When conducting a sufficiency review, we consider all the evidence admitted, whether proper or improper.” Conner v. State, 67 S.W.3d 192, 197 (Tex. Crim. App. 2001). 12 After shooting Mitchell, Long testified he suffered a heart episode and the police escorted him to the hospital. 7 Valium, and Nitroglycerine at the time of interview. Brook testified in September 2010 that Long swung a baseball bat at Mitchell while screaming, “I’m going to kill you, you [f__ing n__er]. I hate you. You’re sorry.” Long denied shooting Mitchell over guests in the pool room 13 and denied ever swinging a baseball bat at Mitchell. The jury could have concluded that Long and his daughter’s version of events may not have been entirely truthful. As argued by the State, Terra’s voice inflections on the 9-1-1 audio recordings initially suggest frustration but a calm, under-control situation. It is only after Terra observed her father had armed himself that her voice inflections start to suggest anxiety about the situation. Murphy testified Mitchell was standing next to Terra and took only one step toward Long. Further, even if a rational juror believed Mitchell was walking toward Long, a rational juror could have concluded there was not an imminent threat of deadly force. Neither Long nor Terra observed Mitchell with a weapon on the occasion in question. A rational juror could have concluded, beyond a reasonable doubt, that walking toward a person, even while cussing, was not a threat of unlawful deadly force. A rational juror could have also concluded that deadly force was not immediately necessary. On many occasions, Mitchell had shown up at the house, had argued with Long and Terra, and had not actually caused any physical confrontation. 13 Terra testified that her father did not harbor racial prejudices towards Mitchell, who was an African-American. Terra described a bar fight in which Long and Mitchell defended each other after Mitchell had been called “the ‘N’ word” and Long had been called “a ‘N’ lover.” 8 Long started seeking a weapon a week before the shooting, killed Mitchell on the day he obtained the gun, and used racial slurs when giving his statement to police. “A conclusion of guilt can rest on the combined and cumulative force of all incriminating circumstances.” Conner, 67 S.W.3d at 197. A rational juror could have concluded that Long acted purposely in murdering Mitchell rather than in response to an imminent threat of deadly force. The evidence is sufficient to support the jury’s rejection of self-defense. For the reasons stated, we affirm the judgment of the trial court. Josh R. Morriss, III Chief Justice Date Submitted: April 8, 2013 Date Decided: April 18, 2013 Do Not Publish 9	{ "pile_set_name": "FreeLaw" }
892 F.2d 79 NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.Valentine NETTLES, Plaintiff-Appellant,v.SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant-Appellee. No. 89-1449. United States Court of Appeals, Sixth Circuit. Dec. 21, 1989. Before KEITH and KENNEDY, Circuit Judges, and JOHN W. PECK, Senior Circuit Judge. PER CURIAM: 1 Valentine Nettles appeals from the judgment of the District Court affirming the Secretary of Health and Human Services' denial of his claim for disability benefits. 2 Upon the consideration of the entire record and the briefs filed herein, we affirm the judgment of the District Court for the reasons stated by Judge La Plata in his Memorandum Opinion of March 30, 1989 and for the reasons stated by United States Magistrate Pepe in his Memorandum Opinion of February 28, 1989.	{ "pile_set_name": "FreeLaw" }
432 F.2d 211 TRAVELERS INDEMNITY COMPANY, Plaintiff-Appellee and Cross-Appellant,v.EVANS PIPE COMPANY and Evanite Plastic Company,Defendants-Appellants and Cross-Appellees. Nos. 20162, 20163. United States Court of Appeals, Sixth Circuit. Oct. 19, 1970. John E. Martindale, Cleveland, Ohio, Arter & Hadden, Cleveland, Ohio, on the brief, for plaintiff-appellee and cross-appellant. William F. Snyder, Cleveland, Ohio, Aberdeen P. Hutchison, Marshman, Snyder & Seeley, Cleveland, Ohio, on the brief, for defendants-appellants and cross-appellees. Before WEICK, CELEBREZZE and MILLER, Circuit Judges. PER CURIAM. 1 Travelers Indemnity Company (Travelers) was surety on the performance and payment bond of a golf course builder named Mitchell on his contract to construct a golf course for Old Westbury Golf and Country Club. Mitchell purchased plastic pipe for the irrigation system of the golf course, from Evans, which pipe after its installation, proved defective and required replacement. 2 The Country Club sued Travelers and Mitchell in a New York Court on the contract and surety bond, to recover damages it sustained. Travelers filed a third-party complaint against Evans, a resident of Ohio, and attempted to obtain service of process under New York's 'long-arm statute'. Evans appeared specially and moved to quash the service of summons on the ground that Mitchell's contract to purchase the pipe from Evans was completed in Ohio and the 'long-arm statute' was not sufficiently broad to authorize service of process. The Court granted Evans' motion and quashed the service of summons. Travelers then endeavored to 'vouch in' Evans by giving it written notice of the pending case and demanding that it defend the action or be bound by any judgment entered therein. Evans refused to defend. The Country Club recovered judgment against Travelers in the New York Court which found that the plastic pipe was defective.1 Travelers paid the judgment and sued Evans in the District Court to obtain reimbursement for the payment which it made, plus attorneys' fees. The District Court rendered judgment against Evans for the full amount of the New York judgment plus attorneys' fees. It denied Travelers' additional claim against Evans for the purchase price of pipe Travelers purchased from Evans in order to complete Mitchell's contract with the Country Club. Both Evans and Travelers appealed. We affirm. 3 Travelers was subrogated not only to the rights of its principal (Mitchell) but also to the rights of its obligee (Country Club). Maryland Casualty Co. v. King, 381 P.2d 153 (Okl.1963); Maryland Casualty Co. v. Gough, 146 Ohio St. 305, 65 N.E.2d 858 (1946). It could assert the rights of both. Evans, if properly 'vouched in', was bound by the determinations of fact and law in the New York case. Hessler v. Hillwood Mfg. Co., 302 F.2d 61 (6th Cir. 1962). 4 Evans contends that the warranties in its sale to Mitchell are different from those involved in Mitchell's contract with the Country Club. We think they are the same. 5 Mitchell purchased the pipe from Evans for use in irrigating the Country Club property. The pipe was sold as 'golf course pipe'. There were warranties of fitness and of merchantability. These same warranties applied to Mitchell's sale to the Country Club. Mitchell would of course, be liable additionally, to the Country Club for improper workmanship in the installation of the pipe. Neither Mitchell nor Travelers would be liable if the damage to the pipe resulted from acts or omissions of the Country Club. However, the proof offered in the New York case was to the effect that the pipe was defective and the New York Court so found. In our opinion, Evans is concluded by that judgment. Hessler v. Hillwood Mfg. Co., supra. 6 There was no proof of fraud, collusion or bad faith of either party in connection with the New York litigation. 7 We agree with the District Court that the limitation of liability clauses contained on the reverse side of Evans' acceptance of order form were not binding on either Mitchell or the Country Club. The contract of sale was completed in Ohio when Evans signed the form before it was sent to Mitchell in New York. The New York Court so held in ruling on Evans' motion to quash service of summons. There was no proof that the Country Club had any knowledge of the clauses. It would not be bound by them; neither would Travelers, since the clauses were not binding on either its principal or obligee. 8 Travelers has appealed from a denial of its claim for moneys which it paid to Evans for materials it purchased from Evans in order to complete Mitchell's contract with the Country Club. The judgment of the New York Court however, included the entire purchase price of all of the pipe for the payment of which Travelers recovered judgment against Evans in the District Court. Evans cannot be held for a double recovery on any part of the claim. 9 Affirmed. 1 Mitchell was adjudicated bankrupt and no judgment was entered against him	{ "pile_set_name": "FreeLaw" }
Notice: This opinion is subject to formal revision before publication in the Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the Court of any formal errors so that corrections may be made before the bound volumes go to press. DISTRICT OF COLUMBIA COURT OF APPEALS No. 14-BG-7 IN RE THOMAS FORTUNE FAY, RESPONDENT. A Member of the Bar of the District of Columbia Court of Appeals (Bar Registration No. 23929) On Report and Recommendation of the Board on Professional Responsibility (BDN-D139-02) (Argued October 28, 2014 Decided March 19, 2015) John Vail, with whom John W. Karr was on the brief, for respondent. H. Clay Smith, III, Assistant Bar Counsel, with whom Wallace E. Shipp, Jr., Bar Counsel, Jennifer P. Lyman, Senior Assistant Bar Counsel, and Jelani C. Lowery, Senior Staff Attorney, were on the brief, for the Office of Bar Counsel. Before THOMPSON and MCLEESE, Associate Judges, and PRYOR, Senior Judge. PER CURIAM: After an extensive hearing, a Hearing Committee (Committee), concluded that, in the circumstances presented, respondent Thomas Fortune Fay entered into an attorney-client relationship with complainant Charles Carter at the request of a lawyer who was not licensed to practice law in the District of Columbia. The Board on Professional Responsibility (Board) approved 2 the Committee’s findings and conclusions and recommends that respondent receive an informal admonition for violating several Rules of Professional Conduct (Rules) relating to that attorney-client relationship. For the reasons stated in this opinion, we agree. I. After investigation and review of Mr. Carter’s complaint, Bar Counsel, on March 22, 2010, filed allegations of multiple violations of the Rules against respondent. For reasons attributable to both parties, the hearings were delayed until September 14, 2011. After denying a variety of procedural contentions raised by respondent, the Committee made findings of fact and conclusions of law. The Committee found that in 1996, Mr. Carter suffered injuries in an automobile accident in the District of Columbia. Mr. Carter retained attorney Joel Chasnoff to represent him in a personal injury case arising out of the accident. Mr. Chasnoff was admitted to practice law in Maryland and the District, but his bar membership in the District had been suspended for his failure to pay dues. Although the retainer agreement did not authorize any other attorney to represent Mr. Carter, Mr. Chasnoff informed Mr. Carter that he would need to enlist local counsel if the matter proceeded to trial. 3 Mr. Chasnoff asked respondent to sign his name to and file a complaint in the case because his bar membership in the District was inactive. On June 14, 1999, respondent’s paralegal and Mr. Chasnoff’s secretary filed the complaint in the Superior Court. The complaint listed respondent and Mr. Chasnoff as attorneys. Because Mr. Chasnoff failed to serve the defendant with the complaint the case was dismissed on September 3, 1999. After receiving notice of the dismissal, respondent filed a motion to reinstate the case and for leave to make substituted service. The motion was denied. A second motion was denied without prejudice. Mr. Chasnoff was subsequently disbarred in both Maryland and the District of Columbia. The Committee concluded that respondent had entered into an attorney- client relationship with Mr. Carter when he professionally accepted responsibility for Mr. Carter’s case by authorizing his signature and use of his bar number on the complaint. Comparing respondent’s participation in Mr. Carter’s case to that of local counsel in a case in which an attorney has been admitted pro hac vice, the Committee concluded that respondent assumed the responsibilities imposed by the Rules. Specifically, the Committee concluded that respondent violated the following Rules: Rule 1.1 (b) (“A lawyer shall serve a client with skill and care commensurate with that generally afforded to clients by other lawyers in similar 4 matters.”), Rule 1.3 (requiring a lawyer to “represent a client zealously and diligently within the bounds of the law” and to “act with reasonable promptness in representing a client”), Rule 1.4 (a) and (b) (requiring a lawyer to “keep a client reasonably informed about the status of a matter” and to “explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation”), and Rule 1.5 (b) (requiring a lawyer to provide to the client a written fee agreement).1 Because of respondent’s lack of disciplinary record, his good faith in trusting Mr. Chasnoff to re-activate his bar membership and assume the responsibility of the case, the limited effect of respondent’s conduct on Mr. Carter’s case, and respondent’s reputation and professionalism, the Committee recommended that respondent be sanctioned with an informal admonition. The Board agreed with the Committee and concluded that, by authorizing the complaint to be filed in Superior Court with his signature and subsequently filing a motion to reinstate the complaint, respondent entered into an attorney- 1 Respondent was charged with violating Rule 1.5 (e)—requiring an attorney to obtain informed consent from his client for a division of fees between lawyers—but the Hearing Committee, and subsequently the Board, concluded that respondent did not violate this rule because Mr. Chasnoff did not divide the fees paid to him by Mr. Carter. 5 client relationship with Mr. Carter. The Board explained that its conclusion was consistent with In re Washington, 489 A.2d 452, 456 (D.C. 1985), which cautioned: We say again, in the hopes that our message will reach the ears of the whole Bar, that when an attorney undertakes to act on behalf of another person in a legal matter, no matter how pure or beneficent his original intention may have been, he invokes upon himself the entire structure of the Code of Professional Responsibility and its consequent enforcement through disciplinary proceedings. The short truth of the matter is that the [C]ode does not, and [cannot], create two tiers of ethical obligations, one for attorneys acting formally and for gain, and another for those who act for other reasons. All attorneys must act in an ethical manner when they act as attorneys regardless of what motivates them to undertake the attorney[-]client relationship. The Board agreed with the Committee’s conclusion that respondent violated Rules 1.1 (b), 1.3, 1.4 (a) and (b), and 1.5 (b), as well as the Committee’s recommended sanction. The Board also agreed with the Committee’s disposition of respondent’s pre-hearing motions. 6 II. A. Upon review of a disciplinary proceeding, we “accept the findings of fact made by the Board unless they are unsupported by substantial evidence of record,” D.C. Bar R. XI, § 9 (h)(1), but review the Board’s findings of “ultimate fact” (legal conclusions) de novo, In re J.E.S., 670 A.2d 1343, 1344 (D.C. 1996). We “adopt the recommended disposition of the Board unless to do so would foster a tendency toward inconsistent dispositions for comparable conduct or would otherwise be unwarranted.” D.C. Bar R. XI, § 9 (h)(1). However, attorney discipline and the imposition of sanctions are ultimately “the responsibility and duty of this court.” In re Goffe, 641 A.2d 458, 464 (D.C. 1994). B. Relying on the premise that he never entered into a representation agreement with the client, respondent has consistently asserted that no attorney-client relationship existed between them. We, therefore, begin our analysis of the question from a broader historic context. Members of the bar who practice law serve a variety of roles and have a range of professional responsibilities. Lawyers 7 have duties and obligations to their clients, D.C. R. Prof’l Conduct 1, ethical responsibilities to other lawyers, D.C. R. Prof’l Conduct 3.4, and, historically, a fiduciary relationship to the court, by which they are licensed to practice law, see Ex Parte Garland, 71 U.S. (4 Wall.) 333, 378 (1866) (“Attorneys and counsellors are not officers of the United States[;] . . . [t]hey are officers of the court, admitted as such by its order . . . .”); see also 3 William Blackstone, Commentaries on the Laws of England 26 (1769) (explaining that attorneys “are admitted to the execution of their office by the superior courts . . . and are in all points officers of the respective courts in which they are admitted”). The concept of a lawyer as an “officer of the court” dates to medieval England in the thirteenth century, when courts began to regulate the admission of attorneys to the bar and their professional conduct. James A. Cohen, Lawyer Role, Agency Law, and the Characterization “Officer of the Court”, 48 Buff. L. Rev. 349, 361 (2000). In the United States, this concept has evolved to reflect that, in addition to duties owed to his clients, an attorney has an obligation to the court. 7 C.J.S. Attorney & Client § 3 (2014). By virtue of the court’s decision to “invest[] the lawyer with a duty-bound office” and the lawyer’s recitation of the oath of admission, the lawyer is bound to the court. Deborah M. Hussey Freedland, What Is a Lawyer? A Reconstruction of the Lawyer as an Officer of the Court, 31 St. Louis U. Pub. L. Rev. 425, 435-36, 438 (2012); see also Theard v. United States, 354 U.S. 278, 281 (1957); Garland, supra, 8 71 U.S. (4 Wall.) at 378 (“From its entry [i.e., the court’s order of admission] the parties become officers of the court, and are responsible to it for professional misconduct.”). An attorney admitted to the District of Columbia Bar is explicitly given the title “officer of the court” and its accompanying duties. The Rules Governing the District of Columbia Bar explain that [t]he license to practice law in the District of Columbia is a continuing proclamation by this court that the holder is fit to be entrusted with professional and judicial matters, and to aid in the administration of justice as an attorney and as an officer of the Court. It is the duty of every recipient of that privilege at all times and in all conduct, both professional and personal, to conform to the standards imposed upon members of the Bar as conditions for the privilege to practice law. D.C. Bar R. XI, § 2 (a). The existence of an attorney-client relationship is not solely dependent on a written agreement, payment of fees, or the rendering of legal advice. In re Lieber, 442 A.2d 153, 156 (D.C. 1982). An attorney’s “ethical responsibilities exist independently of contractual rights and duties”; consequently, the obligations imposed by the Rules arise “from the establishment of a fiduciary relationship between attorney and client.” In re Ryan, 670 A.2d 375, 379, 380 (D.C. 1996). Although in perhaps the majority of cases the attorney-client relationship is created 9 when the client retains the attorney, the relationship may also be created by court appointment. See, e.g., Lieber, supra, 442 A.2d at 156 (citing Powell v. Alabama, 287 U.S. 45, 73 (1932)); see also Super. Ct. R. Civ. P. 101 (a)(3) (requiring pro hac vice counsel to obtain local counsel who must “at all times be prepared to go forward with the case” and must sign all documents filed with the court and attend all proceedings). For certain, the attorney-client relationship does not rest on the client’s view of the matter; rather, we consider the totality of the circumstances to determine whether an attorney-client relationship exists. Lieber, supra, 442 A.2d at 156. Here, the Board considered substantial evidence to conclude that respondent formed an attorney-client relationship with Mr. Carter. It is critical that respondent authorized the filing of Mr. Carter’s complaint with his signature and bar number and later initiated and filed an additional pleading in which he identified himself as Mr. Carter’s attorney. As an officer and fiduciary, respondent represented to the court, through his filings, that an attorney-client relationship existed.2 2 Cf. Formal Op. No. 2004-165, Cal. State Bar., Standing Comm’n on Prof’l Responsibility, 2004 WL 3079030, at *5 (2004) (finding that the lawyers employed by the Court Appearance Service—a service that provides attorneys on an hourly, contractual basis to “stand in” for a client’s retained attorneys in hearings, status conferences, depositions, arbitrations, and other matters— undertake the ethical duties stemming from an attorney-client relationship by (continued . . .) 10 Moreover, respondent was aware that he was the only counsel of record in Mr. Carter’s case who was licensed to practice law in the District; respondent knew that Mr. Chasnoff’s bar membership was inactive. Like local counsel facilitating the practice of an attorney admitted pro hac vice, respondent was responsible for Mr. Carter’s case in the event that Mr. Chasnoff failed to adequately pursue it. See Super. Ct. R. Civ. P. 101 (a)(3) (requiring local counsel to “at all times be prepared to go forward with the case”); Brookens v. Committee on Unauthorized Practice of Law, 538 A.2d 1120, 1124 (D.C. 1988) (noting that the pro hac vice rule “‘is not a device to circumvent bar membership requirements or rules against unauthorized practice’”). By asserting his bar membership to aid Mr. Chasnoff in presenting Mr. Carter’s claim, respondent, like local counsel, assumed the ethical responsibilities and duties of Mr. Carter’s attorney. Accord Fla. Bar v. Stein, 916 So. 2d 774, 776-77 (Fla. 2005) (concluding that an attorney undertook ethical responsibility for a case pursued by a disbarred attorney authorizing the disbarred attorney to sign the pleading using her name and bar number). _________________________ (. . . continued) making an appearance on behalf of the retained attorney’s client, regardless of the fact that the client never intended to retain the Service attorney); Ethics Advisory Op. 09-11, S.C. Bar Ethics Advisory Comm., 2009 WL 6850299 (2009) (noting that an attorney may inadvertently create an attorney-client relationship by moving to dismiss on behalf of another attorney’s client). 11 Because respondent entered into an attorney-client relationship with Mr. Carter, he was obliged to exercise all ethical duties arising out of that relationship. We agree with the Board and the Committee that respondent cannot now deny his professional relationship with Mr. Carter, which he earlier represented to the court as existing. C. We also agree with the Board and the Committee that respondent should be informally admonished. Sanctions in attorney disciplinary proceedings must serve the public interest and be imposed to deter future conduct rather than to punish the attorney. Goffe, supra, 641 A.2d at 464. In determining the appropriate sanction, both the Board and this court consider: (1) the seriousness of the conduct at issue; (2) the prejudice, if any, to the client which resulted from the conduct; (3) whether the conduct involved dishonesty and/or misappropriation; (4) the presence or absence of violations of other provisions of the disciplinary rules[;] (5) whether the attorney had a previous disciplinary history; (6) whether or not the attorney acknowledged his or her wrongful conduct; and (7) circumstances in mitigation of the misconduct. 12 In re Elgin, 918 A.2d 362, 376 (D.C. 2007) (alteration in original) (quoting In re Thyden, 877 A.2d 129, 144 (D.C. 2005)). Here, both the Board and the Committee considered each of these seven factors in fashioning an appropriate sanction and ultimately concluded that the mitigating factors in this case—respondent’s lack of disciplinary history and dishonest motive, his intent to aid Mr. Chasnoff, his belief that Mr. Chasnoff would take responsibility for the case, the lack of prejudice to Mr. Carter, and respondent’s professional career—warranted only an informal admonition. This sanction is not punitive. Therefore, we conclude that respondent shall be informally admonished. III. Respondent also argues that he was denied due process because of procedural errors in his hearing before the Committee. Respondent alleges four procedural errors that denied him due process: (1) the inability to conduct voir dire of the Committee members; (2) the Committee’s “gross delay” in adjudicating the charges against him; (3) the inclusion of a non-District resident in the Hearing Committee; and (4) the punitive nature of the sanctions against him. 13 Because disciplinary proceedings are “quasi-criminal,” attorneys subject to discipline are entitled to due process of law. In re Williams, 464 A.2d 115, 118-19 (D.C. 1983). However, disciplinary proceedings are not criminal proceedings, and “attorneys are not afforded all of the protections which are extended to criminal defendants.” In re Benjamin, 698 A.2d 434, 439 n.8 (D.C. 1997). The due process requirement is therefore satisfied by adequate notice of the charges and a meaningful opportunity to be heard. In re Edelstein, 892 A.2d 1153, 1157 (D.C. 2006) (quoting In re Day, 717 A.2d 883, 886 (D.C. 1998)). To be successful on review, respondent must show that the Committee erred and that the error “resulted in substantial prejudice.” Thyden, supra, 877 A.2d at 140. We discern neither error nor prejudice here. First, attorneys undergoing disciplinary proceedings do not have a general right to voir dire of the Committee members. In re Burton, 472 A.2d 831, 846-47 (D.C. 1984) (noting the need for a factual basis for challenging a Committee member). Respondent demonstrated no special need for voir dire here and the Committee, therefore, committed no error in denying respondent’s request. Moreover, respondent failed to demonstrate any prejudice from the Committee’s denial of his request. Second, a “mere delay in the disciplinary process generally does not provide a legitimate ground for dismissal of the complaint” because “[t]he public interest in regulating members of the bar 14 takes precedence over the attorney’s interest in having claims speedily resolved.” In re Morrell, 684 A.2d 361, 368 (D.C. 1996). Consequently, the court will not dismiss a disciplinary proceeding against an attorney solely on speedy trial grounds. Id. Rather, to warrant dismissal, respondent must show that “delay in the prosecution of disciplinary charges substantially impaired [his] ability to defend against the charges.” Id. Respondent does not show prejudice here and is therefore not entitled to reversal. Third, we agree with the Board and reject respondent’s argument that the Committee members must be residents of the District, both because respondent waived this argument by failing to raise it to the Committee, see In re Daniel, 11 A.3d 291, 297-98 (D.C. 2011), and because the rules governing the composition of the Committee do not require such residency, see D.C. Bar R. XI, § 5 (a). Finally, we conclude that the sanction suggested by the Committee and the Board does not violate respondent’s right to due process because it is not punitive. An informal admonishment—the most lenient form of public discipline available in the District—is appropriate because, although respondent’s case presents several mitigating factors, respondent did violate several rules of professional conduct. Accordingly, we conclude that respondent received adequate process. 15 IV. We conclude that respondent formed an attorney-client relationship with Mr. Carter. Because respondent failed to zealously pursue Mr. Carter’s claim and adequately communicate with Mr. Carter about his case, respondent violated Rules of Professional Conduct 1.1 (b), 1.3, 1.4 (a), 1.4 (b), and 1.5 (b). Accordingly, he shall be informally admonished. So ordered.	{ "pile_set_name": "FreeLaw" }
725 F.Supp.2d 636 (2010) UNITED STATES of America, Plaintiff, v. D-2, Nancy RAZALAN, D-3, Generosa Agustin, Defendants. Case No. 08-20668. United States District Court, E.D. Michigan, Southern Division. July 22, 2010. 637 Sarah Resnick Cohen, United States Attorney's Office, Detroit, MI, for Plaintiff. Michael S. Cafferty, Michael S. Cafferty & Associates, Detroit, MI, for Defendant Razalan. Michael H. Gordner, Windsor, ON, Canada, Thomas W. Cranmer, Miller, Canfield, Troy, MI, for Defendant Agustin. MEMORANDUM AND ORDER AVERN COHN, District Judge. I. Introduction This is a criminal case. Defendants Nancy Razalan (Razalan) and Generosa Agustin (Agustin) have plead guilty to making false statements to a federal health care program in violation of 42 U.S.C. § 1320a-7b(a)(2)(ii). The false statements involved kickbacks paid by defendants to co-defendant Rebecca Sharp (Sharp) for referrals. Razalan's Rule 11 plea agreement includes the following provisions: A guideline range of 30-37 months (with a statutory cap of 12 months), A term of supervised release of up to one (1) year, A special assessment of $25.00 A fine of not more than $10,000.00 Restitution of $225,000.00 payable to the Medicare Trust Fund. Agustin's Rule 11 plea agreement includes the following provisions: A sentence not to exceed 12 months' imprisonment A term of supervised release of up to one (1) year, A special assessment of $25.00 A fine of not more than $10,000.00 Restitution of $80,000.00 payable to the Medicare Trust Fund. The parties were unable to reach an agreement with respect to additional restitution. Particularly, each Rule 11 agreement contains the following provision: The parties disagree as to whether the additional following amounts should be ordered as restitution by the Court and will litigate this issue prior to sentencing: (1) [] in monies paid to co-defendant Rebecca Sharp's companies; and (2) [] in monies paid by Medicare to Defendant for services billed on behalf of patients acquired from co-defendant Rebecca Sharp. Defendants were sentenced on May 13, 2010. However, Orders of Judgment and Commitment have not been entered due to the parties' unresolved dispute regarding additional restitution. The government requests additional restitution pursuant to 42 U.S.C. § 1395nn. There is no dispute regarding the amounts defendants received in Medicare reimbursements or the amounts defendants paid to Sharp in referral fees. Nor is there dispute that all amounts received in Medicare reimbursements were for medically necessary services that were in fact rendered by defendants. The parties' sole dispute is whether the court has the authority to order restitution of the full amount defendants received in Medicare reimbursements. With respect to Razalan, the government requests restitution of (1) $1,988,771 in Medicare reimbursements, (2) $476,240 in referral payments made to Sharp, and (3) $225,000 agreed to in the Rule 11 plea agreement. With respect to Agustin, the government requests restitution of (1) $998,475 in Medicare reimbursements and (2) $80,000 agreed to in 638 the Rule 11 plea agreement.[1] As described below, there is no basis on which the Court can order restitution of all Medicare reimbursements in these cases. II. Restitution Under the Sentencing Guidelines A. The Law 1. A number of statutes authorize a court to impose restitution as an independent component of a defendant's sentence. 18 U.S.C. § 3663A imposes mandatory restitution in the following cases: all sentencing proceedings for convictions of, or plea agreements relating to charges for, any offense (A) that is (i) a crime of violence, as defined in [18 U.S.C. § ] 16; (ii) an offense against property under [Title 18], or under section 416(a) of the Controlled Substances Act (21 U.S.C. 856(a)), including any offense committed by fraud or deceit; or (iii) an offense describe in [18 U.S.C. § ] 1365 (relating to tampering with consumer products); and (B) in which an identifiable victim or victims has suffered a physical injury or pecuniary loss. In addition, 18 U.S.C. § 3663 states: The court, when sentencing a defendant convicted of an offense under [Title 18], section 401, 408(a), 409, 416, 420, or 422(a) of the Controlled Substances Act. . . (but in no case shall a participant in an offense under such sections be considered a victim of such offense under this section), or section 5124, 46312, or 46504 of title 49, other than an offense described in section 3663A(c), may order. . . that the defendant make restitution to any victim of such offense. Finally, a number of statutes authorize restitution for specific offenses that are not relevant to this case.[2] Regardless of the statute on which a court relies, restitution can only be ordered to a victim of the specific offense for which the defendant convicted or plead guilty. Hughey v. United States, 495 U.S. 411, 413, 110 S.Ct. 1979, 109 L.Ed.2d 408 (1990) ("We must decide whether these provisions allow a court to order a defendant who is charged with multiple offenses but who is convicted of only one offense to make restitution for losses related to the other alleged offenses. We hold that the language and structure of the Act make plain Congress' intent to authorize an award of restitution only for the loss caused by the specific conduct that is the basis of the offense of conviction."). 2. When there is no statute specifically providing for restitution, it may be imposed as a condition of supervised release. See 18 U.S.C. § 3553(a)(7). The Sentencing Guidelines state that "[i]n the case of an identifiable victim, the court shall(1) enter a restitution order for the full amount of the victim's loss. . . ." U.S.S.G. § 5E1.1(a). Neither U.S.S.G. § 5E1.1(a) nor 18 U.S.C. § 3553(a)(7) defines victims. However, the primary statutes regarding restitution define a victim as "a person directly and proximately harmed as a result 639 of the commission of an offense for which restitution may be ordered." 18 U.S.C. §§ 3663(a)(2), 3663A(a)(2). This harm-based definition of victim is consistent with the Sentencing Guideline's focus on awarding restitution to compensate for a victim's loss. Unless an individual or entity suffers a loss or harm, it cannot be considered a victim. In the context of a Medicare fraud case, the government cannot claim a loss (and, therefore, cannot be a victim) when a defendant was only reimbursed for legitimate medical services. United States v. Vaghela, 169 F.3d 729, 736 (11th Cir. 1999).[3] In Vaghela, the defendant was convicted of conspiracy to defraud the United States through participation in an illegal referral scheme and was ordered to repay all Medicare reimbursements that were related to the illegal referrals as restitution.[4] The Eleventh Circuit vacated the order for restitution because the government failed to prove the amount of loss. The court held that the government had the burden of proving the amount of loss and stated: Thus, unless we are to believe that DHHS received no value at all for Extendicare's work, a proposition for which there is no supporting evidence, we must assume that the loss suffered by DHHS is an amount equivalent to the amount it paid to Extendicare in excess of the value of services rendered. Id. In other words, the government cannot claim a loss when it reimbursed a Medicare provider for services that were actually rendered unless the payment exceeds the value of the services. B. Analysis 1. Although they were indicted under both 18 U.S.C. § 371 and 42 U.S.C. § 1320a-7b(b)(2)(a), Razalan and Agustin only plead guilty to violating 42 U.S.C. § 1320a-7b(a)(2)(ii): Making a False Statement to a Federal Health Care Program. They did not plead guilty to conspiring to defraud the United States or to paying kickbacks for referrals. 42 U.S.C. § 1320a-7b(a)(2)(ii) is not included in any of the statutes that specifically authorize a court to order restitution. Accordingly, the Court cannot order restitution as an independent sentence because it is not authorized by statute. Even if restitution were possible under the charges initially included in the indictment, the government cannot rely on these statutes as a basis for an order of restitution. Even if Razalan and Agustin did conspire with Sharp to defraud the United States by participating in an illegal referral scheme, that information was not included in the superceding informations to which the defendants plead guilty. As the Supreme Court has stated, restitution cannot be ordered based on a charge that was included in an indictment but was not a basis for conviction. Because it formed the sole basis of the defendants' conviction, the government must rely exclusively on 42 U.S.C. § 1320a-7b(a)(2)(ii) to establish that restitution is authorized. 2. Even without a statutory basis, restitution can form a condition of supervised 640 release under the Sentencing Guidelines if the government can identify a specific victim who suffered an actual loss. In this case, it is difficult to consider the Medicare Trust Fund a victim because there is no evidence of any actual loss. There is no dispute that defendants performed all of the services for which they received reimbursement. There is no dispute that all of the services performed were medically necessary. There is no assertion of overcharging or hidden fees. In sum, the Medicare Trust Fund would have made the same payments if the defendants had not made any false statements. Without a discrepancy between the amount paid by the Medicare Trust Fund and the value of the services rendered, there can be no actual loss for purposes of the Sentencing Guidelines. Therefore, the government is not entitled to an order of restitution under the Sentencing Guidelines. III. Restitution under 42 U.S.C. § 1395nn A. 42 U.S.C. § 1395nn is a civil statute that prohibits a physician from making referrals to entities in which it has a financial interest. 42 U.S.C. § 1395nn(a)(1). A financial interest is defined broadly to include "a compensation agreement . . . between the physician . . . and the entity." Id. § 1395nn(a)(2)(B). Thus a kickback scheme in which an entity provides a referral fee to a physician would constitute a violation of the statute. As a sanction, the statute provides that "[n]o payment may be made under this subchapter for a designated health service which is provided in violation of subsection(a)(1) of this section." Several courts have required restitution of all Medicare reimbursements received in violation of 42 § 1395nn(a)(1), regardless of whether or not the reimbursements were for services actually rendered. E.g., United States v. Rogan, 517 F.3d 449 (7th Cir.2008) (False Claims Act suit against hospital administrator involving kickback scheme); United States ex rel. McNutt v. Haleyville Medical Supplies, Inc., 423 F.3d 1256 (11th Cir.2005) (qui tam action under the False Claims Act against owners of medical service company involving kickback scheme); United States ex rel. Thompson v. Columbia/HCA Healthcare Corp., 125 F.3d 899 (5th Cir. 1997) (qui tam action under the False Claims Act against health care provider involving kickback scheme). B. The government's Sentencing Memorandum Regarding Restitution seeks restitution of all reimbursements that Razalan and Agustin obtained from the Medicare Trust Fund that are tainted by the kickback scheme described in the Rule 11 agreement. Despite the fact that Razalan and Agustin only plead guilty to making false statements under 42 U.S.C. § 1320a-7b(a)(2)(ii), the government relies on the self-referral statute, 42 U.S.C. § 1395nn, as a basis for restitution. Despite their similarities, the anti-kickback statute and self-referral statute have several important distinctions: First, the self-referral ban applies only to physicians, while the anti-kickback statutes are aimed at curbing overutilization and improper financial consideration by all types of health care providers and suppliers of medical goods and services. . . . Third, [t]he self-referral law is a civil statute which includes no criminal provisions, unlike the anti-kickback law, which contains criminal prohibitions. Finally, the self-referral law contains an express prohibition against submitting a claim for reimbursement of services rendered in violations of its provisions, while the anti-kickback law contains no analogous provision. *641 Dayna Bowen Matthew, Tainted Prosecution of Tainted Claims: The Law, Economics, and Ethics of Fighting Medical Fraud under the False Claims Act?, 78 IND. L.J. 525, 554 (2001). Due to these differences, restitution of all Medicare reimbursements is not appropriate as a part of defendants' sentences. First, 42 U.S.C. § 1320a-7b does not prohibit submission of a claim for reimbursement of services rendered in violation of its provisions. Had Congress had the desire to prohibit submission of such claims, it could have done so. Razalan and Agustin were only charged under 42 U.S.C. § 1320a-7b and only plead guilty to violating that statute. Because it does not prohibit the submission of a claim for reimbursement of services rendered, there is no reason to order restitution under 42 U.S.C. § 1320a-7b. Second, as noted above, the self-referral statute is not a criminal statute. It is a civil statute and is most commonly enforced through the False Claims Act. All of the cases cited by the government are civil cases arising under the False Claims Act. The government has not identified any criminal cases awarding restitution under the self-referral statute and the Court is not aware of any. Given the dearth of authority supporting the application of the self-referral statute in criminal cases, the Court is not willing do so. If the government believes that it is entitled to restitution of all reimbursements from the Medicare Trust Fund, it can file an action under the False Claims Act. Third, the self-referral statute only prohibits self-referral by physicians. While a non-physician may be required to pay restitution under the statute, it must be on the basis of an improper referral by a physician. E.g., Rogan, 517 F.3d 449; Haleyville Medical Supplies, Inc., 423 F.3d 1256; Columbia/HCA Healthcare Corp., 125 F.3d 899. In this case, there is no evidence establishing that any physicians engaged in prohibited self-referrals. The indictment alleged that Razalan and Agustin entered into referral agreements with Sharp. None of these individuals is a physician. The government has not alleged that the physicians employed by Sharp received remuneration for the referrals and Razalan and Agustin have made no such admissions. Even if criminal restitution under the self-referral statute were proper, it would not be appropriate in this case because the government has not established that the statute was violated. IV. Conclusion Razalan and Agustin plead guilty to violating 42 U.S.C. § 1320a-7b(a)(2)(ii) and must be sentenced accordingly. The statute has no provision for restitution. Under the Sentencing Guidelines restitution is limited to the government's actual loss, which has not been established in this case. Restitution cannot be ordered under 42 U.S.C. § 1395nn because it is a civil statute and defendants' liability under the statute has not been established. The Court will enter an Order of Judgment and Commitment for each defendant which reflects the sentence imposed on May 13, 2010. Restitution will be limited to the amounts agreed to in the defendants' Rule 11 Plea Agreements. SO ORDERED. NOTES [1] The government does not explain why it seeks restitution of the referral payments that Razalan made to Sharp, but does not seek restitution of the referral payments that Agustin made to Sharp. [2] These statutes are 18 U.S.C. §§ 1593 (peonage, slavery, and trafficking in persons), 2248 (sexual abuse), 2259 (sexual exploitation and other abuse of children), 2264 (domestic violence and stalking) and, 2327 (telemarketing fraud), and 21 U.S.C. § 853(q) (cleanup of clandestine laboratory sites). [3] The government contends that Vaghela was overruled by United States ex rel. McNutt v. Haleyville Medical Supplies, Inc., 423 F.3d 1256 (11th Cir.2005). Haleyville does not mention Vaghela and cannot be interpreted to expressly overrule it. Moreover, Haleyville is a civil qui tam case arising under the False Claims Act and, as described below, cannot be applied in a criminal setting. [4] Vaghela was convicted under 18 U.S.C. § 371 and 42 U.S.C. § 1320a-7b(b)(1)(A).	{ "pile_set_name": "FreeLaw" }
127 F.3d 1300 156 L.R.R.M. (BNA) 2881, 134 Lab.Cas. P 10,103,11 Fla. L. Weekly Fed. C 751 INTERNATIONAL BROTHERHOOD OF BOILERMAKERS, IRON SHIPBUILDERS, BLACKSMITHS, FORGERS & HELPERS, AFL-CIO,Petitioner,v.NATIONAL LABOR RELATIONS BOARD, Respondent.H.B. ZACHRY COMPANY, Petitioner-Cross-Respondent,v.INTERNATIONAL BROTHERHOOD OF BOILERMAKERS, IRON SHIPBUILDERS, BLACKSMITHS, FORGERS & HELPERS, AFL-CIO,Respondent,National Labor Relations Board, Respondent-Cross-Petitioner. No. 95-3688. United States Court of Appeals, Eleventh Circuit. Nov. 13, 1997. Michael T. Manley, Blake & Uhlig, P.A., Kansas City, KS, for IBB. Dion Kohler, C. Thomas Davis, Lee Stanford Sherrill, Atlanta, GA, for H. B. Zachry Co. Aileen Armstrong, Deputy Assoc. General Counsel, Nancy B. Hunt, Margaret G. Neigus, Frederick C. Havard, Jill A. Griffin, NLRB, Washington, DC, for NLRB. Petition for Review and Cross Petition for Review of the National Labor Relations Board. Before CARNES, Circuit Judge, and HENDERSON and GIBSON, Senior Circuit Judges. GIBSON, Senior Circuit Judge: 1 This case appears before us after the National Labor Relations Board (the "Board") upheld an Administrative Law Judge's ("ALJ") determination that the H.B. Zachry Company ("Zachry") committed numerous violations1 of the National Labor Relations Act (the "Act"), 29 U.S.C. §§ 151-169 (1994). See H.B. Zachry Co., 319 N.L.R.B. 967, 1995 WL 785175 (1995). The Board also upheld the ALJ's finding that Zachry's termination of employee Mathew Jonjock did not violate sections 8(a)(1) and (3) of the Act, as the General Counsel for the Board and the International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forger & Helpers, AFL-CIO (the "Union") had alleged. On appeal, the Union petitions for review claiming that the Board erred in concluding Zachry's treatment of Jonjock did not violate the Act. Zachry cross appeals challenging several of the Board's determinations. The Board requests that we enforce its Order in whole. After considering the Board's Order and the arguments raised by each of the parties, we enforce the Order in part and deny enforcement in part. I. BACKGROUND 2 This case arises out of the Union's attempt to organize employees working for Zachry at a construction site in Jacksonville, Florida. Zachry, as general contractor, began constructing a coal-fired power plant at the site in early fall of 1991. 3 On February 27, 1992,2 a group of five employees, including Mathew Jonjock, went to Zachry's construction site where they met with Field Personnel Manager Kevin Evans. The group gave Evans a letter identifying themselves as a union organizing committee and announced their intent to organize workers at the construction site. Evans told the group he could not stop them from organizing but that they were to organize on their own time and were not to pass out union literature while working. 4 Jonjock worked as a boilermaker fitter/rigger from February 3 until Zachry discharged him on March 3. Jonjock apparently engaged in no significant union activity until the organizing committee met with Evans. After the meeting with Evans, Jonjock and other committee members began openly displaying their union affiliation and organizing committee membership status. On the morning of Friday, February 28, the organizing committee met with a Zachry project manager to request a place to wash their hands, a clean place to eat lunch, and a wage increase. The manager denied the requests. 5 Boilermaker/Rigger General Foreman Earl Roark testified that on February 28 he and Supervisor Earl Frederick assigned Jonjock to install four steel I-beams to an air-driven structural lifting device which would be used to lift a boiler into place. According to Roark, Jonjock was the fitter in a crew of three workers and was responsible for properly aligning the I-beams before they were welded. Nathan Hand was Jonjock's helper, and Donald Tuey was the crew's welder. Jonjock claims that Roark and Frederick had not assigned him these duties, but that Frederick had merely asked him to stand watch over a hole for thirty minutes while Roark's crew went to get tools and equipment. The ALJ credited Roark's testimony and determined that Jonjock had primary responsibility for ensuring the I-beams were properly aligned. 6 Jonjock apparently aligned the first I-beam improperly, and Frederick instructed Jonjock to reinstall the beam. After Jonjock and the other crewmembers reinstalled the first I-beam, and installed the second I-beam correctly, Jonjock improperly aligned the third I-beam. Roark and Frederick discovered that the third I-beam had been fitted improperly, but they did not ask the crew to take corrective action that day because reinstalling the I-beam would have taken several hours. 7 Boilermaker Superintendent Roger Reed testified that, at about 4:00 p.m. on February 28, Jonjock approached him and asked him what types of employee misconduct would result in termination. After Reed gave some examples, Jonjock asked whether a person would be terminated if they refused to go up on the steel beams. The two then briefly discussed Zachry's policy regarding working aloft the iron structure. Reed testified that Jonjock then stated that Zachry's safety policy "sucked" and that "everybody at the main office was [sic] a bunch of unorganized dumb asses." ALJ Hr'g Tr. at 131. Jonjock denies that this conversation occurred. 8 Around 5:30 p.m. on February 28, Frederick sent Hand onto the boiler structure to retrieve a piece of equipment. When Hand returned, Frederick told him he was going to issue a three-day suspension for going onto the structure without a safety belt. Jonjock overheard the conversation and protested to Frederick. Jonjock testified that Frederick instructed Hand and Jonjock to accompany him to the superintendent's trailer and told Jonjock, "[w]e're going to go get your money." ALJ Hr'g Tr. at 196. At that point, Reed and General Foreman Ronnie Stewart approached. While Frederick told Reed of Hand's suspension, Jonjock continued to speak in Hand's defense. Reed told Jonjock to mind his own business and to wait for Hand in the parking lot. Reed and Stewart testified that as they were leaving the construction site that evening, they met Jonjock in the parking lot. Jonjock asked Reed if Reed would have his money on Monday. Reed said no and told Jonjock he had not been fired. Reed testified that Jonjock then responded, "You're too chicken shit to fire me." ALJ Hr'g Tr. at 141. Jonjock denied that this exchange occurred. 9 Reed testified that when he got home, he spoke with Frederick, who lived across the street, about the day's events. Reed learned that Jonjock incorrectly installed two I-beams that day. On Saturday, February 29, Reed and another superintendent met at the jobsite to inspect the I-beams. Upon seeing the I-beam that Jonjock installed improperly, Reed concluded that--based on Jonjock's poor work quality, bizarre questions about possible reasons for termination, and challenge to Reed to fire him--Jonjock acted intentionally in doing his work incorrectly. Reed called Evans to review the facts, and Evans telephoned his superior in San Antonio, Texas. The group ultimately decided that either Jonjock had intentionally committed these errors or that he was so lacking in skills he could not qualify as a boilermaker fitter/rigger. Therefore, they decided to terminate him. 10 When Jonjock reported for work on Tuesday, March 3, Frederick informed him that he had been terminated. Jonjock testified that as he approached Frederick, Frederick stated, "I terminated you yesterday.... Your organizing days is [sic] over, boy." ALJ Hr'g Tr. at 199. Frederick then instructed Jonjock to turn in his safety equipment and gave Jonjock his final paycheck and a termination slip. Neither the slip nor Frederick explained the reason for Jonjock's discharge. 11 Scott French began working for Zachry at the Jacksonville project in January. He did not engage in any union activities until he signed an authorization card on February 8. On March 2, French began displaying his union affiliation through stickers he placed on his lunchbox and hard hat, and in early April, French became a volunteer union organizer. 12 On April 15, French asked his Supervisor, Yarby Denham, if employees were going to start getting overtime. French testified that Denham told French and employee Russell Myers that they were on supervision's "hit list," ALJ Hr'g Tr. at 359, but that if they would stop displaying their union affiliation, Denham would try to help them get overtime work. Denham denied the occurrence of this conversation. 13 French had approximately nine years of welding experience, and had passed both thin-wall and heavy-wall boiler tube welding tests. Foremen Anthony Mollica and Tony Boatman were in charge of a five-person crew assigned to do the first boiler tube welding on the construction project. French was a member of this crew. On April 17, the crew started welding in the afternoon and continued working until 7:30 or 8:30 p.m. According to French, after the crew finished welding, Mollica and Boatman inspected everyone's welds and stated that they were fine. Mollica testified that neither he nor Boatman inspected any of the welds that evening nor did they approve any welds. 14 Mollica testified that, on the morning of April 18, he discovered that five of French's welds were unacceptable, and on Monday, April 20, when the entire crew was back on the site, he met with Denham and told him about the problem welds. Denham inspected the welds with Mollica, and the two decided they had to be rewelded. Mollica and Denham spoke with French and instructed him to grind down the welds and to recap them. Denham stated that, if French did not get the welds right, Denham would demote him to structural welding at a dollar less per hour. Denham was not satisfied with the new welds and again told French to reweld, which French did. Denham and Mollica both testified that, in performing the third set of welds, French ground down into the boiler tube itself, which apparently is not a mistake an experienced welder would make. When Denham discovered that French had ground into the boiler tube, he discussed the situation with his supervisors and decided to discharge French. Denham discharged French and gave him a termination slip stating that he was not a qualified welder. 15 Russell Myers began working for Zachry at the Jacksonville project in December 1991 as a welder. Myers had eighteen years of welding experience and was not a member of the Union before he began working for Zachry. In early April, Myers became a member of the Union's volunteer organizing committee, and he began wearing a vest labeling himself as such. Myers worked under Denham's supervision and testified that Denham told him he would not be welding on the boiler if he continued to wear the vest. Myers also testified that, on April 9, near the end of the work day, he was standing with three or four other employees when Denham joined the conversation. During the conversation, Denham commented that, if Myers did not stop wearing his vest, he would not be assigned to boiler welding and would not receive any overtime. Myers testified that in this conversation, Denham added that Myers's "days were numbered." ALJ Hr'g Tr. at 289. Denham denied the occurrence of both conversations. Myers continued to display his union affiliation. 16 On the morning of June 1, Myers took a mid-morning break as he often did. Myers testified that, while there were no scheduled breaks other than lunch, employees customarily took short morning and afternoon breaks. On this occasion, Myers opened his cooler and took out a sandwich. Reed approached Myers and told him he should eat breakfast before coming to work. Myers responded that he was waiting for his welding machine to cool off. Reed thought Myers's answer was sarcastic, and he told Myers that, if his welding machine burned up, Reed would buy Myers another one. Reed then told Myers to get back to work, which Myers did. Later that same day, Denham issued Myers a written reprimand for taking a break during work hours. It is undisputed that this was the first reprimand Myers had received on the job. 17 On June 15, Myers was welding part of a duct and, in order to complete the welding, had to go down one flight of stairs to weld an overhead part of the duct. To enable Myers to weld the duct, a crew was building a scaffold. Because the scaffold was not yet completed, Myers took his tools down to the welding location and then went to get welding rods. Myers testified that, after returning, he waited nearby for the scaffold's completion. Myers testified that, shortly after returning to work, Foreman Mickey Scobic wanted Myers to sign a reprimand for unwise use of time. Myers explained to Scobic that he could not begin work until the scaffold was finished, but Scobic replied that Myers had been out of his work area.3 18 On June 22, Zachry furloughed approximately one hundred employees, including Myers. Myers and other employees were told to return to Zachry on July 2 to pick up their paychecks. When Myers returned, he learned that the furlough had been converted to an indefinite layoff. Myers testified that when he came back for his paycheck, Boilermaker Superintendent Wheat spoke with the employees and told them that Zachry was having financial problems, but that as soon as it received more funding for the job, Zachry would call employees back. Myers completed a new application and continued to check with Zachry's personnel office on a weekly basis. 19 In August, Zachry began recalling employees from the layoff, and Myers continued to check with the employment office. Each time, Myers was told that there were not any jobs available. At the time of the hearing before the ALJ, Zachry had hired approximately fifty welders at the Jacksonville jobsite since the furlough. Myers, however, was not rehired. 20 In 1988, Zachry adopted a policy, set forth in its Field Personnel Procedures Manual, regarding disqualification of applications. The Manual directs that any application containing nonresponsive information should be disqualified. An application is considered nonresponsive if it "reflects any information not requested on the Application Form."4 Ex. RX-1 at III-16. Zachry's applications contain a statement that reads: "PROVIDE ONLY THE INFORMATION REQUESTED. FAILURE TO DO SO WILL RESULT IN DISQUALIFICATION OF YOUR APPLICATION." Ex. GC-2. 21 Beginning in late January and continuing throughout February, at least eighteen Union members applied for employment with Zachry. On their applications, the members identified themselves as "volunteer union organizers" by writing words to that effect at the bottom of the application. None of the individuals were hired. On March 25, Zachry sent letters to each of the individuals, notifying them that their applications had been disqualified because they were not completed in accordance with the instructions. The letter informed them that they were free to re-apply. The parties stipulated that fourteen of the eighteen individuals were disqualified solely because they wrote "volunteer union organizer" or words to that effect on the application. Zachry contends that the applications of the other four individuals were disqualified because they did not contain all the information Zachry requested. 22 On November 27, 1992, the Union filed a Complaint alleging, inter alia, that Zachry violated sections 8(a)(1) and (3) of the Act by terminating Jonjock and French, by issuing disciplinary reprimands to Myers and refusing to recall Myers from layoff, and for maintaining and enforcing a policy under which applicants who wrote "volunteer union organizer" on their applications were disqualified. The ALJ determined that the evidence did not establish that Jonjock's union activity was a motivating factor in his discharge. However, the ALJ determined that Zachry violated sections 8(a)(1) and (3) of the Act when it discharged French because of his activities in support of the Union, when it reprimanded Myers and failed to recall him from layoff because of his support for the Union, and when it refused to consider applicants who wrote "volunteer union organizer" on their applications. The ALJ ordered Zachry to offer immediate employment to those who were disqualified for writing "volunteer union organizer" on their applications. 23 The Union and Zachry sought review before the Board. The Board adopted the ALJ's Order with several modifications. The Board determined that, in addition to violating the Act through the application of its nonresponsive information policy, Zachry violated section 8(a)(1) of the Act by adopting and maintaining the policy. The Board also determined that Zachry threatened Jonjock in violation of section 8(a)(1) when Frederick stated to Jonjock: "I terminated you yesterday.... Your organizing days is [sic] over, boy." ALJ Hr'g Tr. at 199. The Board nevertheless concluded that Zachry proved that Jonjock would have been terminated regardless of his union affiliation. Finally, the Board altered the ALJ's remedy by permitting Zachry to introduce evidence that the disqualified applicants would not have been hired in any event because those actually hired for the positions had superior qualifications. 24 On appeal, the Union petitions for review claiming that the Board erred when it concluded Zachry's treatment of Jonjock did not violate the Act. Zachry cross appeals challenging several of the Board's determinations. The Board requests that we enforce its Order in whole. For the reasons set forth in this opinion, we enforce the Order it part and deny enforcement in part. II. DISCUSSION 25 When reviewing an order of the Board, "we are bound by the Board's factual findings if they are supported by substantial evidence on the record as a whole." NLRB v. Malta Constr. Co., 806 F.2d 1009, 1010 (11th Cir.1986). If the Board has made a plausible inference from the record evidence, we may not overturn its findings, even if we would have made contrary findings upon a de novo review of the evidence. See NLRB v. United Sanitation Service, 737 F.2d 936, 938 (11th Cir.1984). "[C]redibility resolutions are peculiarly within the province of the ALJ and the Board and are entitled to deference unless inherently unreasonable or self-contradictory." Id. We note, however, that although our review is limited, that does not mean that "the Board is immune from judicial examination and reversal in proper cases.... Reviewing courts are not obliged to stand aside and rubber-stamp their affirmance of administrative decisions that they deem inconsistent with a statutory mandate or that frustrate the congressional policy underlying a statute." NLRB v. Brown, 380 U.S. 278, 290-91, 85 S.Ct. 980, 988, 13 L.Ed.2d 839 (1965); accord NLRB v. Sherwin-Williams Co., 714 F.2d 1095, 1098 n. 3 (11th Cir.1983). We must set aside Board conclusions which "rest on erroneous legal foundations." NLRB v. Babcock & Wilcox Co., 351 U.S. 105, 112, 76 S.Ct. 679, 684, 100 L.Ed. 975 (1956). With these guidelines in mind, we review the Board's Order. A. Jonjock's Termination 26 The Board upheld the ALJ's determination that Zachry did not violate section 8(a)(3) of the Act when it discharged Jonjock. The Board, however, modified the ALJ's decision by concluding that Frederick's statement to Jonjock ("I terminated you yesterday.... Your organizing days is [sic] over, boy.") constituted an independent violation of section 8(a)(1) of the Act because of the threatening nature of the statement. Nonetheless, the Board concluded that Zachry's termination was not motivated by Jonjock's involvement in protected union activity but rather was motivated by Jonjock's poor work performance. The Union petitions for review claiming that the Board erroneously concluded that reasons other than Jonjock's union affiliation motivated Zachry's decision to discharge him. 27 Section 7 of the Act protects the rights of employees "to self-organiz[e], to form, join, or assist labor organizations, to bargain collectively ..., and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection." 29 U.S.C. § 157 (1994). Section 8(a)(1) of the Act provides that "[i]t shall be an unfair labor practice for an employer ... to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section ." Id. § 158(a)(1). Section 8(a)(3) makes it an unfair labor practice "for an employer ... by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization." Id. § 158(a)(3). 28 In Wright Line, 251 N.L.R.B. 1083, 1980 WL 12312 (1980), enf'd, 662 F.2d 899 (1st Cir.1981), cert. denied, 455 U.S. 989, 102 S.Ct. 1612, 71 L.Ed.2d 848 (1982), the Board established guidelines for determining whether an antiunion animus motivated an employer's action against an employee in violation of section 8(a)(1) or section 8(a)(3) of the Act. Under the Wright Line framework, the Union must "make a prima facie showing sufficient to support the inference that protected conduct was a 'motivating factor' in the employer's decision." Wright Line, 251 N.L.R.B. at 1089. The burden then shifts to the employer to prove that "the same action would have taken place even in the absence of the protected conduct." Id. The Union may then offer evidence that "the employer's proffered 'legitimate' explanation is pretextual--that the reason either did not exist or was not in fact relied upon--and thereby conclusively restore the inference of unlawful motivation." United Sanitation Service, 737 F.2d at 939. The Union contends that the Board incorrectly determined that Zachry satisfied its burden of proving that Jonjock's termination was motivated by his poor work performance. 29 After a careful review of the record, we conclude that substantial evidence supports the Board's determination that Jonjock would have been terminated even had he not engaged in protected union activity. The Board's conclusion rested largely on credibility determinations which were not "inherently unreasonable or self-contradictory." United Sanitation Service, 737 F.2d at 938. The evidence rather convincingly established that Zachry terminated Jonjock primarily because he improperly aligned two I-beams. The Union argues that Zachry's antiunion animus is evident because the welder who welded the beams into the incorrect alignment was not discharged. However, the evidence presented at the ALJ hearing established that in a three-person crew the fitter has primary responsibility for ensuring proper alignment of the material to be welded. Hence, because the fitter, i.e., Jonjock, improperly fitted the beams, he was discharged. The evidence did not establish that the welds were of poor quality; thus, the ALJ and the Board reasonably concluded that Zachry's failure to reprimand the welder did not establish that the company's actions toward Jonjock were motivated by an antiunion animus. 30 The Union also contends that the timing of Jonjock's termination established Zachry's illegal motivation. Jonjock worked from February 3 through February 27 without receiving any complaints as to the manner in which he was performing his job. Jonjock began openly displaying his union affiliation on February 27, just one day before the events which Zachry claims resulted in his discharge occurred. The Union argues that the timing of these events is not a matter of coincidence and establishes that Jonjock's union activity motivated Zachry's decision to discharge him. The timing of an employee's discharge may raise suspicions about a company's proffered motive. See NLRB v. Brewton Fashions, Inc., 682 F.2d 918, 923 (11th Cir.1982), cert. denied, 460 U.S. 1069, 103 S.Ct. 1523, 75 L.Ed.2d 946 (1983). However, although Jonjock's union affiliation became apparent shortly before his termination, other events, including his poor performance and other strange behavior, similarly occurred near the time of his discharge. Jonjock's work performance and behavior tend to support the Board's conclusion that Jonjock's involvement in protected activity did not motivate Zachry's decision to fire him. In conclusion, we hold that the Board's determination that Zachry did not violate the Act when it discharged Jonjock is supported by substantial evidence in the record. We therefore enforce the Board's Order as it applies to Mathew Jonjock's termination. B. French's Termination 31 Zachry argues that the Board's determination that Zachry violated section 8(a)(3) of the Act when it terminated French is not supported by substantial evidence in the record. The Board adopted the ALJ's findings of fact and conclusions of law. See H.B. Zachry, 319 N.L.R.B. at 967. The ALJ credited French's testimony that Denham told him he was on supervision's "hit list" and that he would be able to get French overtime only if he would stop organizing. See id. 319 N.L.R.B. at 977. The ALJ also found that, shortly after Zachry assigned French to do boiler tube welding, Denham told French, if he did not correct his faulty welds, he would be demoted to structural welding at a dollar less per hour. See id. The ALJ determined that, while French did not perform satisfactory welds, Denham used French's poor performance as an excuse to fire French because of his union activity rather that demoting French to structural welding as Denham had earlier indicated he would do. See id. 319 N.L.R.B. at 978. The ALJ determined that Zachry had plenty of structural welding work available and that an antiunion animus motivated Denham's decision to terminate rather than demote French. See id. 32 Zachry takes issue with several of the ALJ's credibility determinations. Because these determinations are not "inherently unreasonable or self-contradictory," United Sanitation Service, 737 F.2d at 938, we will not question them on appeal. Zachry also argues that the record establishes that the company was not hiring structural welders at the time of French's termination; therefore, placing French in a structural welding position would have resulted in excess manpower. We conclude that Zachry's argument is without merit. The record establishes that, until April 17, when the first boiler tube welding occurred at the construction site, French had been performing other types of welding work for Zachry. French then performed boiler tube welding for two days before he was terminated. We find that substantial evidence in the record supports the ALJ's conclusion that Denham could have easily moved French back to the type of work he was doing immediately before he was assigned to do the boiler tube welds. We therefore enforce the Board's determination that Zachry's actions toward French violated the Act. C. Myers's Reprimand 33 Zachry also contends that the Board's determination that Zachry reprimanded Myers because of his union affiliation is not supported by substantial evidence.5 The Board adopted the ALJ's determination that Myers received two reprimands as a result of his protected union activity. Zachry argues that the first incident, when Reed reprimanded Myers for eating a sandwich during a mid-morning break, was motivated by Reed's anger rather than by antiunion animus. The ALJ noted that mid-morning and afternoon breaks were common among Zachry employees. The only difference between Myers's break and those taken by other employees was that during his break, Myers wore items which displayed his union affiliation, while other employees did not. The ALJ concluded that, because Zachry did not attempt to counter the evidence that employees commonly took short breaks during the workday, the evidence easily allowed the inference that Reed's actions toward Myers were taken in response to Myers's union affiliation. We find that the ALJ's conclusion is well-reasoned and is supported by substantial evidence in the record. 34 The ALJ also determined that Myers received a second reprimand from Foreman Scobic two weeks after he received his first reprimand and that Scobic's reprimand was motivated by Myers's protected union activity. Zachry contends that the Scobic "was an aggressive supervisor who disciplined many subordinates[, and h]is decision to discipline Myers arose from that management philosophy." Zachry Br. at 50. We disagree with Zachry's contention and conclude that substantial evidence supports the ALJ's determination. The evidence established that Myers could not continue his work until the crew finished building a scaffold because he could not reach the work area until the structure was completed. Furthermore, the ALJ correctly noted that Myers attempted to use the waiting period in an efficient manner by going to retrieve tools he would need to complete the job. 35 As noted by the ALJ, other background evidence convincingly establishes a prevalent antiunion animus toward Myers. Denham told Myers that, if he continued to wear union insignia, Myers would not be welding on the boiler. In a later conversation, Denham told Myers that, if he would stop displaying his union affiliation, Denham would get him overtime assignments. Denham also told Myers that if he continued to wear his union insignia, Myers's "days were numbered." ALJ Hr'g Tr. at 289. Finally, Denham told French and Myers that they were on supervision's "hit list," ALJ Hr'g Tr. at 359, because of their display of union support. We conclude that substantial evidence supports the ALJ's conclusion that Zachry reprimanded Myers because of his union affiliation. 36 D. Zachry's Nonresponsive Information Policy 37 The parties have spent considerable time in their briefs and at oral argument discussing whether Zachry's nonresponsive information policy violates sections 8(a)(1) and (3) of the Act. The ALJ determined that Zachry violated the Act when it applied the policy to those who wrote "volunteer union organizer" on their applications because the policy was inherently destructive of rights protected under section 7 of the Act, specifically the rights of union members to self-identify and to attempt to organize fellow employees. See H.B. Zachry, 319 N.L.R.B. at 979-80. The ALJ further concluded that, even if the application of the policy was not inherently destructive of section 7 rights, the comparatively slight effect the policy had on those rights violated the Act because Zachry was unable to come forward with a substantial business justification for the policy. See id. 319 N.L.R.B. at 981. The Board agreed with the ALJ's conclusion but further determined that Zachry's adoption and maintenance of the policy constituted a "per se" violation of section 8(a)(1) of the Act because the policy was "unlawful on its face regardless of its application." See id. 319 N.L.R.B. at 968. Zachry argues on appeal that the policy does not violate section 8(a)(1) of the Act because it does not infringe upon rights protected under section 7. 38 Section 8(a)(1) of the Act establishes that it is an unfair labor practice for an employer "to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section ." 29 U.S.C. § 158(a)(1). Therefore, in order to determine whether Zachry violated section 8(a)(1), we must first determine whether the policy interferes with rights protected under section 7. Section 7 provides that "[e]mployees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection." Id. § 157. Zachry's nonresponsive information policy prohibited job applicants from supplying information which was not specifically requested in the application. The applications contained a warning that failure to comply with the directive would result in disqualification of the application. Therefore, we consider whether Zachry's nonresponsive information policy, on its face or in its application, interferes with a right or rights protected by section 7. 39 The ALJ reasoned that an employee's act of writing "volunteer union organizer" on his employment application is analogous to an employee's protected right to display union insignia. See H.B. Zachry, 319 N.L.R.B. at 980. While we recognize that the right to wear union insignia has long been considered a protected right under the Act, see Republic Aviation Corp. v. N.L.R.B., 324 U.S. 793, 803, 65 S.Ct. 982, 987-88, 89 L.Ed. 1372 (1945); Malta Constr. Co., 806 F.2d at 1011, we do not agree with the ALJ's conclusion that the activity involved in this case is sufficiently analogous to the display of union insignia to enjoy similar section 7 protection. The right to wear union insignia in the work place "furthers 'the right effectively to communicate with one another regarding self-organization at the jobsite.' " Virginia Elec. and Power Co. v. N.L.R.B., 703 F.2d 79, 82 (4th Cir.1983) (emphasis in original) (quoting Beth Israel Hospital v. N.L.R.B., 437 U.S. 483, 491, 98 S.Ct. 2463, 2469, 57 L.Ed.2d 370 (1978)). Therefore, the right to wear union insignia in the workplace, which is not specifically mentioned in section 7, stems from the right to "self organiz[e]." 29 U.S.C. § 157. Without the right to display one's union affiliation in the workplace, the realization of solidarity necessary to effective self-organization would not exist. In the present case, union members did not attempt to communicate their union affiliation to other employees; they attempted to communicate that affiliation only to the employer. Thus, the interests of solidarity and self-organization are not at stake in this case. Any display of union affiliation in a job application, which is seen only by the employer, is not linked to a purpose protected by the Act. Cf. Pay'n Save Corp. v. N.L.R.B., 641 F.2d 697, 700 (9th Cir.1981) ("[A]n employee['s right] ... to wear union buttons and insignia at work ... is not per se guaranteed by the Act; evidence of a purpose protected by the act is also required." (internal quotations omitted)). 40 The Union members in this case admittedly wrote "volunteer union organizer" on their applications because, once having done so, they could conclusively establish that the employer was aware of their union affiliation.6 Zachry, in part to combat this litigation tactic,7 developed the nonresponsive information policy. Zachry's theory in enacting the policy was that, if applicants were not permitted to provide nonresponsive information such as race, disability, or union affiliation, then Zachry could not use those factors against an applicant in the hiring process. Therefore, Zachry instituted a neutral nondiscriminatory policy which was designed to permit management to consider only those factors which were actually relevant to an applicant's suitability to a particular job. The right then which the Union and the Board ask us to recognize, is the right for Union applicants to let potential employers know about their union affiliation in direct contravention of the employer's neutral nondiscriminatory policy prohibiting extraneous information of any kind. We are not aware of a single court which has recognized such a right. 41 Zachry's applications request and require only information which is pertinent to evaluating job applicants. To be sure, there are several questions which provide a union job applicant the opportunity to inform management of his union affiliation. For example, when reporting relevant work history, an applicant could include work for prior union contractors thus indicating potential union affiliation. Similarly, when reporting relevant training courses, an applicant could report participation in union-sponsored training programs. In fact, several of the eighteen applicants who were disqualified for writing "volunteer organizer" on their applications had filed earlier applications with Zachry which denoted union affiliation through one of the specific application questions. The earlier applications were not disqualified because the information was in response to specific questions; thus, the information was responsive rather than nonresponsive. In cases where this type of information is appropriately reported, the applicant will be able to establish that Zachry had knowledge of his union affiliation. However, an applicant who is unable to show his union affiliation through the requested information does not have a section 7 right to inform Zachry of his union affiliation in direct contravention of Zachry's neutral policy prohibiting nonresponsive information. If such an applicant believes he has been discriminated against because of his union involvement, the applicant must prove Zachry's knowledge of the union affiliation in another manner. Moreover, we have serious doubts regarding Zachry's ability to discriminate based on union affiliation when such affiliation, along with all other types of nonresponsive information, cannot be reported in the application. 42 Furthermore, the record establishes that Zachry did not violate section 8(a)(3) of the Act because it applied the nonresponsive information policy in a nondiscriminatory manner. As of June 1992, Zachry had disqualified approximately 200 applications for containing nonresponsive information. Examples of nonresponsive information which resulted in disqualification include: "Passed all pipe tests in December '91 for Zachry;" ALJ Hr'g Tr. at 502, "I've been welding for [twenty] years;" id., "Dropped union card in '89;" id. at 501, "See Steve of survey crew;" id. at 502, and "General contractor owed me $400 and never paid me so I found out where he lived and collected;" id. at 508. Thus, the evidence establishes that Zachry did not only disqualify applications which contained union-related nonresponsive information but also disqualified applications containing other types of nonresponsive information. Furthermore, once Zachry determined that an application contained nonresponsive information, management sent a letter to the applicant informing him of his disqualification and inviting him to reapply. The union members who wrote "volunteer union organizer" on their applications received the same courtesy.8 Therefore, we determine that the evidence does not establish that Zachry discriminated against those who wrote "volunteer union organizer" on their applications. Cf. TIC-The Industrial Co. Southeast, Inc. v. N.L.R.B., (D.C.Cir.1997) (holding that employer did not violate the Act when it refused to consider for hire union members who failed to comply with employer's neutral application procedures). We therefore reject the ALJ's determination that Zachry's application of its nonresponsive information policy violated sections 8(a)(1) and (3) of the Act. We similarly reject the Board's decision that the existence of Zachry's policy constituted a per se violation of section 8(a)(1) of the Act. 43 In conclusion, we hold that Zachry's nonresponsive information policy does not infringe upon rights guaranteed by section 7 and therefore does not violate section 8(a)(1) of the Act. We further hold that Zachry did not discriminatorily enforce the policy. We therefore deny enforcement of that portion of the Board's Order which holds otherwise. III. CONCLUSION 44 For the reasons set forth in this opinion, we ENFORCE the Board's Order in part and DENY enforcement in part. Honorable Floyd R. Gibson, Senior U.S. Circuit Judge for the Eighth Circuit, sitting by designation 1 The ALJ determined that Zachry violated sections 8(a)(1) and (3) of the Act when it (1) discharged employee Scott French because of his activities in support of the Union, (2) reprimanded employee Russell Myers and failed to recall him from layoff because of his support for the Union, and (3) refused to consider applicants who wrote "volunteer union organizer" on their applications. The ALJ found additional violations of the Act which are not at issue on appeal 2 All dates are from 1992 unless otherwise noted 3 Scobic reported that Myers did not wait near the welding site for the scaffold's completion; rather, he left the area completely 4 The policy also states that "grossly and obviously incomplete" applications are to be disqualified. Ex. RX-1 at III-16 5 Zachry does not challenge the Board's determination that Zachry failed to recall Myers from layoff because of an antiunion animus; therefore, we summarily affirm the Board's decision on that issue. See United Sanitation Service, 737 F.2d at 938 n. 1 6 In order to establish a violation of section 8(a)(3) under the Act, the charging party must prove that the employer had knowledge of the employees' union activities. See N.L.R.B v. Computed Time Corp., 587 F.2d 790, 795 (5th Cir.1979) 7 The ALJ found that Zachry's sole purpose in developing the nonresponsive information policy was to "construct a defense in litigation." H.B. Zachry, 319 N.L.R.B. at 981. However, the record contains substantial evidence that Zachry had other reasons for instituting the policy, such as receiving cleaner, easier-to-read applications and preventing discrimination 8 We note that this case significantly differs from other cases which have decided similar issues. For example, in one case in which the Board determined that the employer discriminated against those who wrote "volunteer union organizer" on their applications, the employer did not have a nonresponsive information policy in place. See Fluor Daniel, Inc., 304 N.L.R.B. 970 (1991). In other cases, employers discriminatorily applied various application rules. See e.g., Fluor Daniel, Inc., 311 N.L.R.B. 498, 499 (1993) (finding that employer discriminatorily applied policy against accepting applications submitted in bulk), enf'd in relevant part, N.L.R.B. v. Fluor Daniel, Inc., 102 F.3d 818, 829 (6th Cir.1996) (noting that the only argument raised on appeal--that applicants who wrote "volunteer union organizer" on applications were not bona fide employees under the Act--was specifically rejected by the Supreme Court in N.L.R.B. v. Town & Country Elec., Inc., 516 U.S. 85, ----, 116 S.Ct. 450, 457, 133 L.Ed.2d 371 (1995))	{ "pile_set_name": "FreeLaw" }
771 N.W.2d 652 (2009) J.M. MAZZITELLI FINANCING, L.C. v. WHITFIELD & EDDY, P.C. No. 08-0900. Court of Appeals of Iowa. May 29, 2009. Decision without published opinion. Affirmed.	{ "pile_set_name": "FreeLaw" }
438 S.W.2d 741 (1969) Joe R. LEWELLYN, Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellee. Supreme Court of Tennessee. January 31, 1969. Rehearing Denied March 26, 1969. Howard R. Paul, Memphis, for appellant; Ratcliff, Paul, White & Van Eaton, Memphis, of counsel. Timothy A. Ryan, Memphis, for appellee; Nelson, Norvell, Wilson, McRae, Ivy & Farmer, Memphis, of counsel. OPINION HUMPHREYS, Justice. The question presented by this appeal is, whether State Farm's policy insuring Lewellyns truck provided coverage where a borrowed mobile welding rig which Lewellyn was pulling behind his truck, came loose and damaged an automobile and injured a passenger therein. The Chancellor held there was no coverage, and we agree. The pertinent provisions of the policy are to be found in the definition section, relating to insuring agreements 1 and 2; and in the insuring agreement 2, relating to non-owned automobiles. A non-owned automobile 742 is defined as including a non-owned trailer.[1] A trailer is defined as one designed for use with a private passenger automobile and not used for business purposes with other than passenger automobiles.[2] The non-owned automobile insuring agreement affords limited coverage to loss due to a non-owned trailer in the event it is a non-owned trailer as defined in the definition of the policy.[3] Since it is stipulated the trailing welding rig was non-owned, was not being pulled by a private passenger or a utility automobile, and since the welding rig was a trailer designed for use for business purposes with other than a private passenger automobile, there is no coverage afforded by the policy. For cases defining the mobile welding rig as a trailer, see Waddey et al. v. Maryland Casualty Company, 171 Tenn. 112, 100 S.W.2d 984, 109 A.L.R. 654; Blue Ridge Insurance Company v. Roy L. Haun et al., 197 Tenn. 527, 276 S.W.2d 711. The second contention, that there was a waiver of the policy provisions mentioned, or that the Insurance Company is estopped to rely thereon, must be denied. These defenses, waiver and estoppel, are based on a letter written by the Company to Lewellyn wherein it pointed out certain policy provisions under which it contended it was not liable under its policy. However, since in this same letter,[4] the Insurance 743 Company reserved every defense available to it under its policy, and there is no showing whatsoever of any harm or injury to the appellant because of the letter, the defenses are not good. See 45 C.J.S. Insurance § 707, p. 677. The assignments of error are overruled and the decree of the Chancellor is affirmed. BURNETT, CHIEF JUSTICE, and DYER, CHATTIN and CRESON, JUSTICES, concur. MEMORANDUM ON PETITION TO REHEAR A petition to rehear has been filed asking the Court to re-examine its opinion in the light of certain definitions in T.C.A. § 59-801; F. Britton McConnell v. Underwriters at Lloyds of London et al., 56 Cal.2d 637, 16 Cal. Rptr. 362, 365 P.2d 418; and an assumption in the petition that a material fact was overlooked by the Court in reaching its conclusion. We have reconsidered the opinion in the light of these complaints against it, and we are satisfied with it and deny the petition. The whole problem the appellant, Lewellyn, has in this case is that he is defined out of coverage by the policy, as we pointed out in the opinion. So that the Code section relied on and the California case are not authority for a recovery. It is fundamental that reasonable, unambiguous insurance policy provisions will be enforced according to their plain meaning. And, since the trailing welding rig was not owned, was not being pulled by a private passenger or utility automobile, and since it was designed for use for business purposes with other than a private passenger automobile, there is no coverage afforded by the policy. The petition to rehear is denied. NOTES [1] "Non-Owned Automobile means an automobile or trailer not (i) owned by, (ii) registered in the name of, or (iii) furnished or available for the frequent or regular use of the named insured, his spouse, or any relative of either residing in the same household, other than a temporary substitute automobile." [2] "Trailer means a trailer or semitrailer not so described if designed for use with a private passenger automobile and if not (1) a passenger trailer, (2) a trailer used for business purposes with other than a private passenger automobile, or (3) a trailer used as premises for office, store or display purposes. This insurance does not apply, under coverages C and M, to a house trailer while used as permanent living quarters." [3] "* * * (3) coverages D, D-50, F, G and H applies to loss to a non-owned automobile provided (a) such automobile is a private passenger or utility automobile or a trailer as defined herein * * *" [4] "May 19, 1967 Mr. Joe R. Lewellyn 3709 Graves Road Memphis, Tennessee 38116 CERTIFIED MAIL-RETURN RECEIPT REQUESTED Re: Your File # XX-XXX-XXX Your Policy # 1725 962-CO1-42A Dear Mr. Lewellyn: This letter is relative to the accident which you had no April 22, 1967, when you were driving a 1967 Chevrolet pickup truck and when you were pulling behind such pickup truck a welding rig belonging to the T.C. Beardin Company. This accident occurred near the intersection of Springdale and Eldridge here in the city of Memphis, Shelby County, Tennessee. As a result of the accident in question, a claim was presented against you by Mrs. John W. Moore, 1257 Capitol, Memphis, Shelby County, Tennessee, because of personal injuries and also a property damage claim has been presented because of damage to the Moore vehicle. I refer you to your insurance policy # 1725 962-CO1-42A and specifically to the section dealing with Definitions Insuring Agreements. I and II and first of all to the definition of NON-OWNED AUTOMOBILE means an automobile or trailer not (1) owned by, (2) registered in the name of, or (3) furnished or available for the frequent or regular use of the named insured, his spouse or any relative of either residing in the same household, other than a temporary substitute automobile. As you can see, a definition of a non-owned automobile includes therein a non-owned trailer. Therefore, I call your attention to the definition of trailer contained in the section Definitions Insuring Agreements I and II wherein it states: `means a trailer or semi-trailer not so described if designed for use with a private passenger automobile and if not (1) a passenger trailer, (2) a trailer used for business purpose with other than a private passenger automobile,' Our investigation of this matter has revealed that the trailer which you were using when this loss occurred is definitely a non-owned trailer as it was owned by the T.C. Beardin Company. Also, our investigation has further revealed that this trailer was not a trailer designed for use behind a private passenger automobile and secondly you were using the trailer for business purposes with other than a private automobile as the pickup truck behind which you were pulling the trailer is not a private passenger automobile, but rather is a utility automobile. For the above reasons and any other reasons now in existence or that might develop at a later date, we must expressly deny any payment under the bodily injury liability, property damage liability, and collision coverage of your policy, as well as all other coverages. We cannot be held liable for any defense or [sic] any lawsuits brought against you by the adverse parties or will be responsible for any judgments rendered against you The defense and costs of any lawsuits filed against you and the payments of any judgments will be your personal responsibility. Yours very truly, /s/ Robert B. Gwyn Robert B. Gwyn Resident Claim Superintendent."	{ "pile_set_name": "FreeLaw" }
File Name: 07a0709n.06 Filed: October 3, 2007 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION No. 06-4628 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT THOMAS LEEDS, Plaintiff-Appellant, v. ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE JOHN E. POTTER, POSTMASTER GENERAL, SOUTHERN DISTRICT OF OHIO Defendant-Appellee. / BEFORE: CLAY and GIBBONS, Circuit Judges; HOOD, Chief District Judge.* CLAY, Circuit Judge. Plaintiff Thomas Leeds, an employee of the United States Postal Service, appeals the district court’s grant of summary judgment in favor of Defendant John Potter, Postmaster General, dismissing Plaintiff’s age, race and disability discrimination claims. For the reasons set forth below, this Court AFFIRMS the district court’s grant of summary judgment. BACKGROUND * The Honorable Joseph M. Hood, Chief United States District Judge for the Eastern District of Kentucky, sitting by designation. No. 06-4628 Plaintiff, a white male, began working with the United States Postal Service (“USPS”) in 1974 as a part-time flexible letter carrier. In 1983 he suffered a back injury while on the job, which subsequently resulted in back surgery. When Plaintiff returned to work after his surgery, he was placed in a “limited duty” position in the Rewrap Section since he was no longer able to function as a mail carrier. These positions are reserved to accommodate employees injured while on the job and to allow them to perform restricted functions to aid in their recovery. Specifically, Plaintiff’s job offer for the Rewrap Section position stated: This restricted duty position is tailored to meet your personal physical limitation. This job does not qualify as a position which requires assignment to a competitive seniority bidding. All positions requiring assignment by seniority contain duties within different job descriptions which are contrary and contro-convalescent to your physical condition. Therefore, although you have and gain in seniority, you cannot bid on other assignments unless your physical condition improves to permit your reassignment. (J.A. at 157.) Sometime later Plaintiff requested and was granted a transfer to the non-restricted position of forklift operator. At some point in 2002,1 Plaintiff was injured and as a result unable to work until August 19, 2002. When he returned to work, Plaintiff submitted a doctor’s letter to his supervisors stating that he would “be able to return to work . . . without restriction.” (J.A. at 120.) This letter was then placed in his personnel file. On September 28, 2002, Plaintiff was involved in an accident with the forklift he was operating. Upon observing the accident, an African-American employee, Obie North, 1 The record is unclear as to when the injury occurred. However, Plaintiff’s doctor’s visit for the injury occurred on July 31, 2002. 2 No. 06-4628 complained to supervisor Kay Johnson that Plaintiff would not be disciplined because of his race.2 Johnson told North to get back to work and be quiet. When Plaintiff complained to his supervisor, Emory Ogletree, about his co-worker’s comments, Ogletree promised to take care of the situation and told Plaintiff that it was not necessary to initiate an Equal Employment Opportunity ( “EEO”) claim. Within two weeks of the accident, supervisor Johnson directed North to apologize to Plaintiff and indicated that no further action would be taken against North. As a result of the accident, Plaintiff’s forklift license was suspended pursuant to standard USPS procedure. The suspension lasted for some period between thirty and ninety days.3 Due to the suspension, Plaintiff could not work as a forklift operator. On September 30, Rachel McGrady, a temporary supervisor who was assigned to oversee Plaintiff that day, sent Plaintiff to work on the sack sorter machine. Plaintiff agreed to do the work but later told Manager of Distribution Operations Hugh Martin that the job was “kicking [his] ass.” (J.A. at 105.) He told supervisor Ron Parsel the same thing. They both told Plaintiff he should “hang in there” and “be careful.” (J.A. at 105.) On his fourth day on the sack sorter machine, Plaintiff left early because of back pain. He returned to work on October 7, 2002 and was assigned to sort loose mail. Later that day, Plaintiff complained of back pain so severe that a co-worker drove him to an urgent care medical facility. He 2 North stated, “Did you see that? I want to see that white motherfucker lose his job like I did.” (J.A. at 99.) North’s forklift license had been suspended for six months for his involvement in an accident. 3 The exact term of suspension is in dispute. Plaintiff claims it was ninety days. Emory Ogletree, Plaintiff’s direct supervisor claims the suspension lasted between thirty and forty-five days. 3 No. 06-4628 was diagnosed with a strain, and returned to work to finish his shift. The following day Plaintiff was not scheduled to work and saw a doctor. By October 11, 2002, Plaintiff was under several medical restrictions and did not return to work until December 16, 2002, at which time he returned only to submit further documentation that he could not continue to work. On January 17, 2003, Plaintiff filed a claim with the EEO officer for age, disability and race discrimination. The claim was dismissed as untimely. Plaintiff brought suit in district court, asserting claims of disability discrimination pursuant to the Rehabilitation Act, 29 U.S.C. § 701, et seq., age discrimination pursuant to the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621, et seq., and race discrimination pursuant to Title VII of Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. Plaintiff claimed that the USPS failed to accommodate his disability by removing him from his forklift operator position and reassigning him to sack sorting, a job that requires continuous bending, pushing and lifting. Plaintiff also claimed that the USPS discriminated based on race and age by treating younger African-American employees better than older white employees. Defendant moved for summary judgment, and the district court granted summary judgment on all claims. Plaintiff appeals the district court’s grant of summary judgment for Defendant on the grounds that the district court erred in declining to equitably toll Plaintiff’s race discrimination claims and in holding that Plaintiff did not make a prima facie showing of disability discrimination. For the reasons that follow, we AFFIRM the district court’s judgment on both issues. DISCUSSION 4 No. 06-4628 A. Standard of Review This Court reviews a district court’s grant of summary judgment de novo. Blackmore v. Kalamazoo County, 390 F.3d 890, 894-95 (6th Cir. 2004). Summary judgment is proper where “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56 (c). The moving party bears the initial burden of demonstrating the absence of any genuine issue of material fact, and all inferences should be made in favor of the non-moving party. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). To support its motion, the moving party may show “that there is an absence of evidence to support the nonmoving party's case.” Id. at 325. While all inferences must be drawn in favor of the nonmoving party, this Court is under no obligation to imagine favorable facts where the nonmoving party has alleged none. “[T]he mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient [to defeat a motion for summary judgment]; there must be evidence on which the jury could reasonably find for the plaintiff.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). B. Analysis 1. Racial Discrimination Claim Regulations for federal employees require that if a party claiming discrimination does not file a complaint with an EEO counselor within forty-five days of the offense, the complaint must be dismissed by the agency as well as the district court unless estoppel or equitable tolling applies. 29 5 No. 06-4628 C.F.R. § 1614.105(a)(1); Brown v. General Serv. Admin., 425 U.S. 820, 835 (1976). It is uncontested that Plaintiff filed his complaint well after the forty-five-day period, but he contends that Ogletree’s assurances that North would be disciplined by the USPS discouraged him from timely filing, and that as a result, the equities weigh in his favor. We have held that “[t]he forty-five day filing period is not a jurisdictional prerequisite, and can be tolled where principles of equity demand it.” Steiner v. Henderson, 354 F.3d 432, 435 (6th Cir. 2003). However, tolling should be “available only in compelling circumstances.” Puckett v. Tennessee Eastman Co., 889 F.2d 1481, 1488 (6th Cir. 1989). This Court looks to five factors to determine whether equitable tolling is available: “1) whether the plaintiff had actual notice of the time restraint; (2) whether she had constructive notice of the time restraint; (3) the degree of diligence exerted in pursuing her rights; (4) the degree of prejudice to the defendant; and (5) the reasonableness of plaintiff's ignorance of the time constraint.” Steiner, 354 F.3d at 435. Importantly, “[t]hese factors are not exclusive bases for equitable tolling . . . and the decision to allow equitable tolling is made on a case-by-case basis.” Id. In the instant case, it is undisputed that Plaintiff had no actual or constructive notice of the time restraint and such ignorance was certainly reasonable. Ogletree, Plaintiff’s direct supervisor, testified that even he was unaware of the requirements to file an EEO complaint. Defendant focuses his argument on the fact that Plaintiff was not diligent in pursuing his rights against Defendant. Equitable tolling would be proper if Plaintiff’s failure to file within the appropriate deadline “unavoidably arose from circumstances beyond [Plaintiff’s] control.” Graham-Humphreys v. Memphis Brooks Museum of Art, Inc., 209 F.3d 552, 560-61 (6th Cir. 2000). 6 No. 06-4628 The undisputed facts of the instant case indicate that Plaintiff did not exercise due diligence. As stated in the district court opinion, Plaintiff’s argument that Ogletree’s promise to take action justified Plaintiff’s delay in filing an EEO claim is not persuasive. Leeds v. Potter, No. 1:04-CV-429, 2006 WL 2860980, at 7 (S.D. Ohio Oct. 4, 2006). Two weeks after the incident, Plaintiff knew that his supervisors had not disposed of the matter to his satisfaction. At that point, Plaintiff was on notice as to how the USPS was handling the situation, and if he found it unsatisfactory, he should have initiated the grievance process with the EEO counselor. Instead, Plaintiff waited an additional four months before filing a complaint. As the district court noted, Plaintiff stated that he filed a grievance with his union regarding his discrimination claims and that he decided to file an EEO claim when he discovered that his grievance had not been acted upon. Leeds, 2006 WL 2860980, at 6. Thus, the four-month delay in filing an EEO claim was not attributable to Ogletree’s assurances but to the union’s failure to act upon Plaintiff’s grievance. Further, a review of the complaint that was ultimately filed reveals that while Plaintiff did mark the appropriate box alleging racial discrimination along with his other claims, his brief narrative of the discriminatory event makes no mention of North’s comments. By filing a complaint with the EEO counselor four months late and failing to include any mention of his racial discrimination claim in this complaint, Plaintiff failed to diligently pursue his racial discrimination claim. Equitable tolling should be invoked only in rare cases where the facts illustrate that the plaintiff’s case is compelling; this is not the case in Plaintiff’s situation. See Puckett, 889 F.2d at 1488. Thus, the district court properly refused to invoke the doctrine of equitable tolling to save Plaintiff’s claim from being time- barred. 7 No. 06-4628 2. Disability Discrimination Claim Plaintiff also argues that the district court erred in granting Defendant summary judgment on the merits of Plaintiff’s disability discrimination claim brought under the Rehabilitation Act. Plaintiff claims that Defendant refused to provide reasonable accommodation of his disability. However, Plaintiff failed to give Defendant notice of his need for accommodation. This court agrees with the district court’s determination that Defendant’s general statement regarding the difficulty of his new work assignment was not enough to constitute a request for accommodation. In McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), the Supreme Court created a framework for analyzing Title VII claims that was later clarified in Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981). There are three steps involved in this inquiry. First, Plaintiff must establish a prima facie case of discrimination. McDonnell Douglas, 411 U.S. at 802. Next, the burden switches to Defendant to proffer legitimate, nondiscriminatory business justifications for the adverse action. Id. at 802-03. Finally, the burden switches back to Plaintiff to show that these reasons are pretexts for discrimination. Id. at 804. In the instant case, Plaintiff essentially argues that by suspending his license and “traveling” him to positions involving general mail handling, Defendant failed to accommodate his disability, and as a result he suffered discrimination. Plaintiff must first make a prima facie case of such discrimination. Plaintiff brings his disability discrimination claim under the Rehabilitation Act. “The Rehabilitation Act prohibits the United States Postal Service from discriminating against their employees on the basis of a disability.” DiCarlo v. Potter, 358 F.3d 408, 418 (6th Cir. 2004) (citing 8 No. 06-4628 29 U.S.C. § 794(a)). “If the plaintiff seeks to establish his or her case indirectly, without direct proof of discrimination, the plaintiff may establish a prima facie case of discrimination by showing that: 1) he or she is disabled; 2) otherwise qualified for the position, with or without reasonable accommodation; 3) suffered an adverse employment decision; 4) the employer knew or had reason to know of the plaintiff's disability; and 5) the position remained open while the employer sought other applicants or the disabled individual was replaced.” Monette v. Elec. Data Sys. Corp., 90 F.3d 1173, 1186 (6th Cir. 1996); see also Gaines v. Runyon, 107 F.3d 1171, 1175-76 (6th Cir. 1997). A disability is defined as “a physical or mental impairment that substantially limits one or more of the major life activities of such individual.” 42 U.S.C. § 12102(2)(A). Notably, proof of an actual disability is a threshold requirement but one that Defendant concedes in the instant case. To the extent Defendant argues that Plaintiff was not disabled, he does so as an element of arguing that Plaintiff’s supervisors did not have knowledge of the disability. Thus, in the present case, the two factors the parties contest are the second and fourth prongs of the test. As this Court has held, “the ‘otherwise qualified’ inquiry requires a consideration not only of the [disabled] applicant’s ability to perform the job’s essential function, but also whether a reasonable accommodation by the employer would enable the handicapped person to perform those functions.” Hall v. United States Postal Service, 857 F.2d 1073, 1078 (6th Cir. 1988). Thus, a disabled employee will still be considered otherwise qualified if a reasonable accommodation by the employer would render the employee capable of performing the “essential functions” of the job. Id. “Although a ‘reasonable accommodation’ may include reassignment to a vacant position, 42 U.S.C. § 12111(9)(B); 29 C.F.R. § 1630.2(o)(2)(ii), an employer need not reassign a disabled employee to 9 No. 06-4628 a position for which he is not qualified, nor is the employer required to waive legitimate, non-discriminatory employment policies or displace other employees’ rights in order to accommodate a disabled employee.” Hedrick v. W. Reserve Care Sys., 355 F.3d 444, 457 (6th Cir. 2004) (citing Burns v. Coca-Cola Enter., Inc., 222 F.3d 247, 257 (6th Cir.2000)). Thus, if Plaintiff lost his job because he was legitimately unqualified for it, Defendant had no obligation to keep him in the position as an accommodation for a disability. In the instant case, Plaintiff contends that the decision to place him in positions that were too physically taxing for him to perform constituted discrimination whereas his position as a forklift operator accommodated his disability. However, importantly, Plaintiff was unqualified for the position of forklift operator following his accident because it is the policy of the USPS to suspend the forklift license of any individual involved in an accident pending investigation. Thus, Plaintiff does not attempt to allege that the decision to remove him from his forklift position was itself an aspect of the alleged discrimination. Because the event disqualifying him from the position he sought was not motivated by the discrimination he alleges, Plaintiff cannot contend that he was otherwise qualified to hold the position with a reasonable accommodation for his disability; Plaintiff was unqualified for the position of forklift operator because of a validly suspended license and not because of his disability. Thus, Plaintiff cannot succeed on this prong. Plaintiff also cannot show that his supervisors had knowledge of his disability as is required to establish a prima facie case. As this Court has explicitly held, “an employer cannot be said to know or have reason to know of an employee’s disability where that employee returns to work without restriction or request for accommodation. The natural assumption in such a case is that the 10 No. 06-4628 employee is fully fit for work.” Hubbs v. Textron, Inc., 2000 U.S. App. LEXIS 30465, at 7 (6th Cir. 2000). A plaintiff must show that an “accommodation was needed, in that a causal relationship existed between the disability and the request for accommodation.” Gerton v. Verizon S. Inc., 145 F. App’x. 159, 164 (6th Cir. 2005). Thus, not only does a plaintiff have to show that supervisors actually knew of the disability, but he or she must show that an accommodation was requested and the employer failed to provide a reasonable accommodation. Gaines, 107 F.3d at 1175. In the instant case, Plaintiff admits that the supervisor directly responsible for reassigning him after his license was suspended was unaware that Plaintiff ever had a medical problem. Plaintiff also does not contest that the most recent letter from a doctor in his personnel file specified that he was not on any work restrictions. Finally, he does not dispute the fact that according to the job description for his Rewrap Section position, the one restricted work position Plaintiff did hold following his surgery, he could only be reassigned to a position based on seniority (like the forklift operator position) if his physical condition improved such that he was no longer restricted. As the district court noted, these facts all indicate that Plaintiff’s supervisors had no way of knowing that Plaintiff still suffered from a disability that required an accommodation. Leeds, 2006 WL 2860980, at 10. Naturally, if Plaintiff had requested a reasonable accommodation, his supervisors would have been put on notice of his disability. Plaintiff alleges that his comments to supervisors Martin and Parsel that the position he held after his license was pulled was “kicking [his] ass” constituted requests for accommodations. (J.A. at 105.) However, these statements are not nearly specific enough to be considered requests for accommodations. While this Court has held that an employee 11 No. 06-4628 need not use the magic words “accommodation” or even “disability,” the request does need to make it clear from the context that it is being made in order to conform with existing medical restrictions. Smith v. Henderson, 376 F.3d 529, 535 (6th Cir. 2004). Plaintiff failed to do this with his statement. There is nothing that would have indicated to Plaintiff’s supervisors that Plaintiff’s statements meant anything more serious than that the work was hard. The district court properly found that these statements cannot be considered requests for a reasonable accommodation. Leeds, 2006 WL 2860980, at *11. Plaintiff is able to point only to the fact that Ogletree admitted that he had seen a handicap placard in Plaintiff’s car, which indicates that he knew that Plaintiff had an impairment of some kind. However, proof of Ogletree’s limited knowledge is not enough to establish Plaintiff’s prima facie case. Plaintiff must show that a supervisor knew that he had an “impairment that substantially limits one or more of the major life activities.” 42 U.S.C. § 12102(2). Without more, the mere allegation that Ogletree had knowledge of Plaintiff’s handicap placard cannot meet this burden. Thus, the district court properly held that Plaintiff did not establish a prima facie case of disability discrimination. CONCLUSION Because the district court properly concluded that equitable tolling was not available for Plaintiff's racial discrimination claim and that Plaintiff did not establish a prima facie case of disability discrimination, this Court AFFIRMS the district court’s grant of summary judgment to Defendant. 12	{ "pile_set_name": "FreeLaw" }
RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 File Name: 08a0127p.06 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT _________________ X Plaintiff-Appellant, - ROSALYN GRACE, - - - No. 06-2509 v. , > USCAR and BARTECH TECHNICAL SERVICES, - - Defendants-Appellees. - LLC, - N Appeal from the United States District Court for the Eastern District of Michigan at Detroit. No. 05-72847—Nancy G. Edmunds, District Judge. Argued: January 31, 2008 Decided and Filed: March 26, 2008 Before: MERRITT, GILMAN, and COOK, Circuit Judges. _________________ COUNSEL ARGUED: Darcie R. Brault, DIB, FAGAN AND BRAULT, P.C., Royal Oak, Michigan, for Appellant. Thomas G. Kienbaum, KIENBAUM, OPPERWALL, HARDY & PELTON, Birmingham, Michigan, Melanie T. LaFave, JAFFE, RAITT, HEUER & WEISS, P.C., Southfield, Michigan, for Appellees. ON BRIEF: Darcie R. Brault, DIB, FAGAN AND BRAULT, P.C., Royal Oak, Michigan, for Appellant. Jay C. Boger, KIENBAUM, OPPERWALL, HARDY & PELTON, Birmingham, Michigan, Melanie T. LaFave, JAFFE, RAITT, HEUER & WEISS, P.C., Southfield, Michigan, for Appellees. Gary A. Reeve, KENNEDY, REEVE & KNOLL, Columbus, Ohio, for Amicus Curiae. _________________ OPINION _________________ I. MERRITT, Circuit Judge. The plaintiff, Rosalyn Grace, appeals the district court’s order of summary judgment resulting in the dismissal of her Family Medical Leave Act (FMLA) and federal and state gender discrimination claims against defendants USCAR and Bartech Technical Services, LLC (Bartech). First, she argues that Bartech and USCAR are joint employers and thus both liable for violations of her rights under the FMLA. In support of this argument, she contends 1 No. 06-2509 Grace v. USCAR, et al Page 2 that the district court misinterpreted existing case law regarding successor-in-interest liability under the FMLA and that she was eligible for unpaid medical leave. Second, she contends that the district court erred by granting the defendants’ motion for summary judgment on her Title VII gender discrimination claim. Specifically, Grace argues that Bartech had sufficient notice of USCAR’s violations to be held liable as a joint employer. And finally, the plaintiff argues that her related state-law claims should have been dismissed without prejudice, instead of with prejudice. We hold that Bartech and USCAR are joint employers for FMLA purposes and that Grace was eligible for unpaid leave. Grace has raised a genuine issue of material fact as to whether the defendants violated her rights under the FMLA; consequently, the district court’s grant of summary judgment is reversed as to the plaintiff’s FMLA claims. We agree, however, with the district court that the defendants are entitled to summary judgment on the merits of her gender discrimination claims under Title VII. Finally, the plaintiff is mistaken in stating that her state-law gender discrimination claim was dismissed with prejudice; it was not. II. The plaintiff, Rosalyn Grace, held several information technology (“IT”) positions for defendant USCAR for eight years, beginning in 1996. USCAR is a general partnership formed between Ford Motor Company, DaimlerChrysler Corporation and General Motors Corporation, which was created to1facilitate research and development (“R&D”) programs that benefit the U.S. automotive industry. All of USCAR’s employees are either contractors, like Grace, who are hired from staffing agencies2 or full-time employees of one of the partner companies on loan to USCAR. At all times during her service to USCAR, Grace was a contract employee employed by agencies providing workers for USCAR. During the course of her employment, USCAR used various contracting houses, but most importantly DGE and Bartech.3 In December 2003, DGE filed for bankruptcy reorganization, at which time USCAR interviewed four companies about assuming the DGE contracts for USCAR’s administrative employees, including Grace. Bartech was selected and began to service the USCAR account in January 2004. The plaintiff was employed continuously since 1996 and her duties stayed the same throughout her move from one placement agency to another. Joint Appendix (“JA”) 674. During the time period in question, USCAR’s Executive Director was Patricia Flaherty. Grace reported directly to Flaherty and to USCAR’s Director of Operations, Michael Martin. Jennifer Shimon, with whom Grace communicated frequently, was the Bartech Account Manager for the USCAR account. Grace developed a respiratory disability (asthma) during the fall of 2004 that eventually resulted in her hospitalization from November 17-26, 2004. As a result, she was unable to continue her IT work at USCAR, and took leave from her position, with an expected return date of January 3, 2005. Grace contacted Bartech with regard to her request for FMLA leave. JA 171. On December 30, 2004, Bartech informed Grace that USCAR had decided to outsource its IT duties and that, as a result, her position was terminated. The plaintiff’s recovery took longer than initially expected, and upon notifying the defendants that she was cleared to return to work in February 2005, the defendants again told Grace that her position had been eliminated and that no position remained for her. 1 The 1984 Cooperative Research Act allows competitors, subject to regulations, to work collaboratively on pre- competitive research and development. 2 In this opinion we refer to Bartech as both a “placement” agency and a “staffing” agency. 3 In her deposition, the plaintiff indicates that she was first employed by a group “RST,” which then merged with “ASG.” Thereafter, she was given the opportunity to switch to DGE, which she did. JA 933. No. 06-2509 Grace v. USCAR, et al Page 3 The defendants assert that USCAR management decided in the fall of 2004 to restructure its IT division. As part of this process, USCAR’s management team considered switching from using full-time contractors from agencies such as Bartech to contracting directly with individual providers of services on an as-needed basis. JA 90. One such position allegedly targeted for change was the IT Manager position held by Grace. On December 13, 2004, Flaherty recommended, and USCAR approved, the elimination of the plaintiff’s full-time position in favor of hiring an ostensibly part-time consultant. JA 93-94. Also in December 2004, USCAR decided to use the services of another Bartech contractor, Brian Spolarich, to handle the regular IT maintenance issues due to Grace’s absence. JA 93. In May 2005, Martin decided to contract directly with Spolarich – for a 20 hour per week job – to permanently fill the new IT position at USCAR. JA 733-35.4 The plaintiff contends that the reorganization was merely a pretext for USCAR’s unlawful behavior towards her. The plaintiff also asserts that Spolarich was working an additional ten to fifteen hours per week developing a database application for an affiliate of USCAR. Furthermore, USCAR was paying Spolarich either $ 62 or $ 75 per hour, while the billing rate USCAR paid to Bartech for the plaintiff’s services was $ 58.66. JA 685. Grace argues that when the additional hours and the higher rates paid to Spolarich are included, the defendants would not be saving money compared to her full-time position; according to the plaintiff, therefore, the two positions should be considered as equivalent. The plaintiff brought suit in federal district court, alleging: (1) violations of the FMLA for failing to return the plaintiff to her pre-leave (or comparable) position and for retaliation,5 (2) unlawful gender discrimination under Title VII of the Civil Rights Act for replacing her with a lesser qualified male employee and for creating a hostile work environment, and (3) unlawful gender discrimination under Michigan’s Elliot-Larsen Civil Rights Act (ELCRA) for the same reasons. The gender discrimination claims were rooted in a joint employment theory, which would make Bartech liable for the actions of the co-employer, USCAR. Both defendants filed motions for summary judgment on June 1, 2006, which the district court granted. Grace argues that the district court made four mistakes: (1) that it misinterpreted this Court’s holding in Cobb v. Contract Transport, Inc, 452 F.3d 543 (6th Cir. 2006) when it found that Bartech was not a successor in interest to DGE; (2) that it mistakenly determined that USCAR was not an “employer” under FMLA or Title VII; (3) that the district court erred by requiring the plaintiff to point to specific language putting Bartech on notice of the gender discrimination; and (4) that, in declining to exercise supplemental jurisdiction, the district court should have dismissed Grace’s state law claim without prejudice. The effect of the district court’s decision is to deny FMLA coverage to an individual who worked as a loaned employee for the same employer (USCAR) for eight years. III. This Court reviews de novo a district court’s grant of summary judgment for a party. Nat’l Solid Wastes Mgm’t Ass’n v. Daviess County, 434 F.3d 898, 902 (6th Cir. 2006). Summary judgment is appropriate where the pleadings and evidence show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. FED. R. CIV. 4 By this time, Flaherty had left her position with USCAR; thus, she did not participate in the final decision to hire Spolarich on a permanent basis. JA 95. 5 The plaintiff originally pled FMLA retaliation. However, at the summary judgment stage, she admitted she was not claiming retaliation, but instead that the defendants interfered with her FMLA rights by failing to restore her position following leave (i.e. an entitlement claim). JA 1223. We therefore address only the entitlement claim. No. 06-2509 Grace v. USCAR, et al Page 4 P. 56(c). In evaluating the motion, we view all facts and inferences in the light most favorable to the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). IV. The FMLA was enacted, in part, “to balance the demands of the workplace with the needs of families . . . in a manner that accommodates the legitimate interests of employers . . . .” 29 U.S.C. § 2601(b). An “eligible” employee may take up to 12 weeks of unpaid leave for certain situations, including a serious medical condition such as asthma. See 29 U.S.C. § 2612(a)(1). In order to qualify as an eligible employee, an individual must have worked for at least 12 months – and at least 1,250 hours during the previous 12-month period – for a covered employer. 29 U.S.C. § 2611(2). A covered “employer,” in turn, comprises “any person engaged in commerce or in any industry or activity affecting commerce who employs 50 or more employees [within 75 miles of the worksite] for each working day during each of6 20 or more calendar workweeks in the current or preceding calendar year.” 29 U.S.C. § 2611(4). The term “employer” also includes “any successor in interest of an employer.” 29 U.S.C. § 2611(2)(A)(ii)(II) (emphasis added). The act forbids a covered employer from interfering with the exercise of the right to unpaid leave and furthermore provides that, upon return from leave, an employee must be restored to the same or similar position unless the employer offers sufficient economic justification for the elimination of the position. See 29 U.S.C. § 2614. Grace contends that USCAR and Bartech are joint employers and that both are liable for violating her FMLA rights by failing to restore her to her pre-leave, or equivalent, position. The district court granted summary judgment for both defendants. Grace v. USCAR, No. 05-72847, 2006 U.S. Dist. LEXIS 72311 (E.D. Mich. Oct 4, 2006). It first determined that USCAR was not an employer for FMLA purposes because it did not have any employees on its books, thereby precluding a finding that the entity satisfied the numerosity requirement. Id. at 21. Furthermore, it held that USCAR’s liability as a secondary employer under the statute was derivative of Bartech. Id. at 20. In addressing Bartech’s potential liability, the district court concluded that even though Bartech employed 50 or more employees, Grace was ineligible for FMLA leave because she failed to satisfy the requisite 12-month qualification period (in fact, Bartech had been her employer for 11 months). Id. at 18-19. In reaching the conclusion that Grace did not qualify as an eligible employee vis-à-vis Bartech, the district court rejected the plaintiff’s argument that Bartech should be considered a successor in interest to Grace’s prior placement agency employer, DGE. Under a successor-in-interest theory, the time Grace was employed by DGE would be tacked on to her 11 months with Bartech, thereby satisfying the 12-month qualification period. See generally Cobb v. Contract Transp., Inc., 452 F.3d 543 (6th Cir. 2006). This case does not present a simple scenario where an easily identifiable employer-employee relationship exists. In such a case, it is usually just an issue of crunching the numbers – Does the employer have more than 50 employees within 75 miles of its worksite? Has the employee worked for more than 12 months and for 1,250 hours during that time? – to determine whether the individual employee is entitled to FMLA unpaid medical leave. Rather, the case presents the increasingly common and often complex situation where two entities – a staffing agency and client employer – exercise some level of joint control over a common employee.7 Correctly describing the nature of 6 As discussed infra, a secondary employer in a joint employment relationship need not satisfy the numerosity requirement (i.e. 50 or more employees). 7 The United States Bureau of Labor Statistics periodically compiles statistics of contingent and alternative employment arrangements. In February 2005, there were 10.3 million independent contractors (7.4 percent of total employment), 2.5 million on-call workers (1.8 percent of total employment), 1.2 million temporary help agency workers (0.9 percent of total employment), and 813,000 workers provided by contract firms (0.6 percent of total employment). No. 06-2509 Grace v. USCAR, et al Page 5 Bartech’s and USCAR’s relationship with Grace, and the attendant ramifications under the FMLA, presents an important first step in resolving this case, one for which little precedent exists. The FMLA itself is silent about the issue of joint employment. See, e.g., Moreau v. Air France, 343 F.3d 1179, 1182 (9th Cir. 2003) (noting that the FMLA “does not contain any language specifically addressing the joint employment concept”). But in the FMLA, Congress specifically instructs the Department of Labor to “prescribe such regulations as are necessary to carry out” the statute’s intent. 29 U.S.C. § 2654; see also Chevron v. Natural Resources Defense Council, 467 U.S. 837 (1984) (describing how judicial deference to an agency interpretation is appropriate where the statute is silent or ambiguous and the interpretation is reasonable). The resulting regulations contemplate two possibilities for framing employment relationships such as the one that exists between USCAR and Bartech: (1)8the “integrated employer test,” and (2) the “joint employment” test. 29 C.F.R. § 825.104(c)(1). Courts have consistently applied the Department of Labor regulations when addressing questions about FMLA leave. See, e.g., Cobb, 452 F.3d at 551 (6th Cir. 2006) (deferring to the Department of Labor’s regulations addressing the issue of successor in interest, discussed infra); Engelhardt v. S.P. Richards Co., 472 F.3d 1 (1st Cir. 2006); Stierl v. Ryan Alternative Staffing, Inc., No. 4:06CV1751, 2007 U.S. Dist. LEXIS 32710, 13 (N.D. Ohio May 3, 2007) (“Furthermore, the Court finds that 29 C.F.R. § 825.106 [addressing joint employment] is entitled to deference, given that it is consistent with the FMLA and necessary to carry out its purposes.”); Schubert v. Bethesda Health Care Group, Inc., 319 F. Supp. 2d 963, 969 (E.D. Mo. 2004) (“What defendants fail to recognize is that the regulations require consideration of all four [integrated employment test] factors . . . [which are] entitled to deference”); but see Harbert v. Healthcare Servs. Group, Inc., 391 F.3d 1140 (10th Cir. 2004) (refusing to give deference to a regulation concerning what locality constituted the “worksite” where the agency’s interpretation was manifestly contrary to the FMLA). Giving deference to an agency’s reasonable interpretation of a statute accords with Congress’ intent to delegate rulemaking to agencies and also promotes “uniformity in . . . administrative and judicial understandings of what a national law requires.” Aeroquip-Vickers, Inc. v. Comm’r, 347 F.3d 173, 180 (6th Cir. 2003) (citing United States v. Mead Corp., 533 U.S. 218, 226-27, 234 (2001)). We discuss in turn the integrated employers test and the joint employer test. (A) The “integrated employers” test According to the integrated employment theory elaborated by the Department of Labor, “[s]eparate entities will be deemed to be parts of a single employer for purposes of FMLA.” 29 C.F.R. § 825.104(c)(2). The regulations provide the following four factors for helping to determine if two entities should be treated as an integrated employer: (1) common management, According to the definition provided by the Bureau of Labor Statistics, Grace would be included as a worker provided by a contract firm: “Workers who are employed by a company that provides them or their services to others under contract and who are usually assigned to only one customer and usually work at the customer’s worksite.” See Press Release, Bureau of Labor Statics, Contingent and Alternative Employment Arrangements, February 2005 (July 27, 2005), available at http://www.bls.gov/news.release/conemp.nr0.htm. 8 The Second Circuit described the fundamental difference between the two tests as follows: The difference between the “joint employer” and the “integrated employer” tests turns on whether the plaintiff seeks to impose liability on her legal employer or another entity. Compare 29 C.F.R. § 825.106 with § 825.104(c)(2). The former looks to whether there are sufficient indicia of an employer/employee relationship to justify imposing liability on the plaintiff's non-legal [i.e. secondary] employer. The latter applies where . . . liability is sought to be imposed on the legal employer by arguing that another entity is sufficiently related such that its actions, or in this case, size, can be attributable to the legal employer. Engelhardt v. S.P. Richards Co., 472 F.3d 1, 4 n.2 (2d Cir. 2006) (citations omitted) (emphasis added). No. 06-2509 Grace v. USCAR, et al Page 6 (2) interrelation between operations, (3) centralized control of labor relations, and (4) degree of common ownership/financial control. 29 C.F.R. § 825.104(c)(2)(i-iv). Accordingly, the factors seek to illuminate whether two putatively distinct businesses should be viewed as one corporate entity. “Where this test is met, the employees of all entities making up the integrated employer will be counted in determining employer coverage and employee eligibility.” 29 C.F.R. § 825.104(c)(2). Thus, the integrated employer test is a mechanism to ensure that the appropriate employees are aggregated for the numerosity test of the FMLA. As the First Circuit describes, the test appreciates that small businesses – i.e. those with less than 50 employees – are not subject to the FMLA’s “onerous requirement of keeping an unproductive employee on the payroll,” while simultaneously preventing companies from structuring their business to avoid labor laws. Engelhardt, 472 F.3d at 6. Limited case law applying the integrated employer test exists, but other circuits that have addressed the issue have generally found that the test was not met. See, e.g., Engelhardt, 472 F.3d 1 (finding that a wholly-owned subsidiary and the parent were not integrated employers); Morrison v. Magic Carpet Aviation, 383 F.3d 1253, 1257 (11th Cir. 2004) (“As a matter of law, we do not believe that common ownership of two corporations is enough for a jury to conclude that there were integrated into one operation for FMLA purposes.”); see also Arculeo v. On-Site Sales & Mktg., L.L.C., 425 F.3d 193, 196 (2d Cir. 2005) (finding no integrated employment for the purposes of Title VII); but see Schubert, 319 F. Supp. 2d 963 (finding sufficient evidence of integrated employment where two putatively distinct health care companies had the same officers, nearly identical officers, similar corporate purpose, and principal place of business at the same address). The First Circuit’s Engelhardt decision is particularly instructive. In Engelhardt, an individual appealed the district court’s determination that she was not an employee under the FMLA because her employer did not satisfy FMLA’s numerosity requirement. The plaintiff worked for S.P. Richards Co. (SPR), a wholly-owned subsidiary of Genuine Parts Co. (GPC). On appeal, the plaintiff argued that SPR and GPC were integrated employers and that, together, they satisfied the FMLA numerosity requirement. In support of her claim, the plaintiff offered, inter alia, the following evidence: that SPR adopted many of GPC’s personnel policies, that many of SPR’s personnel-related documents carried the GPC letterhead or logo, and that GPC issued SPR’s payroll checks. Engelhardt, 472 F.3d at 2-3. In concluding that this “arm’s length” relationship did not constitute integrated employment for purposes of the FMLA, the Engelhardt Court focused on the fact that none of the four enumerated factors supported the plaintiff’s argument. Id. at 8. First, the court noted that there was no evidence suggesting that the two companies were under the same management. Id. at 6. Second, the operations of the two entities were not interrelated, for the two maintained separate headquarters, human resource departments, records, and worksites; additionally, the court noted that the nature of the businesses (office-supply vs. car parts) was different. Id. at 7. Applying the third factor – centralized control of labor relations – the court found that the two entities each made independent decisions with respect to labor relation (e.g. only SPR had the power to determine the number of employees it needed). Id. And finally, the opinion reasoned that the overlap in administrative services was irrelevant to the fourth factor, the degree of common ownership and financial control. Id. at 7-8. In the instant case the integrated employer framework is similarly inapposite. Under the first factor, there is no evidence of common management – at least insofar as the core responsibilities and operations of each business – between USCAR and Bartech. Although the two companies certainly had a shared relationship with Grace, USCAR did not oversee any of Bartech’s corporate decision or facilities, or vice versa. But see Armbruster v. Quinn, 711 F.2d 1332, 1339 (6th Cir. 1983) (finding at least some evidence of common management where one person was the president of one entity and the director of another in a Title VII integrated employer case). The second prong, whether the entities have interrelated operations, militates even more strongly against a finding of integrated employment in this case. USCAR and Bartech maintain separate offices; moreover, the nature of the work is completely different: one is dedicated to research and design for the car No. 06-2509 Grace v. USCAR, et al Page 7 industry while the other is a staffing agency. At first blush, the third factor – centralized control of labor relations – appears more favorable to a finding that USCAR and Bartech are integrated employers. For example, Grace reported directly to Flaherty (at USCAR), but also maintained a close relationship with Shimon at Bartech. But the mere fact that two entities both communicated with a single employee does not mean that their employment relations, as a whole, are interrelated, as the regulations contemplate. Indeed, USCAR made its own decisions with regards to securing an additional employee to replace Grace and to restructuring its IT department. The fact that it asked Bartech to provide an additional employee does not indicate that Bartech exercised any control over this employment decision. Nor, obviously, did USCAR have any influence on Bartech’s decision to loan employees to other client employers. And finally, no evidence exists that the two entities were subject to common ownership or financial control. Because none of the four factors are met, the interrelated employer test is inapplicable. (B) The “joint employers” test The regulations promulgated by the Department of Labor interpreting the FMLA also elaborate a test for joint employment under the Act. At its core, joint employment encompasses situations where “two or more businesses exercise some control over the work or working conditions of the employee.” 29 C.F.R. § 825.106(a). “In a joint employer relationship the analysis assumes separate legal entities exist but that they have chosen to handle certain aspects of their employer-employee relationships jointly.” Schubert v. Bethesda Health Group, Inc., 319 F. Supp. 2d 963, 970 (E.D. Mo. 2004) (citing NLRB v. Browning-Ferris Indus. of Penn., Inc., 691 F.2d 1117, 1122 (3d Cir. 1982). Unlike integrated employers, which are treated as a single legal entity, joint employers “may be separate and distinct entities with separate owners, managers, and facilities.” 29 C.F.R. § 825.106(a). The regulations describe three employment relationships where joint employment will “generally . . . be considered to exist”: (1) Where there is an arrangement between employers to share an employee’s services or to interchange employees; (2) Where one employer acts directly or indirectly in the interest of the other employer in relation to the employee; or, (3) Where the employers are not completely disassociated with respect to the employee’s employment and may be deemed to share control of the employee, directly or indirectly, because one employer controls, is controlled by, or is under common control with the other employer. 29 C.F.R. § 825.106(a) (emphasis added). The second situation – in which one employer acts in the interest of another – describes the situation in the instant case: Bartech, a staffing agency responsible for providing specialized technical staff, is acting in USCAR’s interests by managing Grace and ensuring that USCAR’s staffing needs for its IT division are met. Furthermore, the regulations specifically state that “joint employment will ordinarily be found to exist when a temporary or leasing agency supplies employees to a second employer.” 29 C.F.R. § 825.106(b) (emphasis added). Thus, the language from the Department of Labor’s regulations indicates that Bartech and USCAR are joint employers. The district court agreed, finding that Bartech and USCAR were joint employers under the FMLA: “[T]he FMLA regulations state that USCAR qualifies as a secondary employer because it contracted for Plaintiff’s services through Bartech . . . .” Grace, 2006 U.S. Dist. LEXIS 72311 at 20-21. No. 06-2509 Grace v. USCAR, et al Page 8 Limited case law addressing the issue of joint employment under the FMLA exists.9 See, e.g., Moreau v. Air France, 356 F.3d 942 (9th Cir. 2004); Mahoney v. Nokia, 444 F. Supp. 2d 1246 (N.D. Fla. 2006), aff’d 236 Fed. Appx. 574 (11th Cir. 2007). In Moreau, Air France contracted with a number of companies, including an agreement with Dynair to provide ground handling services such as ramp and towing assistance, to service its planes at San Francisco International Airport. 356 F.3d at 948. The plaintiff argued that these relationships constituted joint employment for purposes of FMLA. In rejecting the plaintiff’s argument and finding that no joint employment existed, the Ninth Circuit focused on the fact that Air France did not have the “authority to ‘control’ any of the workers” of the companies providing the services. Id. at 950. Air France did not, for example, have the ability to hire or fire Dynair employees or even to determine the salaries of their employees; instead, Air France merely verified that Dynair’s work complied with applicable airline regulations. Id. at 950-51. Conversely, in Mahoney, Nokia hired an employee from Spherion Atlantic Workforce to work at its Florida facility. Spherion managed the plaintiff’s benefits and performed all payroll functions for the employees it leased to Nokia; moreover, the plaintiff specifically acknowledged that Spherion was his employer. Mahoney, F. Supp. 2d at 1248. However, Nokia also exercised considerable control over the employee: it supervised his day-to-day work, fixed his salary, and determined the number of hours that it needed the employee’s services. Id. at 1249. In analyzing the situation as joint employment, the court noted, “Nokia does not appear to contest the fact that joint employment existed” and that the parties had essentially agreed that “a joint employment relationship is assumed by the applicable regulation [29 C.F.R. § 825.106].” Id. at 1254. We believe that the instant case mirrors that in Mahoney. First, as in Mahoney but unlike in Moreau, USCAR and Bartech both exercised significant control over Grace. Bartech performs essentially the same roll as Spherion: it has loaned an employee to a client employer10 (i.e. USCAR vs. Nokia) and manages her payroll and benefits. Moreover, Grace specifically acknowledges that Bartech is her employer. JA 47. Also, as in Mahoney, the client employer in the instant case, USCAR, maintained significant control over Grace and did so for eight years, including supervising her day-to-day work and determining her salary and hours. It is undisputed, for example, that Flaherty, USCAR’s Executive Director since January 2003, supervised Grace’s everyday work responsibilities. See JA 933-34. Consequently, both employers exercise some control over 11 Grace. And second, while both parties contest that they are “employers” under the FMLA definition, they effectively concede that a joint employment would otherwise exist. See Br. of Defendant (USCAR) at 34 (discussing how it is not a secondary employer because Grace was not an eligible employee); Br. of Defendant (Bartech) at 2-3 (noting that it employed Grace and assigned her to USCAR). Hence, the joint employment definition elaborated by the Department of Labor provides the appropriate standard for analyzing the plaintiff’s claims in the instant case. (C) Bartech’s and USCAR’s obligations as joint employers In order to promote administrative efficiency and to ensure accountability under the FMLA, the Department of Labor regulations addressing joint employment distinguish between the “primary” and “secondary” employer. For example, “[i]n joint employment relationships, only the primary employer is responsible for giving required notices to its employees, providing FMLA leave, and 9 It may be that in most staffing agency cases the employers have stipulated to the existence of a joint employment relationship. See, e.g., Stierl v. Ryan Alt. Staffing, No. 4:06CV1751, 2007 U.S. Dist. LEXIS 32710, 8 (D. Ohio 2007) (the defendant agreed that it had a “joint employment” relationship with the staffing agency as defined by 29 C.F.R. § 825.106). 10 While Grace’s work with USCAR predates her status as a Bartech employee, this does not change the fact that Bartech has loaned her to USCAR. 11 The defendants’ arguments are considered, and rejected, in Parts V and VI, infra. No. 06-2509 Grace v. USCAR, et al Page 9 maintenance of health benefits.” 29 C.F.R. § 825.106(c). But when an eligible employee takes leave, the regulations ensure that both the primary and secondary employers honor the decision and do not engage in retributory action: Job restoration is the primary responsibility of the primary employer. The secondary employer is responsible for accepting the employee returning from FMLA leave in place of the replacement employee if the secondary employer continues to utilize an employee from the temporary or leasing agency, and the agency chooses to place the employee with the secondary employer. A secondary employer is also responsible for compliance with the prohibited acts provisions with respect to its temporary/leased employees, whether or not the secondary employer is covered by FMLA. The prohibited acts include prohibitions against interfering with an employee's attempt to exercise rights under the Act, or discharging or discriminating against an employee for opposing a practice which is unlawful under FMLA. 29 C.F.R. § 825.106(e) (emphasis added). Grace alleges that she requested her leave from Bartech, and that both Bartech and USCAR violated the FMLA by failing to reinstate her at the end of her unpaid leave. In order to determine which employer qualifies as the primary employer, the Department of Labor regulations prescribe the following factors: (1) the authority/responsibility to hire and fire, (2) the ability to assign/place the employee, (3) the employer making payroll, and (4) the employer responsible for providing employment benefits. 29 C.F.R. § 825.106(c). Additionally, the regulations offer a default rule for the majority of cases involving a staffing agency and a client employer: “For employees of temporary help or leasing agencies [such as Bartech] the placement agency most commonly would be the primary employer.” Id. (emphasis added).12 The application of these factors leads us to conclude that Bartech is the primary employer. First, as to the question of the ability to hire and fire, both USCAR and Bartech exercise considerable control over Grace. USCAR’s decision to restructure its IT department, for example, helped lead to her termination. However, Bartech alone has the ultimate ability to hire and fire Grace. Even after USCAR made the decision to terminate her position, Grace was still an employee of Bartech; indeed, the record indicates that Bartech sought to lease her to another client employer. Conversely, had Bartech chosen to terminate Grace, her employment at USCAR would likely have also ceased immediately; in such a situation, USCAR would then need to ask for a replacement from another staffing agency or contract with a replacement directly. Under the second factor, USCAR undoubtedly controlled Grace’s day-to-day activities. Again, however, Bartech had the sole ability to assign her to another employer. For example, had CanadaCar offered to pay Bartech more for Grace’s services, then Bartech could have reassigned her accordingly. And under the final two factors, Bartech is the employer responsible for making Grace’s payroll and for managing her benefits. Though it is ultimately USCAR that is providing the resources to pay Grace, Bartech occupies the important legal position of being the entity in charge of her payroll and benefits. Thus, 12 A brief hypothetical reveals the policy considerations underpinning this default designation between primary and secondary employers. Suppose that Jane Smith was hired by Temp Agency in 1998. Over the next ten years, Temp Agency leased Smith to five client companies – A, B, C, D, and E – for two years each. Assume that Smith worked the requisite number of hours at the client companies to qualify as an eligible employee and that all of the employers meet the FMLA numerosity requirement. If a court found that the Temp Agency was the secondary employer – and that each client was the primary employer – Smith would only have FMLA coverage for five of the ten years she was employed by Temp Agency. This is because each time she switched jobs, her FMLA eligibility would reset and would not be restored until 12 months had elapsed (unless a client was a successor in interest to a previous client). By designating the leasing agency as the primary employer, the regulations ensure that Smith is covered for nine of the ten years; that is, she qualifies for FMLA leave after her initial 12-month period and preserves her eligibility regardless of how many times she switches between client employers. No. 06-2509 Grace v. USCAR, et al Page 10 we believe that the default rule, which designates the staffing agency (i.e. Bartech) as the primary employer, is applicable in the instant situation. See Mahoney, 444 F. Supp. 2d at 1255-56 (applying the § 825.106 factors and determining that the staffing agency was the primary employer in its relationship with its client, Nokia, the secondary employer). The specific facts of the case reinforce our conclusion that Bartech is the primary employer and that USCAR is the secondary employer. When Grace became ill, she informed Bartech and not USCAR of her intention to take FMLA leave. JA 171. According to the regulations interpreting joint employment under the FMLA, this action was sufficient to trigger potential liability for both because she need only inform her primary employer of her intention to take leave (“only the primary employer is responsible . . . for providing FMLA leave”). 29 C.F.R. § 825.106(c); see also 29 U.S.C. § 2611(2)(A)(i) (“an eligible employee means an employee who has been employed – for at least 12 months by the employer with respect to whom leave is requested”) (emphasis added). Where an employee is eligible for leave, the primary employer is liable for any violations under the FMLA. In addition, the secondary employer is directly liable for both complying with the “prohibited acts provisions” of the FMLA (e.g. discriminating against an employer who takes FMLA leave, 29 U.S.C. § 2615(a)(2)) and “accepting the employee returning from FMLA leave in place of the replacement employee if the secondary employer continues to utilize an employee from the temporary or leasing agency.” 29 C.F.R. § 825.106(e). As discussed infra, USCAR did continue to utilize an employee from the leasing agency; in fact, it specifically requested that Bartech provide a replacement employee to take over Grace’s IT responsibilities. Consequently, for purposes of analyzing Grace’s FMLA claim, Bartech is the primary employer and USCAR is the secondary employer. (D) Plaintiff has raised a cognizable claim that her FLMA rights were violated It is unlawful for employers to “interfere with, restrain or deny the exercise of or attempt to exercise, any [FMLA] right provided.” 29 U.S.C. § 2615(a)(1); Hoge v. Honda of Am. Mfg., 384 F.3d 238, 244 (6th Cir. 2004). Qualifying employees who return to work within the 12-week period of their unpaid medical leave are entitled to be restored to “the position of employment held by the employee when the leave commenced,” or “to an equivalent position with equivalent employment benefits, pay, and other terms and conditions of employment.” 29 U.S.C. § 2614(a)(1).13 Grace’s allegation of a violation of this right, which we have previously described as the “entitlement” or “interference” theory arising from 29 U.S.C. § 2615(a)(1), is different from a “retaliation” or “discriminatory” theory arising from 29 U.S.C. § 2615(a)(2). See Hoge, 384 F.3d at 244. As discussed supra, a secondary employer who interferes with an employee’s effort to return to her position is also liable under the Act. To prevail on the entitlement theory claim (i.e. failure to reinstate), an employee must prove that: (1) she was an eligible employee, (2) the defendant was an employer as defined under the FMLA, (3) she was entitled to leave under the FMLA, (4) she gave the employer notice of her intention to take leave, and (5) the employer denied the employee FMLA benefits to which she was entitled. Edgar v. JAC Prods., 443 F.3d 501, 507 (6th Cir. 2006). However, “[a]n employee returning from FMLA leave is not entitled to restoration unless he would have continued to be employed if he had not taken FMLA leave.” Hoge, 384 F.3d at 245. 13 An “equivalent position” under 29 U.S.C. § 2614(a)(1)(B) is: [O]ne that is virtually identical to the employee's former position in terms of pay, benefits and working conditions, including privileges, perquisites and status. It must involve the same or substantially similar duties and responsibilities, which must entail substantially equivalent skill, effort, responsibility, and authority. 29 C.F.R. § 825.215(a); Hoge, 384 F.3d at 245. No. 06-2509 Grace v. USCAR, et al Page 11 As discussed infra, the plaintiff has satisfied the first and third prongs and is an eligible employee vis-à-vis Bartech. Additionally, it is undisputed that Bartech employs more than 50 individuals within 75 miles of Grace’s worksite and is thus an employer under FMLA. Grace provided sufficient notice to the defendants of her intention to take leave. See JA 171 (noting that she informed Bartech of her intent); Brenneman v. MedCentral Health Sys., 366 F.3d 412, 421 (6th Cir. 2004) (notice must be “reasonably adequate to apprise the employer of the employee’s request”). However, Bartech and USCAR contend that the decision to terminate the plaintiff resulted from a legitimate economic decision, thereby precluding the plaintiff from satisfying the fifth prong. An employer’s intent is not directly relevant to the entitlement inquiry. Edgar, 443 F.3d at 507. However, “interference with an employee’s FMLA rights does not constitute a violation if the employer has a legitimate reason unrelated to the exercise of FMLA rights for engaging in the challenged conduct.” Id. at 508 (citing Arban v. West Publ’g Corp., 345 F.3d 390, 401 (6th Cir. 2003) (“An employee lawfully may be dismissed, preventing him from exercising his statutory rights to FMLA leave or reinstatement, but only if the dismissal would have occurred regardless of the employee’s request for or taking of FMLA leave.”). If the defendant proffers such a justification, then the plaintiff may seek to rebut it by a preponderance of the evidence. See Arban, 345 F.3d at 401. Specifically, a plaintiff can “refute the legitimate, nondiscriminatory reason that an employer offers to justify an adverse employment action ‘by showing that the proffered reason (1) has no basis in fact, (2) did not actually motivate the defendant’s challenged conduct, or (3) was insufficient to warrant the challenged conduct.’” Wexler v White’s Fine Furniture, 317 F.3d 564, 576 (6th Cir. 2003) (quoting Dews v. A.B. Dick Co., 231 F.3d 1016, 1021 (6th Cir. 2000)). Here, the defendants claim that Grace’s termination was the result of USCAR’s decision to restructure its IT division, which would have occurred regardless of her having taken leave. See, e.g., JA 226, 254, 261, 346-47 (discussing operational efficiencies and outsourcing). Additionally, the defendants claim that Spolarich, who was hired after Grace left, had different duties and responsibilities, thereby precluding the plaintiff from alleging the requisite harm (i.e. that a comparable position existed for Grace to return to). In response, the plaintiff argues that the defendants’ argument is pretextual and belied by the facts. As to the issue of restructuring, the plaintiff points to the notes and deposition of Martin (the USCAR Director of Operations) from the meeting in which the decision to terminate Grace was made. After being apprised of the need to have a “legitimate business reason” to avoid the risk of being “sued by Roz [Grace] . . . [who was] out on disability,” the following question was raised: “Can lawyers construct a way to make it [Grace’s termination] doable?” See JA 1314 (notes), JA 849 (deposition) (emphasis added). This statement alone is a smoking gun and raises a genuine issue of material fact, subject to a jury determination, as to whether the restructuring would have occurred had she not taken leave due to her disability. Cf. Arban, 345 F.3d at 401. Moreover, the plaintiff argues that Spolarich, who was ostensibly part-time, performed sufficiently comparable work to constitute a full-time position “equivalent to” the one she held prior to taking leave. See Br. of Plaintiff at 21 (citing JA 749-750, 729-735); 29 U.S.C. § 2614(a)(1). It is not disputed that Spolarich was compensated at a higher rate than Grace, which would support her theory that his was an equivalent position, at least in terms of the cost to USCAR. Br. of Plaintiff at 21 (citing JA 729-735); see also JA 1314 (Martin’s notes describing how they could replace plaintiff with a part-time position). Together, these facts raise a genuine issue of material fact. See also JA 1226 (where the district court, in the trial record, noted that there appeared to be genuine “factual disputes” in the record). Grace may thus pursue her FMLA entitlement claim. V. Bartech contends that even if it is the primary employer in a joint employment relationship, Grace is not eligible for unpaid leave. Specifically, the company argues that Grace did not satisfy No. 06-2509 Grace v. USCAR, et al Page 12 the 12-month qualification period under 29 U.S.C. § 2611(2)(A)(i). While Grace had worked for USCAR for eight years, Bartech had only served as Grace’s placement agency for 11 months before she took leave to recover from asthma. The district court agreed with the defendant’s argument and dismissed the plaintiff’s claim after finding that Grace was not an eligible employee. Grace, 2006 U.S. Dist. LEXIS at 18-19. On appeal, the plaintiff argues that the district court erred as a matter of law by finding that Bartech was not a “successor in interest” to DGE14and that a contrary holding would enable her to qualify as an eligible employee under the FMLA. An employee becomes eligible under the FMLA after working for a covered employer for at least 12 months. 29 U.S.C. § 2611(2)(A)(i). The term “employer” includes not only someone who “acts, directly or indirectly, in the interest of the employer to any of the employees of such employer” but also any “successor in interest of an employer.” 29 U.S.C. § 2611(4)(A)(ii). To determine whether an employer qualifies as a successor in interest to a previous employer, FMLA’s implementing regulations adopt the framework from Title VII of the Civil Rights Act and the Vietnam Era Veterans’ Adjustment Act (VEVAA). 29 C.F.R. § 825.107; Cobb v. Contract Transp., Inc., 452 F.3d 543, 551 (6th Cir. 2006). The regulations instruct courts to consider the following eight factors in determining whether an employer is a successor in interest: (1) Substantial continuity of the same business operations; (2) Use of the same plant; (3) Continuity of work force; (4) Similarity of jobs and working conditions; (5) Similarity of supervisory personnel; (6) Similarity in machinery, equipment, and production methods; (7) Similarity of products and services; and (8) The ability of the predecessor to provide relief. Cobb, 452 F.3d at 551 (quoting 29 C.F.R. § 825.107). “[W]hether or not a ‘successor in interest’ exists is not determined by the application of any single criterion, but rather the entire circumstances are to be viewed in their totality.” Id. But the eight factors are “not in themselves the test for successor liability.” Id. at 555. Rather, they are factors in an overarching, three-part test considering the equities of imposing a particular legal obligation on a successor: (1) the interests of the plaintiff-employee, (2) the interests of the defendant-employer, and (3) the federal policy goals of the statute. Id.15 We previously analyzed a similar question of successor liability under FMLA in a decision that carefully traced the Supreme Court’s decisions regarding successor liability in the labor law 14 DGE merged with Grace’s original staffing agency employer AST. Although the exact date is unclear, it is not disputed that Grace would meet the eligibility requirement if Bartech were a successor in interest to DGE. The defendants do, however, appear to argue that the record fails to establish that DGE employed 50 employees, a necessary precondition to being an “employer” for FMLA purposes. This argument would preclude a finding that Bartech is a successor in interest “of an employer.” 29 U.S.C. § 2611(4)(A)(ii) (emphasis added). The plaintiff contends that this issue cannot be raised on appeal. However, the record does establish that DGE employed at least 50 employees and thus qualifies as an “employer” for FMLA purposes. See JA 991 (DGE had at least 97 employees). 15 As we recognized in Cobb, balancing the equities may result in different conclusions as to whether successor liability may exist for different legal obligations. 452 F.3d at 555. The relevant factual inquiries may also differ depending on the legal duty at issue. Id. (comparing Howard Johnson Co. v. Detroit Local Joint Exec. Bd., Hotel & Rest. Employees Int’l Union, 417 U.S. 249 (1974) (finding that the single most important factor when imposing the duty to arbitrate is whether the new employer employs the same employees), with Golden State Bottling Co. v. NLRB, 414 U.S. 168 (1973) (extending successor liability to unfair labor practices, but focusing the inquiry on whether there was a transfer of assets and substantial continuity of the business enterprise)). No. 06-2509 Grace v. USCAR, et al Page 13 context. See generally Cobb, 452 F.3d 543. In Cobb, the plaintiff, a truck driver employed by Contract Transport (a staffing agency) for a United States Postal Service contract route, was terminated from his position after he had gallbladder surgery. He then filed suit, alleging that the company had violated the FMLA by terminating him for taking his unpaid leave. The federal district court granted the defendant’s motion for summary judgment after finding that the defendant was not an “eligible employee” under FMLA because he had worked for the defendant for less than 12 months. Id. at 547. In reaching its conclusion, the district court refused to apply successor liability based on the plaintiff’s previous employer, for whom he had worked for three years performing the same duties. We reversed, noting that the plaintiff’s employment was continuous, that the responsibilities and duties were the same, and that “only the management, not the job, [had] changed.” Id. at 557. Here, the district court began its analysis by rejecting Bartech’s argument that the plaintiff had failed to meet the “threshold inquiry” of demonstrating that there was a substantial continuation between DGE’s and Bartech’s operations.16 Grace v. USCAR, 2006 U.S. Dist. LEXIS at 14 (citing 3750 Orange Place Ltd. P’ship v. NLRB, 333 F.3d 646, 655 (6th Cir. 2003)). It then initiated a discussion of the three-pronged equity test, beginning with the observation that Grace’s case was “quite similar to Cobb,” particularly the fact that the “plaintiff’s job responsibilities, location, working conditions and manager did not change in any fashion. . . .” Id. at 17 (emphasis added). But the district court distinguished Cobb based on what it perceived to be one critical factual difference – in Cobb, the contract at issue was subject to automatic re-bidding every two years. Id. at 18. According to the district court, this automatic re-bidding put employees “at a disadvantage by having their FMLA rights eliminated every two years once a new company won the bid.” Id. The court also noted that the change in management in the instant case was not the result of a “tactical maneuver,” but rather DGE’s pending bankruptcy. Id. at 19. The district court thus concluded that the equities at play in Grace’s situation – which did not include what it perceived to be the critical element of the automatic re-bid provision17 – weighed against imposing successor liability on Bartech. For the following reasons, we disagree with the district court’s analysis and find that Bartech is a successor in interest to DGE. Grace, in turn, was eligible for up to 12 weeks of unpaid leave under the FMLA. The first prong of the equitable analysis – the employee’s interest – supports a finding that Bartech is a successor in interest to DGE. As the district court noted, the regulatory factors enumerated in 29 C.F.R. § 825.107 weigh in the plaintiff’s favor. With respect to the USCAR account at issue in the case, the operations did not change after Bartech took over from DGE: Bartech inherited the same work site and substantially the same workforce (five of seven employees). Similarly, the job and working conditions, supervisory personnel, and IT services provided all remained the same. In effect, only the staffing agency’s management changed after Bartech choose to take over DGE’s former employers. 16 Bartech urged the district court, in an argument it raises again on appeal, to focus on the total percentage of employees it hired from DGE, which comprised less than 2% of Bartech’s total workforce. Br. of Defendant (Bartech) at 32. The district court correctly focused its analysis on the fact that Bartech employed five of the seven former DGE employees who were involved in USCAR. See Grace, 2006 U.S. Dist. LEXIS at 15 (“If Bartech’s reasoning were adopted, then any large entity that absorbed a much smaller company in any fashion would never be considered to be a substantial continuation of the small company. . .”). In addition, when DGE filed for bankruptcy, Bartech received an additional 30 of their contract laborers assigned to DaimlerChrysler. JA 58. 17 While the USCAR contract was not subject to any automatic re-bidding, it is worth noting that Grace’s employer (i.e. contract house) changed three times – that is, twice prior to Bartech – during her eight years of employment. Hence, the same problem of her eligibility for leave resetting exists. No. 06-2509 Grace v. USCAR, et al Page 14 While the district court recognized that the regulations supported the plaintiff under the first prong, it purported to distinguish the case from Cobb by seizing upon our use of the language “equally important” to describe the relevance of the re-bid contract in Cobb. See Cobb 452 F.3d at 557 (“Equally important, however, declining to apply successor liability to companies competing for government contracts circumvents implementation of the FMLA.”); Grace, 2006 U.S. Dist. LEXIS at 17-18 (“[T]he Sixth Circuit also noted that an ‘equally important’ factor was that the USPS contract at issue was automatically put up for re-bid every two years.” ) (emphasis added). The district court thus treated the language “equally important” to mean that the re-bid provision was literally equally important to each of the other eight factors in the first prong of the analysis. A better reading – one that does not result in an amendment to the applicable Department of Labor regulations – is that the language in Cobb reinforced the factors favorable to the plaintiff under the first prong and, more importantly, referred to the fact that a finding of successor liability also vindicated the third prong of the test, i.e. the policy underlying FMLA (discussed infra). That is, the Cobb Court’s use of “equally important” did not indicate that the presence or absence of the re- bid contract was an equally important factor – or even necessarily relevant – to the first prong (such that the elaborated factors could be outweighed), but rather that a finding of successor liability also vindicated the equally important policy goals underpinning the FMLA. Thus, prong one of the analysis favors a finding that Bartech is a successor in interest to DGE. In evaluating the equities affecting the employer – the second prong – the district court focused on the fact that the change in employers was neither tactical nor likely to recur in reaching its conclusion that there is “no corresponding need to impose upon Bartech the burden of absorbing DGE’s existing FMLA liabilities.” Grace, 2006 U.S. Dist. LEXIS at 19. But the following language from Cobb shows that Bartech’s motivations have little bearing on the issue: “Successor liability under the 18 FMLA . . . derives from labor law, not corporate law.” 452 F.3d at 551-552 (emphasis added). The defendant also points to several other factors that it urges this Court to consider. Bartech argues that a contrary finding on the successor-in-interest issue may discourage employers from taking over the contracts of failing companies. See Final Br. of Defendant (Bartech) at 33-34 (citing, inter alia, Steinbach v. Hubbard, 51 F.3d 843, 847 (9th Cir. 1995) (discussing risk of imposing “statutory liabilities” on suitor companies)). But the burdens imposed by FMLA do not appear as significant as those discussed in Hubbard, where the Ninth Circuit expressed concern about numerous “meretricious claims” rooted in employment discrimination that were brought as the company approached bankruptcy. Hubbard, 51 F.3d at 846-47 (quoting Musikiwamba v. ESSI, Inc., 760 F.2d 740, 750-51 (7th Cir. 1985)). Moreover, this Court implicitly rejected the defendant’s argument in Cobb, when we found a successor in interest in a similar factual scenario. The defendant also contends that a decision refusing to apply successor liability leaves the plaintiff in no worse a position than if DGE had gone out of business without Bartech taking over the contract. Grace, 2006 U.S. Dist. LEXIS at 19 n.7 (stating that her “qualifying time for FMLA would most certainly have reset under that scenario”). It is unclear, however, how this observation is relevant, for Bartech did take over the contract, thus implicating the successor-in-interest inquiry. Additionally, the defendant contends that unlike other labor law contexts where successor liability has been found, there is no concern here that the new company might “benefit” from the policies of the prior employer (e.g. unfair labor practices such a prior employer’s discrimination). See Br. of Defendant (Bartech) at 34-35 (citing Golden State Bottling Co., Inc. v. NLRB, 414 U.S. 168 (1973)). According to the defendant, an adverse holding on the successor-in-interest issue will compel the 18 Judge Clay, writing for this Court in Cobb, discussed in great detail the history of successor liability in the labor law context. See Cobb, 452 F.3d at 551-55. In one case that Cobb cited, a unanimous Supreme Court writing in 1973 stated that while “the general rule of corporate liability” required a transfer of assets or merger, the “perimeters of the labor-law doctrine of successorship [] have not been so narrowly confined.” Golden State Bottling Company v. NLRB, 414 U.S. 168, 182 n.5 (1973) (emphasis added). The Supreme Court noted, moreover, that the “public policies underlying the [successorship] doctrine will be served by its broad application.” Id. No. 06-2509 Grace v. USCAR, et al Page 15 company to hire outside workers in the future instead of taking over existing contract workers such as Grace. But we believe that the National Employment Lawyers Association provide an appropriate response to these concerns in their amicus curiae brief (supporting the plaintiff), noting that Bartech has “benefitted from the stability and continuity created by the retention of long-term employees of its predecessor,” a loaned employee who had worked for the same employer for eight years. Br. of Amicus Curiae. In pursuing the opportunity to take over the contract workers employed by DGE, Bartech benefitted from the existing employees’ experience. Had Bartech instead chosen to service the account with its own employees (and USCAR agreed), many would have been eligible for FMLA leave (i.e. by meeting the 12 month qualification period); and had Bartech resorted to hiring new contract workers to replace Grace and her colleagues, thus delaying the process, USCAR may very well have rejected the company’s bid to service the account. Finally, the defendant urges us to overturn Cobb, or at the very least, to take into consideration the fact that there was no merger or transfer of assets in the instant case. However, we expressly addressed and rejected the defendant’s argument in Cobb that a merger or transfer of assets was a precondition to successor liability, noting that the duty to grant reasonable medical leave is unrelated to the issue of whether the liability can be reflected in a company’s purchase price (i.e. at the time of the merger or transfer). Cobb, 452 F.3d at 556. Moreover, this case does not implicate the type of situation where a merger or transfer might nevertheless be relevant to the analysis. See id. (noting that, as in EEOC v. Vucitech, 842 F.2d 936, 945 (7th Cir. 1988), the manner of the purchase might be relevant to whether “substantial continuity” existed). Notably, the district court failed to discuss the third factor relevant to the equitable balancing – namely, the federal policy underlying the FMLA. The basic goals of the FMLA are “to entitle employees to take reasonable leave for medical reasons,” 29 U.S.C. § 2601(b)(2), and to “balance the demands of the workplace with the needs of the family.” 29 U.S.C. § 2601(b)(1). As the Cobb court noted, the requirement that the employee have worked for at least twelve months and for 1,250 hours during that time sought “to exclude temporary and seasonal workers from coverage.” Cobb, 452 F.3d at 557 (citing H.R. Rep. No. 103-8(I), at 35 (1993)). Here, Grace satisfies the full-time requirement that underpins employee eligibility for FMLA leave. The FMLA’s focus on the individual employee appears to warrant emphasis on the first prong of the equity analysis; conversely, other labor law issues implicating successor liability (e.g. collective bargaining obligations) more obviously implicate employees as a collective vis-à-vis their employer’s interests, and, by extension, the second prong of the analysis. Congress also sought to ensure that only large employers are subject to the FMLA’s potentially “onerous requirement of keeping an unproductive employee on the payroll.” Engelhardt, 472 F.3d at 6. Consequently, the legislation created a so-called “small employer” exception to the FMLA by limiting coverage to those employers with more than 50 employees. See Douglas v. E.G. Baldwin & Assocs., 150 F.3d 604, 608 (6th Cir. 1998). According to the House Committee Report, the provision “recognizes the difficulties an employer may have in reassigning workers to geographically separate facilities.” Harbert v. HealthCare Servs. Group, Inc., 391 F.3d 1140, 1148 (10th Cir. 2004) (citing H.R. Rep. No. 102-135(I), at 37 (1991)). But in this case, Bartech clearly satisfies the numerosity prong and, by extension, Congress’ concern that only large employers be required to provide FMLA leave. Therefore, the third prong of the equitable balancing – which the district court failed to consider – supports a finding that Bartech is a successor in interest to DGE. In conclusion, we believe that the equities at issue in this case compel us to adhere to our well-reasoned decision in Cobb and find that Bartech is a successor in interest to DGE. Accordingly, Grace was an employee entitled to take 12 weeks of unpaid leave. No. 06-2509 Grace v. USCAR, et al Page 16 VI. USCAR is a partnership of Ford, DaimlerChrysler and General Motors, each with thousands of employees, some of whom were loaned to USCAR from time to time, but USCAR contends that it is not an “employer” under any definition of FMLA because it has no employees on its payroll, and that it therefore cannot be liable for violating Grace’s FMLA right to reinstatement. This argument appears to misinterpret the very definition of an “employer” for labor law purposes. USCAR urges us to apply the “payroll method,” in which a court examines how many employees are on a putative employer’s payroll, to find that USCAR has no employees and thus cannot be an employer. See Walters v. Metro Educ. Enters., 519 U.S. 202, 206-07 (1997) (describing the payroll method in the Title VII context); Farmiloe v. Ford Motor Co., 277 F. Supp. 2d 778, 790 (N.D. Ohio 2001) (examining the defendant’s payroll and finding that the employer failed to employ the requisite number of employees for Title VII purposes). However, the Walters Court proceeded to state that “the ultimate touchstone” for determining the number of employees was “whether an employer has employment relationships” with individuals. 519 U.S. at 211 (emphasis added). As discussed, supra, USCAR supervised Grace’s day-to-day work, determined her salary and hours, and benefitted from her work. Thus, USCAR has an employment relationship with, at the very least, the five employees under contract with Bartech that it supervised and controlled as well as the managers and staff of USCAR.19 See 29 C.F.R. § 825.106(d) (“[e]mployees jointly employed by two employers must be counted by both employers”) (emphasis added); cf. Magnusson v. Peak Tech. Servs., Inc., 808 F. Supp. 500, 510 (E.D. Va. 1992) (finding that in joint employment under Title VII, the greatest emphasis should be placed on the “extent of the employer’s right to control the manner and means of the worker’s performance”). Furthermore, the Department of Labor’s regulations are clear that “a secondary employer is also responsible for compliance with the prohibited acts provisions with respect to its temporary/leased employees, whether or not the secondary employer is covered by FMLA.” 29 C.F.R. § 825.106 (emphasis added). The agency has issued a clarification letter indicating that a secondary employer like USCAR is liable for violations of the FMLA “regardless of the number of employees employed.” Br. of Plaintiff at 46 (quoting 60 Fed. Reg. 2180, 2183). Thus, regardless of the number of employees under its control, USCAR is a secondary employer under the FMLA. VII. The plaintiff alleges in her complaint that the defendants violated Title VII’s prohibition against gender discrimination by (1) taking adverse action against the plaintiff, and (2) creating a hostile working environment towards women. The district court found that USCAR was not an “employer” under Title VII and thus limited its analysis to whether Bartech, as a joint employer, had sufficient notice of USCAR’s allegedly discriminatory conduct. See Grace, 2006 U.S. Dist. LEXIS at 25-26. Even assuming, arguendo, that both defendants are “employers” under the statute and that Bartech had sufficient notice of Grace’s complaint, we find that the defendants are entitled to summary judgment on the merits of the Title VII claims. 19 Because we hold that USCAR is liable under the FMLA as a secondary employer, we pretermit the question of whether USCAR employs more than 50 employees and is directly liable under the FMLA. However, the fact that USCAR’s annual budget is over $200 million and oversees hundreds of engineers involved in its projects suggests that it would meet this numerosity requirement. And this does not take into account the thousands of employees each of the three corporate partners in this joint venture themselves employ. No. 06-2509 Grace v. USCAR, et al Page 17 (A) Gender discrimination claim The plaintiff first argues that the defendants violated Title VII by firing her and replacing her with a less qualified male employee. JA 15. To make out a prima facie case of gender discrimination Grace must show that: (1) she is a member of a protected group; (2) she was subjected to an adverse employment decision; (3) she was qualified for the position; and (4) she was replaced by a person outside the protected class, or similarly situated non-protected employees were treated more favorably. Peltier v. United States, 388 F.3d 984, 987 (6th Cir. 2004). Notably, “a court may not consider the employer’s alleged nondiscriminatory reason for taking an adverse employment action when analyzing the prima facie case.” Wexler v. White’s Fine Furniture, 317 F.3d 564, 574 (6th Cir. 2003). If the plaintiff meets this initial burden of establishing a prima facie case, then the burden of production shifts to the defendant to articulate a legitimate, nondiscriminatory reason for the plaintiff’s discharge. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). Once the defendant has done so, the burden reverts to the plaintiff to show that the defendant’s alleged reason is a mere pretext for discrimination. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). At all times, the burden of persuasion remains with the plaintiff. Id. Grace has alleged a prima facie case of gender discrimination. She is a member of a protected group and an employer’s decision to discharge an employee is a classic example of adverse employment action. See Kleiber v. Honda of Am. Mfg., Inc., 485 F.3d 862, 868 n.2 (6th Cir. 2007). It is undisputed that she was also qualified for her position. Although the defendants claim that Spolarich did not “replace” her because he was a part-time employee, we believe, as discussed supra, that Grace has met this element by furnishing evidence indicating that Spolarich performed essentially the same duties as Grace and also was compensated at a total rate similar to Grace prior to her leave. Even assuming that Grace made out a prima facie case, however, the defendants argue that the decision to terminate Grace resulted from USCAR’s decision to restructure its business and to outsource its IT positions. A plaintiff can “refute the legitimate, nondiscriminatory reason that an employer offers to justify an adverse employment action ‘by showing that the proffered reason (1) has no basis in fact, (2) did not actually motivate the defendant’s challenged conduct, or (3) was insufficient to warrant the challenged conduct.’” Wexler, 317 F.3d at 576 (quoting Dews v. A.B. Dick Co., 231 F.3d 1016, 1021 (6th Cir. 2000). In order to prove pretext, therefore, the plaintiff must “introduce admissible evidence to show ‘that the proffered reason was not the true reason for the employment decision’ and that [discriminatory] animus was the true motivation driving the employer’s determination.” Barnes v. United Parcel Serv., 366 F. Supp. 2d 612, 616 (W.D. Tenn. 2005) (quoting St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 508 (1993)) (emphasis added). An examination of whether the plaintiff has fulfilled her burden and established that the defendant’s justification was pretextual requires us to distinguish the FMLA and Title VII claims. In support of her FMLA claim, discussed supra, the plaintiff offers considerable evidence that her pending return to her job prompted the defendants to restructure the IT business; that is, that the restructuring was merely a pretext for not restoring her to her former position. As to the claim of gender discrimination, the plaintiff simply alleges she was replaced “by a male that [sic] was less qualified.” JA 949-50. This fact goes to her ability to make a prima facie gender discrimination claim, but it does not help her overcome her burden of showing that “discriminatory animus” motivated the defendants decision to replace her with a male employee. Unlike the FMLA claim, where Grace need only demonstrate that her prior position – or equivalent – still existed at the time she returned from unpaid leave, the Title VII claim requires her to make some showing that gender informed the decision to hire a male to replace her. Grace is unable to do so. She does not allege, for example, that USCAR specifically requested a male employee or that either USCAR or Bartech had a policy of replacing female employees with male employees. Rather, the facts suggest that No. 06-2509 Grace v. USCAR, et al Page 18 USCAR merely requested a replacement employee, regardless of gender. Because Grace does not offer any evidence that gender played a role in USCAR and Bartech’s decision to replace her with a male employee, her claim cannot survive either defendant’s motion for summary judgment on the merits of her gender discrimination claim. (B) Hostile work environment claim Grace also alleges a hostile work environment claim under Title VII. To survive a motion for summary judgment, Grace must establish that (1) she is a member of a protected class (female), (2) she was subjected to harassment, either through words or actions, based on sex, (3) the harassment had the effect of unreasonably interfering with her work performance and creating an objectively intimidating, hostile, or offensive work environment; and (4) there exists some basis for liability on the part of the employer. See Fleenor v. Hewitt Soap Co., 81 F.3d 48, 49 (6th Cir. 1996). The harassment must meet both an objective and a subjective test, “in other words, the conduct must be so severe or pervasive as to constitute a hostile or abusive working environment both to the reasonable person and the actual victim.” Randolph v. Ohio Dep’t of Youth Svcs., 453 F.3d 724, 733 (6th Cir. 2006). For the following reasons, we find that Grace has failed to establish the third prong of a prima facie case – namely, the inference of a hostile or offensive work environment. The Supreme Court has provided a non-exhaustive list of factors to consider when deciding whether a hostile work environment exists including: “the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993) (emphasis added). Further, courts must determine whether the “workplace is permeated with ‘discriminatory intimidation, ridicule, and insult,’ that is ‘sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment .’” Id. at 21 (internal citations omitted). The plaintiff attempts to support her hostile work environment claim with the following evidence of Flaherty’s behavior: (1) according to a colleague, she referred to Grace as a “dancing girl” or a “call girl,” JA 803 (Cunningham deposition), (2) that Flaherty ignored Grace, except to comment on her appearance, JA 962 (Grace deposition), (3) that Shimon, upon hearing the complaints, stated “Let’s just try to make it through the next few months [until Flaherty’s known end date at USCAR],” JA 1122, 1131, and (4) caused another employee, Jennie Sweet, to quit. JA 720. It is unclear whether the incidents listed in (2)-(4) demonstrate that the alleged abuse resulted from Grace’s status as a female. See Bowman v. Shawnee State Univ., 220 F.3d 456, 464 (6th Cir. 2000) (“[M]any of the alleged harassing acts cannot be considered in the hostile environment analysis because [the plaintiff] has not shown that the alleged harassment was based upon his status as a male.”). Assuming, arguendo, that the evidence is permissible, these allegations suggest that Flaherty’s actions – at least on occasion – made Grace and other women in the office feel uncomfortable, even to the point that they spoke with Shimon about the possibility of leaving their jobs. But “the work environment as a whole must be considered rather than a focus on individual acts of alleged hostility.” Bowman, 220 F.3d at 463. In Williams v. GMC, for example, we found that the plaintiff had raised a genuine issue of material fact as to the existence of a hostile work environment where a male employee repeatedly uttered phrases such as “Hey, slut” and “I’m sick and tired of these [expletive] women” and also made inappropriate physical advances. Williams v. GMC, 187 F.3d 553, 563 (6th Cir. 1999). In the instant case, however, the occasional comments, which may have been “offensive utterances,” do not rise to the level required by the Supreme Court’s definition of a hostile work environment in Harris (i.e. “physically threatening or humiliating”). 510 U.S. at 23. To hold otherwise would risk changing Title VII into a “code of workplace civility,” a result we have previously rejected. See, e.g., EEOC v. Harbert-Yeargin, Inc., No. 06-2509 Grace v. USCAR, et al Page 19 266 F.3d 498, 507 (6th Cir. 2001) (citing Holman v. Indiana, 211 F.3d 399, 404 (7th Cir. 2000)). Consequently, the defendants are entitled to summary judgment on the merits of the Title VII hostile work environment claim. VIII. Because the district court dismissed all of the plaintiff’s federal claims, it concluded that it did not have subject matter jurisdiction over the related state-law claim. Grace, 2006 U.S. Dist. LEXIS at *27 (“[Subject matter jurisdiction no longer exists for the state-law claim, and it must also be dismissed as a matter of law.”). The district court was incorrect in saying that the state-law claim had to be dismissed as a matter of law. Musson Theatrical v. Federal Express Corp., 89 F.3d 1244, 1254 (6th Cir. 1996) (There is no “categorical rule that the pretrial dismissal of a federal claim bars a court from deciding remaining state law claims.”). But it is likely that the court would have nevertheless declined to exercise supplemental jurisdiction, a decision we review for an abuse of discretion. Clemens Trust v. Morgan Stanley DW, Inc., 485 F.3d 840, 853 (6th Cir. 2007). The court did not indicate that the claim was dismissed with prejudice on the merits such that the plaintiff could not re-file her complaint in state court. She is free to do so. Furthermore, because we reverse and remand the plaintiff’s FMLA claim, the district court may choose to exercise supplemental jurisdiction over the ELCRA claim. IX. For the foregoing reasons, we AFFIRM the judgment of the district court with respect to the plaintiff’s Title VII claims, REVERSE with respect to the plaintiff’s FMLA claim, and REMAND the case for further proceedings consistent with this opinion.	{ "pile_set_name": "FreeLaw" }
625 F.3d 1124 (2010) UNITED STATES of America, Plaintiff-Appellee, v. Phillip William GEORGE, Defendant-Appellant. No. 08-30339. United States Court of Appeals, Ninth Circuit. Argued and Submitted June 2, 2009. Filed September 29, 2010. Amended November 2, 2010. 1126 Rebecca Louise Pennell, Assistant Federal Public Defender, Yakima, WA, for the defendant-appellant. Alexander C. Ekstrom, Assistant United States Attorney, Yakima, WA, for the plaintiff-appellee. Before: WILLIAM C. CANBY, JR., DAVID R. THOMPSON, and CONSUELO M. CALLAHAN, Circuit Judges. ORDER The opinion filed September 29, 2010 is amended by deleting footnote 3 and inserting the following footnote 3 in its place: 3 The registration requirements became applicable to pre-SORNA sex offenders no later than the February 28, 2007 issuance of the Attorney General's interim order. 72 Fed. Reg. 8894. Because George's failure to register occurred several months after the interim order issued, the parties do not addressand we need not resolvewhether SORNA's registration requirements apply to pre-SORNA sex offenders upon the statute's July 27, 2006 enactment or upon the later February 28, 2007 issuance of the interim order. See Carr, 130 S.Ct. at 2234 n. 2 (notingl without expressing an opinion, that there is a "conflict among the Courts of Appeals as to when SORNA's registration requirements became applicable to persons convicted of sex offences prior to the statute's enactment"). Either way, SORNA applied to George at the time of his arrest in Washington in September 2007. And, as we concluded above, Washington's failure to implement SORNA does not bar federal prosecution for George's failure to register. The amended opinion is filed with this order. The appellant's petition for rehearing en banc filed October 13, 2010 is pending before the court. No further petitions for rehearing or for rehearing en banc may be filed. 1127 OPINION THOMPSON, Senior Circuit Judge: Defendant-Appellant Phillip William George ("George") was convicted of the federal crime of sexual abuse of a minor on an Indian reservation in violation of 18 U.S.C. §§ 2243(a) and 1153. He served his sentence for that offense, but then he failed to register as a sex offender in violation of the Sex Offender Registration and Notification Act ("SORNA"), 18 U.S.C. § 2250. He was convicted of that offense in 2008, pursuant to a conditional guilty plea, and now appeals that conviction. He contends his conviction is invalid because the state where he was required to register, Washington, had not implemented SORNA. He also argues SORNA's registration requirement is an invalid exercise of congressional power and violates the Ex Post Facto Clause of the Constitution. We have jurisdiction under 28 U.S.C. § 1291, and we affirm George's conviction. I Washington's Failure to Implement SORNA On July 27, 2006, the Adam Walsh Child Protection and Safety Act of 2006 became law. Public Law 109-248, Secs. 1-155, 120 Stat. 587, 590-611 (2006). Section 141 of the Act includes SORNA.[1] On February 28, 2007, the Attorney General issued an interim rule, clarifying that SORNA applies to all sex offenders regardless of when they were convicted. 72 Fed. Reg. 8894, 8896 (Feb. 28, 2007). "SORNA's direct federal law registration requirements for sex offenders are not subject to any deferral of effectiveness. They took effect when SORNA was enacted on July 27, 2006, and currently apply to all offenders in the categories for which SORNA requires registration." Id. at 8895. If a sex offender fails to register as required under § 16913, he or she can be 1128 prosecuted under 18 U.S.C. § 2250. Section 2250 states: (a) In general.Whoever (1) is required to register under [SORNA]; (2)(A) is a sex offender as defined for the purposes of [SORNA] by reason of a conviction under Federal law (including the Uniform Code of Military Justice), the law of the District of Columbia, Indian tribal law, or the law of any territory or possession of the United States; or (B) travels in interstate or foreign commerce, or enters or leaves, or resides in, Indian country; and (3) knowingly fails to register or update a registration as required by [SORNA]; shall be fined under this title or imprisoned not more than 10 years, or both. George argues that he may not be indicted for a failure to register under SORNA because SORNA's registration requirements become effective only after they have been implemented by an applicable state. Whether an applicable state's failure to implement SORNA precludes a federal prosecution for failure to register as a sex offender in that state is a matter of first impression within our circuit. George is correct that SORNA includes a provision requiring implementation by each state. 42 U.S.C. § 16924(a). George, however, misconstrues the scope and effect of SORNA's implementation provision. That the states have until July 2009 to implement the administrative portions of SORNA, does not preclude federal prosecution for George's failure to register under SORNA. 72 Fed. Reg. at 8895 ("In contrast to SORNA's provision of a three-year grace period for jurisdictions to implement its requirements, SORNA's direct federal law registration requirements for sex offenders are not subject to any deferral of effectiveness."). SORNA requires states to implement sex offender registries which comply with SORNA requirements by July 2009 or lose part of their federal funding. 42 U.S.C. §§ 16924(a); 16925(a); 72 Fed. Reg. 30210, 30211. With regard to the requirements that individuals register, SORNA establishes a criminal offense for the failure to register or to update a registration. 18 U.S.C. § 2250; 72 Fed. Reg. 8894, 8895. There is no clear direction from Congress instructing that an individual's obligation to register is dependent on a state's implementation of SORNA. See Gozlon-Peretz v. United States, 498 U.S. 395, 404, 111 S.Ct. 840, 112 L.Ed.2d 919 (1991). Indeed, it is not so dependent, as explained by the Eighth Circuit in United States v. May, 535 F.3d 912, 916-19 (8th Cir.2008), cert. denied, ___ U.S. ___, 129 S.Ct. 2431, 174 L.Ed.2d 229 (2009), adopted by the Tenth Circuit in United States v. Hinckley, 550 F.3d 926, 930 (10th Cir.2008). Other circuits have reached the same result. See United States v. Guzman, 591 F.3d 83, 93 (2nd Cir.2010) ("SORNA creates a federal duty to register with the relevant existing state registries regardless of state implementation of the specific additional requirements of SORNA."); United States v. Brown, 586 F.3d 1342, 1347-49 (11th Cir.2009); United States v. Gould, 568 F.3d 459, 463-66 (4th Cir.2009). Without regard to whether SORNA is implemented by Washington or any other state, registration under it is required. We hold that George violated SORNA by failing to register as a sex offender. George argues that an interpretation determining 18 U.S.C. § 2250 to be applicable pre-implementation by an applicable state renders the statute impermissibly vague. In support of this argument, he contends that such an interpretation leaves it unclear what it means to register as a sex offender "as required by SORNA" 1129 when a state's registration system is not "SORNA-compliant." This argument is without merit because George was required to register as a sex offender even before the enactment of SORNA. As stated in the plea agreement he entered in this case, he had signed a notice of conditions of registration in connection with his 2003 sexual abuse conviction in the United States District Court for the District of Idaho "which included a requirement to provide notice of any change of address, and if [he] should move to another state, to register in the state and notify Idaho of the move." Moreover, § 2250 plainly requires a sex offender to register and update any registration according to SORNA's requirements. 18 U.S.C. § 2250(a). Under 42 U.S.C. § 16913, which sets out "Registry requirements for sex offenders," a sex offender must register, registration must be kept current, and for initial registrations, a sex offender must register in the jurisdiction of conviction if different from the jurisdiction of residence. These requirements are clear and easy to understand. The government is correct in that "[i]t is a reasonable construction of 18 U.S.C. § 2250 that the registration requirements mentioned should be found in 42 U.S.C. § 16913, the section from SORNA entitled `Registry requirements for sex offenders.'" II Commerce Clause George contends that SORNA's registration requirements are outside of Congress's commerce clause powers. We disagree. Congress may regulate interstate commerce in three situations: (1) "the use of the channels of interstate commerce"; (2) "the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities"; and (3) "those activities having substantial relation to interstate commerce." United States v. Lopez, 514 U.S. 549, 558-59, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995).[2] Congress has the ability to make all laws that are "necessary and proper" for the accomplishment of its commerce clause power. U.S. Const. art. I, § 8, cl. 18. Congress's commerce clause power can reach intrastate activity that has a substantial effect on interstate commerce. See Wickard v. Filburn, 317 U.S. 111, 125, 63 S.Ct. 82, 87 L.Ed. 122 (1942). SORNA was enacted to keep track of sex offenders. See Carr v. United States, ___ U.S. ___, 130 S.Ct. 2229, 2240, 176 L.Ed.2d 1152 (2010) ("[SORNA was] enacted to address the deficiencies in prior law that had enabled sex offenders to slip through the cracks."). Such offenders are required to "register, and keep registration current, in each jurisdiction" where the offender lives, works, or goes to school. 42 U.S.C. § 16913(a). As stated by the Eighth Circuit, "[t]his language indicates Congress wanted registration to track the movement of sex offenders through different jurisdictions." United States v. Howell, 552 F.3d 709, 716 (8th Cir.2009). "Under § 2250, Congress limited the enforcement of the registration requirement to only those sex offenders who were either convicted of a federal sex offense 1130 or who move in interstate commerce." Id. (citing 18 U.S.C. § 2250(a)(2)). The requirements of § 16913 are reasonably aimed at "regulating persons or things in interstate commerce and the use of the channels of interstate commerce." Id. at 717 (quoting May, 535 F.3d at 921) (quotation marks omitted). Congress had the power under its broad commerce clause authority to enact the SORNA. Accord United States v. Whaley, 577 F.3d 254, 258 (5th Cir.2009); United States v. Gould, 568 F.3d 459, 470-72 (4th Cir.2009); United States v. Ambert, 561 F.3d 1202, 1210 (11th Cir.2009); United States v. Hinckley, 550 F.3d 926, 940 (10th Cir.2008), cert. denied, ___ U.S. ___, 129 S.Ct. 2383, 173 L.Ed.2d 1301 (2009); May, 535 F.3d at 921. George alternatively argues that Congress does not have the power to require registration based on his status as a federal sex offender under 18 U.S.C. § 2250(a)(2)(A). Again, we disagree. SORNA's registration requirements in that section are valid based on the federal government's "direct supervisory interest" over federal sex offenders. Carr, 130 S.Ct. at 2239. As the Court recently explained in Carr: it is entirely reasonable for Congress to have assigned to the federal government a special role in ensuring compliance with SORNA's registration requirements by federal sex offenderspersons who typically would have spent time under federal criminal supervision. Id. at 2238. Compare United States v. Comstock, ___ U.S. ___, 130 S.Ct. 1949, 176 L.Ed.2d 878 (2010) (upholding under the Necessary and Proper Clause a statute that provided for the civil commitment of sexually dangerous federal prisoners beyond the date they would otherwise be released). We therefore affirm George's conviction based on his status as a federally convicted sex offender under § 2250(a)(2)(A).[3] III Ex Post Facto Clause George argues that he may not be indicted for a violation of SORNA because the registration requirement of SORNA as applied to him in this case violates the Ex Post Facto Clause. Article I, Section 9 of the Constitution prohibits an ex post facto law where the law (1) imposes a greater punishment on a defendant than when he was convicted of the underlying offense; (2) makes a punishment for a crime greater than it was when it was committed; or (3) deprives a defendant of a defense available at the time the act was committed. Collins v. Youngblood, 497 U.S. 37, 45-46, 110 S.Ct. 2715, 111 L.Ed.2d 30 (1990). For a criminal penal law to be ex post facto, it must be retrospective and disadvantage the offender affected by it. Weaver v. Graham, 450 U.S. 24, 29, 101 S.Ct. 960, 67 L.Ed.2d 17 1131 (1981). "A law is retrospective if it changes the legal consequences of acts completed before its effective date." Miller v. Florida, 482 U.S. 423, 430, 107 S.Ct. 2446, 96 L.Ed.2d 351 (1987) (internal quotation omitted). George's argument fails because he was under a continuing obligation to register. His violation of SORNA was his failure to register as a sex offender after he moved to Washington. The indictment charged George with failing to register on or about September 27, 2007. That failure occurred after the statute had been enacted. To avoid this result, George argues that the failure to register is a one-time crime, rather than a continuing offense. He moved to Washington before SORNA was enacted, and he contends his offense, to the extent it was any offense at all, occurred when he moved there and the offense was complete when he failed to register within the required time. He cites Toussie v. United States, 397 U.S. 112, 115-122, 90 S.Ct. 858, 25 L.Ed.2d 156 (1970) for the proposition that the crime of failing to register as a sex offender is a one-time offense. The alleged behavior in Toussie, however, was the failure to register for the draft, not the failure to register as a sex offender and, more importantly, included recognition by the Court that the question of whether a crime is deemed continuing should include consideration of the "nature of the crime involved." Toussie, 397 U.S. at 115, 90 S.Ct. 858. Other circuits that have considered this issue have held that the crime of failing to register as a sex offender is a continuing offense. United States v. Dixon, 551 F.3d 578, 582 (7th Cir.2008) ("[SORNA] creates a continuing offense in the sense of an offense that can be committed over a length of time. If the convicted sex offender does not register by the end of the third day after he changes his residence, he has violated [SORNA], and the violation continues until he does register, just as a prisoner given a two-week furlough is guilty of escape if he does not appear by the end of the two weeks, and thus can be prosecuted immediately but his violation continues as long as he remains at large."); United States v. Hinckley, 550 F.3d 926, 936 (10th Cir.2008) ("An interpretation of the sex offender registration requirement that defines it in any way other than as a continuing offense would result in absurdity. As the Western District of Virginia points out, `It would be illogical for members of Congress to express concern that thousands of sex offenders who were required to register under state law were evading those registration requirements and then exempt those same offenders from SORNA.'" (citation omitted)). We interpret the violation of the sex offender registration requirement as a continuing offense. George violated SORNA after it was enacted, and after any question of its application to him had been removed by the Attorney General's ruling, 72 Fed. Reg. 8894, 8896, thus charging him with a violation was not a violation of the ex post facto clause. IV Conclusion The district court correctly denied George's motion to dismiss the indictment. The registration requirement under SORNA required him to register as a sex offender in the State of Washington, even though Washington had not implemented the statute. SORNA's registration requirements are a valid exercise of congressional power, and do not violate the ex post facto clause of the Constitution. AFFIRMED. NOTES [1] SORNA's registration requirements are set forth in 42 U.S.C. § 16913, and provide: a. In general A sex offender shall register, and keep the registration current, in each jurisdiction where the offender resides, where the offender is an employee, and where the offender is a student. For initial registration purposes only, a sex offender shall also register in the jurisdiction in which convicted if such jurisdiction is different from the jurisdiction of residence. b. Initial registration The sex offender shall initially register (1) before completing a sentence of imprisonment with respect to the offense giving rise to the registration requirement; or (2) not later than 3 business days after being sentenced for that offense, if the sex offender is not sentenced to a term of imprisonment. c. Keeping the registration current A sex offender shall, not later than 3 business days after each change of name, residence, employment, or student status, appear in person in at least 1 jurisdiction involved pursuant to subsection (a) of this section and inform that jurisdiction of all changes in the information required for that offender in the sex offender registry. That jurisdiction shall immediately provide that information to all other jurisdictions in which the offender is required to register. d. Initial registration of sex offenders unable to comply with subsection (b) of this section The Attorney General shall have the authority to specify the applicability of the requirements of this subchapter to sex offenders convicted before July 27, 2006 or its implementation in a particular jurisdiction, and to prescribe rules for the registration of any such sex offenders and for other categories of sex offenders who are unable to comply with subsection (b) of this section. e. State penalty for failure to comply Each jurisdiction, other than a Federally recognized Indian tribe, shall provide a criminal penalty that includes a maximum term of imprisonment that is greater than 1 year for the failure of a sex offender to comply with the requirements of this subchapter. [2] George cites United States v. Waybright, 561 F.Supp.2d 1154 (D.Mont.2008) which found that § 16913 was not constitutional because it (1) does not fit within the Lopez prongs, (2) is not economic in nature, and (3) created a separate statutory scheme of national regulation of sex offenders instead of facilitating implementation of a federal crime under § 2250. Id. at 1163-68. To the extent our reasoning in this opinion differs from the district court's decision in Waybright, we disapprove of that decision. See NASD Dispute Resolution, Inc. v. Judicial Council of State of Ca., 488 F.3d 1065, 1069 (9th Cir.2007). [3] The registration requirements became applicable to pre-SORNA sex offenders no later than the February 28, 2007 issuance of the Attorney General's interim order. 72 Fed. Reg. 8894. Because George's failure to register occurred several months after the interim order issued, the parties do not addressand we need not resolvewhether SORNA's registration requirements apply to pre-SORNA sex offenders upon the statute's July 27, 2006 enactment or upon the later February 28, 2007 issuance of the interim order. See Carr, 130 S.Ct. at 2234 n. 2 (noting, without expressing an opinion, that there is a "conflict among the Courts of Appeals as to when SORNA's registration requirements became applicable to persons convicted of sex offences prior to the statute's enactment"). Either way, SORNA applied to George at the time of his arrest in Washington in September 2007. And, as we concluded above, Washington's failure to implement SORNA does not bar federal prosecution for George's failure to register.	{ "pile_set_name": "FreeLaw" }
Dismissed and Memorandum Opinion filed April 2, 2015. In The Fourteenth Court of Appeals NO. 14-15-00142-CR BRADRICK KENDALL HARRIS, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 21st District Court Washington County, Texas Trial Court Cause No. 16798 MEMORANDUM OPINION Appellant entered a guilty plea to deliver of between one and four grams of a controlled substance. In accordance with the terms of a plea bargain agreement with the State, the trial court sentenced appellant on December 9, 2014, to confinement for fifteen years in the Institutional Division of the Texas Department of Criminal Justice. Appellant filed a pro se notice of appeal. We dismiss the appeal. The trial court entered a certification of the defendant’s right to appeal in which the court certified that this is a plea bargain case, and the defendant has no right of appeal. See Tex. R. App. P. 25.2(a)(2). The trial court’s certification is included in the record on appeal. See Tex. R. App. P. 25.2(d). The record supports the trial court’s certification. See Dears v. State, 154 S.W.3d 610, 615 (Tex. Crim. App. 2005). Accordingly, we dismiss the appeal. PER CURIAM Panel consists of Justices Christopher, Brown, and Wise. Do Not Publish—Tex. R. App. P. 47.2(b). 2	{ "pile_set_name": "FreeLaw" }
Order Michigan Supreme Court Lansing, Michigan October 25, 2013 Robert P. Young, Jr., Chief Justice Michael F. Cavanagh Stephen J. Markman 146872 Mary Beth Kelly Brian K. Zahra Bridget M. McCormack David F. Viviano, PEOPLE OF THE STATE OF MICHIGAN, Justices Plaintiff-Appellee, v SC: 146872 COA: 308275 Wayne CC: 03-011966-FH THOMAS CLIFFORD WHITE, Defendant-Appellant. _________________________________________/ On order of the Court, the application for leave to appeal the January 24, 2013 judgment of the Court of Appeals is considered. We direct the Clerk to schedule oral argument on whether to grant the application or take other action. MCR 7.302(H)(1). The parties shall submit supplemental briefs within 42 days of the date of this order addressing: (1) whether the defendant’s unconditional guilty plea waived any violation of the 180-day rule, MCL 780.131 and MCL 780.133; see People v Lown, 488 Mich 242, 268-270 (2011), where the prosecutor had received (albeit possibly not by certified mail) a written Department of Corrections (DOC) notice of the defendant’s incarceration and a request for final disposition of the pending charges, had responded to the notice stating that there were no pending charges against the defendant, and commenced the criminal action five years after receipt of the notice, and where the defendant and the Wayne Circuit Court were unaware of the notice and the response at the time of the plea proceeding; and (2) whether the defendant’s guilty plea was properly set aside by the trial court for the reason that it was unknowing and involuntary due to the defendant’s and the court’s unawareness of the DOC notice and prosecutorial response. The parties should not submit mere restatements of their application papers. I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the foregoing is a true and complete copy of the order entered at the direction of the Court. October 25, 2013 s1022 Clerk	{ "pile_set_name": "FreeLaw" }
PD-0394-15 CODY LAMONT BLAYLOCK IN THE COURT OF V. CRIMINAL APPEALS STATE OF TEXAS OF TEXAS FILED \M COURT OF CRlMi, PRO SE MOTION REQUESTING LEAVE TO FILE rc«U> AN ORIGINAL COPY ONLY OF THE JLfW lQ 25*j PETITION FOR DISCRETIONARY REVIEW TO THE HONORABLE COURT OF CRIMINAL APPEALS OF TEXAS: Abel Acosta, Clerk COMES NOW,Appellant in the above styled and numbered cause and respectfully moves this court to grant leave to file an original copy only of his Petition for Discretionary Review and in support thereof would show the following: 1. The style and appeal number in the Twelfth Court of Appeals is Cody Lamont Blaylock,Appeal No.12-13-00363-CR. 2. Appellant moves that pursuant to Rule 2,T.R.A.P. this court suspend Rule 9.3(b),Tex.R.A.P. that requires the filing of eleven (11) copies of the Petition for Discretionary Review with the Court. 3. The facts relied on for good cause: Appellant is indigent and incarcerated and does not have access to a copying machine. It is also the policy of the Coffield Unit of the TDCJ-CID not to provide copies to offenders. Coffield is where appellant is housed. He is filing pro se and not represented by counsel. WHEREFORE.PREMISES CONSIDERED, appellant respectfully prays that this Honorable Court grant leave to file an original copy only of his Petition for Discretionary Review with the Court. Respectfully submitted, RECEIVED IN Igfy ftfoiW COURT OF CRIMINAL APPFA/c Cod/ Lament Blaylock#1898529 CML:> Coffield Unit JUN 05 2015 2661 FM 2054 Tennessee Colony,Tx 75884 Ate! Acosta, Clerk -i- CERTIFICATE OF SERVICE I, CodyLamont Blaylock,hereby certifies that a true and correct of his "Pro se Motion Requesting Leave To File An Original Copy Only Of The Petition For Discretionary Review" was sent to the Clerk of the Texas Court of Criminal Appeals by placing same in the U.S. mail to : P.O. Box 12308,Capitol Station, Austin,Texas 78711. Executed on thisj/^day of Mad/ 2015. CndiL KAjJMY^ ^ signature.& UNSWORN DECLARATION I, Cody L. Blaylock#1898529,being presently incarcerated in the Coffield Unit of the TDCJ-CID located in Anderson County,Texas declare under penalty of perjury that the foregoing is true and correct ording to my belief. Executed on this^/^day of lYl/U^ acc< 2015. (', gnat/are -2-	{ "pile_set_name": "FreeLaw" }
USCA1 Opinion November 10, 1994 [NOT FOR PUBLICATION] UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT ____________________ No. 94-1638 NORBERTA BATISTA-CANALES, Plaintiff, Appellant, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant, Appellee. ____________________ APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO [Hon. Juan M. Perez-Gimenez, U.S. District Judge] ___________________ ____________________ Before Cyr, Circuit Judge, _____________ Bownes, Senior Circuit Judge, ____________________ and Stahl, Circuit Judge. _____________ ____________________ Juan R. Requena Davila and Juan A. Hernandez Rivera on brief for _______________________ _________________________ appellant. Guillermo Gil, United States Attorney, Maria Hortensia Rios, ______________ ______________________ Assistant United States Attorney, and Nancy B. Salafia, Assistant _________________ Regional Counsel, Department of Health and Human Services, on brief for appellee. ____________________ ____________________ Per Curiam. Claimant, Norberta Batista-Canales, ___________ appeals from the judgment of the district court affirming the decision of the Secretary of Health and Human Services that she is not entitled to Social Security disability benefits. Claimant filed an application for disability benefits on March 14, 1991, listing as disabilities asthma and a back condition. She alleged an onset date of April 1, 1985; her insured status expired on September 30, 1990. After a hearing, an administrative law judge (ALJ) determined that claimant's impairments, as of September 30, 1990, did not prevent her from performing her past work as a machine operator in the electronics industry. In this job, she assembled parts by soldering them together; she functioned in a seated position and was not required to lift more than 10 pounds at a time. She stopped working in February 1985 when the company closed. Specifically, the ALJ found that claimant suffered from severe degenerative disease of the facet joints in her spine, chronic lumbosacral sprain, allergic rhinitis, bronchial asthma and depression. He credited her allegations of pain to the extent that she was precluded from performing more than sedentary work. He next found that claimant had the residual functional capacity to engage in work that did not involve (1) prolonged walking or standing, (2) lifting more than 10 pounds, (3) frequent bending, and (4) exposure to dust, fumes, gases, detergents and perfumes. The Appeals Council denied claimant's request for review. On appeal to this court, claimant first asserts that the ALJ was not qualified to assess whether her prior work was free of the above pollutants. She cites to Social Security Ruling 85-15 which provides, in part, that "[w]here an individual can tolerate very little noise, dust, etc., the impact on the ability to work would be considerable because very few job environments are entirely free of irritants, pollutants, and other potentially damaging conditions." Social Security Ruling 85-15 goes on to distinguish between the above situation and one requiring only avoidance of _________ excessive amounts of pollutants. In the latter case, "the impact on the broad world of work would be minimal because most job environments do not involve great noise, amounts of dust, etc." Where the level of restriction "falls between very little and excessive, resolution of the issue will generally require consultation of occupational reference materials or the services of a VS [vocational specialist]." Claimant argues that because there was no evidence from which the ALJ could have concluded that her past work was compatible with the limits placed on her by her asthma, the ALJ should have consulted a VS. Although the ALJ did not specify the level of claimant's environmental restriction, we do not need to reach this issue. There is substantial evidence in the record to support the conclusion that claimant's asthma, prior to September 30, 1990, imposed -3- minimal restrictions on her abilities to function at work. As such, the impact on the number of sedentary jobs would be small. Before September 1990, there is only one reference to an asthmatic condition. In January 1990, claimant underwent surgery to remove a cyst due to chronic maxillary sinusitis. See Exhibit 14. The diagnoses were bronchial ___ asthma and allergic rhinitis. A chest X-ray taken at this time revealed clear lungs and claimant's prognosis was considered to be good. The rest of the medical evidence is from 1991 and 1992. Specifically, claimant's treating physician, Dr. Juan de los Santos, did not mention a diagnosis of chronic bronchial asthma until March 1991. See ___ Exhibit 11. There is no evidence in the 1990 reports concerning any treatment for claimant's asthma during the period of time _________ for which she was insured. The diagnosis of bronchial asthma standing by itself is insufficient to establish claimant's entitlement to disability benefits. See Tsarelka v. ___ ________ Secretary of Health and Human Services, 842 F.2d 529, 534 ________________________________________ (1st Cir. 1988) (per curiam). In any event, Dr. de los Santos stated that claimant experienced only two attacks per month, each one lasting 15 to 20 minutes. See Exhibit 11. ___ Further, in two residual functional capacity (RFC) assessments, completed by non-examining physicians in 1991, -4- claimant was rated as having no environmental restrictions. Given the paucity of evidence indicating a more severe condition, the ALJ's conclusion that claimant's asthma did not preclude her from performing her past work is sufficiently supported. Claimant's second argument on appeal is that the ALJ did not engage in the correct analysis in evaluating her complaints of disabling pain. Specifically, claimant asserts that, at the hearing, the ALJ failed to inquire about the nature of the pain, the effectiveness of any medication or other treatment, and the impact the pain had on claimant's daily activities and functional restrictions. At the hearing, claimant was questioned by her attorney concerning her back pain. She testified that she experiences stabbing pain in the left side of her back and in her left leg. As a result of this pain, claimant stated that she could not bend over to pick up something from the floor and that after sitting, she must straighten herself out slowly in order to be able to stand. She also must change position frequently and must crawl to dress herself. Since the first episode of back pain in April 1985, the pain has worsened. Further, in a disability report, claimant stated that she could not lift or carry heavy objects, could not sit for any length of time and must avoid bending. She cannot perform household chores. -5- In his decision, the ALJ referred to the above information in evaluating claimant's pain. He also relied on the complaints of pain that claimant presented to a consulting neurologist on April 30, 1991. Therefore, we think that the ALJ correctly applied Avery v. Secretary of _____ ____________ Health and Human Services, 797 F.2d 19 (1st Cir. 1986). As _________________________ for the severity of claimant's pain, the ALJ, in fact, credited her allegations of disabling pain in determining that work more arduous than sedentary would aggravate her condition. This finding is supported by the record. As the ALJ pointed out, claimant only received treatment on one occasion prior to the expiration of her insured status. Claimant was hospitalized from April 11 to April 15, 1985 due to severe lumbosacral myositis. See ___ Exhibit 20. A note dated April 12, 1985 stated that claimant was markedly improved. When she was discharged claimant was stable but still had some lumbosacral discomfort. According to Dr. de los Santos, a C-T Scan, performed two months prior to claimant's hospitalization, was within normal limits, despite a finding of degenerative joint disease in the facet joints. The only other reference to claimant's back is an X- ray report dated June 30, 1990. It showed mild spondyloarthritic changes of the L4 vertebra, with well- preserved vertebral height and intervertebral spaces. -6- Claimant did not seek any other treatment for her back until March 1991 when she began seeing Dr. Noreiga Sanchez. Again, the lack of medical evidence for the relevant time period supports the decision of the ALJ that claimant could perform her past work. Also, the two 1991 RFC assessments indicate that claimant can frequently lift up to 25 pounds and can sit, stand and walk for up to six hours each in an eight-hour work day. Finally, the consultative neurology examination in April 1991 showed normal gait, posture and muscle tone. Claimant could pick up pieces of paper from the floor without difficulty. There was no atrophy and claimant retained full range of motion in all extremities. For the foregoing reasons, the judgment of the district court is affirmed. ________ -7-	{ "pile_set_name": "FreeLaw" }
659 F.Supp.2d 1016 (2009) OWNER-OPERATOR INDEPENDENT DRIVERS ASSOCIATION, INC., et al., Plaintiffs, v. MAYFLOWER TRANSIT, INC., Defendant. No. 1:98-cv-00457-SEB-JMS. United States District Court, S.D. Indiana, Indianapolis Division. September 15, 2009. 1017 David J. Carr, Ryan Christopher Metzing, Ice Miller LLP, Indianapolis, IN, David Aaron Cohen, Joseph Albert Black, Paul Damien Cullen, Sr., The Cullen Law Firm PLLC, Washington, DC, for Plaintiffs. David C. Campbell, James M. Hinshaw, Martha S. Hollingsworth, Bingham McHale LLP, Indianapolis, IN, David Wells, Michael J. Morris, Roman P. Wuller, Thompson Coburn LLP, St. Louis, MO, James Albert Calderwood, Zuckert Scoutt & Rasenberger, Washington, DC, for Defendant. ORDER SARAH EVANS BARKER, District Judge. Presently before the Court is Plaintiffs' Motion for the Award of Attorneys' Fees and Costs (the "Motion"). [Dkt. 147.] 1018 A REMINDER ABOUT CIVILITY For the past eleven years, the parties and their counsel have been engaged in hard-fought litigation of this class action, which they have now resolved by agreement, except as to the issue of attorneys' fees. That was no small feat. Thus, at the fairness hearing, we commended the parties' counsel for the "exceptionally fine lawyering" that was required to accomplish it. [Dkt. 142 at 14.] Here at the last, however, we must express some disappointment. Lawyers canand shouldzealously advocate for their clients. Yet at all times counsel must keep in mind that they must conduct themselves as professionals. Consequently, their advocacy must never stoop to "disparaging personal remarks [n]or acrimony toward other counsel, parties, or witnesses." Standards for Prof. Cond. Within the Seventh Fed. Jud. Cir., Lawyers' Duties to Other Counsel, Standard 2.[1] Likewise they must never lodge "unfounded accusations of impropriety" against their opponent. Id., Standard 4. Unfortunately, the parties' briefs on the present Motion, at times, did both. Accusations of "extraordinarily misleadingand plainly wrong" claims [Dkt. 153 at 41], of "shameless" conduct [id. at 48], of failures of candor [Dkt. 160 at 27], and of "false[] assert[ions]" [Dkt. 161 at 1] litter the briefs. Such accusations are serious. See Fed. R. Civ. Pro. 11; Ind. R. Prof. Cond. 3.3. They must not be bandied about cavalierly, as in our view counsel did here. In this district, the practice of law is to be civilthereby serving the best interests of counsel, their clients, and the Court. Though this litigation has now drawn to a close, counsel are admonished to so conduct themselves in the future that their behavior comports fully with the standards of civility espoused and maintained by the Court. A failure to do so may elicit more than just disappointment from the Court in the future. BACKGROUND[2] At its core, the dispute between the parties centered on the proper timing for Defendant Mayflower Transit, Inc. ("Mayflower") to refund to the drivers the excess fuel taxes that it collected from them as independent truck owner-operators hauling goods nationwide for Mayflower. As often happens in litigation, however, this case took on a shape different at the end than it had at the beginning. Originally, Plaintiffs advanced three causes of action: violations of federal "Truth-in-Leasing" laws, 49 U.S.C. § 14701 et seq. and 49 C.F.R. Part 376; a violation of Indiana's criminal conversion statute, Ind.Code § 35-43-4-3 (for which Ind.Code § 34-24-3-1 authorizes a civil action to recover treble damages and attorney's fees); and common-law breach of contract. The scope of the case expanded when we permitted Mayflower to counterclaim against the Plaintiffs, seeking to set-off (and possibly eliminate) any damage award to each class member by the amount of any debt outstanding to Mayflower (as might be, for example, owing under the member's lease with Mayflower). Owner-Operators Indep. Drivers Ass'n v. Mayflower Transit, Inc., 2006 WL 1794751, 12-13, 2006 U.S. Dist. LEXIS 44550, 49 (S.D. Ind. June 27, 2006). 1019 The case contracted in significant ways too. We de-certified all of Plaintiffs' state-law causes of action and determined that a two-year, as opposed to a four-year, statute of limitations applied to Plaintiffs' federal claims. See Owner-Operators Indep. Drivers Ass'n, Inc. v. Mayflower Transit, Inc., 2006 WL 1547084, 1, 2006 U.S. Dist. LEXIS 39827, *3-4 (S.D. Ind. June 1, 2006). By 2008, the case began drawing to a close when only 236 individuals as members of the class returned claim forms that had been mailed to approximately 3,200 potential claimants. [Dkt. 153 at 39.] Those claim forms indicated that Mayflower would be entitled to assert "defensive set-offs" against the claimant, up to and including the full value of the asserted claim, for any unpaid debts the claimant owed Mayflower. [Dkt. 107 at 3.] After the claim forms arrived, Mayflower made an offer of judgment for the full value of those 236 claims, without asserting any set-offs. Plaintiffs accepted Mayflower's offer, and we approved the settlement and entered judgment in Plaintiffs' favor for $194,220.98. [Dkt. 140.] ANALYSIS The parties agree that Mayflower is obligated to pay Plaintiffs' reasonable attorneys' fees and costs. Mayflower made, and Plaintiffs accepted, an offer of judgment under Federal Rule of Civil Procedure 68 for violations of the federal Truth-in-Leasing laws, which made Plaintiffs prevailing parties in this litigation. Although not a settled proposition, see Owner-Operator Indep. Drivers Ass'n v. New Prime, Inc., 398 F.3d 1067, 1069 (8th Cir. 2005) (noting that the statute does not explicitly apply to prevailing plaintiffs but inferring from the applicable legislative history that it does), Plaintiffs contend and Mayflower does not disputethat a prevailing plaintiff under that statutory scheme is entitled to collect as part of its costs a "reasonable attorney's fee," 49 U.S.C. § 14704(e), plus the court costs normally awarded to any prevailing party, see Fed. R. Civ. Pro. 54(d)(1) (creating a default rule for the imposition of costs). Further, Mayflower's offer of judgment expressly contemplated that Mayflower would pay "reasonable attorneys' fees and costs as determined by the Court." [Dkt. 126-2 at 2.] The present Motion seeks a judicial determination of reasonable fees and costs, which Plaintiffs assert should be $1,450,867.00. [Dkt. 148 at 41.] In contrast to the usual practice regarding claims for attorneys' fees, Mayflower has offered no objections to specific line items set out in the fee request. For example, Mayflower does not contend that Plaintiffs' counsel overstaffed the case, seeks an excessive hourly fee, or went off on any strategic wild goose chases. Mayflower explicitly waived all such objections. [Dkt. 153 at 10 n. 7.] Instead, Mayflower argues only two issues that it claims require "significant across-the-board reductions" in any fee award: what it deems Plaintiffs' unreasonable rejections of several settlement offers greater than their ultimate recovery and their "ultimate lack of success." [Id.] According to Mayflower, applying those reductions will result in an award of (at most) $500,000. [Id. at 50.] A. General Points About Fee Awards Before turning to the issues Mayflower has identified, four general points about fee awards deserve to be mentioned.[3] The 1020 first point relates to Mayflower's continued juxtaposition the $194,220.98 recovery received by Plaintiffs with their $1,450,867.00 fee and cost request.[4] When a lawyer expects the client to foot the bill for the lawyer's services, the lawyer is strongly incented to exercise appropriate billing judgmentthat is, to ensure that the time expended (or at least charged) for the matter is reasonable, given the client's objectives. For example, suppose Plaintiff A has a breach-of-contract claim of $10,000 against B. The lawyer for A will normally ensure that the fee charged does not exceed the value of A's claim: [I]t would be both extraordinary and unjustifiable, in the absence of any special arrangement, for the attorney to put in 200 hours on the case and send the client a bill for $25,000. Such a bill would be `unreasonable,' regardless of whether A obtained a judgment against B for $10,000 or obtained a take-nothing judgment. Riverside v. Rivera, 477 U.S. 561, 593, 106 S.Ct. 2686, 91 L.Ed.2d 466 (1986) (Rehnquist, J., dissenting). Indeed, in this example, even charging a $5,000 bill could be unreasonable, depending on the lawyer's professional estimate of the likelihood that the client would recover the full $10,000 claim. Cf. Cole v. Wodziak, 169 F.3d 486, 488 (7th Cir.1999) (explaining that a reasonable "tort lawyer who believes that the victim is sure to recover either $900,000 or $100,000 (with equal likelihood) would invest up to $200,000 in pursuit of the claim (the $500,000 actuarial value of the case, times a 40% contingency fee)"). The second point to be made here is equally important. Continuing with the previous example, where, as here, a fee-shifting statute applies to Plaintiff A's claim, "Congress has already determined that the claim was worth bringing. The court must then assume the absolute necessity of achieving that particular result and limit itself to determining whether the hours spent were a reasonable means to that necessary end." Anderson v. AB Painting & Sandblasting, Inc., 578 F.3d 542, 546 (7th Cir.2009) (footnote omitted). Thus, in contrast to the typical case where no fee-shifting statute applies, "it is absolutely permissible to spend $100,000 litigating what is known to be a $10,000 claim if that is a reasonable method of achieving the result." Id. at 546. The next point grows out of the first two. In cases where a plaintiff knows that its attorneys' fees will ultimately be borne by the defendant, the plaintiff has "little incentive" to rein in counsel. Kirchoff v. Flynn, 786 F.2d 320, 324 (7th Cir.1986). Accordingly, that task ultimately falls to the Court. But "[j]udicial monitoring . . . is necessarily imprecise. The judge cannot readily see what legal work was reasonably necessary at the time; the judge first sees the application for fees after the case is over, and hindsight may obscure the difficult decisions made under uncertainty as much as it illuminates them." Id. at 325. Sometimes, the availability of judicial after-the-fact monitoring of fees cannot 1021 stop the proverbial tail wagging the dog, shifting counsel's focus from achieving the client's objectives to churning the case to generate an ever-greater fee from the other sideas we have recently had occasion to lament in another case, see generally Wickens v. Shell Oil Co., 569 F.Supp.2d 770, 790-91 (S.D.Ind.2008). Finally, however, we note that defendants in actions where Congress has enacted a fee-shifting statute do have at least one shield to protect against high fee awards for low-value cases: an offer of judgment under Federal Rule of Civil Procedure 68. "A spurned Rule 68 offer, followed by a lower recovery at trial, precludes an award of costs (including attorneys' fees, when a statute defines them as part of costs) incurred after the offer's rejection." Cole, 169 F.3d at 487 (citation omitted). B. Determining the Fee Award Here When determining a proper fee award, "the analysis begins with the `lodestar' figurethat is, the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate." Estate of Enoch v. Tienor, 570 F.3d 821, 823 (7th Cir.2009). From there, we can adjust the presumptive fee award downward (or, in unusual circumstances, upward) to account for the factors set forth in Hensley v. Eckerhart, 461 U.S. 424, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983), which essentially track those set forth in Indiana Rule of Professional Conduct 1.5 delineating a professionally appropriate fee.[5] Of those factors, the only one that Mayflower invokes is the degree of success obtained or, more precisely, according to Mayflower, not obtained. 1. The Effect of Plaintiffs' Rejections of Mayflower's Previous Settlement Offers Mayflower's first issue, that Plaintiffs unreasonably rejected its (non Fed. R. Civ. Pro. 68) settlement offers, goes to the lodestar figure. When a defendant is already voluntarily willing to give the plaintiff what the plaintiff wants, only an unreasonable plaintiff would press on with litigation; any such hours incurred are necessarily unreasonably expended in the litigation and ought not to be charged to the defendant. That, essentially, is the holding of Moriarty v. Svec, a holding that Mayflower discusses at great length: "Attorney's fees accumulated after a party rejects a substantial offer provide minimal benefit to the prevailing party. . . . [A] district court should reflect on whether to award only a percentage (including zero percent) of the attorney's fees that were incurred after the date of the settlement offer." 233 F.3d 955, 967 (7th Cir.2000) (citation omitted).[6] For the purposes of 1022 Moriarty, a settlement qualifies as a "substantial" one when "the offered amount appears to be roughly equal to or more than the total damages recovered by the prevailing party." Id. Mayflower identifies six settlement offers that it made, and which Plaintiffs rejected, between 2001 and 2007: An $800,000 offer in 2001; A $1.2 million offer in 2002; A $1.5 million offer in 2003; A $2 million offer in 2005; A $2.4 million offer in May 2007; and, finally, A $3.2 million offer in July 2007. [Dkt. 153 at 6.] Mayflower correctly points out that the dollar figure of each of those offers far exceeds the $194,220.98 judgment that we entered. It concludes, therefore, that each qualifies as a "substantial offer" under Moriarty. And it contends that the Court should award Plaintiffs zero percent of their attorneys' fees incurred after their rejection of the first of those substantial offers, i.e. the May 2001 $800,000 offer. [Id. at 30.] Plaintiffs vigorously deny that any of those offers are Moriarty-type substantial offers. They note that (1) the offers sought a general release of all claims, known and unknown, and including claims unrelated to those raised in this litigationincluding claims about insurance charges that are the subject of other litigationand (2) the release in each offer would extend to Mayflower's entire corporate family (including entities not parties to this litigation), and not just to Mayflower, without specifying how much each was contributing to the settlement offer. [See Dkt. 160 at 8-21.] Their briefing cites cases under Federal Rule of Civil Procedure 68 holding that valid offers of judgment must be limited to the case before the court and, in the case of multiple defendants, must indicate how much of the offer is allocable to each defendant. From those cases, Plaintiffs conclude that we can and should ignore their rejections of Mayflower's settlement offers. [Id. at 12, 21.] They also note that they, and Mayflower, have been unable to find a case explicitly undertaking a Moriarty analysis for rejected settlement offers that sought to settle claims beyond those at issue in the litigation before the court at the time. [See id. at 11.] But Plaintiffs have likewise been unable to find a case explicitly prohibiting a Moriarty analysis either. We believe that Plaintiffs have taken an excessively restrictive view of Moriarty, trying to limit it as they do to offers that comport with Federal Rule of Civil Procedure 68. Moriarty, 233 F.3d at 967 ("Substantial settlement offers should be considered by the district court as a factor in determining an award of reasonable attorney's fees, even where Rule 68 does not apply."). One half of the lodestar equation requires us to compute the amount of time reasonably spent on the matter. Tienor, 570 F.3d at 823. A reasonable litigant will at least consider a "global" settlement along the lines that Mayflower offered. See Classic Cheesecake Co., Inc. v. JPMorgan Chase Bank, 1:05-cv-0236-WTL-JDT, 2007 WL 3285806, 3 n. 3, 2007 U.S. Dist. LEXIS 82181, 10-11 n. 3 (S.D.Ind. Nov. 2, 2007) (explaining that the global nature of the settlement offer is "certainly relevant to Plaintiff's consideration of whether to accept [it . . . but is] not relevant to the issue framed in Moriarty"). 1023 Indeed, we note that Plaintiffs implicitly concede as much in their reply brief. There, they cite their willingness to accept two global settlement offers that the magistrate judge proposed in 2002 and 2003 (but Mayflower rejected) as evidence of their good-faith and reasonableness in settlement, [Dkt. 160 at 21-22], which they contend justifies the continued use of the lodestar method of calculating fees, see Cole, 169 F.3d at 489 (approving trial court's abandonment of lodestar in favor of percentage of recovery because "recovering less than 10% of [claimed damages] is a good reason to curtail the fee award substantially"); but see Anderson, 578 F.3d at 545 (noting that permitting reductions for incongruities between claimed damages and requested fees "seems to be losing favor"). Thus, we shall address consider whether the rejection of the settlement offers added any "value" to Plaintiffs' case. See Moriarty, 233 F.3d 955, 967 Contrary to Mayflower's assertions, Plaintiffs' rejection of the 2001 settlement offer did add value to their case. Had Plaintiffs accepted that $800,000 offer, Plaintiffs would have had only $99,387.83 to distribute to the class,[7] after paying the $700,612.71 for their counsel's accrued costs and fees up until that point.[8] Rejecting that offer allowed Plaintiffs to consider Mayflower's next offer of $1.2 million in 2002. That offer, after deducting $759,322.56 in accrued fees and costs, represented a $440,677.44 potential distribution to the classa substantial increase over Mayflower's last offer. The trend continued for each of Mayflower's remaining four offers: Plaintiffs' Fees Potential Class Offer Date Offer Amount and Costs Distribution 2003 $1,500,000 $ 961,547.06 $ 538,452.94 2005 $2,000,000 $1,133,533.93 $ 866,466.07 May 2007 $2,400,000 $1,250,015.30 $1,149,984.70 July 2007 $3,200,000 $1,272,968.42 $1,927,031.58 The increasing potential class distributions are even more remarkable, given (as Mayflower aptly notes) that "this Court's rulings consistently narrowed the scope of [Plaintiffs'] claims and dramatically lessened [their] potential damages" during that timeframe. [Dkt. 153 at 7.] Until July 2007, it is easy to see the increased value to the class that each rejection of Mayflower's settlement overtures conferred. But after that last rejection, we can discern no reasonable value from that strategyand Plaintiffs' briefs are conspicuously silent about any claimed benefit that the rejection brought about. True, 236 members of the class that we certified submitted claim forms. And, thanks to Mayflower's $194,220.98 offer of judgment, those 236 members received 100% of the fuel credits that they claimed had not been timely returned to them. But approximately 3,000 other class members who were mailed claim forms did not return them (perhaps, as Mayflower suspects, because they believed that Mayflower's off-sets exceeded their claims, or perhaps 1024 because of apathy often typical of members of large classes). Those members received nothing. Under Mayflower's July 2007 offer, they would have received somethingeven if they had to also give up, for example, claims in the insurance litigation currently on appeal to the Seventh Circuit (for which we found no recovery appropriate). When viewed ex ante, perhaps the rejection of the July 2007 settlement offer might have been a strategically appropriate decision, assuming that ex ante justifications are sufficient, compare Tuf Racing Prods., Inc. v. American Suzuki Motor Corp., 223 F.3d 585, 592 (7th Cir.2000) ("Since a defendant must take seriously a large demand and prepare its defense accordingly, it is right to penalize a plaintiff for putting the defendant to the bother of defending against a much larger claim than the plaintiff could prove.") and Kurowski v. Krajewski, 848 F.2d 767, 776 (7th Cir.1988) ("It is fair to judge a pudding by the eating, and fair to judge litigating decisions by their results."), with Cole, 169 F.3d at 488 (explaining that a low recovery does not necessarily mean that the lawyer unreasonably valued the case). But Plaintiffs have offered no evidence or argument on that score, despite bearing the burden to prove the number of hours reasonably incurred in this litigation, see Spegon v. Catholic Bishop, 175 F.3d 544, 550 (7th Cir.1999) ("The party seeking the fee award bears the burden of proving the reasonableness of the hours worked and the hourly rates claimed." (citation omitted)). Viewed ex post, and from the perspective of the many class members who received nothing, Plaintiffs' decision was unreasonable; a bird in the hand was, in this instance, indeed worth two in the bush. From the evidence before us, Plaintiffs consistently overvalued their claims, at least in their settlement posturing toward Mayflower. For example, despite several significant adverse rulings in the meanwhileincluding the decertification of state-law claims and the selection of a shorter statute of limitations in this case and our dismissal of the insurance case Plaintiffs had only reduced their November 2001 global settlement demand of $9,447,394 to $9,000,000 by March 2007. [See Dkt. 154-2 at 11; 154-10 at 6.] Plaintiffs' strategy of puffing up the value of their case in settlement talks was also high risk one, and it was one that likely delayed settlement. So long as that strategy was providing benefits to the class, however, we will not penalize Plaintiffs for employing it. But once that strategy led to the collapse of the July 2007 settlement talks, it becomes appropriate to cut off any fee and cost award. Plaintiffs' continued use of that strategy then provided no benefit to anyone, including the Court. Accordingly, we determine the lodestar fee and cost amount to be $1,272,968.42, the amount of fees and costs incurred as of July 18, 2007. [Dkt. 153 at 27.] We find all fees and costs incurred after that point neither reasonable nor necessary, and we will not authorize their recovery. See Moriarty, 233 F.3d at 967; Northbrook Excess & Surplus Ins. Co. v. Procter & Gamble Co., 924 F.2d 633, 642 (7th Cir.1991) (explaining that a court need not award costs under Fed. R. Civ. Pro. 54(d) that are not "reasonable and necessary"). 2. The Degree of Plaintiffs' Success Having determined that Plaintiffs' counsel reasonably incurred $1,272,968.42 in fees and costs to litigate this case, we now turn to Mayflower's second issue. That issue is whether we should adjust the lodestar amount downward given what Mayflower contends was counsel's limited 1025 success in this matter. As Mayflower correctly notes, a plaintiff's lack of success may justify a reduction in the fee award from the lodestar amount. Hensley, 461 U.S. at 434, 103 S.Ct. 1933 ("The product of reasonable hours times a reasonable rate does not end the [fee] inquiry. There remain other considerations that may lead the district court to adjust the fee upward or downward, including the important factor of the `results obtained.'" (footnote omitted)). a. Limitations on Attorney's Fees Under Farrar Evaluating a plaintiff's degree of success involves two inquiries. The first inquiry asks whether, despite technically obtaining a judgment in its favor (or a small settlement), a plaintiff obtained such limited success that the victory is a nominal one. In words, it asks whether, even in winning, the plaintiff lost. In such cases, according to the Supreme Court's decision in Farrar v. Hobby, where the plaintiff obtained a $1 verdict on a $17 million claim, we should usually award no attorney's fee at all. 506 U.S. 103, 115, 113 S.Ct. 566, 121 L.Ed.2d 494 (1992) ("When a plaintiff recovers only nominal damages because of his failure to prove an essential element of his claim for monetary relief . . ., the only reasonable fee is usually no fee at all." (citation omitted)). The only exceptions to that rule would be where the "case established an important precedent, decreed declaratory or injunctive relief, or otherwise conferred substantial benefits not measured by the amount of damages awarded." Hyde v. Small, 123 F.3d 583, 584 (7th Cir.1997) (citations omitted). Even then, an award might be significantly less than what the lodestar might otherwise call for. See Farrar, 506 U.S. at 114-15, 113 S.Ct. 566. Until relatively recently, the law in this Circuit was clear as to when a recovery was so minimal, even though not technically "nominal," to trigger Farrar. The plaintiff had to recover at least ten percent of the demand, Perlman v. Zell, 185 F.3d 850, 859 (7th Cir.1999) ("[A] litigant who wins less than 10% of his initial demand either is not a prevailing party for purposes of fee shifting statutes or should be treated as if he had not prevailed."); Cole, 169 F.3d at 488 (approving an 85% reduction in requested fees because "recovering less than 10% of the demand is a good reason to curtail the fee award substantially"). Because, Mayflower says, Plaintiffs (as a group) ultimately obtained a judgment worth far less than 10% of their claimed damagesapproximately 3% of their 2001 demandwe should jettison the lodestar approach altogether and "drastically reduce" the fee request. [Dkt. 153 at 43.] The Perlman and Cole line of cases do not, however, necessarily represent sturdy authority. Farrar, after all, concerned itself with truly nominal damagesa pittance awarded because of a failure to prove actual damages. Farrar, 506 U.S. at 115, 113 S.Ct. 566. Further, more recent Seventh Circuit cases have explicitly backed away from Perlman and Cole. For example, in Tuf Racing, the Seventh Circuit questioned whether those cases truly establish a "rule" that a reduction is required, or whether a lesser recovery should more properly be understood as "merely as a factor to consider along with other factors weighing for or against an award of attorneys' fees." Tuf Racing, 223 F.3d at 592. Indeed, the Seventh Circuit has recently reaffirmed what it has "repeatedly" stated before: "[F]ees must [not] be calculated proportionally to damages. The principle applies equally to purported disproportionality between the relief requested and that received." Tienor, 1026 570 F.3d at 823 (quotation omitted). And just last month, the Seventh Circuit noted that the "proportionality" between demand and recovery that was embraced in Perlman and Cole "seems to be losing favor," Anderson, 578 F.3d at 545 (citing (Tienor, 570 F.3d at 822-23, which it describes as holding that "recovering less than 7% of amount sought is not reason to apply Farrar if damages are not nominal")). According to Anderson, a disparity between the amount of the fees requested and the damages requested (or recovered) is merely a "red flag" that may signal inefficient litigation or unreasonable litigation strategies. Anderson, 578 F.3d at 546 ("[S]mall claims can be complex and large claims can be very straightforward. So while a fee request that dwarfs the damages award might raise a red flag, measuring fees against damages will not explain whether the fees are reasonable in any particular case."). That concern is not, however, a valid one here. As indicated above, Mayflower has waived all such claims, except with respect to Plaintiffs' rejection of Mayflower's settlement offers.[9] Because the concerns underpinning the Perlman and Cole line of cases does not apply, we see no reason to apply whatever "rule" that those cases otherwise invoke. Besides, the "rule," if it exists at all, may not even apply as a factual matter. Plaintiffs claim that they are responsible for Mayflower voluntarily distributing over $450,000 in escrow funds to the class over and above the judgment that we entered, which, when added to that judgment, pushes Plaintiffs' recovery to more than 10% of their demand in 2002 for $6 million. [Dkt. 154-5 at 2.] To the extent that Perlman and Cole do apply and to the extent that they merely authorize us to consider departing from the lodestar method (assuming that Mayflower's 3% recovery figure is to be preferred over Plaintiffs' 10%+ figure), we still see no compelling reason to depart from the lodestar method. The lodestar establishes the amount of hours reasonably required to prosecute this action. Despite the relatively small amount of the 236 class members' claims, we mustas Congress has commanded by authorizing fee shifting"assume the absolute necessity of achieving" recovery for those claims. Anderson, 578 F.3d at 546. Departing from the lodestar, and awarding counsel less than what was reasonably required to litigate this matter, would be inconsistent with that congressionally required mindset given that the 236 claimants obtainedas Mayflower concedes [Dkt. 153 at 40]a full recovery for their actual damages under the Truth-in-Leasing provisions.[10] The 236 claimants here were not awarded a legal pittance because they failed to prove any actual damages. If any of their awards (averaging about $800 each) could be described as a pittance at all, the award could only be described that way because the claimant had a small claim to begin withwhich is no reason to apply Farrar, 1027 jettison the lodestar calculations, and deny fees, see Fletcher v. City of Fort Wayne, 162 F.3d 975, 976 (7th Cir.1998) ("[A] plaintiff with a small claim who achieves a complete recovery is entitled to fees, because civil rights laws entitle victims of petty violations to relief." (citation omitted)). Accordingly, we find no basis to depart from the lodestar method of calculating a fee award in this case under Farrar. b. Reduction for Unsuccessful Claims The second prong of the degree-of-success inquiry asks whether the plaintiff "fail[ed] to prevail on claims that were unrelated to the claims on which he succeeded." Hensley, 461 U.S. at 434, 103 S.Ct. 1933. Claims are "related" for Hensley purposes when they "involve a common core of facts" and the legal theories reasonably implicated by those facts, whether or not every legal theory turned out to be successful. Id. at 435, 103 S.Ct. 1933; see also Jaffee v. Redmond, 142 F.3d 409, 414 (7th Cir.1998) ("[W]e have recognized that courts may award fees for time reasonably spent on an unsuccessful argument in support of a successful claim. . . . [T]he touchstone in such a case is not whether a particular argument was successful, but rather whether it was reasonable." (citations omitted)). Unrelated claims are to "be treated as if they had been raised in separate lawsuits, . . . and no fee may be awarded for services on the unsuccessful claim." Hensley, 461 U.S. at 434-35, 103 S.Ct. 1933. In the face of unrelated claims, "the district court may attempt to identify specific hours that should be eliminated, or it may simply reduce the award to account for the limited success. The court necessarily has discretion in making this equitable judgment." Id. at 436-37, 103 S.Ct. 1933. Mayflower discusses at great lengths the adverse rulings to Plaintiffs that we entered in this case (chiefly, the decertification of state-law causes of action and the application of a two-year statute of limitations). [See, e.g., Dkt. 153 at 37-51.] It does not, however, argue that these setbacks reflect work on "unrelated claims" for Hensley purposes, at least not explicitly. And we do not think that those losses represent unrelated claims. The state law claims and the federal Truth-in-Leasing claims share a common core of factsi.e. when, if ever, did Mayflower refund the credits to Plaintiffs. Further, the dispute over the statute of limitations for the federal claim was a pure question of law on an otherwise successful claim for Plaintiffs. See Kurowski, 848 F.2d at 777 ("[A] losing argument in support of a successful claim for relief is fully compensable time." (citation omitted)). Nonetheless, some reduction under this prong of the lack-of-success inquiry is required. If the certified class had consisted solely of the 236 individuals who ultimately submitted claim forms, Mayflower would be hard pressed to claim that Plaintiffs failed to obtain a favorable result in this case. Those 236 members did, after all, recover 100% of their tax credits, with interest. [Dkt. 137-2 at ¶ 9.] Yet a problem arises because approximately 3,000 individualswhom counsel believed were class membersreceived claim forms but ended up receiving no money at all (owing to their failure to return the claim form).[11] Thus, Plaintiffs' counsel only obtained a successful result on approximately 7% of the "claims" remaining in the case after our rulings (236 claimants obtaining recovery / 3200 total claimants). The remaining 93% could have opted out of this action 1028 and brought their own suit for those claims. [See Dkt. 61 (approving class notice).] If the 93% had done so, based on this record, they would have obtained no recoverytherefore they would have been ineligible to obtain any attorneys' fees from Mayflower. It would be a very curious thing, indeed, if counsel were entitled to a fee for representing that 93% in this case, when counsel would not have been entitled to a fee for having represented them in separate litigation. We do not think that the law of fee shifting is nearly so curious; Plaintiffs' counsel's failure to obtain a successful result for them does not entitle counsel to fees attributable to their presence in the class. Cf. Tuf Racing, 223 F.3d at 592 ("[C]ase law indicates that . . . if [plaintiff] had incurred attorney's fees that were disproportionate to a reasonable estimate of the value of its claim, it could not recover all those fees, but only the reasonable proportion, which is to say[,] the amount that would have been reasonable to incur had the value of the claim been estimated reasonably rather than extravagantly." (citations omitted)). We will, therefore, deduct from the lodestar amount the marginal cost that those extra class members imposed on this litigation, while permitting counsel to recover the fixed costs of litigating on behalf of the first 236 class members. See Ustrak v. Fairman, 851 F.2d 983, 988-89 (7th Cir.1988) (noting that even if plaintiff had only asserted the one claim on which he prevailed, "[t]he defendant would still have had to be deposed"). Mayflower offers us no help in determining the marginal cost of adding approximately 3,000 more members to this litigation beyond a class limited to the 236 who obtained (full) recovery. [See Dkt. 153 at 50 (asking that we reduce any award "by a substantial percentage" to account of Plaintiffs' lack of success).] That failure is chargeable to Mayflower. See Pennsylvania v. Delaware Valley Citizens' Council for Clean Air, 478 U.S. 546, 565, 106 S.Ct. 3088, 92 L.Ed.2d 439 (1986) ("A strong presumption that the lodestar figurethe product of reasonable hours times a reasonable raterepresents a `reasonable fee' is wholly consistent with the rationale behind the usual fee-shifting statute. . . ."); Robinson v. City of Harvey, 489 F.3d 864, 872 (7th Cir.2007) (noting that party opposing the lodestar bears the burden of proof).[12] Given the difficulties inherent in calculating "elusive counterfactual" scenarios about how much time could have been saved had a case been litigated differently, Ustrak, 851 F.2d at 989, and given our burgeoning docket, it would be inappropriate for us to comb through the voluminous record in this case and consider every instance where things might have gone more quickly had the class only contained 236 members. See generally Smith v. Eaton, 910 F.2d 1469, 1470-1471 (7th Cir.1990) ("Especially now, when the court system is burdened to capacity, and when judicial resources are stretched to the very limit, our fiduciary duty to the institution we serve and to all the litigants who come before us requires that we be vigilant in enforcing the bar's responsibility to present issues clearly and comprehensively.") (footnote omitted). Nonetheless, we are certain that adding approximately 3,000 class members imposed some marginal cost (if for no other reason, counsel had to take time to review documents relating to the amount of their possible damages). Some reduction is, therefore, in order. Because class actions 1029 necessarily involve common questions of fact and law, see Fed. R. Civ. Pro. 23, we will assumein the absence of evidence to the contrarythat the marginal cost of their presence was a small one. Based on our experience in this case, and others, we assess it at 10% of the lodestar; anything more would be speculation. To account for Plaintiffs' counsel's recovery of damages for only 236 class members, we will reduce the lodestar figure by 10%, bringing it to $1,145,671.58. CONCLUSION Mayflower notes that, in 2001, it estimated that its exposure in this case was $277,309, a figure much closer to the actual judgment that we entered than was Plaintiffs' estimation at the time. [Dkt. 153 at 14.] Had Mayflower filed an offer of judgment in that amount back then, the resolution of this Motion would have been quite different. But it did not do that. Instead, this litigation continued for another eight yearsbut at a pace that Mayflower does not dispute was reasonable, except insofar as Plaintiffs rejected Mayflower's settlement demands. Accounting for that failure to settle, and excluding expenses attributable to litigating this action as a class containing more than just 236 members, a reasonable award of costs, including reasonable attorneys' fees, for Plaintiffs is $1,145,671.58. The judgment will so reflect. NOTES [1] All members of the bar of this Court, including those admitted pro hac vice, have agreed to abide by those Standards, which are available on the Court's website. L.R. 83.5(b), (c). [2] Over the life of this litigation, we have had numerous opportunities to describe Plaintiffs' underlying claims. See, e.g., Owner-Operator Indep. Drivers Ass'n v. Mayflower Transit, Inc., 227 F.Supp.2d 1014 (S.D.Ind.2002). We will, therefore, not exhaustively recount them here. [3] Throughout their briefing, the parties have assumed that the standards applicable to the fee shifting statutes for civil rights litigation, e.g. 42 U.S.C. § 1988, apply equally to the present case. Without definitively resolving the question, we will assume as much as well, except in one respect. Plaintiffs have not argued that they are entitled to prejudgment interest on their fee award, as would be available under 42 U.S.C. § 1988. See Missouri v. Jenkins, 491 U.S. 274, 283-84, 109 S.Ct. 2463, 105 L.Ed.2d 229 (1989). We will, therefore, also not consider the issue of prejudgment interest. [4] We note that Plaintiffs additionally claim that Mayflower unilaterally refunded $450,000 in escrow funds to the class as a result of this litigation. [Dkt. 148 at 38.] Mayflower vigorously denies that the refund had anything to do with this litigation, claiming instead that the refund reflected a natural evolution in its business and accounting practices. [E.g., Dkt. 161 at 6-7.] [5] The Indiana Rules of Professional Conduct apply to members of the bar of this Court. L.R. 83.5(g). [6] We note that Moriarty is ambiguous as to whether consideration of the settlement offer ought to occur as part of the lodestar calculation (i.e. as to the reasonableness of the hours incurred) or as a potential reduction after the lodestar calculations are complete. See id. (explaining that a rejected settlement may justify a fee "less than the lodestar calculation" while also explaining that rejected settlement does not necessarily require a modified "lodestar method.") As some other courts have done, see Vought v. Teamsters Gen. Union, 2008 WL 3981989, 5-6, 2008 U.S. Dist. LEXIS 67090, 15-16 (E.D.Wis. Aug. 22, 2008), we choose to evaluate the rejected settlement offers when calculating the lodestar in the first instance. In so doing, we more closely synthesize Moriarty (whose continuing validity Plaintiffs have not questioned) with the Seventh Circuit's recent opinion in Anderson, 578 F.3d 542. There, as we discuss later, the court disclaimed any language in Moriarty directly linking a plaintiff's ultimate recovery in a case with the reasonableness of the fee request. See id. at 546. Our approach is also consistent with the Supreme Court's command that we exclude from our "initial fee calculation" all hours that were "unnecessary" and would not have been expended with the exercise of reasonable billing judgment. Hensley, 461 U.S. at 434, 103 S.Ct. 1933. [7] Because Mayflower wanted to settle on a "global" basis, the "class" represented in the offers discussed in this paragraph is larger than the class that we certified. Mayflower's offers depended upon expanding the scope of that class and/or creating additional classes, to effectuate a global settlement. [8] We note that Plaintiffs report that their counsel took this matter on a "partial contingency fee basis." [Dkt. 150-1 at 8, ¶ 32.] Neither side has provided us with the particulars of that arrangement. But because Defendant's calculations about the rejected settlement offers assume that Plaintiffs' counsel would be paid dollar-for-dollar for all incurred fees and costs from any settlement, [e.g. Dkt. 153 at 16], so will ours. [9] Accordingly, we will not consider Mayflower's vague claim that Plaintiffs "filed ill-conceived" motions that "needlessly delayed final resolution." [Dkt. 153 at 44-45.] In the absence of specific argument explaining how particular motions delayed final resolution and, more importantly, by how muchwe note our general view that this action moved along as quickly as reasonably possible, given the unique evidentiary challenges, at least until the failed July 2007 settlement conference. [10] Because we decertified the state law cause of action, the claimants could not recover treble damages. Even accounting for that fact, the 236 claimants still obtained 33% of their "best" recovery, which is more than the 10% figure so important under Perlman and Cole. [11] The offer of judgment did not contemplate that money potentially owed to members who did not return claim forms would be placed into a cy pres fund. [12] See also Tuf Racing, 223 F.3d at 592 (not reducing a fee award where the defendant had not "shown" that the claim would have been litigated differently had plaintiff's counsel valued the case differently).	{ "pile_set_name": "FreeLaw" }
F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS MAY 15 1998 FOR THE TENTH CIRCUIT PATRICK FISHER Clerk MICHAEL BANKERT, Petitioner-Appellant, v. No. 97-2170 (D.C. No. CIV-95-864-SC) JOHN SHANKS, Warden; (D. N.M.) ATTORNEY GENERAL FOR THE STATE OF NEW MEXICO, Respondents-Appellees. ORDER AND JUDGMENT * Before BRORBY , BARRETT , and BRISCOE , Circuit Judges. After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore ordered submitted without oral argument. * This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. Plaintiff appeals from the district court’s dismissal of his petition for writ of habeas corpus, filed pursuant to 28 U.S.C. § 2254. 1 Petitioner was convicted in New Mexico state court of felony murder, trafficking by possession with intent to distribute cocaine on an accomplice theory, and conspiracy to traffic by possession with intent to distribute cocaine. The district court adopted the magistrate judge’s findings and recommendation and denied the petition. We review the district court’s denial of petitioner’s habeas petition de novo, see Sinclair v. Henman , 986 F.2d 407, 408 (10th Cir. 1993), and we affirm. On appeal, petitioner raises seven issues: (1) there was insufficient evidence of constructive possession of cocaine to support petitioner’s conviction of trafficking by possession with intent to distribute; (2) the jury instructions violated petitioner’s due process rights because they unconstitutionally relieved the prosecution of its burden of proving petitioner’s possession of the cocaine; (3) he was denied effective assistance of trial counsel; (4) he was denied effective assistance of appellate counsel; (5) there was insufficient evidence that the underlying felony was committed under inherently dangerous circumstances; (6) petitioner’s due process rights were violated by prosecutorial misconduct; and (7) the erroneous second degree murder instruction was inherently confusing 1 We granted a certificate of probable cause in this case on February 13, 1998. -2- for the jury. The facts of this case are set forth in the New Mexico Supreme Court opinion affirming petitioner’s conviction, see State v. Bankert , 875 P.2d 370 (N.M. 1994), and we will not repeat them here. Petitioner maintains that the state presented insufficient evidence of constructive possession of the cocaine to support his conviction for trafficking with intent to distribute cocaine on an accomplice theory. Because his conviction was as an accomplice, petitioner acknowledges that the state’s burden was to prove that he intended the crime be committed, the crime was committed, and petitioner helped, encouraged or caused its commission. To that end, the state was obligated to show that petitioner’s accomplice, Kathy Christison, constructively possessed the cocaine. Contrary to respondents’ assertion, we review the sufficiency of the evidence, a mixed question of law and fact, de novo. See Case v. Mondragon , 887 F.2d 1388, 1392, 1393 (10th Cir. 1989). Petitioner does not challenge the New Mexico Supreme Court’s or the magistrate judge’s statement of the evidence on this point, but he does argue that the stated evidence is insufficient to support the jury’s finding of possession. We disagree. New Mexico law states that “[a]n accused has constructive possession of narcotics found in the physical possession of his agent or any other person when the defendant has the immediate right to exercise dominion and control over the narcotics.” State v. Bauske , 525 P.2d 411, 413 (N.M. Ct. App. -3- 1974). The evidence shows that Ms. Christison paid for the cocaine, and, not only did she have the immediate right to exercise control over the amount of cocaine that was given her, she did exercise control to the extent she weighed it and demanded that it be supplemented. As it happened, she and petitioner chose to dispute the amount instead of accepting the lesser amount and, in the course of demanding the full negotiated amount of cocaine, petitioner killed Robert Martin. There was sufficient evidence to support the jury’s finding regarding possession. Petitioner also argues that there was insufficient evidence from which the jury could have found he committed the underlying drug felony under inherently dangerous circumstances. Again, we disagree. The evidence shows that, part way into the drug deal, the participants traveled to a different location to complete the transaction. Before entering the second location, but after it was apparent there was a dispute as to the amount of cocaine, petitioner armed himself with a gun he had hidden in the vehicle in which he was traveling. Later, during the dispute over the amount of cocaine, the victim threw the money Ms. Christison had tendered for the drugs onto the table and asked if she wanted it back, petitioner held the gun to the victim’s neck insisting that they wanted the full amount of cocaine, and then petitioner shot him. That petitioner chose to arm himself going into the further drug negotiations and that he held the gun to the victim’s head in -4- his attempt to get the full amount of cocaine is sufficient evidence to support the jury’s finding that he committed the crime of trafficking with intent to distribute under inherently dangerous circumstances. Next, petitioner takes issue with two jury instructions. First, he argues that his due process rights were violated because jury instruction number 10 relieved the state of its burden of proving the element of possession. The portion of the instruction that petitioner disputes states: “Two or more people can have possession of a substance at the same time.” R. Vol. III at 134. We fail to see how so instructing the jury relieved the state’s burden of proving possession by petitioner’s accomplice. It merely clarified for the jury that, if it determined that someone else had possession of the cocaine, that did not preclude a finding that Ms. Christison simultaneously had possession. The instruction did not, as petitioner argues, permit the jury to assume that Ms. Christison possessed the cocaine, despite having physically returned it to the seller. The instruction is consistent with New Mexico law, pursuant to which Ms. Christison could be found to have possessed the cocaine even when she no longer had physical possession of the drugs, because she had paid for them and had the immediate right to exercise control. See Bauske , 525 P.2d at 413. Petitioner has failed to demonstrate that this jury instruction so infected his trial as to render it -5- fundamentally unfair in violation of petitioner’s due process rights. See Maes v. Thomas , 46 F.3d 979, 984 (10th Cir. 1995). Petitioner also argues that the second degree murder instruction erroneously included provocation language that was inherently confusing to the jury. Petitioner did not object to the instruction at trial. We agree with the magistrate judge and the New Mexico Supreme Court that giving the instruction, regardless of whether it was correct under New Mexico law, was not fundamental error. The jury was given a “step-down” instruction that it should only consider the second degree murder instruction if it found petitioner not guilty of felony murder. See R. Vol. III at 142-43. The jury did find petitioner guilty of felony murder, and, therefore, the second degree murder instruction did not enter into the jury deliberations. See United States v. Coleman , 7 F.3d 1500, 1506 (10th Cir. 1993) (stating that the court can assume the jury followed the law). Petitioner maintains that his Sixth Amendment right to effective assistance of counsel was violated and that he was entitled to an evidentiary hearing on the matter. To prevail on an ineffective assistance of counsel claim, petitioner must show both that counsel’s performance fell below an objective standard of reasonableness and that counsel’s deficient performance prejudiced petitioner’s defense, that is, that there is a reasonable probability that, absent counsel’s errors, the outcome of the proceeding would have been different. See Strickland v. -6- Washington , 466 U.S. 668, 687-88, 694 (1984). Mainly, petitioner claims that his trial counsel was ineffective for choosing not to present any defense witnesses. The record shows that this was a tactical strategy that is “virtually unchallengeable.” Id. at 690. In addition, petitioner does not show that, had his counsel presented defense evidence, there is a reasonable probability that the outcome would have been different. Petitioner has shown neither deficient performance by counsel nor prejudice to his defense. Petitioner also alleges ineffective assistance of counsel regarding three specific trial occurrences. He complains that counsel did not raise a properly worded objection to jury instruction number 10, that counsel raised no objection to the second degree murder jury instruction, and that counsel pursued an improper line of questioning regarding Chester Smith, a convicted drug dealer who was also involved in the circumstances surrounding the murder. Petitioner has shown no prejudice resulting from these alleged errors by counsel. Petitioner also claims ineffective assistance of appellate counsel. He alleges that his appellate counsel neglected to raise a number of meritorious issues, only specifically citing ineffective assistance of trial counsel and prosecutorial misconduct. Petitioner has shown neither deficient performance nor prejudice regarding the unnamed issues. We have held herein that petitioner’s ineffective assistance of trial counsel and prosecutorial misconduct issues are -7- meritless, and, therefore, appellate counsel was not deficient for declining to include them. See United States v. Cook , 45 F.3d 388, 392-93 (10th Cir. 1995). Finally, petitioner points to several instances of prosecutorial misconduct. He complains that the prosecutor, in entering into immunity agreements with two of the witnesses, somehow implicitly required the witnesses to give perjured testimony; that the prosecutor improperly linked petitioner with Chester Smith; and that the prosecution knowingly presented perjured testimony. Absent an allegation of deprivation of a more specific constitutional right, prosecutorial misconduct does not warrant habeas relief “unless the conduct complained of made petitioner’s trial so fundamentally unfair as to deny him due process.” Mahorney v. Wallman , 917 F.2d 469, 472 (10th Cir. 1990) (quotation omitted). Petitioner’s claims do not meet this high burden. The immunity agreement of which petitioner complains provides immunity in exchange for truthful testimony. Petitioner has pointed to no evidence, but only makes a bald assertion, of any agreement to provide perjured testimony. Whether or not the witnesses actually testified truthfully is a credibility matter within the province of the jury. In addition, petitioner was already linked to Chester Smith because Mr. Smith was involved in the circumstances of the murder. As the magistrate judge found, the prosecution had the burden to establish a drug transaction, and evidence of Chester Smith’s known drug dealings was relevant to his role in the transaction. -8- Finally, petitioner does not support his conclusory allegation that the prosecution presented perjured testimony to represent the victim as an innocent bystander with any citation to the record. Even if petitioner’s allegation of perjured testimony were true, petitioner’s own representation of the evidence shows that the jury could not have reasonably believed any such perjured testimony. None of petitioner’s claims establish the fundamental unfairness of his trial. We AFFIRM the denial of the petition for habeas relief. We grant respondent’s motion to accept his answer brief as timely filed. Entered for the Court James E. Barrett Senior Circuit Judge -9-	{ "pile_set_name": "FreeLaw" }
200 F.Supp. 145 (1961) Morris R. ANDERSON, Plaintiff, v. PENNCRAFT TOOL COMPANY, Inc., a corporation, Defendant. No. 61 C 1307. United States District Court N. D. Illinois, E. D. December 18, 1961. Greenfield, Levin & Greenfield, Chicago, Ill., for plaintiff. Hough, Young & Coale, Chicago, Ill., for defendant. WILL, District Judge. This is a personal injury action here on removal from the Circuit Court of Cook County. The jurisdictional requirements of diversity and dollar amount are pleaded. Defendant now appears specially and moves to quash the service of summons on it in the State *146 Court action effected under the authority of Sections 16 and 17 of the Illinois Civil Practice Act (chapter 110, Ill.Rev.Stat. §§ 16, 17). Since the jurisdiction of a federal court on removal is a derivative jurisdiction, Lambert Run Coal Co. v. Baltimore & Ohio R. R. Co., 1922, 258 U.S. 377, 382, 42 S.Ct. 349, 66 L.Ed. 671, if the State Court lacked jurisdiction of the defendant, this Court acquired none on removal. Freeman v. Bee Machine Co., Inc., 1943, 319 U.S. 448, 449, 63 S.Ct. 1146, 87 L.Ed. 1509. Therefore, an inquiry into the sufficiency of service of process prior to removal is proper. Garden Homes v. Mason, 1 Cir.1956, 238 F. 2d 651, 653. Defendant's principal contention is that service was invalid because no tortious act had been committed by it within Illinois. This argument, however, was carefully considered and rejected by the Illinois Supreme Court in a remarkably similar recent decision, Gray v. American Radiator and Standard Sanitary Corporation et al., 22 Ill.2d 432, 176 N.E.2d 761 (rehearing denied September 20, 1961), which supersedes the various earlier decisions cited in defendant's brief. This Court is, of course, bound by the latest applicable decision of the Illinois Supreme Court on the subject. Rockwell v. United States Fidelity & Guaranty Co., D.C.M.D.Pa., 1955, 137 F.Supp. 317. In the Gray case, as alleged here, plaintiff was injured by an instrumentality manufactured and sold outside the state by a company whose only contact with Illinois in the transaction was the presence of its product at the occurrence of the accident. There, as here, defendant's affidavit stated that it did no business in Illinois, and that it had no agent physically present within the state. Notwithstanding, the Illinois Supreme Court denied defendant's motion to quash service of summons, reversing the lower court ruling. It held that the term "tortious act" as used in Section 17(1) (b) of the Illinois Civil Practice Act refers to an act which causes injury, and that technical distinctions between the word "tort" and "tortious" would not avail to defeat or obscure the intention of the legislature to extend the reach of the state's process as far as possible consistent with the limitations of the Fourteenth Amendment. It further held, after an exhaustive review of state and federal cases involving the question of minimum contact for purposes of service, that when the alleged liability arises from the manufacture of products presumably sold in contemplation of possible use in Illinois, even where the initial sale is to an out-of-state purchaser who subsequently ships into the state, the manufacturer can be said to have the requisite minimum contact, deriving as he does the benefits and protection of Illinois law in the marketing of his product. In the instant case, defendant makes no claim that it did not contemplate the use of its product in Illinois. Indeed, its own affidavit reveals that "all sales of tools by Penncraft Tool Company, Inc. to Illinois purchasers thereof are made f. o. b. Inkster, Michigan." Since the Gray case, supra, disposes of defendant's contentions, the motion to quash is denied. Defendant is directed to answer or otherwise plead within twenty days of the date hereof. An order consistent with the foregoing will be entered.	{ "pile_set_name": "FreeLaw" }
DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FOURTH DISTRICT SYLVERA MATHURIN, Appellant, v. STATE OF FLORIDA, Appellee. No. 4D14-4189 [December 10, 2014] Appeal of order denying rule 3.800 motion from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Matthew Destry, Judge; L.T. Case Nos. 08-020167 CF10A, 08-023460 CF10A & 08-023459 CF10A. Sylvera Mathurin, South Bay, Pro Se. No appearance required for appellee. PER CURIAM. Affirmed. St. Cyr v. State, 106 So. 3d 487, 489 (Fla. 4th DCA 2013); Blacker v. State, 49 So. 3d 785 (Fla. 4th DCA 2010), rev. denied, 108 So. 3d 656 (Fla. 2012). GROSS, TAYLOR and KLINGENSMITH, JJ., concur. * * * Not final until disposition of timely filed motion for rehearing.	{ "pile_set_name": "FreeLaw" }
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT WILFRED PAUL MILLER, ) ) Appellant, ) ) v. ) Case No. 2D14-3728 ) STATE OF FLORIDA, ) ) Appellee. ) ___________________________________ ) Opinion filed October 16, 2015. Appeal pursuant to Fla. R. App. P. 9.141(b)(2) from the Circuit Court for Polk County; John K. Stargel, Judge. Wilfred Paul Miller, pro se. SALARIO, Judge. Wilfred Paul Miller filed a motion under Florida Rule of Criminal Procedure 3.800(a) alleging that four of his six sentences arising from various child sexual offenses were illegal because they exceeded the applicable statutory maximum sentences for those offenses. The postconviction court denied the motion reasoning that Miller's sentences were legal because they were the lowest permissible sentences under the criminal punishment code. See § 921.002, Fla. Stat. (2014). That decision was mistaken because Miller's offenses predate the criminal punishment code, and as a result, the code does not apply to his sentences. Miller appeals the order denying his motion, and we are thus required to reverse and remand for reconsideration. On January 5, 1998, Miller was sentenced after pleading guilty to one count of sexual battery on a child, one count of attempted sexual battery on a child, and four counts of committing a lewd, lascivious, or indecent assault or act upon or in the presence of a child. The two sexual battery offenses were first-degree felonies for which Miller received probationary split sentences of ten years in prison followed by ten years of probation. The lewd or lascivious offenses were second-degree felonies for which Miller received probationary split sentences of five years in prison followed by ten years of probation. All sentences were to run concurrently. About nine years later, on March 28, 2007, Miller was sentenced for these offenses anew after his probation was revoked. This time, the sentencing court imposed a separate twenty-year sentence on each of the six counts with all sentences to run concurrently. Roughly seven years after that, on June 19, 2014, he filed a rule 3.800(a) motion to correct his sentence. Miller's motion stated that he was not challenging the two twenty-year sentences he received for the sexual battery and attempted sexual battery offenses. He alleged instead that the twenty-year sentences on the four lewd or lascivious counts were illegal because they exceeded the fifteen- year statutory maximum for second-degree felonies. See § 775.082(3)(c), Fla. Stat. (1988).1 1 The versions of section 775.082(3)(c) in effect when Miller alleges the offenses occurred range from 1988 to 1995. The statutory maximum for second-degree felonies set in section 775.082(3)(c) remained fifteen years at all times relevant to this appeal. -2- The postconviction court denied Miller's motion. It determined that the lowest permissible sentence under the criminal punishment code for lewd or lascivious assault or act involving a child was twenty years. It then applied the rule that when the lowest permissible sentence under the code exceeds the applicable statutory maximum sentence, the lowest permissible sentence under the code must be imposed. See § 921.0024(2), Fla. Stat. (1998); Fla. R. Crim. P. 3.704(d)(25); Perkins v. State, 123 So. 3d 678, 678 (Fla. 2d DCA 2013). Because Miller's sentences were the lowest permissible sentences under the code, the postconviction court held that they were legal sentences and, as a result, that Miller was not entitled to relief under rule 3.800(a). The difficulty with the postconviction court's reasoning is that Miller was never subject to sentencing under the criminal punishment code. By its terms, the code applies only to "felony offenses, except capital felonies, committed on or after October 1, 1998." § 921.002. It does not apply to offenses committed before its October 1, 1998, effective date. See Gautreaux v. State, 95 So. 3d 1012, 1014 (Fla. 2d DCA 2012). It is clear from the face of our record that Miller was initially sentenced on January 5, 1998. It is thus equally clear from our record that Miller's offenses occurred before the criminal punishment code became effective. When the sentencing court sentenced Miller a second time after revoking his probation in March 2007, it was authorized by statute only to impose a sentence it might have imposed when Miller was initially sentenced. See § 948.06(2)(b),(e), Fla. Stat. (2006); see also Savage v. State, 120 So. 3d 619, 623 (Fla. 2d DCA 2013). It had no authority to impose a sentence that was not available for Miller's offenses at the initial sentencing. See Finney v. State, 9 So. 3d 741, 744 (Fla. 2d DCA 2009); see also -3- Hopkins v. State, 711 So. 2d 603, 604 (Fla. 1st DCA 1998) (reversing seventeen-year sentence imposed after defendant violated probation after conviction for lewd or lascivious act upon a child where the maximum allowable sentence at the time of the offense was fifteen years). Because Miller's offenses occurred before the effective date of the criminal punishment code, the postconviction court could not properly rely on the code as authorization for the sentences he received for those offenses. Miller's rule 3.800(a) motion was facially sufficient. Because the postconviction court's reasons for denying that motion were mistaken as a legal matter, we are required to reverse. However, we cannot determine from the limited appellate record—which consists only of Miller's motion, the postconviction court's order, and a handful of attachments—whether the twenty-year sentences on the four lewd or lascivious counts were in fact illegal as Miller now asserts. Accordingly, we must remand for reconsideration of his motion by the postconviction court. On remand, the postconviction court shall determine whether the face of the sentencing court record demonstrates that it was illegal for the sentencing court to impose sentences in excess of the statutory maximum for Miller's four lewd or lascivious offenses.2 See Johnson v. State, 60 So. 3d 1045, 1049-50 (Fla. 2011) (holding that rule 2 To the extent that Miller also asserted that his sentences are illegal because a defendant who violates probation on a true split sentence is protected by the double jeopardy clause from the imposition of a sentence upon revocation that exceeds the suspended portion of the split sentence or the aggregate of the original sentence, the record supports the denial of that claim without further consideration by the postconviction court. The record demonstrates that Miller received a probationary split sentence, not a true split sentence. See Moore v. Stephens, 804 So. 2d 575, 577 (Fla. 5th DCA 2002) ("A 'true' split sentence consists of a total period of confinement with part of that confinement suspended. . . . In contrast, a 'probationary' split sentence involves a period of incarceration followed by a period of probation."). When a defendant receives a probationary split sentence, "resentencing to a greater prison term upon -4- 3.800(a) allows correction of "sentencing errors that may be identified on the face of the record" and that "no evidentiary hearing is allowed" (quoting Williams v. State, 957 So. 2d 600, 612 (Fla. 2007); Brooks v. State, 969 So. 2d 238, 242 (Fla. 2007))). In that regard, Miller's motion alleged that the sentencing court record demonstrates that three of these offenses occurred between 1988 and 1992, while the fourth occurred in 1996. What the sentencing court record reflects about when Miller's offenses occurred will necessarily inform whether the sentencing court could have imposed sentences under those guidelines that exceeded the statutory maximum. See Floyd v. State, 721 So. 2d 1163, 1164 (Fla. 1998) (holding that under the 1994 amendments to the sentencing guidelines, "if the guidelines sentence—i.e., the 'true' recommended guidelines sentence—exceeds the statutory maximum, the court is authorized to impose the guidelines sentence"); Mays v. State, 717 So. 2d 515, 516 (Fla. 1998) ("Prior to 1994, a court could not impose a guidelines sentence outside the statutory limits."); Cutts v. State, 903 So. 2d 310, 311 (Fla. 2d DCA 2005) (discussing preparation of separate scoresheets where multiple offenses occurred when differing versions of the guidelines prevailed). The postconviction court shall attach to its order deciding Miller's motion copies of those portions of the sentencing court record upon which it relies in reaching its decision. See generally White v. State, 72 So. 3d 802, 802 (Fla. 1st DCA 2011). Reversed; remanded with instructions. MORRIS and BLACK, JJ., Concur. violation of probation does not violate double jeopardy or any other constitutional provisions." State v. Wayne, 531 So. 2d 160, 161 (Fla. 1988) (citing Poore v. State, 531 So. 2d 161, 163-64, 165 (Fla. 1988)). -5-	{ "pile_set_name": "FreeLaw" }
334 A.2d 225 (1975) NOBLE J. DICK, INC., a Pennsylvania Corporation, Defendant Below, Appellant, v. William WARBURTON et al., Plaintiff, Defendants and Third-Party Defendant Below, Appellees. Supreme Court of Delaware. Argued February 18, 1975. Decided March 4, 1975. David Snellenburg, II, Wilmington, for appellant. William F. Taylor and Jack B. Jacobs, Young, Conaway, Stargatt & Taylor, Wilmington, for Phoenix Steel Corp., appellee. James T. McKinstry, Richards, Layton & Finger, Wilmington, for E. W. Bliss Co., appellee. Before DUFFY and McNEILLY, JJ., and WALSH, Judge. PER CURIAM: This appeal brings up for review an order of the Superior Court, entered on cross-motions for summary judgment. The effect of the order is to validate an indemnification agreement and defer until trial the legal significance of a release. We approve the analysis by the Superior Court of the indemnity agreement. 321 A.2d 345 (1973). The agreement clearly and unequivocally requires the contractor to indemnify the owner and the prime contractor against any liability for their own negligence, respectively. In brief, the agreement meets the tests stated in All-State Inv. and Sec. Agcy., Inc. v. Turner Const. Co., Del.Supr., 301 A.2d 273 (1972), and State v. Interstate Amiesite Corp., Del.Supr., 297 A.2d 41 (1972). The Court deferred a ruling on the legal significance of the release given by the contractor to the prime contractor until after trial. We cannot say as a matter of law it was error to do so. Affirmed.	{ "pile_set_name": "FreeLaw" }
296 F.2d 107 In the matter of GINGER MACHINE PRODUCTS CORPORATION,Alleged Bankrupt.George L. GINGER, Appellants,v.DETROIT TRUST COMPANY, also known as The Detroit Bank andTrust Company, Receiver, Appellee. No. 14487. United States Court of Appeals Sixth Circuit. Dec. 4, 1961. George L. Ginger, Detroit, Mich., in pro. per., for appellant, Henry W. Harmon, Detroit, Mich., on the brief. George P. Dakmak, Kenney, Radom & Rockwell, and Avern Cohn, Detroit, Mich., for appellee. George P. Dakmak, Schmier & Schmier, Detroit, Mich., for trustee. Before MILLER, Chief Judge, and WEICK and O'SULLIVAN, Circuit Judges. PER CURIAM. 1 This is an appeal from an order of the District Court denying a petition for review of an order of the Referee in Bankruptcy closing the bankrupt's estate. No brief was filed in this Court by appellee. Both parties were heard, however, at oral argument. The Referee had issued an order to show cause why the estate should not be closed. In response thereto, appellants filed an answer alleging that certain matters referred to a former Referee by the District Court, by order entered on May 16, 1952, had not been disposed of. A hearing was had and the Referee found that each of said matters had in fact been adjudicated by orders entered by said former Referee on September 1 and 2, 1955. No petition was ever filed by appellants for review of said orders of said former Referee within ten days after the entry thereof as provided by statute. 39, sub. c of the Bankruptcy Act, 11 U.S.C.A. 67, sub. c. Appellants previously had sought a collateral review of said orders by motion filed in the District Court which was denied. In the present proceedings, appellants again seek to collaterally attack said orders of said Referee. These orders are not subject to collateral attack. Johnson v. Wilson, 118 F.2d 557 (C.A.9). 2 The Referee found that the said orders of the former Referee finally disposed of all matters remaining for disposition in the bankrupt's estate and ordered that it be closed. We find no error in the order of District Judge Kaess affirming the order of the Referee. 3 The order of the District Court is, therefore, affirmed.	{ "pile_set_name": "FreeLaw" }
869 F.2d 1485 U.S.v.Halsell* NO. 88-1535 United States Court of Appeals,Fifth Circuit. MAR 01, 1989 1 Appeal From: W.D.Tex. 2 AFFIRMED. * Fed.R.App.P. 34(a); 5th Cir.R. 34.2	{ "pile_set_name": "FreeLaw" }
210 F.Supp. 597 (1962) Martin J. WELSH and Elsie N. Welsh, Plaintiffs, v. UNITED STATES of America, Defendant. Civ. A. No. 36882. United States District Court N. D. Ohio, E. D. October 5, 1962. Daniel R. McCarthy, Cleveland, Ohio, for plaintiffs. Leonard Goldberg and Solomon Fisher, Tax Div., Dept. of Justice, Washington, D. C., for United States. CONNELL, Chief Judge. The present action is brought by the taxpayer against the Government for the refund of certain taxes alleged to have been erroneously assessed and collected. The case was heard before this Court and the opposing parties submitted briefs. We shall quote from the brief of the Government the statement of facts which are not in dispute: "Taxpayers timely filed joint income tax returned for each of the years 1955, 1956 and 1957 with the District Director of Internal Revenue. Subsequently, the taxpayers timely filed claims for refund alleging, inter alia, that, although not originally 598 so claimed on their returns, they were entitled to an additional deduction in each of the years for certain educational expenses incurred by taxpayer, Martin J. Welsh. These claims were disallowed, and this action followed. Since Elsie N. Welsh is a plaintiff solely because joint returns were filed, references to taxpayer will be to Martin J. Welsh only. "The sole issue in this case is whether taxpayer may properly deduct, under Section 162 of the Internal Revenue Code of 1954, expenditures for tuition and books in obtaining a law degree. The taxpayer expended $388.12 in 1955, $423.47 in 1956 and $536.07 in 1957 for tuition and books. The Government disputes that they are properly deductible. "In February, 1955, taxpayer enrolled as a degree candidate at the Cleveland Marshall Law School. (Tr. 38, 47.) At this time, he was an Internal Revenue Agent assigned to a Fraud Group, but he had requested a transfer to the Intelligence Division of the Internal Revenue Service as a Special Agent and had been promised the transfer. Shortly after entering law school, he was transferred to the Intelligence Division as a Special Agent. (Tr. 60.) "As a degree candidate, he attended law school at night until he received his LL. B. degree in April, 1959. He took the bar examination of the State of Ohio in July of 1959 but did not pass. (Tr. 35.) "In March of 1960, taxpayer took the Bar examination again, passed and he was admitted to the Ohio Bar in June of 1960. Shortly thereafter, on July 5, 1960, taxpayer left the employ of the Internal Revenue Service and entered the private practice of law in Cleveland, Ohio." The issue presented to the Court is the deductibility of the educational expenses as ordinary and necessary expenses within the contemplation of Section 162(a) of the Internal Revenue Code of 1954. Both parties claim support from the Regulations under that section. Section 1.162-5 (a) provides that educational expenditures are deductible if the education is undertaken primarily for the purpose of: (1) Maintaining or improving skills required by the taxpayer in his employment or other trade or business. This is the only applicable portion of the Regulation. The commentary under that Regulation is as follows: "Whether or not education is of the type referred to in subparagraph (1) of this paragraph shall be determined upon the basis of all the facts of each case. If it is customary for other established members of the taxpayer's trade or business to undertake such education, the taxpayer will ordinarily be considered to have undertaken this education for the purposes described in subparagraph (1) of this paragraph." Under paragraph (b), the following tests are described: "Expenditures made by a taxpayer for his education are not deductible if they are for education undertaken primarily for the purpose of obtaining a new position or substantial advancement in position, or primarily for the purpose of fulfilling the general educational aspirations or other personal purposes of the taxpayer. The fact that the education undertaken meets express requirements for the new position or substantial advancement in position will be an important factor indicating that the education is undertaken primarily for the purpose of obtaining such position or advancement, unless such education is required as a condition to the retention by the taxpayer of his present employment. In any event, if education is required of the taxpayer in order to meet the minimum requirements for qualification or establishment in his intended trade or business or specialty therein, expense of such education is personal in nature and therefore is not deductible." 599 With this introduction or basis for our consideration of the case at issue, we take up first the question of whether the education undertaken was customary for other established members of the taxpayer's trade or business within the meaning of paragraph (a) of the Regulation referred to above. The parties to the action in their presentation of the case in Court and in their briefs did not consider this point separately, nor did they place much importance upon the point. But the Regulation itself clearly indicates that if it is customary within the trade or profession to undertake such an education, the taxpayer will ordinarily be considered to have undertaken the education for the purposes which will allow the deduction. The only evidence upon the point was presented incidentally. The record indicates that several of the taxpayer's co-workers had attended or were in fact attending law school during the time of their government service. More significant to the case of the taxpayer, several of the individuals had obtained their law degree and remained with the Service. There was no evidence in rebuttal that this practice of attending law school was at all unusual for parties in the same position as the plaintiff herein. Thus, although we might not be warranted in making a finding that this was the usual or customary practice so as to give rise to the ordinary inference that the educational expenses are deductible, there is certainly no basis for finding the education so unusual as to give rise to a contrary inference. In fact, the evidence in the case, especially that of Mr. Myers, would indicate that the practice is not at all unusual but is in fact one that is and should be encouraged. Moreover, the Regulation indicates that the question of deductibility is to be determined upon the basis of all the facts of each case. For that reason, we believe that hard and fast rules are not available in this area. Although we have been aided by citations of cases by both sides, we have not been referred to any cases we regard as controlling authority in the peculiar facts of this case. The first sentence in paragraph (b) supra introduces the element of subjective intent into the question of whether the expenses are deductible or not, and this was the basis on which the case was tried. In his opening statement, the attorney for the Government stated, "The primary and really the sole issue in this case would seem to be whether or not Mr. Welsh took these courses for the purpose of maintaining and improving the skills required by him as a Special Agent, or, whether he took these courses for personal reason, among those being to qualify himself to go into the practice of law." (Tr. pp. 15 and 16). Proceeding to the question of the intention of the taxpayer in undertaking the education herein involved, we specifically find as a matter of fact that the primary intention of the taxpayer in undertaking his legal education was to maintain and/or improve the skills required in his employment. The Government counsel has argued ably that the intention of the taxpayer was to obtain his law degree, leave the Service and enter into the private practice of law. There is no denying that such an intention would bar his claim for a deduction. The greater portion of the Government brief filed in this case is devoted to the question of the inference to be drawn from the evidence in the case. The case was heard before the Court without a jury, and this Court had the opportunity to listen to the testimony of the taxpayer and observe his demeanor upon the stand. His credibility was called squarely into issue, and this Court finds his testimony logical, consistent and true. The most damaging evidence introduced to impeach were statements of an intention to practice law made to his law school and to the Supreme Court of this state. We find the taxpayer's explanation to be no great strain upon the credulity of the Court. It was his testimony that the law school itself supplied the very statement which is now introduced to show the intention of the taxpayer. Is it not within common experience that applicants seeking any kind of admission 600 anywhere state that which they consider pleasing to those in authority granting or denying admission? It is not in accord with common sense to rely upon such statements alone in the face of very cogent contradictory evidence. As further evidence of the intention ab initio to practice law, the Government points to the taxpayer's taking of the bar exam and his departure from the Service shortly after admission to the bar. Strictly speaking, this is only proof of the intention existing at the time of the specific action. As evidence of the taxpayer's intention at the time of his actual study, it only raises a permissible inference. That inference was refuted by the testimony of the taxpayer to the effect that he did not form the intention to leave the service and enter the private practice of law until after the successful passage of the bar examination. The occasion for the change of intention was a number of offers from people who approached him after he had passed the exam. (Tr. p. 41). This again is consistent with his previous testimony. All of us in the practice of law have experienced a change of plans because of the unexpected opportunity. Significantly, these people approached him, rather than the opposite situation, which supports a belief that his intention to remain with the service survived through the actual passing of the bar examination. We ground our belief that the taxpayer never entertained an intent to leave the Government Service during the period herein involved not only upon his own convincing testimony, but also upon his situation during the period of his education. The taxpayer was a veteran on whom the war had left an ineradicable mark and for whom Government Service offered the security the doctor prescribed. (Tr. p. 18). It would be a difficult inference from ambiguous acts to a conclusion that the taxpayer would choose to burden himself with evening law school so that he might leave the security of the Government Service his doctor recommends in order to enter the legal profession. Whatever else that profession offers is difficult to categorize, but its principal attraction has never been security. The Government attacks the individual courses taken by the taxpayer, attempting to show either that some of the courses were of no value in maintaining or improving skills necessary to the work of the taxpayer, or else implying that the courses taken reveal an intention fatal to the cause of the taxpayer herein. The Government points to such courses as Pleading or Legal Writing as examples. Without proceeding to a defense of liberal education, this Court believes that the view of the Government is too restrictive and in fact opposed to the accepted notions of an adequate grounding in any field of the law. The argument of the Government in its full rigor would restrict the permissible area of investigation for this taxpayer to a study only of the peculiar cases with which he was concerned. Although we are not prepared to state that it was absolutely necessary to his profession that the taxpayer be soundly grounded in all areas of the law, it is untenable to categorically deny that any course but taxation could have any value to the taxpayer in his work. In a broader attack, the Government argues that because the course of education undertaken by the taxpayer results in the acquisition of a new skill, the expenditure is not deductible. A reading of paragraph (b) supra indicates that this is only a permissible inference mitigating against a finding of the requisite primary purpose. The Regulations do not say that such a factor is dispositive. We believe that such a rule of thumb is wooden, and does violence to the normal interpretation of the law. Resorting to a reductio ad absurdum, such a rule could reduce every dispute in the area to a search for some skill apart from the taxpayer's present trade or profession for which his education prepares him, and if one be found, no matter the intention of the taxpayer, the deduction would be denied. The Regulations indicate that the intention of the taxpayer is dispositive. If the course of study leads to the acquisition of a new skill or 601 satisfies the express requirements of an advancement, this is an important factor in determining the primary intention of the taxpayer. But if the intention be otherwise established, this factor does not change the result. In conclusion, we find that the taxpayer has borne his burden. He has established to the satisfaction of this Court his primary intention in undertaking the educational courses, that they are ordinary and necessary within the meaning of Section 162 of the Internal Revenue Code of 1954 and the specific facts of this case, that they were useful in his work in imparting the skill and the confidence beneficial to his employer, and that they were not undertaken for the purpose of acquiring a new skill. Accordingly, judgment shall be entered for the taxpayer.	{ "pile_set_name": "FreeLaw" }
Filed 11/4/15 P. v. Whitfield CA2/2 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION TWO THE PEOPLE, B255148 Plaintiff and Respondent, (Los Angeles County Super. Ct. No. NA096558) v. DAVION TYRONE WHITFIELD, Defendant and Appellant. APPEAL from a judgment of the Superior Court of Los Angeles County. Tomson T. Ong, Judge. Affirmed. Jeffrey J. Douglas, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Noah P. Hill, Garrett A. Gorlitsky, and Blythe Leszkay, Deputy Attorneys General, for Plaintiff and Respondent. Defendant and appellant Davion Tyrone Whitfield (defendant) appeals his robbery conviction, claiming that it was unsupported by substantial evidence. Finding no merit to defendant’s contention, we affirm the judgment. BACKGROUND Defendant was charged with second degree robbery in violation of Penal Code section 211.1 The information also alleged that defendant personally used a deadly and dangerous weapon, a knife, in the commission of the offense, within the meaning of section 12022, subdivision (b)(1). The information further alleged pursuant to 667, subdivision (a)(1), that defendant had suffered a prior serious felony conviction which qualified as a strike within the meaning of the “Three Strikes” law (§§ 667, subd. (b)-(i) & 1170.12, subd. (a)-(d)). A jury found defendant guilty of second degree robbery as charged, but found not true the allegation that defendant personally used a deadly and dangerous weapon. In a bifurcated proceeding, defendant admitted the prior conviction allegations. On March 20, 2014, the trial court sentenced defendant to total prison term of 15 years, comprised to the upper term of five years, doubled as a second strike, plus five years due to the prior serious felony. The court imposed mandatory fines and fees, and granted defendant 254 days of custody credit, which included 221 actual days and 33 days of conduct credit. Defendant filed a timely notice of appeal from the judgment. Evidence Defendant entered the New Liquor Market in Long Beach on August 11, 2013, with a large, school-type backpack which looked empty. While in the store defendant picked up some pastries and a beer and walked toward the front door of the store. The cashier, Josefina Gonzalez, testified that she had seen defendant take items from the store without paying for them on prior occasions. She had told defendant to stop taking things and had warned him the next time she would call the police. Gonzalez alerted another 1 All further statutory references are to the Penal Code, unless otherwise indicated. 2 store employee, Donald Womack, who came out of the stock room and followed defendant out of the store. Womack testified that he first saw defendant while he was still in the store by the front door, trying to put a two-liter bottle of soda in his backpack. As defendant walked out of the store without paying Womack called him to come back. Defendant continued to the sidewalk outside, still trying to get the soda into his backpack, which he held in front of him. As Womack followed, defendant’s back was toward him and he could not see the backpack, but it appeared to Womack that defendant was still trying to get the soda inside. Womack told defendant to bring back the item, that they had called the police, and that the police would be coming. When Womack approached to within five to ten feet of defendant, defendant partially turned toward Womack. Womack described how defendant twisted his upper body around enough for Womack to see the backpack. Defendant appeared to be pulling something out of the backpack in order to make room for the soda bottle. When he got the object part-way out of the backpack, while still trying to put the soda inside, Womack saw a knife. Womack saw enough to estimate the knife’s length as about 10 to 11 inches long. Though defendant did not fully remove the knife from the backpack and he did not point the knife or threaten to cut Womack, Womack was afraid and felt threatened. Fearing for his safety, Womack went back into the store and Gonzalez called 911.2 2 As part of his statement of facts and again in his argument, defendant quotes the following comment, made by the court during an instruction conference: “Now, I will share with you that it actually should be petty theft with a prior.” Defendant implies that the court was commenting on the evidence; however, it was not a comment on the evidence. The court was referring to instructions on lesser included offenses, and was giving defense counsel the option to have the court instruct as to petty theft with a prior conviction or just petty theft. Counsel chose just a petty theft instruction. 3 DISCUSSION Defendant contends that there was insufficient evidence to support a robbery conviction. “The proper test for determining a claim of insufficiency of evidence in a criminal case is whether, on the entire record, a rational trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] On appeal, we must view the evidence in the light most favorable to the People and must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.]” (People v. Jones (1990) 51 Cal.3d 294, 314.) “The same standard applies when the conviction rests primarily on circumstantial evidence. [Citation.]” (People v. Kraft (2000) 23 Cal.4th 978, 1053.) “An appellate court must accept logical inferences that the jury might have drawn from the circumstantial evidence. [Citation.]” (People v. Maury (2003) 30 Cal.4th 342, 396.) “[B]ecause ‘we must begin with the presumption that the evidence . . . was sufficient,’ it is defendant, as the appellant, who ‘bears the burden of convincing us otherwise.’ [Citation.]” (People v. Hamlin (2009) 170 Cal.App.4th 1412, 1430.) Reversal on a substantial evidence ground “is unwarranted unless it appears ‘that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].’ [Citation.]” (People v. Bolin (1998) 18 Cal.4th 297, 331.) “Robbery is the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear.” (§ 211.) “‘[T]he crime of robbery is a continuing offense that begins from the time of the original taking until the robber reaches a place of relative safety.’ [Citation.] It thus is robbery when the property was peacefully acquired, but force or fear was used to carry it away. [Citation.]” (People v. Anderson (2011) 51 Cal.4th 989, 994; see also People v. Flynn (2000) 77 Cal.App.4th 766, 771-772.) A robbery may consist of the use of force or fear to prevent a store employee from retaking stolen property. (See People v. Estes (1983) 147 Cal.App.3d 23, 27-28.) 4 Defendant does not contend that the evidence was insufficient to prove that he took items from the store with the intent to steal them. He argues that there was no evidence that he attempted or intended to use the knife to threaten Womack or apply force to him, and no evidence that defendant was even aware of Womack’s presence. Defendant argues that the evidence instead suggested that the exposure of the knife was merely incidental to defendant’s effort to insert the soda bottle into his backpack, and it was thus accidentally viewed by Womack. Defendant’s arguments are based upon the flawed premise that the prosecution was required to prove that defendant intended to frighten Womack or to use the knife to apply force to him. Neither intent was required, as the only specific-intent element of robbery is the intent to steal; “robbery does not include an intent to apply force against the victim or to cause the victim to feel fear.” (People v. Anderson, supra, 51 Cal.4th at p. 991; see also p. 995.) Even an accidental act of force or intimidation by which the taking or carry away is accomplished is sufficient, so long as it was motivated by the intent to steal. (Id. at pp. 994-995, 999 [car thief accidentally struck owner with car].) Nor was the prosecution required to prove that defendant threatened or attempted to use force against Womack. While most robberies involve actual or threatened force which causes the victim to be afraid, the victim’s fear need not be the result of an express threat or induced by the defendant’s use of a weapon. (People v. Morehead (2011) 191 Cal.App.4th 765, 775; People v. Flynn, supra, 77 Cal.App.4th at p. 771.) Robbery convictions have been upheld in cases where the defendant merely displayed a weapon without threatening to use it against the victim. (See, e.g., In re Anthony H. (1980) 108 Cal.App.3d 494, 497 [defendant blocked victim’s path while holding a knife]; People v. Harris (1977) 65 Cal.App.3d 978, 989 [use of butcher knife to open display case].) Since the evidence establishing that the knife was exposed as defendant attempted to place a stolen soda into his backpack, it is indisputable that his conduct was motivated by his intent to steal the soda. Under such circumstance, even if defendant had intended only to move the knife to facilitate the insertion of the soda, and even if Womack’s observation of the knife could reasonably be construed as accidental, such facts would 5 provide no defense to robbery. (See People v. Anderson, supra, 51 Cal.4th at pp. 994- 995, 999.) “To establish a robbery was committed by means of fear, the prosecution ‘must present evidence “. . . that the victim was in fact afraid, and that such fear allowed the crime to be accomplished.”’ [Citations.]” (People v. Morehead, supra, 191 Cal.App.4th at p. 772.) “It follows . . . that the willful use of fear to retain property immediately after it has been taken from the owner constitutes robbery. So long as the perpetrator uses the victim’s fear to accomplish the retention of the property, it makes no difference whether the fear is generated by the perpetrator’s specific words or actions designed to frighten, or by the circumstances surrounding the taking itself.” (People v. Flynn, supra, 77 Cal.App.4th at p. 772.) Contrary to defendant’s argument that there was no evidence that defendant was aware of Womack’s presence, the jury could reasonably have inferred from the circumstances that defendant was aware that Womack had followed him. Womack testified that as defendant was walking out the front door, he called to him to come back. He said something like, “Come here. Bring me the stuff back. We called the police.” Womack demonstrated for the jury how loud his voice was when he called to defendant. Defendant points to no evidence to suggest Womack’s voice was not loud enough for defendant to hear him. When defendant reached the sidewalk and Womack was within five or ten feet of him, defendant was facing away, but he twisted his upper body around so that his front-held backpack became visible to Womack.3 It was then that defendant pulled the knife part of the way out of the backpack as he continued to try to insert the stolen soda. Womack testified that as soon as defendant pulled out the knife, Womack was afraid, felt threatened, and returned to the store. 3 Defendant’s claim that he “never turned toward Womack, ‘even slightly’” is a mischaracterization of the record and a misquote. The prosecutor asked, “Did he turn slightly toward towards you?” After his confusing reply, “No, no, uh-huh,” Womack gave a demonstration and explained, “He twisted his body, but he didn’t turn his whole body.” The court stated: “The record will reflect it appears he pulled his right shoulder back towards the person behind him.” 6 From such evidence the jury could reasonably infer that defendant turned toward Womack because he knew Womack was following him. In addition, the jury could reasonably infer that defendant was aware that he had a large knife in his hand and knew that his conduct would cause fear. Indeed, when first asked whether he was afraid for his safety upon seeing the knife, Womack replied, “I think anybody would be.” The jury could also reasonably infer from the circumstances that Womack immediately returned to the store because of the fear caused by seeing the knife. Finally, the jury could reasonably infer that the fear which caused Womack to return to the store prevented Womack from recovering the stolen items. In sum, substantial evidence supported a finding “‘“that the victim was in fact afraid, and that such fear allowed the crime to be accomplished.”’ [Citations.]” (People v. Morehead, supra, 191 Cal.App.4th at p. 772.) DISPOSITION The judgment is affirmed. NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS. ____________________________, J. CHAVEZ We concur: __________________________, P. J. BOREN __________________________, J. ASHMANN-GERST 7	{ "pile_set_name": "FreeLaw" }
782 F.Supp.2d 1183 (2011) Julianne PANAGACOS, et al., Plaintiff, v. John J. TOWERY, et al., Defendant. Case No. C10-5018RBL. United States District Court, W.D. Washington, at Tacoma. March 1, 2011. 1186 Lawrence A. Hildes, Bellingham, WA, for Plaintiff. J. Michael Diaz, United States Attorney's Office, Kathryn C. Pineda, Michael D. McKay, Thomas Matthew Brennan, McKay Chadwell, Pallavi Mehta Wahi, Samuel R. Castic, Theodore J. Angelis, K & L Gates LLP, Mark N. Bartlett, Davis Wright Tremaine, Seattle, WA, Donald L. Law, Law Lyman Daniel Kamerrer & Bogdanovich, Olympia, WA, Jean Pollis Homan, Tacoma City Attorney's Office, Tacoma, WA, for Defendant. ORDER RONALD B. LEIGHTON, District Judge. THIS MATTER comes before this Court upon Defendant Colvin's Motion to Dismiss pursuant to Rule 12(b)(6), or in the alternative, Motion for Summary Judgment pursuant to Rule 56 [Dkt. # 49]. The Court has considered the entirety of the records and file herein. Oral argument is not necessary to decide the issues in this motion. The Court's ruling is set forth below. I. BACKGROUND Plaintiffs are members of a group known as Port Militarization Resistance (PMR). The group protests the use of public ports in Western Washington for shipments of military equipment used in the wars in Iraq and Afghanistan. One of many defendants is Clinton D. Colvin, Special Agent (S/A), United States Coast Guard Investigative Service (CGIS). S/A Colvin is now retired from his civilian position with CGIS. Plaintiffs' Third Amended Complaint[1] is based on events beginning in March, 2007, and culminating in plaintiffs' arrests by Olympia police officers during several days of protests outside the Port of Olympia in November, 2007. The plaintiffs were protesting the offloading of the USNS Brittin, which carried military equipment that had been used by the Fort Lewis Stryker brigade in Iraq. Plaintiffs' poorly drafted Third Amended Complaint makes the following specific allegations against S/A Colvin: Defendant COLVIN, and others as yet unknown, either directly infiltrated and spied on Port Militarization Resistance (an avowedly peaceful and nonviolent anti War Group based in Olympia, WA), and other groups in that area, by lying about his affiliations and purposes, and falsely identifying himself for the purpose of spying on their meeting and activities, disrupting those activities, and identifying individuals 1187 and groups of individuals to be arrested and/or targeted despite their lack of actual illegal activity, or directed other, younger members or employees of the CGIS to do so and then supervised those individuals. COLVIN is and was also in the dissemination lists of Rudd's Force Protection memoranda, Threat Assessments and other reports and responsible for providing material therefor. These groups and individuals were targeted specifically because the Army, local law enforcement including the Olympia and Tacoma Police Departments, and other agencies, did not like the content of the speech involved. Rudd took Colvin's information, and that of others engaged in illegal surveillance, spying, and searches and seizures and produced memoranda, Force Protection Reports, and Threat Assessments as if these peaceful anti-war protestors were a hostile military force, which were disseminated to various military, Federal, State, and Local Officials and Law Enforcement Officers in order to disrupt their 1st Amendment protected Free Expression and Free Associational activities. These groups and individuals were targeted specifically because the Army, Coast Guard, local law enforcement including the Olympia and Tacoma Police Departments, and other agencies, did not like the content of the speech involved. TAC ¶ 1.17 (spelling, capitalization, and punctuation in original). No later than May of 2007, the Coast Guard also began infiltrating and illegally spying on PMR and other groups, either in the person of Cliff (sic) Colvin directly or with CGIS officers planed (sic) and supervised by Defendant Colvin. TAC ¶ 2.11. Military and law enforcement strategy meetings took place in Seattle prior to the date of the shipment. Bjornstad attended those meetings as did Rudd, Towery, and Colvin, as well as officers of several law enforcement agencies.... At those meetings strategies and tactics for neutralizing PMR's ability to protest effectively were discussed and agreed to. TAC ¶¶ 2.31-2.32 Towery, Rudd, and Colvin, and others continued in their illegal spying role at least until Towery was caught in July of 2009. TAC ¶ 2.52. The Third Amended Complaint also alleges that "The Coast Guard also issued reports and threat assessments." TAC ¶ 2.23. Plaintiffs allege nine[2] causes of action and names defendant S/A Colvin in eight of them. Count One alleges that all defendants violated plaintiffs' civil rights under 42 U.S.C. § 1983. Count Two does not name S/A Colvin. Count Three alleges that all defendants violated the plaintiffs' civil rights under the Washington State Constitution. Count Four alleges that all defendants falsely arrested the plaintiffs. Count Five alleges that all defendants subjected the plaintiffs to false imprisonment. Count Six alleges that all defendants committed the tort of assault and battery as to all plaintiffs. Count Seven alleges that all defendants committed the tort of intentional infliction of emotional distress upon all plaintiffs. Count Eight alleges that all defendants committed the tort of malicious prosecution as to those plaintiffs who were charged criminally. Count Nine alleges that defendants Colvin, Towery, and Rudd 1188 violated the plaintiffs' constitutional rights and asserts a Bivens claim on behalf of plaintiffs. Count Nine also alleges that Colvin, Towery, and Rudd violated the Posse Comitatus Act. II. DISCUSSION Defendant S/A Colvin moves to dismiss all claims against him pursuant to Fed. R.Civ.P. 12(b)(6), or, alternatively, moves for summary judgment pursuant to Fed R. Civ. P. 56. He argues that Count One must be dismissed because it alleges a claim under 42 U.S.C. § 1983, and, as a federal officer, a § 1983 claim cannot be maintained against him. Colvin argues that to the extent Counts Three through Eight present state law claims against him, he is absolutely immune under the Federal Employees Liability Reform and Tort Compensation Act ("Westfall Act"), 28 U.S.C. §§ 2674, 2679. Finally, he argues that Count Nine, the Bivens claim, should be dismissed under the doctrine of qualified immunity. Plaintiffs oppose the Rule 12(b)(6) motion and request that the summary motion be continued and discovery be allowed under Rule 56(f). A. The Law. 1. Rule 12(b)(6) standard. Dismissal under Rule 12(b)(6) may be based on either the lack of a cognizable legal theory or absence of sufficient facts alleged under a cognizable legal theory. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir.1990). Review is limited to the content of the complaint [and properly incorporated documents], and all allegations of material fact must be taken as true, and construed in the light most favorable to the non-moving party. Fed'n of African Am. Contractors v. City of Oakland, 96 F.3d 1204, 1207 (9th Cir. 1996). Under Bell Atlantic Corp. v. Twombly, a litigant cannot simply recite the elements of a cause of action to avoid dismissal under this Rule. He must instead "provide the grounds of his entitlement to relief, which requires more than labels and conclusions." 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). The litigant must plead a claim that moves "across the line from conceivable to plausible." Id. at 570, 127 S.Ct. 1955. In Ashcroft v. Iqbal, the Supreme Court set out a two-pronged approach for reviewing the sufficiency of a complaint in the face of a motion to dismiss for failure to state a claim. ___ U.S. ___, 129 S.Ct. 1937, 1949-50, 173 L.Ed.2d 868 (2009); see also Moss v. U.S. Secret Serv., 572 F.3d 962, 970 (9th Cir.2009). First, the Court may identify those statements in a complaint that are actually legal conclusions, even if presented as factual allegations. Iqbal, 129 S.Ct. at 1949-50. Such conclusory statements are not entitled to a presumption of truth. Id. Second, the Court presumes the truth of any remaining "well-pleaded factual allegations," and determines whether these allegations and reasonable inferences from them plausibly support a claim for relief. Id. at 1950; see also Moss, 572 F.3d at 969-70. 2. Summary Judgment Standard. Summary judgment is appropriate when, viewing the facts in the light most favorable to the nonmoving party, there is no genuine issue of material fact which would preclude summary judgment as a matter of law. Once the moving party has satisfied its burden, it is entitled to summary judgment if the non-moving party fails to present, by affidavits, depositions, answers to interrogatories, or admissions on file, "specific facts showing that there is a genuine issue for trial." Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). "The mere existence of a scintilla of evidence in support of the non-moving party's position is not 1189 sufficient." Triton Energy Corp. v. Square D Co., 68 F.3d 1216, 1221 (9th Cir.1995). Factual disputes whose resolution would not affect the outcome of the suit are irrelevant to the consideration of a motion for summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In other words, "summary judgment should be granted where the nonmoving party fails to offer evidence from which a reasonable [fact finder] could return a [decision] in its favor." Triton Energy, 68 F.3d at 1220. 3. Qualified Immunity. Pursuant to the qualified immunity doctrine, "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." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). In analyzing a qualified immunity defense, the Court must determine first, whether a constitutional right would have been violated on the facts alleged, taken in the light most favorable to the party asserting the injury; and then, whether the right was clearly established when viewed in the specific context of the case. Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). "The relevant dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted." Id. Qualified immunity protects "all but the plainly incompetent or those who knowingly violate the law." Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986). The privilege of qualified immunity is an immunity from suit rather than a mere defense to liability, and like absolute immunity, it is effectively lost if a case is erroneously permitted to go to trial. Id. The Supreme Court has recently held that "the Saucier protocol should not be mandatory in all cases ... [but] it is often beneficial." Pearson v. Callahan, 555 U.S. 223, 129 S.Ct. 808, 818, 172 L.Ed.2d 565 (2009). In this case it is beneficial to first determine whether a constitutional right was violated before moving to the second question of whether the right was clearly established. 4. Bivens Claims In Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), the Supreme Court created a private right of action for damages against federal officers alleged to have violated an individual's constitutional rights. Such actions are identical to actions under 42 U.S.C. § 1983, except for the replacement with a federal actor under Bivens for a state actor under § 1983. Van Strum v. Lawn, 940 F.2d 406, 409 (9th Cir.1991). A plaintiff must show that the federal officer was "directly responsible" for the alleged deprivation of constitutional rights. Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 70-71, 122 S.Ct. 515, 151 L.Ed.2d 456 (2001). Respondeat superior is inapplicable to Bivens actions. Terrell v. Brewer, 935 F.2d 1015, 1018 (9th Cir. 1991). B. Analysis. 1. Count One and Counts ThreeEight. Count One alleges violations of constitutional rights and asserts a claim under 42 U.S.C. § 1983. S/A Colvin was a civilian working for CGIS, a federal agency. He was not a state actor. Federal Officers are exempt from the proscription of § 1983. District of Columbia v. Carter, 409 U.S. 418, 424-25, 93 S.Ct. 602, 34 L.Ed.2d 613 (1973); McCloskey v. Mueller, 1190 446 F.3d 262, 271 (1st Cir.2006). Defendant Colvin's motion to dismiss Count One is GRANTED. Counts Three through Eight allege, inter alia, violations of the Washington State Constitution and claims sounding in Washington State and common law tort. Under the Westfall Act, S/A Colvin is immune from a suit for damages for these claims. The Westfall Act was enacted for the express purpose of "protect[ing] Federal employees from personal liability for common law torts committed within the scope of their employment." Pub.L. No. 100-694, § 2(b) (1988). It provides that a claim against the United States under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671-80, is the "exclusive" remedy for plaintiffs seeking to recover damages from the "negligent or wrongful act or omission of any employee of the Government ... acting within the scope of his office or employment." 28 U.S.C. § 2679(b)(1). Accordingly, on October 11, 2010, this Court entered an Order substituting the United States as the "sole party defendant herein in place of and instead of Defendant Clint Colvin with respect only to those claims alleged by plaintiffs sounding in Washington State or common law tort." [Dkt. # 58]. Counts Three through Eight have been dismissed as to S/A Colvin. Any federal constitutional claims that remain from Counts Three through Eight as to S/A Colvin will be treated as Bivens claims and addressed in the next section of this Order. 2. Count Nine. Count Nine asserts a claim under Bivens. Plaintiffs allege that S/A Colvin is "liable to Plaintiffs for the Constitutional and tort violations detailed throughout this Complaint." TAC ¶ 4.48. In the section of the complaint that identifies S/A Colvin as a defendant, plaintiffs allege violations of their "1st Amendment protected Free Expression and Free Associational activities." TAC ¶ 1. 17. They allege that S/A Colvin "identif[ied] individuals and groups of individuals to be arrested and/or targeted despite their lack of actual illegal activity" apparently in violation of the Fourth Amendment. Id. Elsewhere in the complaint, plaintiffs state that the action is also brought pursuant to the Fifth, Sixth, and Fourteenth Amendments, but do not tie S/A Colvin to any alleged violation of those constitutional rights. TAC ¶ 1.37. Count Nine further alleges that S/A Colvin violated the Posse Comitatus Act, 18 U.S.C. § 1385. a. The Posse Comitatus Act does not contain a private right of action; even if it did, the Act does not apply to members of the Coast Guard. The Posse Comitatus Act (PCA) provides that "[w]hoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or the Air Force as a posse comitatus or otherwise to execute the laws shall be fined under this title or imprisoned not more than two years, or both." 18 U.S.C. § 1385. The legislative history of the PCA demonstrates that the Act was enacted during Reconstruction following the Civil War to "eliminate the direct active use of Federal troops by civil law authorities." United States v. Banks, 539 F.2d 14, 16 (9th Cir.1976). Of major concern was the use of troops who supported Reconstruction candidates in Southern states during elections to "obstensibly preserve the peace." United States v. Red Feather, 392 F.Supp. 916, 922 (D.S.D.1975). The PCA is a criminal statute. It does not authorize a civil cause of action. In Lamont v. Haig, 539 F.Supp. 552, 558-59 (D.S.D.1982) the Court, after having the benefit of extensive briefing on the legislative history of the PCA and after noting 1191 that no case has found a private right of action to exist, held that the PCA does not create a private right of action. More recently, in Miale v. Tuolumne County Sheriff's Dep't., 2009 WL 3073922, 5 (E.D.Cal.2009), the Court stated that it was "unable to find any [authority] that suggests there exists a private right of action to enforce the Posse Comitatus Act" and held that "Plaintiff may not bring a civil suit for monetary compensation for an alleged violation of the Posse Comitatus Act." The plain language of the Act states that it applies only to the Army and Air Force. The Act also applies to the Navy and Marine Corps by order of the Department of Defense. The Coast Guard, unlike the other four branches of the military, is a hybrid agency that is "a service in the Department of Homeland Security, except when operating as a service in the Navy." 14 U.S.C. § 1. It only becomes a service of the Navy if Congress so directs "[u]pon declaration of war ... or when the President directs." 14 U.S.C. § 3. The Coast Guard has statutory law enforcement responsibilities "on, under, and over the high seas and waters subject to the jurisdiction of the laws of the United States." 14 U.S.C. § 2. The Posse Comitatus Act does not apply to the Coast Guard. United States v. Chaparro-Almeida, 679 F.2d 423, 425 (5th Cir.1982). Plaintiffs now concede that there is no private right of action under the PCA and that the Act, in any event, does not apply to the Coast Guard. b. Plaintiffs' Bivens claim survives defendant's Rule 12(b)(6) motion to dismiss based on qualified immunity. (i) Saucier's first step. Plaintiffs allege violations of their First and Fourth Amendment rights. S/A Colvin asserts that he is protected from liability based upon the doctrine of qualified immunity. The first step of the qualified immunity analysis requires the Court to determine whether a constitutional right was violated based on the facts alleged, taking those facts in the light most favorable to plaintiffs. Saucier, 533 U.S. at 201, 121 S.Ct. 2151. In support of his position that plaintiffs have not shown a violation of their First or Fourth Amendment rights, S/A Colvin argues: (1) that plaintiffs have failed to allege a concrete harm sufficient to confer standing to bring a First Amendment claim under Laird v. Tatum, 408 U.S. 1, 92 S.Ct. 2318, 33 L.Ed.2d 154 (1972); and (2) that S/A Colvin was an "invited informer" whose activities in investigating PMR were legal and done in good faith. In their response to defendant's motion, plaintiffs do not remotely touch upon the standing issue. They will be expected to address their argument in response to defendant's motion for summary judgment. Courts have long recognized that the government may use undercover agents in investigating suspected illegal activity. Sorrells v. United States, 287 U.S. 435, 441-42, 53 S.Ct. 210, 77 L.Ed. 413 (1932); United States v. Mayer, 503 F.3d 740, 750 (9th Cir.2007). Courts have also long recognized that "a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties." Smith v. Maryland, 442 U.S. 735, 743-44, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979). That is why undercover operations where the agent is a so-called "invited informer" are not searches under the Fourth Amendment. Mayer, 503 F.3d at 750. In his Declaration in support of his motion, S/A Colvin states that he attended three publicly advertised meetings of the PMR held at public places. Plaintiffs, in response to the motion, argue that the meetings were not open to the public, but 1192 were by invitation only, with the implication being that S/A Colvin's attendance violated plaintiffs' rights. Although the use of an "invited informer"[3] does touch on First Amendment free association rights, so long as the "government's investigation [is] conducted in good faith; i.e., not for the purpose of abridging first amendment freedoms" and if "the undercover informers adhere scrupulously to the scope of [the] invitation to participate in the organization[,]" plaintiffs' constitutional rights are not violated. United States v. Aguilar, 883 F.2d 662, 705 (9th Cir.1989). Additionally, when an investigation touches on First Amendment rights, it "must also have a legitimate law enforcement purpose." Mayer, 503 F.3d at 751-52. Defendant argues that plaintiffs' Complaint is deficient and cannot withstand his motion to dismiss. S/A Colvin argues that plaintiffs do not plead that he personally acted with the "purpose of abridging [their] first amendment freedoms;" that he failed to "adhere scrupulously to the scope of the invitation," and that he did not have "a legitimate law enforcement purpose" in investigating the PMR. Plaintiffs, however, are not generally required to anticipate a defendant's affirmative defense and plead around it. Here, plaintiffs allege that the "groups and individuals were targeted specifically because [the defendants] did not like the content of the speech involved" and in order "to disrupt their 1st Amendment protected Free Expression and Free Associational activities." TAC ¶ 1.17. Although the exact wording of the Complaint does not specifically allege S/A Colvin targeted the plaintiffs in violation of their First Amendment rights, it can be read to include that allegation. Therefore, plaintiffs' Complaint does allege that S/A Colvin's actions were done with the "purpose of abridging first amendment freedoms." As for defendant's argument that he "adhere[d] scrupulously to the scope of the invitation," the Complaint implies that he did not, and plaintiffs argue in response to the motion that the meetings of the PMR were not open to the public and that S/A Colvin was not "invited" to attend. Because Rule 12(b)(6) motions are disfavored, Broam v. Bogan, 320 F.3d 1023, 1028 (9th Cir.2003), and cases should generally be decided on the merits, this Court is reluctant to dismiss this case at the pleading stage. There is a dispute on this issue that needs to be more fully addressed with evidentiary input from the plaintiffs. S/A Colvin declares that he investigated the PMR based on "a legitimate law enforcement purpose." He investigated because the Coast Guard has primary responsibility for ensuring the safety of ports and because there had been prior protests at ports when shipments of military equipment were sent to Iraq. These protests had resulted in arrests of the protestors at the Port of Tacoma in March, 2007 and at the Port of Grays Harbor in May, 2007. There had also been prior protests at the Port of Olympia in May, 2006 where protestors pulled down a security gate and entered a secured area. Plaintiffs, on the other hand, allege in rather conclusory nature that they are 1193 "avowedly peaceful and nonviolent." TAC § 1.17. There is no allegation, however, that plaintiffs had not participated in the prior protests or had not been arrested before. It will be difficult for plaintiffs to prove that S/A Colvin was acting in the absence of a legitimate law enforcement purpose, but, again, that decision should not be made at this stage of the proceeding. Plaintiffs' other Fourth Amendment claims involve their arrests by Olympia police in November, 2007. Nowhere in plaintiffs' complaint do they allege that S/A Colvin personally participated in the arrests at the Port of Olympia. Thus, any claim that excessive force was used by the Olympia police does not state a claim as against S/A Colvin. See Corr. Servs. Corp. v. Malesko, 534 U.S. at 70-71, 122 S.Ct. 515; Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir.1998); see also Moss, 572 F.3d at 971 (plaintiffs fail to show how actions of Secret Service agents in directing local police to move protestors had any connection to how the local police carried out the directive). Plaintiffs allege that S/A Colvin "identif[ied] individuals and groups of individuals to be arrested and/or targeted despite their lack of actual illegal activity" TAC ¶ 1.17. The statement that the plaintiffs were identified or targeted "despite their lack of illegal activity" is exactly the type of conclusory allegation that Iqbal counsels the Court should ignore. Removing the conclusory allegation and focusing on the remaining facts leaves an allegation that S/A Colvin "identified individuals or groups to be arrested and/or targeted." Working in an undercover capacity and providing reports of the plans of individuals or of a group of individuals to other law enforcement agencies, without more, does not violate the Fourth Amendment. See Id.; see also Mayer, 503 F.3d at 750-52. Plaintiffs have not shown that S/A Colvin personally violated their Fourth Amendment right to be free from excessive use of force. This part of Plaintiffs' Bivens claim will be dismissed. (ii) Saucier's second step. The second step of the qualified immunity analysis requires the Court to determine whether the constitutional rights at issue were clearly established when viewed in the specific context of the case. Saucier, 533 U.S., at 201, 121 S.Ct. 2151. As previously stated, the contours of the rights at issue have not been fully fleshed out. Until more is known about what specifically S/A Colvin did, the Court cannot determine whether a clearly established right was violated. c. Plaintiffs' claims for injunctive and equitable relief fail as a matter of law as to S/A Colvin. Plaintiffs sued S/A Colvin in his individual capacity. Injunctive and equitable relief is not available in individual capacity suits, it is only available in official capacity suits. Wolfe v. Strankman, 392 F.3d 358, 360 n. 2 (9th Cir.2004). Plaintiffs thus cannot obtain the injunctive or equitable relief they seek from S/A Colvin. 3. Plaintiffs' Rule 56(f) Motion. Plaintiffs move under Rule 56(f)[4] to deny defendant's alternative motion for summary judgment until discovery has been conducted. Under the Rule, the Court has the discretion to deny the defendant's motion or continue it until such time as some discovery may be completed. Because 1194 defendant has resisted all discovery to dateas is his right when asserting a qualified immunity defensebut has provided S/A Colvin's declaration in support of his motion, fairness dictates that plaintiffs be allowed to conduct limited discovery from S/A Colvin. Discovery shall be narrow in scope and shall be sharply focused on demonstrating how, in light of United States v. Aguilar and United States v. Mayer, S/A Colvin violated plaintiffs' constitutional rights. Plaintiffs will be permitted to depose S/A Colvin. III. CONCLUSION Plaintiffs' Third Amended Complaint is poorly drafted. The conclusory and speculative nature of many of the Complaint's "factual" allegations run afoul of Twombly and Iqbal. It is highly unlikely that plaintiffs can overcome S/A Colvin's defense of qualified immunity on the Bivens claim. The Court is acutely aware of its role under the doctrine of qualified immunity to resolve litigation against a government official at the earliest possible stage in order to protect them from the entirety of the litigation process. Harlow, 457 U.S., at 806, 818-19, 102 S.Ct. 2727. However, plaintiffs have alleged enough facts to entitle them some leeway to attempt to prove their claim. It is therefore ORDERED: 1. Defendant Clinton D. Colvin's Motion to Dismiss Pursuant to Rule 12(b)(6) [Dkt. #49] is GRANTED IN PART AND DENIED IN PART. 2. Count One is DISMISSED because S/A Colvin is a federal, not state, actor. 3. Counts Three through Eight are DISMISSED pursuant to the Westfall Act. 4. Any claim that S/A Colvin violated the Posse Comitatus Act is DISMISSED because it does not provide for a private right of action and, in any event, does not apply to members of the Coast Guard. 5. Any claims for injunctive or equitable relief as to S/A Colvin are DISMISSED. 6. Plaintiffs' Bivens claim in so far as it seeks damages for violation of Plaintiffs' Fourth Amendment right to be free from the use of excessive force is DISMISSED. Plaintiffs' Bivens act claim in all other respects survives defendant's Rule 12(b)(6) motion. 7. Plaintiffs' Rule 56(f) motion is GRANTED. The limited discovery the Court is allowing shall be completed by April 15, 2011. Defendant's Motion for Summary Judgment is renoted for April 29, 2011. NOTES [1] Plaintiffs' original complaint was filed on January 13, 2010. It has been amended three times as a result of the Court's Orders on other defendants' motions for a more definite statement. The Third Amended Complaint [Dkt. # 54] is the operative pleading in the case. [2] The Third Amended Complaint has two causes of action numbered Eight. For clarity, the defendant refers to the second cause of action numbered Eight, the Bivens claim, as Count Nine. The Court will also refer to the Bivens claim as Count Nine. [3] Plaintiffs' reliance on the so-called "agent provocateur" cases including Handschu v. Special Services Division, 349 F.Supp. 766 (S.D.N.Y.1972) is misplaced. In Handschu, police "informers and infiltrators provided, solicited and induced members of lawful political and social groups to engage in unlawful activities ..." and "provided funds and equipment to further that purpose." Id. at 770. S/A Colvin's passive investigation here, as alleged in plaintiffs' complaint, comes nowhere near the police tactics proscribed in Handschu. [4] Effective December 1, 2010, Fed.R.Civ.P. 56 has been revised. Former Rule 56(f) has been renumbered 56(d).	{ "pile_set_name": "FreeLaw" }
FILED NOT FOR PUBLICATION DEC 21 2011 MOLLY C. DWYER, CLERK UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 10-30192 Plaintiff - Appellee, D.C. No. 3:09-cr-05601-BHS v. MEMORANDUM * MARIO ALBERTO HERRERA-PEREZ, Defendant - Appellant. Appeal from the United States District Court for the Western District of Washington Benjamin H. Settle, District Judge, Presiding Submitted December 19, 2011 ** Before: GOODWIN, WALLACE, and McKEOWN, Circuit Judges. Mario Alberto Herrera-Perez appeals from the 120-month sentence imposed following his guilty-plea conviction for possession with intent to distribute heroin, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A). We have jurisdiction under 28 U.S.C. § 1291, and we dismiss. * This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Herrera-Perez pleaded guilty pursuant to a written agreement that included an appeal waiver. He contends that his appeal waiver was not knowing and voluntary due to the ineffective assistance of counsel. As a general rule, we do not review challenges to the effectiveness of defense counsel on direct appeal unless (1) the record on appeal is sufficiently developed to permit determination of the issue, or (2) the legal representation is so inadequate that it obviously denies a defendant his Sixth Amendment right to counsel. See United States v. Jeronimo, 398 F.3d 1149, 1155-56 (9th Cir. 2005), overruled on other grounds by United States v. Jacobo Castillo, 496 F.3d 947, 957 (9th Cir. 2007) (en banc). Neither exception applies to this case. Based on the record before this court on direct appeal, we conclude that Herrera-Perez’s appeal waiver, which waived his ability to appeal a sentence that was imposed at the statutory mandatory minimum, was voluntary and enforceable. See id. at 1156. Herrera-Perez’s motion for remand to enforce the plea agreement is denied. There was no breach of the plea agreement because the provision Herrera-Perez seeks to enforce benefits the government, therefore the government may waive it. See Jacobo Castillo, 496 F.3d at 956-57. DISMISSED. 2 10-30192	{ "pile_set_name": "FreeLaw" }
NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _____________ No. 13-1838 _____________ TAKELE EDOSSA DINSSA Petitioner v. ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA Respondent ____________ On Petition for Review of a Final Order of the Board of Immigration Appeals (Agency No. A097-921-001) Immigration Judge: Honorable Rosalind K. Malloy ____________ Submitted Pursuant to Third Circuit LAR 34.1(a) January 21, 2014 Before: FUENTES, FISHER, Circuit Judges, and JONES, District Judge.1 (Filed: February 10, 2014) ____________ OPINION ____________ FUENTES, Circuit Judge: 1 Honorable C. Darnell Jones, II, United States District Court for the Eastern District of Pennsylvania, sitting by designation. Takele Dinssa petitions for review of a final order of removal issued by the Board of Immigration Appeals (“BIA”), which affirmed the Immigration Judge’s (“IJ”) denial of his applications for asylum and withholding of removal. For the reasons set forth below, we dismiss in part and deny in part the petition for review. I. Dinssa, an ethnic Oromo and citizen of Ethiopia, was admitted to the United States on a nonimmigrant visa and was later issued a Notice to Appear in Immigration Court for overstaying his visa. Dinssa conceded removability, but sought asylum, withholding of removal, and protection pursuant to the regulations implementing the United States’ obligations under the Convention Against Torture (“CAT”). See 8 U.S.C. §§ 1158(a), 1231(b)(3); 8 C.F.R. §§ 1208.16(c), 1208.17(a). Based on documentary and testimonial evidence regarding the Oromo Liberation Front (“OLF”) and Dinssa’s admitted support for that group, the IJ found that Dinssa was statutorily ineligible for asylum and withholding of removal due to the material support to a terrorist organization bar. See 8 U.S.C. § 1182(a)(3)(B)(iv)(VI)(dd). In pertinent part, the IJ found that Dinssa belonged to a group of businessmen that “contribut[es] money to cover medical and other expenses of OLF cadres” and that the “evidence indicates that [Dinssa] financially supported the OLF.” AR 172. Additionally, while Dinssa testified on direct examination that “he would never knowingly give money to someone who would use it for violence,” he testified on cross examination that “he knew that the OLF has an army wing of fighters.” AR 172. Accordingly, the IJ determined that Dinssa had not set forth clear and convincing evidence that the statutory “knowledge exception” to the 2 material support bar applied. While the IJ found Dinssa to be ineligible for asylum and withholding of removal, she granted him CAT deferral of removal pursuant to 8 C.F.R. § 1208.17(a). In Dinssa’s subsequent appeal to the BIA, he adopted the IJ’s findings of fact, noted that the IJ’s “consideration of the record was comprehensive and complete,” and only challenged the IJ’s legal determinations. AR 53. The BIA, in a written opinion, affirmed the IJ’s decision. Dinssa filed this petition for review.2 II. On appeal, Dinssa argues that the material support bar does not apply to him because his conduct was lawful. We lack jurisdiction to hear this argument because Dinssa did not exhaust it before the BIA. See 8 U.S.C. § 1252(d)(1) (“A court may review a final order of removal only if . . . the alien has exhausted all administrative remedies available to the alien as of right.”); see also Lin v. Att’y Gen., 543 F.3d 114, 120-21 & n.6 (3d Cir. 2008) (explaining that the exhaustion of administrative remedies is a jurisdictional requirement and that a petitioner must “raise[] all issues before the BIA”). 2 This Court has jurisdiction to review the BIA’s final removal order pursuant to 8 U.S.C. § 1252(a). Where, as here, the BIA expressly adopts the IJ’s decision and adds analysis of its own, we review the decisions of both the IJ and the BIA. See Fadiga v. Att’y Gen., 488 F.3d 142, 153 n.16 (3d Cir. 2007). We exercise de novo review over the agency’s conclusions of law. Filja v. Gonzales, 447 F.3d 241, 251 (3d Cir. 2006). We review the denial of asylum and withholding of removal for substantial evidence. Li Hua Yuan v. Att’y Gen., 642 F.3d 420, 425 (3d Cir. 2011). Under the substantial evidence standard, “administrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). In assessing whether the agency’s determinations are supported by substantial evidence, we must decide “whether a reasonable fact finder could make such a determination based upon the administrative record.” Dia v. Ashcroft, 353 F.3d 228, 249 (3d Cir. 2003) (en banc). 3 We also reject Dinssa’s contention that the material support bar does not apply to him due to the OLF’s present inactivity. Assuming without deciding that the OLF is currently inactive, we agree with the BIA that Dinssa has offered “no legal authority to support his construction of the material support bar as only pertaining to currently-active terrorist organizations.” AR 19. Dinssa next argues that his support to the OLF did not amount to “material support” within the meaning of the statute. This argument fails because it is premised on facts contrary to those found by the IJ, affirmed by the BIA, and adopted by Dinssa himself. Dinssa asserts on appeal that he “did not provide any support to active and militant members of a terrorist organization,” that “[n]one of the assistance that he provided offered any logistical support to the OLF,” and that he only “provided some assistance to one member of the OLF.” Pet. Br. at 22. However, this assertion contradicts the IJ’s unchallenged finding that he “financially supported the OLF.” AR 172. The erroneous premise of a legal argument is a sufficient ground to reject it. See Inst. for Scientific Info., Inc. v. U.S. Postal Serv., 555 F.2d 128, 130 (3d Cir. 1977) (“[T]here can be no truth to a conclusion drawn from an incorrect premise.”); see also Burkey v. Marberry, 556 F.3d 142, 149 (3d Cir. 2009) (noting that “‘[t]he duty of [the] court . . . is to decide actual controversies by a judgment which can be carried into effect, and not to give opinions upon moot questions or abstract propositions’” (quoting Mills v. Green, 159 U.S. 651, 653 (1895)) (alterations in original)). Accordingly, we decline to review Dinssa’s argument that his conduct did not constitute material support. 4 Finally, Dinssa asserts that the IJ and BIA incorrectly found that he did not satisfy the “knowledge exception” to the material support bar, 8 U.S.C. § 1182(a)(3)(B)(iv)(VI)(dd). Dinssa contends that his testimony proves by clear and convincing evidence that he qualifies for the “knowledge exception,” since “he repeatedly stated that he has never supported violent activities and that he would never knowingly support violent activities.” Pet. Br. at 28. However, Dinssa testified on cross examination that he knew the OLF had “an army wing of fighters” which undermines his claim that he did not knowingly support the OLF’s violent activities. AR 172. Based on the record, a reasonable factfinder would not be compelled to conclude that Dinssa met his burden of demonstrating that he qualified for the “knowledge exception.” Therefore, we affirm the agency’s findings as supported by substantial evidence. III. For the reasons stated above, we dismiss in part and deny in part Dinssa’s petition for review. 5	{ "pile_set_name": "FreeLaw" }
167 Ga. App. 250 (1983) 305 S.E.2d 858 LAPAN v. THE STATE. 65440. Court of Appeals of Georgia. Decided June 17, 1983. Rehearing Denied July 1, 1983. Robert J. Duffy, Dwight T. Feemster, for appellant. Spencer Lawton, Jr., District Attorney, David T. Lock, Assistant District Attorney, for appellee. DEEN, Presiding Judge. Ronald Edward LaPan, appellant here, was charged in six indictments with rape, child molestation, and sodomy. A Chatham County jury found him guilty under four indictments, and he received concurrent twenty-year sentences on three charges of rape and another twenty-year sentence on a charge of aggravated sodomy, this sentence to run consecutively to the others. LaPan's nine-year-old stepdaughter alleged that the offenses charged were committed on several dates in September 1981 and one date in December of the same year. She testified that she had submitted to the defendant's advances out of fear of being beaten and that she had not reported the incidents to her mother because of her stepfather's threat, uttered immediately after the first incident, that 251 he would kill her if she told anyone. Three weeks after the occurrence of the last alleged incident Mrs. LaPan's suspicions were aroused by a remark of her husband's, and she questioned the child as to whether any sexual contact had occurred. The child hesitated at first but eventually told her mother of the incidents. Mrs. LaPan immediately took her to a hospital emergency room and subsequently to a gynecologist for examination. Both examinations confirmed that the child's vagina had been penetrated (apparently more than once) by some object of such nature as to lend credence to the allegations of rape. Immediately after the first examination the mother moved her belongings and those of her children from the LaPans' mobile home to the home of her parents. The next day she filed for divorce. At trial the child identified the dates and hours of the alleged incidents chiefly by reference to the opening and closing of school and to her mother's customary working hours. The defendant offered an alibi defense, initially supporting it with portions of business records from his employer's firm purporting to show that he was scheduled to be at work during the critical hours of the day for the whole period of September through December of 1981. When the state produced other portions of the same records showing that defendant, for various reasons, had not actually been at work at any time during the day of either the first or the last of the incidents alleged in the indictments or on the day following each of those two dates defendant produced as an alibi witness a co-worker who testified that defendant had gone fishing with him on the afternoon on which the first incident allegedly occurred. He offered no further alibi evidence regarding any of the other dates charged in the incidents. A school official testified that the schools had closed for Christmas vacation on December 22 rather than December 21, the latter being the date on which, according to the child's testimony, the last incident had occurred. There was other testimony regarding (1) the whereabouts of the defendant and other persons involved at the times in question and (2) Mrs. LaPan's possible motives in bringing such charges against her husband. In bringing this appeal LaPan enumerates as error, in addition to the general grounds (No.6), the court's failure to grant appellant's motion for a directed verdict of acquittal (No.2) and to give two properly requested jury instructions on impeachment and on simple sodomy as a lesser included offense (Nos. 3, 4). Appellant's remaining two assignments of error concern the court's instruction that a guilty verdict on each indictment was authorized if the evidence showed that the alleged offenses occurred at any time within a statutory four-year period prior to the accusation (No.1), and the imposition of sentence on each of the three rape convictions when the indictments 252 for rape were identical save for the averment of date and the date was not made an essential element (No. 5). Held: 1. The enumerations numbered 2 and 6 are clearly without merit. The determination of the weight of the evidence is solely for the jury. An appellate court can only determine that there is sufficient evidence to enable a reasonable trier of fact to reach the verdict rendered. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Crawford v. State, 245 Ga. 89 (263 SE2d 131) (1980). In the instant case there clearly was sufficient evidence adduced by the state to enable a reasonable jury to find the defendant guilty of the offenses charged beyond a reasonable doubt. Equally clearly, there was insufficient evidence to demand a directed verdict of acquittal. OCGA §§ 9-11-50, 17-9-1 (Code Ann. §§ 81A-150, 27-1802); Barnes v. State, 245 Ga. 609, 610 (266 SE2d 212) (1980). 2. The enumerations numbered 3 and 4 are also without merit. The court correctly instructed the jury as to the credibility of witnesses, the means of impeachment, and the effect of such impeachment. See OCGA §§ 24-9-82, -83, -84, -85 (Code Ann. §§ 38-1802, 38-1803, 38-1804, 38-1806). So long as the court's instruction fairly and substantially covers the matter of the written request, it is not error to fail to give the instruction in the exact language of the request. Hand v. Hand, 244 Ga. 41 (257 SE2d 507) (1979); Watkins v. Davis, 152 Ga. App. 735 (263 SE2d 704) (1979). Moreover, there was no actual impeachment of any of the prosecution's witnesses regarding any material issue, as contemplated by OCGA § 24-9-85 (Code Ann. § 38-1806). Gilbert v. State, 159 Ga. App. 326 (2) (283 SE2d 361) (1981). There were bare allegations that Mrs. LaPan had formerly worked in massage parlors, but those allegations, even if they had been supported by evidence, would not have been material to the issues in the instant case. Hill v. State, 159 Ga. App. 489 (283 SE2d 703) (1981); Gilbert v. State, supra. The apparent one-day discrepancy in the child's testimony regarding the date of the last alleged rape was likewise immaterial, since the prosecution had made serious inroads into appellant's "alibi" for the entire time span, specifically including both the date the child had testified to and the "correct" alternative date, which was the day following. Moreover, the credibility of witnesses, after proper instruction by the court, is a determination solely within the province of the jury. OCGA § 24-9-80 (Code Ann. § 38-1805); Malone v. State, 142 Ga. App. 47 (234 SE2d 844) (1977). As to the requested instruction regarding simple sodomy as a lesser included offense, it is the law in Georgia that the court must give such an instruction if properly requested and if the evidence supports it. State v. Stonaker, 236 Ga. 1 (222 SE2d 354) (1976); 253 Malone v. State, 142 Ga. App. 47, supra. The crucial distinction between simple sodomy and aggravated sodomy is that the latter is accomplished "with force and against the will." OCGA § 16-6-2 (a) (Code Ann., § 26-2002). In the instant case the evidence supports only the charge of aggravated sodomy. The element of consent is obviated by the victim's age. OCGA § 16-3-1 (Code Ann. § 26-701); Carter v. State, 122 Ga. App. 21 (176 SE2d 238) (1970). The state proved the presence of the element of force by eliciting testimony as to the child's fear of bodily harm if she did not accede to her stepfather's wishes. A charge on the lesser included offense was therefore not required. 3. The trial court did not err in instructing the jury that a guilty verdict could be returned if the evidence showed that the offenses charged occurred within a statutory four-year period prior to the filing of the charges. This court has held that when, as here, the accused raises an alibi defense in reliance upon the date charged in the indictment, an instruction like the one assigned as error is "potentially confusing." Thomas v. State, 158 Ga. App. 97 (279 SE2d 335) (1981). We have also held, however, that unless time is of the essence of the crime or is expressly made material, such an instruction is not grounds for reversal so long as the requirements set forth in De Palma v. State, 225 Ga. 465 (169 SE2d 801) (1969) are fulfilled: (1) that the accused be definitely informed as to the charges against him so that he will be able to prepare his defense and not be taken by surprise at trial, and (2) that he not be subjected to another prosecution for the same offense. See Caldwell v. State, 139 Ga. App. 279 (228 SE2d 219) (1976). In the instant case the defense purported to establish an alibi for the entire three-month period in question, but when the state showed that this alibi was invalid for the narrower periods including the dates alleged and days immediately preceding and following, a further alibi was raised for only one of the four critical dates or series of dates. It cannot be said that defendant was taken by surprise by the single seeming discrepancy in date (December 21/22) or that his defense was in any way prejudiced thereby. Contrary to appellant's further contention, there is no indication that the jury did not consider each indictment separately and reach a unanimous verdict on each. This enumeration is therefore without merit. See Caldwell v. State, supra, 286, 287; Miller v. State, 141 Ga. App. 382, 383 (233 SE2d 460) (1977); Cole v. State, 120 Ga. 485 (2) (48 SE 156) (1904). 4. The trial court erred in imposing separate sentences for each of the three convictions of rape. The three charges differed from one another only with respect to the averment of date, and in none of the three was the date made an essential element. Since all the dates alleged fall within the period of the statute of limitation, only one 254 sentence can be imposed. Smith v. State, 160 Ga. App. 26, 29 (285 SE2d 749) (1981); Miller v. State, supra. This error affects the sentencing phase of the trial only, however, and since all the sentences imposed pursuant to the rape convictions were identical in length and were to be served concurrently, no harm has ensued to the appellant. The error is therefore no basis for reversal of the judgment, and the case is remanded solely for the purpose of vacating two of the sentences on the rape convictions. The twenty-year sentence for the separate offense of aggravated sodomy is of course unaffected by this ruling. Judgment affirmed with direction. Banke, J. concurs. Carley, J., concurs in the judgment only.	{ "pile_set_name": "FreeLaw" }
United States Court of Appeals For the First Circuit No. 08-2118 DECKY (FNU), IRAWATI (FNU), and DOMINIQUE AUDREY, Petitioners, v. ERIC H. HOLDER, JR., ATTORNEY GENERAL OF THE UNITED STATES, Respondent. ERRATA SHEET The opinion of this Court issued on November 25, 2009, is amended as follows: On page 14, footnote 5, line 3: Substitute "Irawati's" for "Dominique Audrey's".	{ "pile_set_name": "FreeLaw" }
NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 06a0487n.06 Filed: July 13, 2006 No. 04-2549 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT UNITED STATES OF AMERICA, ) ) Plaintiff-Appellee, ) ) v. ) ON APPEAL FROM THE ) UNITED STATES DISTRICT DAVID A. GOWARD, ) COURT FOR THE EASTERN ) DISTRICT OF MICHIGAN Defendant-Appellant. ) Before: BOGGS, Chief Judge; KEITH and SUTTON, Circuit Judges. PER CURIAM. Defendant, David A. Goward (“Goward”), was convicted by a jury in the United States District Court for the Eastern District of Michigan on charges of drug crimes, firearm violations, and embezzlement by a postal employee pursuant to 21 U.S.C. §§ 846 & 841(a)(1) and 18 U.S.C. §§ 922(g)(1) &1709. Goward appeals the district court order denying his motion to suppress and asks this court to remand for resentencing consistent with United States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005). For the reasons set forth below, we AFFIRM defendant’s convictions, but VACATE defendant’s sentence and REMAND for resentencing in light of Booker. I. A. Factual Background Goward’s convictions and sentences arise from an investigation conducted by the Bay Area Narcotics Enforcement Team (“BAYANET”). In the summer of 2002, BAYANET Officers Taylor and Mainprize went to the residence of Dan Novak (“Novak”) based on information they received No. 04-2549 U.S. v. Goward Page 2 about possible marijuana trafficking . After being questioned by the officers, Novak agreed to be an informant on the large-scale marijuana trafficking operation run by Armondo Contreras (“Contreras”) and Goward. Novak informed the detectives that Contreras and Goward had been arranging for truck loads of marijuana to be shipped from Texas to Michigan for some time. On at least two prior occasions, Novak had allowed Contreras to deliver truck loads of marijuana to his place of employment. Novak explained that the truck would arrive early in the morning before the rest of the employees came to work and the marijuana would be unloaded. On the first delivery, Contreras along with the truck’s driver unloaded the marijuana. On the second delivery, Goward was present to help unload the marijuana. With Novak’s cooperation, the BAYANET Officers arranged a number of controlled purchases of marijuana from Goward and Contreras. On July 10, 2002, Officer Taylor and Novak purchased a pound of marijuana for $1,500. Later that day, Goward called Novak asking him to steal approximately $500 of lumber from his place of employment in exchange for marijuana. On July 12, 2002, Novak and Officer Taylor delivered lumber to Goward for approximately four ounces of marijuana. After these controlled purchases, Novak told the officers that Contreras and Goward were planning the delivery of another large truck load of marijuana to Saginaw, Michigan from Texas. Specifically, Novak told Officer Taylor that the marijuana was to be delivered to Novak’s place of business, where it would be unloaded and hidden for several days until Goward and Contreras would be able to go there and break it up into smaller units. The BAYANET Officers set up a surveillance No. 04-2549 U.S. v. Goward Page 3 video. On August 14, 2002, police witnessed a truck arriving at Novak’s place of employment. Shortly thereafter, Contreras arrived and began unloading bricks of marijuana with the truck driver, co-defendant Chon Hinojosa (“Hinojosa”). While Contreras and Hinojosa were unloading the marijuana, the police arrested them. Goward, who is a part-time postal employee, was arrested later that morning while delivering mail on his route. Soon after the seizure of the marijuana and the arrest of Contreras and Goward, the officers went to the Saginaw County Prosecutor’s office to obtain search warrants for the relevant locations. One of these locations was Goward’s residence, located at 2225 Birch Run Road. Officer Taylor submitted the affidavit for the warrant, which an assistant prosecutor drafted. Officer Taylor took the warrant to a state district judge, who authorized the search. The officers conducted a search of Goward’s residence later that day. During the search, authorities seized 13 pounds of marijuana, $60,000 in cash, a dozen firearms, and over 400 pieces of undelivered mail. B. Procedural Background Goward was indicted on September 25, 2002. In a second superseding indictment, he was charged with: conspiracy to distribute 1000 kilograms of marijuana; possession of 100 kilograms of marijuana with the intent to distribute; distribution of marijuana; possession of marijuana with intent to distribute; use of a firearm during a drug trafficking crime; being a felon in possession of firearms; and embezzlement by a postal employee. On January 30, 2003, Goward filed a motion to suppress evidence. An evidentiary hearing was held on May 14, 2003. At the evidentiary hearing, Officer Taylor testified that he was the affiant for the warrant to search the 2225 Birch Run Road residence, No. 04-2549 U.S. v. Goward Page 4 that an assistant state prosecuting attorney drafted the affidavit, and a that a state magistrate signed it. Taylor also stated that he had participated in the execution of over one hundred search warrants in his eighteen months as a BAYANET officer, five of which were procured where the sole nexus to the residence was that a known drug dealer lived there. Officer Mainprize testified that he had been assigned to the BAYANET unit for ten years. He was familiar with the affidavit procured in this case, and he said that he had been involved in procuring over 200 such affidavits in Saginaw County. He stated that the fact pattern described in the affidavit in this case was very common. The district court considered the arguments of the Defendants and issued an opinion denying the motion to suppress. Goward proceeded to trial on April 6, 2004. He was found guilty by a jury on charges of conspiracy to possess, with intent to distribute, 100 or more but less than 1000 kilograms of marijuana (21 U.S.C. § 846), distribution of marijuana (21 U.S.C.§ 841(a)(1)), possession with intent to distribute marijuana (21 U.S.C.§ 841(a)(1)), being a felon in possession of a firearm (18 U.S.C. § 922(g)(1)), and embezzlement of U.S. mail by a postal employee (18 U.S.C. § 1709). On December 15, 2004, Goward was sentenced to 121 months incarceration; and 4 years supervised release. Goward filed a timely appeal with this court. II. Analysis A. Goward contends that the district court erred in denying his motion to suppress evidence seized during the search of his residence. He asserts that the affidavit supporting the search warrant for 2225 Birch Run Road failed to establish probable cause. In particular, Goward argues that the No. 04-2549 U.S. v. Goward Page 5 affidavit does not create a nexus between the residence to be searched and the facts of criminal activity set out in the officer’s affidavit. Finally, Goward argues that the affidavit lacks particularity as it refers to his residence as a single-family structure. We disagree. In his pretrial motion to suppress, Goward raised the objection that the affidavit failed to provide a sufficient nexus between his criminal activity and his residence. Therefore, we may review this assignment of error. When reviewing a district court’s ruling on a motion to suppress, we will reverse findings of fact only if they are clearly erroneous. United States v. Galloway, 316 F.3d 624, 628 (6th Cir. 2003). “[L]egal conclusions as to the existence of probable cause are reviewed de novo.” United States v. Combs, 369 F.3d 925, 937 (6th Cir. 2004) (citation omitted). “When the district court has denied the motion to suppress, we review all evidence in a light most favorable to the Government.” Galloway, 316 F.3d at 628 (citation omitted). In this case, Officer Taylor was the affiant. In two and a half pages, the affidavit detailed the undercover investigation, the controlled marijuana sales between the BAYANET Officers and the Defendants, and Contreras’s and Goward’s delivery of twenty-two bricks of marijuana to Novak’s place of employment. Additionally, the affidavit describes the residence to be searched as follows: B. The entire premises and curtilage of 2225 Birch Run Road, Burt, Michigan, 48417. The dwelling is more fully described as a two story, single family residence. It is wood frame constructed with grey siding and white trim. There are several outbuildings including barns and sheds. The dwelling is located among farm fields. Search is to include all outbuildings and all containers located on the premises, including any vehicles located on the premises. ... H. [sic] Novak told me that Goward stays at 2225 Birch Run Road, Burt, Michigan. I independently confirmed through Secretary of State records that Goward lists 2225 Birch Run Road as his address. Novak also informed me that Goward and Contreras store money from the sales of marijuana as well as marijuana itself at 6150 Greenwood Road in Roscommon County. Novak said that Novak has personally No. 04-2549 U.S. v. Goward Page 6 been to the property on Greenwood Road with Contreras on previous occasions and [sic] seen ten to fifteen pounds of marijuana stored in the wellhouse on the property. Novak explained that Contreras and Goward hid money from the sales of marijuana in five gallon pails buried on the property. Novak said that Contreras purchased the property but that the property should be in Goward’s sister’s name. James Massey of the Saginaw County Prosecutor’s Office checked with the Roscommon County Register of Deeds, and learned that the property at 6150 Greenwood Road is deeded to Lisa J. Espinoza, of 2225 Birch Run, Burt, Michigan, 48417. This is the same address the Secretary of State has for Goward. (J.A. 138.) The question before this court is whether an affidavit containing credible, verified allegations of drug trafficking, verification that said defendant lives at a particular residence, combined with the affiant-officer’s experience that drug dealers keep evidence of dealing at their residence, when there is absolutely no indication of any wrongdoing occurring at that residence, establishes probable cause for the issuance of a warrant to search that residence. We are inclined to answer in the affirmative and side with our sister Circuits in believing that it is a reasonable inference that “in the case of drug dealers, evidence is likely to be found where the dealers reside.” United States v. Frazier, 423 F.3d 526, 537 (6th Cir. 2005); see also United States v. Miggins, 302 F.3d 384, 394 (6th Cir. 2002) (citing cases from the First, Second, Fourth, Seventh, Eight, Ninth, and D.C. Circuits supporting the proposition that evidence of drug trafficking is likely to be found in the residence of the drug dealer); United States v. Sparks, 291 F.3d 683, 689-90 (10th Cir. 2002) (stating that given Sparks’s connection to drug trafficking it was reasonable to believe that “there was a fair probability that additional evidence of crime (e.g., drug paraphernalia and/or sales records) would be found in Sparks’ nearby residence”); United States v. Hodge, 246 F.3d 301, 306 (3d Cir. 2001) (where “facts combine to suggest that Hodge was an experienced and repeat drug dealer who would need to store No. 04-2549 U.S. v. Goward Page 7 evidence of his illicit activities somewhere,” it is reasonable to infer that “a person involved in drug dealing on such a scale would store evidence of that dealing at his home”); United States v. Restrepo, 994 F.2d 173, 188 (5th Cir. 1993) (finding probable cause to search drug dealer’s home even though affidavit did not describe any drug activity there, as affiant with 11 years of experience “had observed that drug traffickers maintain records relating to drug activity at a place such as a home” and “that contraband, drug proceeds and other indicia of drug trafficking such as coded telephone numbers, photographs and firearms are secreted in safe places such as homes”). In United States v. Miggins, a warrant was obtained to search the defendant’s apartment on the basis that he previously had been convicted of narcotics offenses, he was involved in a large drug transaction set-up to occur at one location, and he resided at the apartment in question some distance away. The district court held that there was insufficient probable cause to issue the search warrant, although the search was upheld on the basis of the “good faith” exception to the exclusionary rule announced in United States v. Leon, 468 U.S. 897 (1984). See Miggins, 302 F.3d at 388. This court held that the district court erred in finding a lack of probable cause. Id. at 393. In its reasoning, the court cited several cases from our sister circuits to support the position that it is reasonable to suppose that a drug dealer stores narcotics and equipment used in the distribution of narcotics at his home, even though no drug trafficking was observed to occur there. Id. at 394. We reaffirm our decision in Miggins. In the instant case, the affidavit provides evidence that Goward was involved in a marijuana smuggling operation along with Contreras, this operation was witnessed by an undercover officer who was sold the marijuana, and there was sufficient and independent proof that Goward lived at No. 04-2549 U.S. v. Goward Page 8 2225 Birch Run Road. Additionally, in both his affidavit and at the motion to exclude hearing, Officer Taylor stated that in his years of experience and training that drug dealers kept narcotics, paraphernalia, and weapons at their residence. Id. at 393-94; see also 2 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 3.7(d) (4th ed. 2004) (explaining that it is commonly held across the Circuits that there is sufficient nexus between drug trafficking, evidence of drug trafficking, and a drug dealer’s residence “merely on the basis of the affiant-officer’s experience that drug dealers ordinarily keep their supply, records and monetary profits at home”). Accordingly, drug trafficking, which the affiant witnessed and is further substantiated from his experience and training, establishes a sufficient nexus to support a finding of probable cause to search the place where the drug trafficker presently lives. Of course, there is a difference between a drug dealer and a drug user. In most cases, it would be inappropriate for officers who had verifiable evidence of possession of small amounts of drugs for personal use, without further indication of any wrongdoing occurring at that person’s residence, to infer a reasonable nexus between that criminal activity and the existence of related criminal activity at the residence. Moreover, the district court, citing United States v. Schultz, 14 F.3d 1093 (6th Cir. 1994), is correct in its assertion that “evidence of involvement in drug trafficking does not automatically establish probable cause to search any location connected with the wrongdoer.” (J.A. 85.) In Schultz, we held that there was no probable cause to search the defendant’s safety deposit box, even though the officer’s affidavit said that “based on his training and experience” he believed drug records would be there. Id. at 1097. The court held that such assertion was nothing “more than a guess” and “it cannot substitute for the lack of evidentiary nexus No. 04-2549 U.S. v. Goward Page 9 in this case, prior to the search, between the safe deposit boxes and any criminal activity.” Id. The search of Schultz’s residence, however, was proper. Additionally, our careful consideration of the record suggests that we may only review Goward’s claim that the affidavit did not create a sufficient nexus between his residence and his criminal drug trafficking activity. His claim that the affidavit lacks particularity because it refers to his home as a two-story single family residence and not a two story home with an upstairs apartment was not raised before the district court. The Federal Rules of Criminal Procedure require that a motion to suppress evidence must be made before trial. FED. R. CRIM. P. 12. Goward did make such a motion, but failed, however, to raise any claim of particularity in regard to the affiant’s description of the place to be searched as a single family residence. In United States v. Critton, 43 F.3d 1089, 1093-94 (6th Cir. 1995), a defendant challenged the grounds to suppress evidence that differed from those challenges unsuccessfully raised before the district court. Upon review, this court stated that it was without “jurisdiction to hear appeals of suppression issues raised for the first time on appeal.” Id. at 1093 (citing United States v. Crismon, 905 F.2d 966, 969 (6th Cir. 1990)). The court further opined that “a defendant who fails to raise a specific issue as the basis for suppression ‘has waived the right to raise that issue on appeal.’” Id. (quoting United States v. Yannott, 42 F.3d 999, 1005 (6th Cir.1994)). Assuming arguendo that there was not probable cause supporting the issuance of a search warrant for Goward’s residence at 2225 Birch Run Road, the search still would have been proper under the Leon good-faith exception. Leon, 468 U.S. at 905. The district court’s decision to deny Goward’s motion to suppress was proper. No. 04-2549 U.S. v. Goward Page 10 B. Finally, Goward raises a Booker claim regarding his sentence under the mandatory regime. See Booker, 543 U.S. 220. As this court found in United States v. Barnett, 398 F.3d 516, 530 (6th Cir. 2005), Goward’s sentence “was imposed under a framework that has now been substantially altered.” The government concedes that this case is appropriate for resentencing. Therefore, we vacate defendant’s sentence and remand for resentencing. III. Conclusion For the above reasons, we AFFIRM defendant’s convictions, but VACATE defendant’s sentence and REMAND for resentencing consistent with Booker.	{ "pile_set_name": "FreeLaw" }
229 N.W.2d 755 (1975) STATE of Iowa, Appellee, v. Steven Melvin COOLEY, Appellant. No. 57302. Supreme Court of Iowa. May 21, 1975. 756 Jonathan C. Wilson, Des Moines, for appellant. Richard C. Turner, Atty. Gen., Darby Maria Coriden, Asst. County Atty., and Ray A. Fenton, County Atty., for appellee. Heard by MOORE, C. J., and RAWLINGS, REES, UHLENHOPP and McCORMICK, JJ. RAWLINGS, Justice. Defendant, Steven Melvin Cooley, appeals from judgment on jury verdict finding him guilty of carrying a concealed weapon in violation of The Code 1971, Section 695.2. We reverse. October 8, 1971, at about 9:00 p. m., two Des Moines policemen, on special assignment to investigate armed robberies and house prowling in the Model Cities area, observed a 1961 Chevrolet parked at the corner of Thirteenth Street and Forest Avenue. Occupants of the vehicle were defendant, Vicky Lyon and her two year old child. At approximately 9:30, defendant emerged from the passenger side of the Chevrolet and entered the Salt and Pepper Lounge, a tavern located in the 1300 block on Forest Avenue. Defendant walked back and forth between the tavern and automobile two or three times, on each occasion remaining in the lounge for several minutes. Mrs. Lyon, driver of the Chevrolet (owned by her husband), waited in the car with her child. Upon defendant's last emergence from the tavern he engaged in a brief conversation with an individual, later identified as Hall. Defendant thereafter returned to the car which then proceeded east on Forest Avenue. Several blocks away the officers halted the Chevrolet. Mrs. Lyon was asked for and produced her driver's license after accompanying one of the officers to the nearby patrol car. Meanwhile, the other policeman went to the passenger side of the Chevrolet and asked defendant to step out. When defendant complied the officer noticed the handle of a revolver protruding from beneath the front seat. Defendant was thereupon arrested. Subsequently, defense counsel filed a pretrial motion to suppress, as illegally obtained evidence, the seized revolver. A hearing 757 followed. In denying said motion trial court foundationally held reasonably suspicious circumstances justified the car-stop. During trial, in absence of the jury, defendant renewed his previously voiced objection to admission in evidence of the aforesaid revolver. That objection was overruled, this time on the premise Code § 321.492, quoted infra, authorized a stop of the vehicle. Upon the basis of each holding, supra, trial court concluded the officer was in a place where he had a right to be when the gun was observed and the seized weapon was therefore admissible in evidence. Defendant's directed verdict motions, made at close of the State's case and again after introduction of all evidence, were overruled. During deliberations the jury requested a rereading of testimony given by several State's witnesses. Trial court denied same and the above noted guilty verdict was thereafter returned. Defendant subsequently moved for a new trial which was denied. In support of a reversal defendant asserts trial court erred in (1) denying his suppression motion and overruling the in-course-of-trial objection regarding introduction in evidence of the seized revolver, (2) refusing a jury request for the rereading of testimony given by several State's witnesses, (3) failing to instruct the jury on the meaning of the word "carried" as used in the accusatory charge, (4) overruling his directed verdict motions based on insufficiency of evidence, and (5) denying his new trial motion. I. It is prefatorily understood, contraband in plain view or readily observable by an officer while in a place where he or she has a lawful right to be is subject to seizure, absent a warrant, and admissible in evidence. See State v. Merchandise Seized, 225 N.W.2d 921, 925 (Iowa 1975). Defendant contends, however, stopping of the Lyon vehicle was constitutionally impermissible, therefore the officers' presence at the stopped car was unlawful. In this regard, he reasons the initial stop cannot be justified by (1) provisions of Code § 321.492, or (2) existent circumstances reasonably suggestive of criminal activity. Upon these premises defendant maintains the weapon was unlawfully obtained and therefore erroneously admitted in evidence. The foregoing contentions will be entertained in the order presented. Code § 321.492, states, in relevant part: "Any peace officer is authorized to stop any vehicle to require exhibition of the driver's operator or chauffeur license * * ." Defendant initially contends that since the Lyon vehicle was not stopped for the purpose of examining the operator's permit but rather to satisfy the officers' mere suspicions or curiosity, the viewing officer was not in a place where he had a lawful right to be. He alternatively posits that in event § 321.492 authorizes vehicle stops absent the purpose to inspect the operator's permit, then this statute is unconstitutional. The State oppositively argues § 321.492 gives officers an absolute right to stop a vehicle which in turn justifies his presence. By virtue of our holding, infra, we do not reach the above stated alternative issue. As best determinable this court has never before been called upon to resolve the aforesaid initial contention. We shall therefore look to other relevant decisions and authorities for guidance. First called into play is United States v. Cupps, 503 F.2d 277 (6th Cir. 1974). There the defendant had been stopped by officers at which time they discovered and took possession of a pistol lying on the front seat of the halted vehicle. Defendant was thereafter found guilty of possessing a gun after having been convicted of a felony. On appeal the conviction was reversed. Although the seizure was invalidated on other grounds the court aptly stated, 503 F.2d at 282: "[W]e have assumed, arguendo, that the state police have, as appellee contends, 758 under their authority to inspect licenses, an absolute right to stop any driver. Although it is unnecessary to decide the question in this appeal, we observe that the officers' claim that this was their reason for stopping appellant is refuted by other evidence. They testified that they followed and stopped Cupps [defendant] because they wanted to know his business and the identity of his passengers, and not because they wanted to inspect his license. * * * Police may not lawfully use their general inspection powers as a pretext for stopping motorists for the purpose of inquiring about their business on the public highways. The pretextuous nature of the stop in this case is demonstrated by the fact that Cupps' driving to the police barracks was an entirely lawful act. * * * Jarvis and Combs [officers] acted beyond their authority when they ordered Cupps out of the automobile, and, therefore, the plain view doctrine never became operative. Unless an officer has a right to be where he is, `plain view alone is never enough to justify the warrantless seizure of evidence.'" (emphasis supplied). And in People v. Harr, 93 Ill.App.2d 146, 235 N.E.2d 1, 2 (1968), is this pertinent observation: "[T]he State argues that there was no illegal arrest or search in that the officer was empowered to stop a motor vehicle and ask the driver to produce his license under the provisions of Chapter 95½, Sec. 6-118 of the Illinois Revised Statutes [license and permits to be carried and exhibited on demand] * * . " * * "The facts in this case indicate that the police officer here did not stop the defendant's car for the purpose of enforcing this statute. He stopped it, on the admitted facts, for the purpose of finding out who the defendant was, where he had been and where he was going. The statute cannot, in any event, be made applicable as authority to inspect the license as a mere subterfuge to obtain information or evidence not related to the licensing requirement." (emphasis supplied). Then in Morgan v. Town of Heidelberg, 246 Miss. 481, 150 So.2d 512, 515 (1963), the court aptly declared: "[W]hen the officer's primary purpose in stopping the motorist is not to inspect his license, but to examine the contents of the vehicle, the detention is not in good faith for examination of the driver's license, but a mere subterfuge or excuse for a failure to procure a search warrant. If evidence is discovered under such circumstances, it is illegally obtained. "On the other hand, if the evidence is openly visible to the officer's eyes at the time he is examining the operator's license, where the vehicle was stopped in good faith for that purpose, the officer is not deprived of his power to make an arrest for a misdemeanor or other offense committed in his presence." (emphasis supplied). Accord, Lipton v. United States, 348 F.2d 591, 593-594 (9th Cir. 1965); People v. Francis, 4 Ill.App.3d 65, 280 N.E.2d 49, 51 (1972); Coston v. State, 252 Miss. 257, 172 So.2d 764, 765 (1965); State v. Williams, 237 S.C. 252, 116 S.E.2d 858, 860 (1960); Reels v. State, 210 Tenn. 92, 355 S.W.2d 97 (1962); Robertson v. State, 184 Tenn. 277, 198 S.W.2d 633, 635-636 (1947); Smith v. State, 182 Tenn. 158, 184 S.W.2d 390 (1945); Cox v. State, 181 Tenn. 344, 181 S.W.2d 338 (1944). See also 46 Iowa L.Rev. 802, 808 (1961); 60 Va.L.Rev. 666, 676-678 (1974). We subscribe to and hereby adopt the views expressed in the foregoing cases. With regard to the reasons advanced by the officers for stopping the instantly involved (Lyon) car, the suppression hearing record reveals this pertinent colloquy: "Q. Mr. Wells [officer], I understand your testimony to be that the reason that you initially stopped this car was because you considered the actions of the Defendant which you alleged took place in going 759 to and from the tavern to be suspicious, is that correct? A. That, plus the other factors. With the situation, yes, sir. "Q. The other factors to which you refer would be that this is a high crime rate and predominantly negro area of town? A. Yes. Two other reasons, yes." It thus inferentially follows, the Lyon car-stop was not effected for the motivative purpose of inspecting the operator's permit. Therefore the stopping officers cannot, on this basis, be deemed to have been in a place where they had a lawful right to be. Consequently, seizure of the gun observed in the stopped vehicle cannot attendantly pass constitutional muster. On this basis the seized weapon was not admissible in evidence. Trial court erred in holding otherwise. II. The question next posed is whether the instant gun seizure can be justified by reason of a lawful investigatory stop of the Lyon car. In State v. Shea, 218 N.W.2d 610, 613 (Iowa 1974) we were called upon to determine whether "probable cause" existed for a car-stop. There a stationed policeman had been advised by an informant to the effect the lone occupant of a nearby parked automobile (Hines) was "dealing in dope". Subsequent events tended to confirm this tip. Thereafter Hines, accompanied by a person (Shea) known to the police as a drug seller, hurriedly drove away. The Hines' vehicle was later stopped by policemen in a squad car pursuant to an intercom directive given by the aforesaid stationed officer. This court upheld an attendant seizure of readily observable controlled substances in the stopped car. Significantly, the case was tried and presented for appellate review on a "probable cause" basis and accordingly considered. In the case at hand, however, neither defendant nor State argues presence or absence of "probable cause" to justify a stop of the car and subsequent gun seizure. Rather, both parties hereto address themselves to this issue: Did the officers have "reasonable grounds" for an investigatory stop of the vehicle? It is thereupon argued that if no such reasonable grounds existed then the police were not in a place where they had a right to be and the gun, though readily observable, was unconstitutionally obtained. The leading case on investigative stops is Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). There the Court, 392 U.S. at 22, 88 S.Ct. at 1880, recognized authority on the part of officers to stop an individual, absent probable cause, for the purpose of investigating unusual behavior which reasonably causes them to believe criminal activity is afoot. Illustratively, the Court stated in Adams v. Williams, 407 U.S. 143, 145, 92 S.Ct. 1921, 1923, 32 L.Ed.2d 612 (1972): "In Terry this Court recognized that `a police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possible criminal behavior even though there is no probable cause to make an arrest.' (Citation omitted). The Fourth Amendment does not require a policeman who lacks the precise level of information necessary for probable cause to arrest to simply shrug his shoulders and allow a crime to occur or a criminal to escape." See also United States v. Hernandez, 486 F.2d 614, 616 (7th Cir. 1973), cert. denied 415 U.S. 959, 94 S.Ct. 1488, 39 L.Ed.2d 574 (1974). It would appear the instantly involved Lyon vehicle-stop constituted a "seizure" of the person within the context of the Fourth Amendment. See Carpenter v. Sigler, 419 F.2d 169, 171 (8th Cir. 1969); United States v. Carter, 369 F.Supp. 26, 29 (E.D.Mo.1974); Loyd v. Douglas, 313 F.Supp. 1364, 1367-1368 (S.D.Iowa 1970). In any event we must objectively determine whether stopping of said vehicle, on less than probable cause, was reasonable under the circumstances. See generally Fields v. 760 Swenson, 459 F.2d 1064, 1067 (8th Cir. 1972); United States v. Nicholas, 448 F.2d 622, 624 (8th Cir. 1971); Carpenter v. Sigler, supra. If the officers were reasonably justified in effecting a stop of the vehicle then they were in a place they had a right to be and contraband readily observable in the car could be lawfully seized and admitted in evidence. See Williams v. State, Ind., 307 N.E.2d 457 (1974); Collins v. Commonwealth, 396 S.W.2d 318, 319 (Ky.1965); Taylor v. Commonwealth, 394 S.W.2d 895, 896 (Ky.1965); People v. Whalen, 390 Mich. 672, 213 N.W.2d 116, 122 (1973). See generally State v. Merchandise Seized, supra. Focusing now upon the matter of reasonableness, the Court in Terry indicated the question is a dual one: (A) whether articulated facts warrant intrusion on an individual's Fourth Amendment rights and (B) whether the scope of intrusion is reasonably related to circumstances which justified interference in the first place. See Carpenter v. Sigler, supra. See also United States v. Harflinger, 436 F.2d 928, 932-933 (8th Cir. 1970), cert. denied 402 U.S. 973, 91 S.Ct. 1660, 29 L.Ed.2d 137 (1971). But we need not concern ourselves with "scope of intrusion" since defendant contests the intrusion alone. In other words, he maintains initial stopping of the Lyon car was unreasonable. On this subject the Terry Court said, 392 U.S. at 21-22, 88 S.Ct. at 1880: "[I]n justifying the particular intrusion the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion. * * * And in making that assessment it is imperative that the facts be judged against an objective standard: would the facts available to the officer at the moment of the seizure or the search `warrant a man of reasonable caution in the belief' that the action taken was appropriate? (Authorities cited). Anything less would invite intrusions upon constitutionally guaranteed rights based on nothing more substantial than inarticulate hunches * * ." (Emphasis supplied). Briefly stated, an investigatory stop of a motor vehicle is constitutionally permissible only if the stopping officer has specific and articulable cause to reasonably believe criminal activity is afoot. By the same token, circumstances evoking mere suspicion or curiosity will not suffice. Here the State seeks to uphold the car-stop on this factual background: (A) the vehicle was seen parked in an area having a high crime rate; (B) the car carried out-of-county license plates; (C) defendant made several trips to and from a nearby tavern; (D) defendant engaged in conversation with an individual suspected by the police to be a drug dealer and robber; (E) occupants of the car, including defendant, were white in a predominantly black area; (F) a woman was driving the car and defendant was a passenger. In United States v. Harflinger, supra, this factual situation was held to justify an investigatory car-stop: (A) the automobile was licensed to a St. Louis owner but seen in a small town approximately four and a half hours' drive from St. Louis; (B) the car had been observed at 4:30 in the morning, parked crosswise on a highway with its lights on a barn owned by a liquid petroleum dealer; (C) later in the morning the vehicle was seen about one-half mile from the dealer's petroleum storage tank; (D) tracks were found around the dealer's petroleum storage tank, located on private property, indicating a vehicle had driven around the tank and someone wearing boots with distinctive lugged soles had walked around the container and returned to the car; 761 (E) one of the automobile occupants had been observed wearing boots with lugged soles identical to those which made the tracks. For like holdings based on similar circumstances, see Carpenter v. Sigler and Fields v. Swenson, both supra; Orricer v. Erickson, 471 F.2d 1204, 1207 (8th Cir. 1973); United States v. Owens, 472 F.2d 780, 782 (8th Cir. 1973), cert. denied 412 U.S. 951, 93 S.Ct. 3019, 37 L.Ed.2d 1004 (1973). On the other hand, in United States v. Nicholas, 448 F.2d at 624-625, a case factually analogous to that here presented, the Court held a car-stop was unreasonable where: (A) the police were not investigating any particular crime; (B) they had no information respecting the automobile or its occupants; (C) there was no showing the police had been informed of suspicious activities in the vicinity at time of defendant's arrest, aside from their general knowledge the area was known to be a narcotics traffic center; (D) the police observed the vehicle for a short period during which time defendant's companion sat quietly in the car until defendant came out of the pool hall and entered the vehicle; (E) the time was 11:15 p. m. and other individuals were then abroad on the streets; (F) defendant and his companion were black men in a predominantly black area; (G) the car bore out-of-county license plates. Viewed against an objective backdrop the instantly involved factual situation does not support a finding that the stopping of Mrs. Lyon's car was for a reasonably adequate investigatory purpose. More precisely, (1) no specific crime was being investigated, (2) the police had no incriminating information concerning the car or its occupants, (3) apparently neither officer had ever previously seen those occupants (4) 9:30 p. m. is a reasonable hour to be traveling city streets, (5) out-of-county license plates are frequently seen in the Des Moines area, (6) although one of the policemen testified, Hall, the man with whom defendant was seen conversing, had been suspected of illegal narcotic sales and robberies, neither officer could say Hall had ever been convicted of any such offense, (7) both officers conceded the conduct of defendant and other car occupants was susceptible to legitimate explanation. This is a far cry from specific and articulable facts which, with rational inferences, can be objectively said to have reasonably warranted the involved car-stoppage and attendant intrusion upon defendant's constitutionally guaranteed rights. In fact the officers acted improperly upon nothing more than speculation, conjecture and surmise. We now hold the State failed to prove the officers (1) had reasonable cause to stop the Lyon car and (2) were in a place where they had a right to be. See State v. King, 191 N.W.2d 650, 654 (Iowa 1971). Therefore, the plan view or readily observable doctrine never became operative. Consequently, trial court erred in holding the gun admissible in evidence on the basis of a lawful investigatory stop. Any other holding would open the door to indiscriminate and intolerable stopping of vehicles on our public highways upon nothing more than intuition, surmise and conjecture. III. In light of the above holdings admission in evidence of the gun taken from the Lyon car constitutes reversible error. See United States v. Calandra, 414 U.S. 338, 94 S.Ct. 613, 619, 38 L.Ed.2d 561 (1974); State v. Smith, 178 N.W.2d 329, 332 (Iowa 1970). IV. Finally entertained is defendant's complaint regarding absence of an instructional definition of the word "carried" contained in the weapon possession charge here made. The record discloses *762 no request for such clarification or amplification of instructions given was voiced prior to submission thereof to the jury. It thus follows the asserted error, if any, was not preserved for appellate review. See State v. Blyth, 226 N.W.2d 250, 273 (Iowa 1975); State v. Hall, 214 N.W.2d 205, 210 (Iowa 1974); State v. Hraha, 193 N.W.2d 484, 486 (Iowa 1972). V. Under the circumstances other errors assigned are not considered. Reversed and remanded for a new trial.	{ "pile_set_name": "FreeLaw" }
492 F.2d 670 160 U.S.App.D.C. 404 U. S.v.Roberson 73-1329 UNITED STATES COURT OF APPEALS District of Columbia Circuit 2/25/74 1 D.C.D.C. 2 AFFIRMED* * The judgment or order is accompanied by a Memorandum explanatory of the judgment. Such memorandum is not included with the opinions of the Court that are printed, and it may not be cited in briefs or memoranda of counsel as precedents, under local rule	{ "pile_set_name": "FreeLaw" }
126 F.Supp. 609 (1955) UNITED STATES of America v. Angelo A. GUERRINA. Crim. No. 17078. United States District Court, E. D. Pennsylvania. January 11, 1955. W. Wilson White, U. S. Atty., Norman Kron, Asst. U. S. Atty., Philadelphia, Pa., for plaintiff. Robert M. Taylor, Philadelphia, Pa., for defendant. CLARY, District Judge. This case is presently before the Court on reargument of defendant's motion to 610 suppress evidence and for return of property taken. The defendant was indicted on February 19, 1953 for income tax evasion covering the years 1946, 1947, 1948 and 1949, in violation of 26 U.S.C. § 145(b). On February 26, 1953 defendant filed his timely motion to suppress evidence and to return property. A hearing was held thereon on March 31, 1953, at which testimony was taken. On May 5, 1953 this Court entered its opinion and order, D.C., 112 F.Supp. 126, made findings of fact on the basis of the testimony, sustained the defendant's motion, and ordered the return of property taken and suppression of the evidence obtained by the Internal Revenue agents. The order covered evidence secured both at interviews with the defendant starting on or about December 12, 1949, and at a visit to defendant's office, in his absence, on December 26, 1949. In the opinion filed two questions were considered by the Court. First, whether the defendant ever legally consented to an examination of his books and records by the Internal Revenue agents and, secondly, whether an unauthorized entrance by the Internal Revenue agents into defendant's filing cabinets, taking therefrom certain evidence, upon which the prosecution was at least partially based, was an unlawful search and seizure in violation of the fourth amendment to the Constitution of the United States. Both of these questions were resolved against the Government and the order entered by the Court provided for return of any property taken and suppression of evidence obtained on all the aforesaid visits. No further proceedings were had and although several terms of court passed, the Government never moved the case for trial. On July 20, 1954 the Government filed its petition for reargument averring that the question of the dividing line between proper investigative procedures and those which encroach improperly upon constitutionally granted rights is an issue of such vital importance to the Government that the matter warranted further consideration by the Court. In support of its petition the Government cited the recent opinion of the Court of Appeals for the Third Circuit, filed July 1, 1954, United States v. Burdick, 214 F. 2d 768. This Court on July 21, 1954 granted reargument and a hearing was held, at which time both the Government and defendant submitted briefs in support of their respective positions. A reconsideration of the case has convinced the Court that on one aspect the earlier opinion was erroneous. In the light of the opinion in the Burdick case, the question as to whether the defendant consented to the examination of his check-stubs and other records which he himself made available to the agents, without first being warned of his constitutional rights, is one that cannot be determined preliminarily as a matter of law but is one which must be determined as a question of fact by the jury at the time of trial. The Burdick case, which cites with approval Montgomery v. United States, 5 Cir., 1953, 203 F.2d 887, 893, effectively disposes of this question. While it is true that the facts in each of the above two cited cases differ considerably from those in the instant case, the facts in each of those cases clearly demonstrate that criminal prosecution was contemplated at the time the defendants were questioned by special agents of the Internal Revenue Bureau. The import of the decisions in the Burdick and Montgomery cases, supra, is that failure to warn the defendants of their constitutional rights before questioning them as to their potential tax liability does not per se and as a matter of law render their admissions involuntary. The circumstances of the investigation and the failure to warn the defendants of their constitutional rights were matters which went only to the weight and credibility of the evidence thus obtained and not to its admissibility. I do not feel that the facts in the instant case are so different from either the Burdick or Montgomery cases as to warrant this Court reaching a different result. The order heretofore 611 entered on May 5, 1953 will, therefore, be modified to the extent that the evidence procured by the agents of the Internal Revenue Bureau on their first visits and while the defendant was present will not be suppressed. The Government may introduce such evidence at trial, without prejudice however to the right of the defendant at that time to raise for jury determination the question as to whether the disclosures then made were in fact voluntary. The Government in its motion, in its brief, and at argument also requested the Court to reconsider and vacate its finding that the visit and examination of the Internal Revenue agents on December 26, 1949 constituted an illegal search and seizure. The basis for this request is that the defendant has failed to sustain his burden of establishing an illegal search and seizure. I disagree under the facts as I have found them in the previous opinion. Without a search warrant and without permission from the defendant, the agents walked into his office, gained access to his closed files and took therefrom checkbooks, invoices and other records. I found that such action was without defendant's permission, was not in pursuance of a search warrant legally issued, and was, therefore, an unlawful search and seizure in violation of the fourth amendment to the Constitution of the United States. The Government has argued that the defendant by asking the agents on or about December 22, 1949, whether they had all they needed, gave the agents a blanket invitation to return thereafter in his absence to go through all his files and examine all books and records therein contained. I did not in my previous opinion and do not now construe defendant's words as granting permission to the agents to return in his absence and search his files. The Government has also contended, at least inferentially, that the question as to the illegality of search and seizure is one of fact to be determined by the jury and that the Court is without power to suppress evidence. In the case of Steele v. United States, 1925, 267 U.S. 505, 511, 45 S.Ct. 417, 419, 69 L.Ed. 761, a case involving the exclusion of information gained by a search warrant, Mr. Chief Justice Taft made the following statement: "The second answer is that the question of the competency of the evidence of the whisky by reason of the legality or otherwise of its seizure was a question of fact and law for the court and not for the jury." See also Boyer v. United States, 5 Cir., 1937, 92 F.2d 857, 859, at page 858, wherein Circuit Judge Foster said: "It was also within the province of the court to determine for himself without the intervention of a jury, whether the evidence secured by the search should be suppressed." citing Steele v. United States, supra. I have concluded, therefore, that the question of suppression of evidence because of illegality of search and seizure is one for determination by the Court and not by a jury. That part of the order of May 5, 1953 ordering the return of any property taken from the files of the defendant in his absence on December 26, 1949 and suppressing all evidence obtained on that visit by the Internal Revenue agents will stand. Evidence obtained by an unconstitutional search and seizure is not admissible against the defendant and a conviction obtained thereon would of necessity have to be reversed, Murby v. United States, 1 Cir., 1923, 293 F. 849. An appropriate modifying order will be entered in accordance with this opinion.	{ "pile_set_name": "FreeLaw" }

Subsets and Splits

No community queries yet

The top public SQL queries from the community will appear here once available.