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247 F.2d 491
CENTENNIAL INSURANCE COMPANY, a Corporation, Appellant,v.Dave SCHNEIDER, Doing Business as Dave Schneider WholesaleJewelry, Appellee.
No. 15337.
United States Court of Appeals Ninth Circuit.
Aug. 20, 1957, Rehearing Denied Sept. 26, 1957.
Hauerken, St. Clair & Viadro, George H. Hauerken, San Francisco, Cal., for appellant.
Betts, Ely & Loomis, Walter Ely, Los Angeles, Cal., Samuelson & Buck, C. Ransom Samuelson, Long Beach, Cal., for appellee.
Before STEPHENS, Chief Judge, and BONE and CHAMBERS, Circuit Judges.
BONE, Circuit Judge.
1
Centennial Insurance Co. (hereinafter 'Centennial'), defendant below, appeals from a judgment entered by the District Court. The action was brought by Dave Schneider, doing business as Dave Schneider Wholesale Jewelry, to recover on a policy of insurance issued by Centennial to appellee on August 15, 1954, and continuing in force for a period of one year. The claimed loss of jewelry and their carrying cases allegedly covered by the policy occurred on December 3, 1954.
2
On the morning of December 3, 1954, at about 10:00 A.M. appellee left his place of business. As a wholesale jeweler appellee traveled by car from retailer to retailer, carrying the jewelry to be displayed in two specially fitted cases which he carried in the trunk of his car. Following his lunch, he drove to Bruce Jewelers in Inglewood, California, removed the cases from the trunk of his car, took them into the jewelry store, displayed his line of jewelry, returned the cases to the trunk and drove to Joy Jewelry Company, also in Inglewood.
3
Appellee did not remove his cases at Joy Jewelry Co. He did not enter the premises, but talked with one of the buyers at Joy, Mr. Stelzer, in front of the store so he could see his car. Appellee and Stelzer got into appellee's car, drove around the block and into a blind alley and parked appellee's car behind a new car (a Ford and hereinafter called 'Ford') purchased by Stelzer for his wife. Both appellee and buyer apparently got into the Ford car, the buyer then showing appellee the dashboard equipment. Appellee testified he had locked his car, and adjusted the rear view mirror of the Ford so that he could see his car. The inspection of the Ford lasted from five to fifteen minutes. Appellee then returned to his car and drove about four miles to the store of another customer, California Premium Service.
4
The drive to California Premium Service took some forty-five minutes because of heavy traffic at that hour. Appellee parked his car close to California Premium Service and claims that he watched it at all times while talking to Mr. Nigro of California Premium Service, except for about one minute when he examined a diamond, and during this time Mr. Nigro watched appellee's car. It was after inspecting the diamond that appellee opened the car trunk to remove his cases, and found both cases were not there. Centennial was notified and the police called.
5
Appellee's car was a 1954 Cadillac Coup de Ville model. The trunk latch locked automatically when the trunk door or lid was closed. The trunk latch showed no evidence of tampering. The trunk lid was of the type which rises if not latched shut because of a spring mechanism. Testimony was conflicting as to how high the trunk lid would have to rise or would have to be raised up for appellee to notice it by looking into the rear view mirror. At trial appellee testified it would have to be up all the way for him to see it in his rear view mirror. The jewelry cases were about 4 1/2 feet tall, 2 1/2 feet wide and 20 inches in depth, weighed about 25 pounds when empty, and about 65 pounds (counting the jewelry contents) on the day in question. Each case was on wheels to facilitate moving it. Counsel for Centenneal elicited by questioning at trial (and strongly emphasizes in its brief in this Court) that between the time he left his place of business at 10:00 A.M. and the time he discovered the loss of the jewelry, about 4:30-5:00 P.M., appellee made no use of a rest room, the implication being the appellee probably did make use of a rest room during this seven hour period, forgot about it, and that it was during this time when the car would be out of his sight that the theft was committed.
6
Both parties seem to entertain the view that the loss was a result of a theft, and the District Judge found the jewelry to have been stolen. Major controversy centers on clause 5(I) of the policy, which reads:
7
'5. This policy insures against all risks of loss of or damage to the above described property arising from any cause whatsoever except:
8
'(I) Loss or damage to property insured hereunder while in or upon any automobile, motorcycle or any other vehicle unless, at the time the loss occurs, there is actually in or upon such vehicle, the Assured, or a permanent employee of the Assured, or a person whose sole duty it is to attend the vehicle. This exclusion shall not apply to property in the custody of a carrier mentioned in Section 2 hereof, or in the custody of the Post Office Department as first class registered mail.'
9
Appellee argues that the language in the exception clause, (I), '* * * loss or damage to property while in or upon an automobile * * *,' is ambiguous, and should be construed most strongly against Centennial. Appellee also asserts that '* * * loss or damage to property * * *' can mean only damage to property and does not include theft as a theft involves 'loss of' property rather than 'loss * * * to' property. Thus, says appellee, the exception clause does not apply in this case. This is a clever argument, and is indicative of the thoroughness with which counsel has represented appellee. However, we cannot accept the argument. We believe the language of the policy excepting 'loss of damage to property' expresses the intention to except theft of property from an automobile on the terms therein stated, and not alone to except damage to property, (assuming damage means something entirely different from theft). We are supported in this view by other decisions which have found similar language to be reasonably clear and unambiguous, and applied such language to cases of theft. Cf. Greenberg v. Rhode Island Ins. Co., 1946, 188 Misc. 23, 66 N.Y.S.2d 457, 459; Princess Ring Co., Inc., v. Home Ins. Co., 1932, 52 R.I. 481, 161 A. 292, 293.
10
It is appellee's further contention that direct testimonial evidence shows that the insured property was not taken from the car while appellee was out of the car since at all such times the car was watched and no one watching saw anyone open the trunk. From this appellee argues that he not only must have been, but that he was, in the car at the time of the theft. This apparently was the view of the trial judge as findings were made that the '* * * jewelry and sample cases and trays were stolen from the trunk of plaintiff's automobile at a time when the plaintiff was in such vehicle.'
11
While testifying, appellee, over objection of Centennial's counsel, gave as his opinion to explain the occurrence of the loss, that it probably happened during the time that appellee was driving to California Premium Service after leaving Stelzer following examination of Stelzer's Ford. The traffic moved slowly, there were many stops. Appellee was of the opinion the thief (or thieves) somehow removed the cases and contents while his car was stopped, loaded them into another vehicle and made a getaway.
12
Centennial asserts that such a view of the 'theft' must be rejected as 'inherently incredible;' that the theft could not have happened while appellee was in the car without appellee being aware of its commission.
13
Under Rule 52(a) of the Fed.Rules Civ.Proc., 28 U.S.C.A., a finding is clearly erroneous when, although there is evidence to support it, a reviewing court on reviewing the entire evidence is left with a definite and firm conviction that a mistake has been made. United States v. U.S. Gypsum Co., 1948, 333 U.S. 364, 395-396, 68 S.Ct. 525, 92 L.Ed. 746; Smyth v. Erickson, 9 Cir., 1955, 221 F.2d 1, 4; Alaska Freight Lines v. Harry, 9 Cir., 1955,220 F.2d 272, 275. Cf. United States v. One 1950 Buick Sedan, 3 Cir., 1956,231 F.2d 219, 223, on drawing reasonable inferences from 'basic facts.'
14
After a complete study of the evidence we are left with the conviction that a mistake has been made. We reach this conclusion for two reasons. In the first instance, the testimonial evidence is not convincing that appellee or others with whom he did business that day could adequately see the trunk of the car at all times. Of particular interest is the testimony concerning the several minutes that appellee was inside the Ford examining it with Stelzer of Joy Jewelry Co. If we take the testimony most favorable to appellee (as we are required to do) United States v. Comstock Extension Mining Co., Inc., 9 Cir., 1954, 214 F.2d 400, 403, we find these facts: the Stelzer Ford was parked in a blind alley; the front of appellee's Cadillac was parked closely behind the rear of the Ford; the rear end of the Caldillac was about parallel with the sidewalk running along a street which ran at right angles to the alley; appellee was in the front seat of the new Ford car attempting to watch to trunk of his car by looking into the rear view mirror while he also looked at the instrument panel of the Ford and talked with Stelzer; appellee testified that he couldn't see the back of is car '* * * very well, because the back was quite a ways back * * *;' appellee looked into the rear view mirror '* * * off and on * * *' as Stelzer showed him the panel in the Ford; appellee spent (by the most favorable testimony) five to seven minutes in the Ford.
15
We believe this testimony substantially derogates from appellee's insistence that he could see his car at all times. These facts are specially significant when considered with that part of appellee's theory which postulates that the thief (or thieves) in some way had procured a key which fitted the lock and could open the trunk with ease and dispatch. With a key to expedite opening, and with appellee having a poor view of the trunk, the trunk could have been opened, raised to a height sufficient to remove the cases, the theft completed and the getaway made without appellee being conscious of the crime. We believe that Centennial has shown by appellee's testimony that he did not always have a clear view of his car when not in it, so that the theft could have been committed while appellee was not in the car and without appellee knowing of or seeing its commission.
16
We also believe that it is most doubtful that the two cases with their contents could have been removed from the trunk while appellee was in the car without appellee being aware at the time that a theft was taking place, though he might not have been able to prevent its completion. We must remember that each case measured 4 1/2 feet tall, 2 1/2, feet wide and 20 inches deep, and weighed (with contents) sixty-five pounds each. each case was in the trunk of an automobile so that the trunk lid would have to be raised to remove it. Evidence is not clear as to how high the trunk lid would have to be raised, but it would have to be raised at least 20 inches, as this is the minimum measurement of the cases. Probably the trunk would be opened wider so the thief (or thieves) could more easily take hold of the cases and remove them without dragging them across the car frame and edge of the trunk, which would shake the vehicle, make considerable noise, and alert the driver. And when a sixty-five pound weight is removed from the rear of a car, the car probably would move or sway sufficiently to arouse the driver to the fact that something is happening to his car; he will look about. And further, the thief (or thieves) must have shut the trunk with sufficient force to lock it shut as appellee testified that if not latched properly the trunk lid would rise, especially if he drove. Appellee testified that it did not rise while he drove that day, and that it was locked when he went to remove the cases at California Premium Service. Yet, through all of these possible steps which the thief (or thieves) would have taken to complete the theft, appellee was unaware of any noise in, or unusual or surprising motions of the car.
17
But even if the appellee might not notice such events, drivers moving behind appellee would certainly have seen the thief (or thieves) and probably those drivers, when seeing a person (or persons) surreptitiously approach appellee's car and without any sign of approval by appellee remove two large cases and place them in another car or take them to the sidewalk, would sound their horns or call. But even if there was complete silence from all the other users of the road at that time, and even if the trunk could not be seen in the rear view mirror unless raised to its maximum height, the thief (or thieves) would have had to carry or wheel the cases to the sidewalk or to another vehicle, which would have given appellee an excellent opportunity to see at least part of the commission of the crime. A person (or persons) walking about in a busy street, even if traffic is temporarily halted, carrying or wheeling large cases would attract attention.
18
But the basic theory of appellee is that the theft was committed by removing the cases from his car and placing them in a getaway car while appellee was held up by slow moving traffic. This directly conflicts with appellee's theory that the crime was accomplished this way so that a fast escape could be made. If traffic was 'bumper to bumper,' (as appellee testified) so that appellee could not move speedily, it seems clear that a speedy getaway of the thieves would be impossible.
19
Centennial has shown by the testimony of appellee himself that he could not see his car clearly at all times when he was out of it. This overcomes appellee's assertion that the theft was committed while appellee was in the car as he could observe the car at all times and no one removed anything from the trunk while he watched it. And we believe that appellee's own theory of the theft is incredible. After reviewing the entire record we entertain the firm and definite conviction that a mistake was made by the trial court. On the basis of all the evidence in this case, we believe that in finding that the jewelry was stolen from the car trunk at a time when appellee was in such vehicle, the lower court bridged an impassable chasm with an assumption.
20
The cause is remanded to the District Court with instructions to vacate the judgment and to enter judgment that appellee take nothing.
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471 F.3d 67
Michael CASSIDY, Robert J. Cabin, Plaintiffs-Appellants,v.Michael CHERTOFF, Secretary, United States Department of Homeland Security, in his official capacity, Thomas H. Collins, Admiral, Commandant, United States Coast Guard, in his official capacity, Glenn Wiltshire, Captain, United States Coast Guard Federal Maritime Security Coordinator, New York Captain-of-the-Port Zone, in his official capacity, Lake Champlain Transportation Company, Inc., in its capacity as agent of the United States Government, Defendants-Appellees.Docket No. 05-1835-cv.
United States Court of Appeals, Second Circuit.
Argued: October 27, 2005.
Final Submission: September 29, 2006.
Decided: November 29, 2006.
COPYRIGHT MATERIAL OMITTED COPYRIGHT MATERIAL OMITTED William A. Nelson, Cooperating Attorney, American Civil Liberties Union of Vermont, Middlebury, VT, for Plaintiffs-Appellants.
Douglas N. Letter, Appellate Litigation Counsel, Civil Division, Department of Justice, Washington D.C., and Michael Brow, Sylvester & Maley, Inc., Burlington, VT (Peter D. Keisler, Assistant Attorney General, Washington, D.C.; David V. Kirby, United States Attorney for the District of Vermont; Carol L. Shea, Assistant United States Attorney, Burlington, VT on the brief), for Defendants-Appellees.
Before WINTER, POOLER, and SOTOMAYOR, Circuit Judges.
SOTOMAYOR, Circuit Judge.
1
Plaintiffs-appellants Michael Cassidy and Robert J. Cabin appeal from a judgment of the United States District Court for the District of Vermont (Murtha, J.) granting defendants-appellants Michael Chertoff, Thomas H. Collins, Glenn Wiltshire, and Lake Champlain Transportation Company's ("LCT") motion to dismiss the plaintiffs' claim that LCT's practice of searching the carry-on baggage of randomly selected passengers and inspecting randomly selected vehicles, including their trunks, pursuant to the Maritime Transportation Security Act of 2002 ("MTSA"), 46 U.S.C. §§ 70101-70119 (2006), violated plaintiffs' Fourth Amendment rights. For the reasons that follow, we reject plaintiffs' contention that the searches at issue in this case violated their Fourth Amendment rights and affirm the judgment of the district court.
BACKGROUND
2
In the wake of the September 11, 2001 terrorist attacks, Congress enacted the MTSA to detect and deter a potential "transportation security incident," which Congress defined as a "security incident resulting in a significant loss of life, environmental damage, transportation system disruption, or economic disruption in a particular area." 46 U.S.C. § 70101(6). Because the resolution of this appeal depends, in significant part, on the MTSA and the regulations enacted pursuant to it, we begin by discussing the statutory background in some detail.
3
The MTSA contains a set of nationwide directives for increasing both vessel and port security. First, it requires the Secretary of the Department of Homeland Security ("DHS") to "conduct an assessment of vessel types ... on or adjacent to the waters subject to the jurisdiction of the United States to identify those vessel types . . . that pose a high risk of being involved in a transportation security incident." Id. § 70102(a). Based on the information gathered in this initial assessment, the Secretary must then "conduct a detailed vulnerability assessment of . . . [such] vessels" to identify, inter alia, possible threats to critical assets and infrastructure as well as existing weaknesses in passenger and cargo security protection systems. Id. § 70102(b). After these vulnerability assessments have been made, the MTSA requires the owners and operators of vessels "that the Secretary believes may be involved in a transportation security incident" to prepare a security plan "for deterring a transportation incident to the maximum extent practicable." Id. § 70103(c)(1)-(2).
4
The Coast Guard conducted the initial nationwide vulnerability assessment on behalf of the Secretary. See Implementation of National Maritime Security Initiatives, 68 Fed.Reg. 39,240, 39,243 (July 1, 2003) (to be codified at 33 C.F.R. pts. 101, 102, 103 et al., 46 C.F.R. pts. 2, 31, 71, et al.). This assessment was aimed at "determin[ing] risks associated with specific threat scenarios against various classes of targets within the Marine Transportation System." Id. at 39,244. In order to determine the susceptibility of various segments of the commercial maritime community to terrorist attack, Coast Guard analysts considered, inter alia, the likelihood that a particular type of vessel would be a terrorist target or would be used as a weapon itself; the plausibility of terrorists actually carrying out various hypothetical attack scenarios; the risk associated with a given attack against a given target; and the likelihood and consequences of various attack scenarios. Id. at 39,244-45; see also id. at 39,243-50 (describing the methods of assessment employed by the Coast Guard in making the determinations required by the MTSA).
5
Based on this assessment, the Coast Guard determined that certain maritime vessels, including those that weigh more than 100 gross register tons or are licensed to carry more than 150 passengers "are at a high risk of a transportation security incident." Id. at 39,246; see also 33 C.F.R. § 104.105(a) (codifying the Coast Guard's above determination). Under the MTSA implementing regulations, vessels that fall into the high-risk category are required to adopt certain security measures to "[d]eter the unauthorized introduction of dangerous substances and devices, including any device intended to damage or destroy persons, vessels, facilities, or ports." 33 C.F.R. § 104.265(a)(1). To determine what security measures are required for such high-risk vessels, a vessel owner must prepare a Vessel Security Assessment ("VSA"), which is "an analysis that examines and evaluates the vessel and its operations taking into account possible threats, vulnerabilities, consequences, and existing protective measures, procedures and operations," id. § 101.105, by collecting specified background information and carrying out an onsite survey of the vessel to check existing protective measures, procedures, and operations for a variety of factors. Id. § 104.305(a)-(b). When complete, the VSA is used by the vehicle's owner or operator to devise a Vessel Security Plan ("VSP"), which is a "plan developed to ensure the application of security measures designed to protect the vessel and the facility that the vessel is servicing or interacting with." Id. § 101.105. The VSP must be submitted to the Coast Guard for review and approval. Id. § 104.410. Owners of a vessel operating under a VSP must "[s]creen persons, baggage (including carry-on items), personal effects, and vehicles for dangerous substances and devices at the rate specified in the approved Vessel Security Plan." Id. § 104.265(e)(1). Owners must also "[c]heck the identification of any person seeking to board the vessel." Id. § 104.265(e)(3).
6
Owners and operators of high-risk vessels are permitted a certain measure of flexibility within this general framework. They may opt out of "identification checks and passenger screening requirements." Id. § 104.292(b). In place of these search requirements, vessel owners "may ensure security measures are implemented that include": (1) Searching selected areas prior to embarking passengers and prior to sailing; and
7
(2) Implementing one or more of the following:
8
(i) Performing routine security patrols;
9
(ii) Providing additional closed-circuit television to monitor passenger areas; or
10
(iii) Securing all non-passenger areas.
11
Id. In fact, a vessel owner or operator may, with the express permission of the Coast Guard, opt out of any regulatory requirement contained in a VSP so long as the Coast Guard has determined that "the waiver will not reduce the overall security of the vessel." Id. § 104.130 (stating that the owner or operator of a high-risk vessel is permitted to "apply for a waiver of any requirement . . . that the owner or operator considers unnecessary in light of the nature or operating conditions of the vessel"). The regulations also permit owners and operators to propose an "equivalent" to any of the security measures required by a VSP. Id. § 104.135. Finally, instead of implementing a VSP, a vessel owner or operator may fulfill the requirements of the MTSA by implementing an Alternative Security Program ("ASP"). Id. § 104.140(c). An ASP is "a third-party or industry organization developed standard that the [Coast Guard] Commandant has determined provides an equivalent level of security to that established by" the agency's regulations. Id. § 101.105. Vessel owners and operators who adopt an ASP must still develop and make available for Coast Guard inspection a vessel-specific security assessment report. Id. §§ 101. 120(b)(4), 104.120. To date, the Coast Guard has approved a number of ASPs through publication in the Code of Federal Regulations, see 33 C.F.R. § 101.125, including the program that LCT adopted, which was devised by the Passenger Vessel Association. See id. § 101.125(c).
12
The parties agree that an ASP is a classified document, subject to the same "sensitive security information" designation that applies to a VSP. See id. § 104.400(c) (stating that VSPs are subject to protection as "sensitive security information"). Because the ASP designed by the Passenger Vessel Association is classified and has not been entered into evidence, we will assume, for the purpose of reviewing the district court's decision to grant defendants' motion to dismiss, that the searches alleged by the plaintiffs are either required or permitted by LCT's security program.
13
Plaintiffs Michael Cassidy and Robert J. Cabin, both residents of Vermont, are commuters who ride LCT ferries and were subject to random searches pursuant to the ferry company's ASP. They traveled to their jobs in New York via the LCT ferry between Grand Isle, Vermont and Plattsburgh, New York several times a week. The ferries that operate on this route weigh more than 100 gross register tons and are therefore subject to the MTSA's regulations for high-risk vessels. Cassidy usually crosses on the ferry in his car while Cabin, who mostly commutes by bicycle, always carries with him a backpack or small bike pack.
14
Shortly before July 1, 2004, LCT posted a notice at its ticket booths warning passengers that "[a]s a result of the September 11, 2001, terrorist attacks on the United States," LCT had been required by DHS and the Coast Guard "to conduct random screening of persons, cargo, vehicles, or carry-on baggage." The notice further explained that compliance with the search policy was mandatory and that "anyone refusing to submit to security screening will not be allowed to board [LCT] ferries." LCT also placed large plastic signs near its ticket booth and ferry boarding areas stating that its facilities and boats were subject to security regulations issued by DHS and the Coast Guard; that all vehicles, baggage, and personal items were subject to screening at any time; and that failure to observe these requirements could result in immediate removal from the ferry or detention by law enforcement authorities.
15
On July 1, 2004, LCT ferry attendants began selecting passengers to be searched. Based on observations made by plaintiffs and other witnesses, LCT's security program appears to involve the following protocols. Foot and bicycle passengers are asked to open their carry-on items and present them for visual inspection. Car passengers are asked to open their trunks or tailgates so that the attendant may visually inspect the car's interior; attendants do not appear to search containers in either the trunks or interiors of vehicles. On occasion, attendants will ask the driver to open the car's windows to permit a visual scan of the interior.
16
Cassidy has been asked to open the trunk of his car on a number of occasions when attempting to board the ferry. Cabin has been asked to open his bike pack on at least one occasion. Cassidy and Cabin acquiesced to these demands because commuting via LCT ferries is a practical necessity for both of them. (Cassidy stated in his complaint that the only feasible alternative — traversing Lake Champlain via Rouse's Point Bridge — would double his daily commute time from two hours to four.) Moreover, plaintiffs wish to avoid any repercussions that may attend refusal to acquiesce to LCT's boarding requirements; plaintiffs allege that LCT records the license numbers of vehicles whose drivers refuse to consent to a trunk search and communicates this information to attendants at all of its loading docks, where the offending vehicle is barred from boarding any LCT ferry until its driver submits to a search. In addition, 33 C.F.R. § 104.265(e) provides that some type of report, as required by undisclosed DHS and Coast Guard directives, must be made if a person refuses to consent to a search. Plaintiffs allege that they acquiesced to LCT's unconstitutional searches in order to avoid such repercussions.
17
Plaintiffs brought the instant suit on October 4, 2004, seeking injunctive and declaratory relief against defendants for Fourth Amendment violations. Defendants moved to dismiss the complaint under Rule 12(b)(6) of the Federal Rules of Civil Procedure, and the district court granted the motion after determining that the searches conducted by LCT "advance a `special governmental need' to provide domestic security [and thus] are not proscribed by the Fourth Amendment." The district court explained that "Congress has determined that ferries like those which operate on Lake Champlain may be vulnerable to terrorist incidents and, therefore, should be subject to new, more comprehensive security measures designed to protect public safety and secure commercial interests." The court found that "[r]andom, warrantless searches further these goals by deterring potential security breaches," and that the searches here are reasonable because "they are conducted in a manner no more intrusive than is necessary to achieve the compelling government interest of protecting the safety of passengers and deterring terrorist attacks on maritime vessels." The court found further that the plaintiffs voluntarily elected to ride LCT ferries and consented to the required searches. The court also concluded that plaintiffs had a diminished expectation of privacy when attempting to board the ferries because such search procedures are akin to those that passengers have been accustomed to expect, and which have been found constitutional, in the airline industry. Plaintiffs filed this timely appeal.1
DISCUSSION
18
We review de novo a district court's grant of a motion to dismiss; we accept as true the factual allegations in the complaint and draw all inferences in the plaintiffs' favor. Allaire Corp. v. Okumus, 433 F.3d 248, 250-51 (2d Cir.2006).
19
Plaintiffs contend that LCT's policy of requiring passengers to submit to security checks before boarding ferries on two of its Lake Champlain routes violates their Fourth Amendment rights. The Fourth Amendment to the United States Constitution provides that the federal government shall not violate "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. Const. amend. IV. Although a wholly private search falls outside the scope of the Fourth Amendment, Burdeau v. McDowell, 256 U.S. 465, 475, 41 S.Ct. 574, 65 L.Ed. 1048 (1921), a search conducted by private individuals at the instigation of a government officer or authority constitutes a governmental search for purposes of the Fourth Amendment. See Skinner v. Ry. Labor Executives' Ass'n 489 U.S. 602, 614, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989). LCT implemented its security policy in order to satisfy the requirements imposed by the MTSA and such law's implementing regulations on owners and operators of ferries that weigh over 100 gross register tons. The ASP adopted by LCT was approved by the Coast Guard — and published in the Code of Federal Regulations, 33 C.F.R. § 101.125(c) — as an adequate means of fulfilling the requirements imposed by the MTSA. The parties agree that the government's significant involvement in LCT's contested search policy brings these searches within the ambit of the Fourth Amendment.
20
"[T]he ultimate measure of the constitutionality of a governmental search is `reasonableness.'" Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 652, 115 S.Ct. 2386, 132 L.Ed.2d 564 (1995). Courts judge the reasonableness of a search "by balancing its intrusion on the individual's Fourth Amendment interests against its promotion of legitimate governmental interests." Id. at 652-53, 115 S.Ct. 2386 (internal quotation marks omitted). When law enforcement officials undertake a search to discover evidence of criminal wrongdoing, the Supreme Court has held that reasonableness generally requires those officials to obtain a search warrant. See Skinner, 489 U.S. at 619, 109 S.Ct. 1402. Such warrants cannot be obtained without a showing of probable cause. Id.
21
In a limited set of circumstances, however, the Supreme Court has held that a search warrant, and the requisite showing of probable cause, are not required. A search unsupported by probable cause may be constitutional "when special needs, beyond the normal need for law enforcement, make the warrant and probable-cause requirement impracticable." Griffin v. Wisconsin, 483 U.S. 868, 873, 107 S.Ct. 3164, 97 L.Ed.2d 709 (1987) (internal quotation marks omitted). Indeed, the Supreme Court and this Court have upheld warrantless, suspicionless searches in a variety of circumstances in which the government's actions were motivated by "special needs." See, e.g., Illinois v. Lidster, 540 U.S. 419, 124 S.Ct. 885, 157 L.Ed.2d 843 (2004) (upholding highway checkpoint stops erected in the course of investigating a fatal hit-and-run accident); Vernonia, 515 U.S. at 650, 115 S.Ct. 2386 (upholding random drug testing by school officials of students who participate in interscholastic sports); Mich. Dep't of State Police v. Sitz, 496 U.S. 444, 110 S.Ct. 2481, 110 L.Ed.2d 412 (1990) (upholding highway checkpoint stops designed to detect drunk drivers); Nat'l Treasury Employees Union v. Von Raab, 489 U.S. 656, 109 S.Ct. 1384, 103 L.Ed.2d 685 (1989) (upholding drug tests for United States Customs Service employees who seek transfer or promotion to certain positions and those who carry firearms); Skinner, 489 U.S. at 608-13, 109 S.Ct. 1402 (1989) (upholding drug and alcohol tests by railroad companies of railroad employees who are involved in train accidents or violate certain safety rules); United States v. Martinez-Fuerte, 428 U.S. 543, 96 S.Ct. 3074, 49 L.Ed.2d 1116 (1976) (upholding brief stops for questioning at a fixed Border Patrol checkpoint); Nicholas v. Goord, 430 F.3d 652 (2d Cir. 2005) (upholding a statute that requires certain classes of convicted felons to provide DNA samples to be maintained in a state database); United States v. Edwards, 498 F.2d 496 (2d Cir.1974) (Friendly, J.) (upholding suspicionless searches of the persons and carry-on luggage of all passengers seeking to board an airplane). Most recently, we upheld a random, suspicionless search regime of subway passengers' baggage as constitutional under the special needs doctrine. MacWade v. Kelly, 460 F.3d 260 (2d Cir.2006).
22
In Chandler v. Miller, 520 U.S. 305, 117 S.Ct. 1295, 137 L.Ed.2d 513 (1997), the Supreme Court discussed the rubric courts must use to determine whether a particular governmental search falls within the "closely guarded category of constitutionally permissible suspicionless searches." Id. at 309, 117 S.Ct. 1295. The Court explained that when "`special needs' — concerns other than crime detection or ordinary evidence gathering — are alleged in justification of a Fourth Amendment intrusion, courts must undertake a context-specific inquiry, examining closely the competing private and public interests advanced by the parties." Id. at 314, 117 S.Ct. 1295. In applying the special needs doctrine, courts must assess the constitutionality of the challenged conduct by weighing "the government conduct — in light of the special need and against the privacy interest advanced" — through the examination of three factors: (1) the nature of the privacy interest involved; (2) the character and degree of the governmental intrusion; and (3) the nature and immediacy of the government's needs, and the efficacy of its policy in addressing those needs. Palmieri v. Lynch, 392 F.3d 73, 81 (2d Cir.2004); see also United States v. Lifshitz, 369 F.3d 173, 183-84 (2d Cir.2004). We examine each of these three factors in turn.
I. Plaintiffs' Privacy Interest
23
Plaintiffs assert that they have a full privacy interest in protecting their carry-on baggage and automobiles from random, suspicionless searches. They contend that members of the public have an undiminished expectation of privacy when they board ferries on Lake Champlain. Plaintiffs further argue that the searches LCT conducts on its loading docks differ from searches the government conducts at international borders and traffic checkpoints because borders between countries, unlike rural loading docks, are obviously sensitive locations that implicate a diminished expectation of privacy.
24
A. Plaintiffs' Expectation of Privacy in Their Carry-on Baggage
25
Plaintiffs assert that passengers with carry-on baggage retain an undiminished privacy interest in such baggage because plaintiffs experienced LCT's searches as a substantial intrusion on their privacy and because Bond v. United States, 529 U.S. 334, 120 S.Ct. 1462, 146 L.Ed.2d 365 (2000), "definitively reaffirmed the protected privacy interest in the contents of hand luggage." While we do not read Bond as broadly as plaintiffs suggest, we agree with plaintiffs that they enjoy a full expectation of privacy in their carry-on baggage.
26
The Supreme Court has held that "[t]he Fourth Amendment does not protect all subjective expectations of privacy, but only those that society recognizes as `legitimate.' What expectations are legitimate varies, of course, with context, depending, for example, upon whether the individual asserting the privacy interest is at home, at work, in a car, or in a public park." Vernonia, 515 U.S. at 654, 115 S.Ct. 2386 (citations omitted). Two key cases have applied this test to passengers' carry-on luggage in the mass transport context and refused to find any diminished privacy expectations regarding such luggage. In Bond, the Supreme Court determined that travelers on an intracity bus enjoyed a full expectation of privacy in their carry-on items because they did not "expect that other passengers or bus employees will, as a matter of course, feel the bag in an exploratory manner," and that expectation was objectively reasonable. 529 U.S. at 338-39, 120 S.Ct. 1462. In Mac Wade, we confronted the question of whether a legitimate privacy interest existed as to searches of "items in a closed, opaque bag," 460 F.3d at 272, carried by subway passengers, and found a full privacy interest in such bags, id. at 272-73.
27
It is clear that Bond reaffirmed the general privacy interest that individuals enjoy in relation to their bags, but we hesitate to accede to the plaintiffs' assertion that Bond precludes a finding of a diminished expectation of privacy in such bags in any context. Instead, as with any privacy analysis, the Supreme Court has cautioned that privacy expectations necessarily depend on context. Vernonia, 515 U.S. at 654, 115 S.Ct. 2386. We do, however, agree with plaintiffs that in this specific context, MacWade is particularly persuasive here because it concerned the privacy interests of individuals commuting on mass transportation. First, plaintiffs have clearly evinced — and the government does not deny — a subjective privacy interest in the carry-on bags that they take with them onto the ferry. MacWade, 460 F.3d at 272. Second, given that we found it objectively reasonable for subway riders to expect that their carry-on bags will not be "opened and [their] contents visually inspected or physically manipulated," id. at 273, we see little reason to alter that analysis as applied here to ferry passengers.
28
Finally, we are not convinced by the government's argument that our airport search cases alter the privacy interest calculus here. In United States v. Edwards, we upheld pre-boarding, suspicionless searches of airline passengers, holding that to brand them "as unreasonable would go beyond any fair interpretation of the Fourth Amendment." 498 F.2d at 500. But airplanes are very different creatures from the more quotidian commuting methods at issue in MacWade and the instant case, and society has long accepted a heightened level of security and privacy intrusion with regard to air travel. Moreover, Edwards did not specifically determine or discuss the privacy interest involved, and we are wary of extending its analysis to a markedly different factual context.2
29
For the foregoing reasons, we find that the privacy interests of LCT's ferry passengers in their carry-on luggage are undiminished.3
30
B. Plaintiffs' Expectation of Privacy in Their Automobiles
31
We turn now to the question of whether plaintiffs have a full privacy interest in their automobiles, including the trunks of such vehicles. It has long been recognized that "[t]he search of an automobile is far less intrusive on the rights protected by the Fourth Amendment than the search of one's person or of a building." Cardwell v. Lewis, 417 U.S. 583, 590, 94 S.Ct. 2464, 41 L.Ed.2d 325 (1974) (internal quotation marks omitted); see also Martinez-Fuerte, 428 U.S. at 561, 96 S.Ct. 3074 ("[O]ne's expectation of privacy in an automobile and of freedom in its operation are significantly different from the traditional expectation of privacy and freedom in one's residence."). The Supreme Court has held that "[o]ne has a lesser expectation of privacy in a motor vehicle" because it "travels public thoroughfares where its occupants and its contents are in plain view," Cardwell, 417 U.S. at 590, 94 S.Ct. 2464, and because the "pervasive regulation of vehicles" diminishes one's expectation of privacy in an automobile, California v. Carney, 471 U.S. 386, 392, 105 S.Ct. 2066, 85 L.Ed.2d 406 (1985). Even plaintiffs concede — and the Supreme Court has recognized — that there may be a diminished expectation of privacy regarding the part of the search that involves ferry attendants looking through car windows. See Texas v. Brown, 460 U.S. 730, 740, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983) ("There is no legitimate expectation of privacy shielding that portion of the interior of an automobile which may be viewed from outside the vehicle by either inquisitive passersby or diligent police officers." (internal citations omitted)).
32
Plaintiffs contend, nevertheless, that they have a full privacy interest in the trunks of their cars and that LCT ferry attendants violate this interest when they ask passengers to open their trunks. Plaintiffs note that the Supreme Court has not upheld a suspicionless search regime that involved the opening and examination of motor vehicle compartments outside of the border or customs context. We are mindful, nonetheless, that the Supreme Court has stated:
33
[E]ven when enclosed "repository" areas have been involved, we have concluded that the lesser expectations of privacy warrant application of the exception. We have applied the exception in the context of a locked car trunk, Cady v. Dombrowski, [413 U.S. 433, 442, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973) ], a sealed package in a car trunk, United States v. Ross, [456 U.S. 798, 806, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982) ], a closed compartment under the dashboard, Chambers v. Maroney, [399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970) ], the interior of a vehicle's upholstery, Carroll v. United States, [267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925) ], or sealed packages inside a covered pickup truck, United States v. Johns, 469 U.S. 478 [105 S.Ct. 881, 83 L.Ed.2d 890] (1985).
34
Carney, 471 U.S. at 391-92, 105 S.Ct. 2366. While the above-cited cases involved warrantless searches where probable cause existed, the Court clearly found an exception to the warrant requirement because of the lesser expectations of privacy attendant to automobiles. This would suggest that the vehicle owners might also have diminished privacy interests in their vehicles' trunks, in the narrow factual context presented in the instant case, where randomly selected automobile drivers, who seek to board a ferry, are simply asked to open their trunks briefly for security purposes.
35
It is clear that there are significant questions here regarding the level of the privacy interest implicated in trunk searches. Given that we have already found an undiminished privacy interest in plaintiffs' carry-on baggage, the government will have to demonstrate that the other two factors of the special needs analysis outweigh plaintiffs' privacy interests to establish the constitutionality of its searches. Thus, regardless of how we resolve the issue of the expectation of privacy in the plaintiffs' automobile trunks, the government must overcome the full privacy expectations plaintiffs enjoy in their carry-on bags here. Accordingly, we need not reach the privacy expectation plaintiffs possess in the trunks of their motor vehicles and will assume but expressly not hold that plaintiffs have demonstrated that they enjoy a full expectation of privacy in their vehicles' trunks.4
36
II. The Character and Degree of the Governmental Intrusion
37
Because an undiminished privacy interest is not itself dispositive in special needs cases but is merely one among three factors to be weighed, MacWade, 460 F.3d at 272, we must next examine the screening at issue and determine whether searches, which consist of random visual inspections by ferry attendants of vehicles' trunks as well as the carry-on baggage of bicyclists and pedestrians, are minimally or substantially intrusive. In making this examination, courts have looked to various factors, including, inter alia, the duration of the search or stop, see Lidster, 540 U.S. at 427, 124 S.Ct. 885; Sitz, 496 U.S. at 451-52, 110 S.Ct. 2481; Martinez-Fuerte, 428 U.S. at 546-47, 558, 96 S.Ct. 3074, the manner in which government agents determine which individuals to search, see Lidster, 540 U.S. at 428, 124 S.Ct. 885, Martinez-Fuerte, 428 U.S. at 559, 96 S.Ct. 3074, the notice given to individuals that they are subject to search and the opportunity to avoid the search by exiting the premises, see Mac Wade, 460 F.3d at 273; Edwards, 498 F.2d at 500, as well as the methods employed in the search, see Sitz, 496 U.S. at 451, 110 S.Ct. 2481; Martinez-Fuerte, 428 U.S. at 558, 96 S.Ct. 3074.
38
On the basis of these factors, it is clear that the searches in this case are, by any measure, minimally intrusive. As recounted by plaintiffs, the duration of the stops or searches have been "cursory" and of the short duration which the Supreme Court has long held to be minimally intrusive. Lidster, 540 U.S. at 427, 124 S.Ct. 885 (upholding brief stops of vehicles at checkpoint and questioning of drivers); Sitz, 496 U.S. at 451, 110 S.Ct. 2481 (same); Martinez-Fuerte, 428 U.S. at 546-47, 558, 96 S.Ct. 3074 (same). Plaintiffs have not alleged that the government has given unbridled discretion to LCT employees to carry out searches in a discriminatory or arbitrary manner. Lidster, 540 U.S. at 428, 124 S.Ct. 885 ("[T]here is no allegation here that the police acted in a discriminatory or otherwise unlawful manner while questioning motorists during stops."); Martinez-Fuerte, 428 U.S. at 559, 96 S.Ct. 3074 (discussing the intrusiveness of roving patrols that presented "a grave danger [of] unreviewable discretion," but finding that a fixed checkpoint greatly reduced the possibility of abuse). Other factors similarly weigh in the government's favor in this inquiry. For instance, the methods used to conduct the searches at issue are limited to visual inspections of vehicles and their trunks and brief examinations of the contents of carry-on baggage. See Sitz, 496 U.S. at 451, 110 S.Ct. 2481 (brief visual inspections); Martinez-Fuerte, 428 U.S. at 558, 96 S.Ct. 3074 (same); Edwards, 498 F.2d at 500 (brief examination of contents of carry-on luggage).5 Ample notice is given to individuals seeking to board LCT ferries that they are subject to search and that they may avoid the search by exiting the premises. See MacWade, 460 F.3d at 273 ("[P]assengers receive notice of the searches and may decline to be searched so long as they leave the subway...."); Edwards, 498 F.2d at 499-500 (finding notice central to upholding the constitutionality of airport searches where large signs had been posted near the boarding gates warning: "PASSENGERS AND BAGGAGE SUBJECT TO SEARCH"). Such notice helps "reduc[e] to a minimum any unsettling show of authority that may be associated with unexpected intrusions on privacy." Von Raab, 489 U.S. at 672 n. 2, 109 S.Ct. 1384 (internal citation and quotation marks omitted); see also Edwards, 498 F.2d at 501 ("The point is . . . that in order to bring itself within the test of reasonableness applicable to airport searches, the Government must give the citizen fair warning, before he enters the area of search, that he is at liberty to proceed no further."). Notice also serves to eliminate any stigma associated with the search. Id. at 500 ("The search of carry-on baggage, applied to everyone, involves not the slightest stigma. More than a million Americans subject themselves to it daily ....") (internal citation omitted).
39
Plaintiffs argue that the searches in the above cases are inapposite because they did not involve opening trunks. The drivers brought to the "secondary inspection area" in Martinez-Fuerte for more intense questioning of their residency status were, however, almost certainly subjected to a greater intrusion of their privacy than the ferry passengers who have to open their trunks for a brief visual inspection by a ferry attendant. 428 U.S. at 547, 96 S.Ct. 3074 (upholding brief questioning in a "secondary inspection area" which lasted on average between three and five minutes). And even if the intrusions in this case were more significant than those in the Supreme Court's checkpoint cases, they are certainly less intrusive than the search at issue in Edwards. In Edwards, we found pre-boarding baggage searches at airports to be minimally intrusive, even when a Deputy United States Marshal searched a woman's bag, found a package with a pair of slacks wrapped around it, removed the slacks, and looked inside the package. 498 F.2d at 499-500; see also MacWade, 460 F.3d at 273 (holding that random searches of subway passengers' carry-on bags, which include the visual inspection of the contents of such bags, to be minimal).
40
Nor does plaintiffs' assertion that magnetometer searches are less intrusive than visual searches alter the fact that the level of intrusion visited on the plaintiffs in this case was minimal. The Supreme Court has "repeatedly stated that reasonableness under the Fourth Amendment does not require employing the least intrusive means" to accomplish the government's ends. Bd. of Educ. of Indep. Sch. Dist. No. 92 of Pottawatomie County v. Earls, 536 U.S. 822, 837, 122 S.Ct. 2559, 153 L.Ed.2d 735 (2002); see also Vernonia, 515 U.S. at 663, 115 S.Ct. 2386; Skinner, 489 U.S. at 629 n. 9, 109 S.Ct. 1402. Thus, what matters in this case is not whether the defendants could have satisfied the requirements of the MTSA by devising a less intrusive means of searching passengers, but whether the means they chose unconstitutionally trenched on plaintiffs' privacy interests in an unreasonable way. As our decision today makes clear, we cannot say, after having balanced the "special needs" factors, that plaintiffs' Fourth Amendment rights have been violated.6
41
Finally, plaintiffs make a slippery-slope argument, claiming that because the threat of terrorism is omnipresent, there is no clear limit to the government power to conduct suspicionless searches. This is a legitimate concern. As we discuss in the next section, however, it is not a concern implicated by the facts in this case, where the government has imposed security requirements only on the nation's largest ferries after making extensive findings about the risk these vessels present in relation to terrorism and, as noted, the scope of the searches is rather limited. Having thus found that the visual inspection of vehicles and their trunks along with the search of carry-on baggage at issue here are minimally intrusive, we weigh this factor in the government's favor.
42
III. The Government's Special Needs and the Efficacy of the Searches
A. The Government's Special Need
43
Our next task in the special needs analysis requires us to determine the "nature and immediacy of the governmental concern at issue here." Vernonia, 515 U.S. at 660, 115 S.Ct. 2386. The Supreme Court has cautioned that the government's asserted special need must "describe[ ] an interest that appears important enough to justify the particular search at hand," id. at 661, 115 S.Ct. 2386, and we have expressly mandated that "a close and substantial relationship" exist between the degree of intrusiveness and the governmental need asserted, Lifshitz, 369 F.3d at 184, 186.
44
The Supreme Court has indeed "been reluctant to ratify implausible or overbroad assertions of `special needs.'" Id. at 185, 369 F.3d 173. In Chandler v. Miller, for example, the Court struck down a drug testing regime imposed upon candidates for state office in Georgia because it found that "the proffered special need for drug testing" was not substantial where Georgia "assert[ed] no evidence of a drug problem among the State's elected officials, [and] those officials typically do not perform high-risk, safety-sensitive tasks." 520 U.S. at 318, 322, 117 S.Ct. 1295. The Court concluded that the government's asserted need was merely "symbolic, not `special.'" Id. at 322, 117 S.Ct. 1295.
45
The Court has also emphasized that the government's asserted "special need" must not be isomorphic with law enforcement needs, but rather go beyond them. See, e.g., Ferguson v. City of Charleston, 532 U.S. 67, 80, 121 S.Ct. 1281, 149 L.Ed.2d 205 (2001) (striking down a public hospital's policy of ordering drug screens for maternity patients suspected of cocaine use because "the central and indispensable feature of the policy from its inception was the use of law enforcement to coerce the patients into substance abuse treatment"); City of Indianapolis v. Edmond, 531 U.S. 32, 42, 47, 121 S.Ct. 447, 148 L.Ed.2d 333 (2000) (invalidating an Indianapolis drug checkpoint program because its "primary purpose" was "to uncover evidence of ordinary criminal wrongdoing," and noting that, "[w]hile reasonableness under the Fourth Amendment is predominantly an objective inquiry, our special needs . . . cases demonstrate that purpose is often relevant when suspicionless intrusions pursuant to a general scheme are at issue"). The Court differentiated the drug checkpoint in Edmond from the immigration checkpoint in Martinez-Fuerte by emphasizing the difficulty of effectively containing illegal immigration at the border and noting that this problem was distinct from, and went beyond, regular law enforcement needs. See Edmond, 531 U.S. at 38-39, 121 S.Ct. 447.
46
Plaintiffs make three principal arguments that the searches at issue here do not constitute a special need under our caselaw. They first argue that the special needs doctrine only applies where those searched comprise a "well-defined target class." They next contend that the government has proffered only an abstract, unsubstantiated need that does not justify the searches at issue. Finally, plaintiffs assert that this Court should not defer to the Coast Guard's determinations of the terrorism risk in deciding this case. We discuss each argument in turn.
47
1. The Special Needs Doctrine Does Not Require a "Well-Defined Target Class."
48
As a threshold matter, plaintiffs contend that this case does not involve "special needs" because LCT's search policy is not aimed at a "well-defined target class." Although it is true that some "special needs" searches target well-defined groups — i.e., high school students who participate in competitive extracurricular activities, see Earls, 536 U.S. at 825, 122 S.Ct. 2559, or a particular group of United States Customs Service employees, see Von Raab, 489 U.S. at 659, 109 S.Ct. 1384 — neither the Supreme Court nor this Court has ever held that a "well-defined target class" is a requisite showing in a "special needs" case. In fact, the baggage screening and checkpoint cases make it clear that such targeting is not required in order for the government to establish a "special need." See, e.g., Sitz, 496 U.S. at 455, 110 S.Ct. 2481 (permitting sobriety checkpoints); Martinez-Fuerte, 428 U.S. at 561-64, 96 S.Ct. 3074 (permitting immigration-control checkpoints); MacWade, 460 F.3d at 275 (permitting random, suspicionless searches at subway stations); Edwards, 498 F.2d at 499-500 (permitting pre-boarding baggage inspection at airports). This argument is without merit.
49
2. The Government Has Demonstrated a "Special Need."
50
Plaintiffs further contend that defendants have adduced only an "abstract or general" need to justify the implementation of searches aboard the Lake Champlain ferries and that is insufficient to excuse the invasion of their privacy.
51
It is clear to the Court that the prevention of terrorist attacks on large vessels engaged in mass transportation and determined by the Coast Guard to be at heightened risk of attack constitutes a "special need." Preventing or deterring largescale terrorist attacks present problems that are distinct from standard law enforcement needs and indeed go well beyond them. See MacWade, 460 F.3d at 272 ("[P]reventing a terrorist from bombing the subways constitutes a special need that is distinct from ordinary post hoc criminal investigation."); Nicholas, 430 F.3d at 661 (explaining that "[w]hat unifies [the Supreme Court's "special needs"] cases, despite their varied contexts, is that in each instance, the Court found that the suspicionless-search regime at issue served some special need distinct from normal law-enforcement needs"). There is also an obvious nexus between protecting a ferry and guarding against the threat of terrorism through minimally intrusive searches of vehicles and carry-on baggage. Indeed, as in the case of airline hijacking, a large ferry commandeered by a terrorist becomes a weapon, or as in the case of subway bombing, the ferry becomes a death trap. Either way, the government has a "special need" to prevent such potentially disastrous situations from developing, and courts have readily acknowledged the special government need in protecting citizens in the mass transportation context. See, e.g., Skinner, 489 U.S. at 608-13, 109 S.Ct. 1402 (testing railroad employees for drugs and alcohol when safety incidents occur); MacWade, 460 F.3d at 271-72; United States v. Hartwell, 436 F.3d 174, 179 (3d Cir.2006) (Alito, J.) (pre-boarding search of airline passengers' carry-on baggage); Edwards, 498 F.2d at 500 (same); United States v. Davis, 482 F.2d 893, 910 (9th Cir.1973) (same).
52
Plaintiffs contend that even if the government has a "special need" to protect large ferries in major metropolitan areas, it does not have a "special need" to protect the ferries on Lake Champlain, where there is no obvious terrorist threat. The Supreme Court, however, has held that the government need not adduce a specific threat in order to demonstrate a "special need." See Earls, 536 U.S. at 835-36, 122 S.Ct. 2559 (noting that "this Court has not required a particularized or pervasive ... problem [to occur] before allowing the government to conduct" suspicionless searches where there is a real threat of substantial harm to society). In Von Raab, the Court pointed to the federal government's practice of requiring the search of all airline passengers seeking to board commercial airlines as an illustration of this point. The Von Raab Court quoted approvingly the following passage in Judge Friendly's opinion in Edwards:
53
When the risk is the jeopardy to hundreds of human lives and millions of dollars of property inherent in the pirating or blowing up of a large airplane, that danger alone meets the test of reasonableness, so long as the search is conducted in good faith for the purpose of preventing hijacking or like damage and with reasonable scope and the passenger has been given advance notice of his liability to such a search so that he can avoid it by choosing not to travel by air. United States v. Edwards, 498 F.2d 496, 500 (2d Cir.1974) (emphasis in original).
54
Von Raab, 489 U.S. at 675 n. 3, 109 S.Ct. 1384. The Von Raab Court then noted that although airline searches "were adopted in response to an observable national and international hijacking crisis," the Court
55
would not suppose that, if the validity of these searches be conceded, the Government would be precluded from conducting them absent a demonstration of danger as to any particular airport or airline. It is sufficient that the Government have a compelling interest in preventing an otherwise pervasive societal problem from spreading to the particular context.
56
Id. (emphasis added). Although the plaintiffs may be correct that Lake Champlain ferries are a less obvious terrorist target than ferries in, for example, New York City or Los Angeles, the airline cases make it clear that the government, in its attempt to counteract the threat of terrorism, need not show that every airport or every ferry terminal is threatened by terrorism in order to implement a nationwide security policy that includes suspicionless searches.
57
As the Supreme Court noted in Von Raab: If the government has determined that airports fall into a high-risk category and require special protection from terrorist attack, it does not matter whether a regional airport in a small city is perceived to be less susceptible to attack than an international airport in a major city. See id. at 675 n. 3, 109 S.Ct. 1384. Here, the Coast Guard, pursuant to a Congressional directive, conducted a risk analysis to determine which vessels "pose a high risk of being involved in a transportation security incident." 46 U.S.C. § 70102(a). This analysis involved various factors, including the susceptibility of various segments of the commercial maritime industry as targets and as weapons themselves, the plausibility of a terrorist actually carrying out the various attack scenarios contemplated, the risk associated with a given attack against a given target, the likelihood of various attack scenarios, and the consequences of various attack scenarios. See 68 Fed.Reg. at 39,243-50. Based on this assessment, the Coast Guard concluded that vessels weighing over 100 gross register tons "are at a high risk of being involved in a transportation security incident" and should therefore be subject to the regulations at issue in this case. Id. at 39,246. Whether these large vessels dock at urban or rural ports is therefore beside the point; the government need not demonstrate the existence of a specific danger to a particular port or ferry in order to establish a special governmental need justifying suspicionless searches of ferry passengers.
58
3. The Government's Determinations of "High Risk" Are Entitled to Deference.
59
Expert determinations by the Coast Guard, like the one discussed above, which are based on an explicit Congressional delegation of legislative authority (in this case, 46 U.S.C. §§ 70102(a), 70103(c)(1)-(2)) are entitled to significant deference. See Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843-44, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984) (deference appropriate where Congress expressly delegated authority to agency to "elucidate a specific provision of the statute by regulation"). Plaintiffs argue that deference is not due in this case because LCT's security plan was submitted only to the regional Coast Guard authority and thus does not constitute the sort of agency action entitled to deference. In support of this proposition, plaintiffs cite United States v. Mead Corp., 533 U.S. 218, 121 S.Ct. 2164, 150 L.Ed.2d 292 (2001). At issue in Mead were a statute providing that the United States Customs Service should prescribe rules establishing procedures for the issuance of tariff classification rulings, and regulations promulgated by Customs providing for tariff rulings via "ruling letters" that set tariff classifications for particular imports. Id. at 221-22, 121 S.Ct. 2164. Under the regulations, any of the forty-six port-of-entry Customs offices could issue ruling letters. Id. at 224, 121 S.Ct. 2164. The Mead Court held that a tariff classification ruling by the United States Customs Service was not entitled to Chevron deference because "the terms of the congressional delegation give no indication that Congress meant to delegate authority to Customs to issue classification rulings with the force of law." Id. at 231-32, 121 S.Ct. 2164. The Court further held that "the agency practice itself [gave no] indication that Customs ever set out with a lawmaking pretense in mind when it undertook to make classifications like these .... Indeed, to claim that classifications have legal force is to ignore the reality that 46 different Customs offices issue 10,000 to 15,000 of them each year." Id. at 233, 121 S.Ct. 2164.
60
It is clear that the Coast Guard is entitled to deference on its determinations that 100-ton vessels are at "high risk" of terrorist attack; even plaintiffs acknowledge as much. They instead seek to analogize the instant case to Mead by suggesting that the ASP under which LCT operates is akin to a tariff classification ruling made by a local Customs office. Mead, however, is inapposite to the instant case. Here, the Coast Guard was acting under an explicit congressional delegation of legislative authority when it determined that increased security was required on the nation's largest ferries, and the regulations it devised were clearly intended to have the force of law. The MTSA requires the owners and operators of specified maritime vessels to implement a Coast-Guard approved security plan. ASPs, such as the one implemented by LCT, are approved at a national level by the Coast Guard Commandant if he or she finds that they provide a level of security equivalent to that established by the agency's regulations. 33 C.F.R. §§ 101-105. To date, the Coast Guard has approved only a few ASPs, including the Passenger Vessel Association program adopted by LCT. Id. § 101.125(c). Thus, contrary to the plaintiff's suggestion, LCT's ASP bears little resemblance to the thousands of tariff classification rulings issued by dozens of local Customs offices each year, and we owe significant deference to the Coast Guard's determination that ferries weighing over 100 gross register tons fall into a high-risk category.
61
Finally, even were we to accept plaintiffs' reading of Mead, it is unclear exactly what portion of our analysis here would change. The "high risk" designation, as we have already held, applies to LCT ferries on Lake Champlain as much as it does to the Staten Island Ferry. Plaintiffs are thus left to challenge the ASP, but it is simply a detailed plan of the security procedures that LCT has implemented to comply with the MTSA. As this opinion makes clear, we have not deferred to the government in examining the searches as authorized by the ASP, but have analyzed de novo the constitutional privacy interests involved as well as the nature of the government's intrusion. Given this scrutiny, plaintiffs' challenge here would still fail were we to follow their application of Mead. We accordingly find that the government has proffered an important, even compelling, special need here, having determined that ferries such as the ones operated by LCT are at a high risk of terrorist attack.
B. The Efficacy of the Searches
62
We now conclude the special needs analysis by examining the efficacy of the searches at issue here. We are mindful that the requirement that a court assess the efficacy of challenged searches and seizures in a "special needs" case is "not meant to transfer from politically accountable officials to the courts the decision as to which among reasonable alternatives law enforcement techniques should be employed to deal with a serious public danger .... [T]he choice among such reasonable alternatives remains with the governmental officials who have a unique understanding of, and responsibility for, limited public resources." Sitz, 496 U.S. at 453-54, 110 S.Ct. 2481; see also Mollica v. Volker, 229 F.3d 366, 370 (2d Cir.2000) ("[T]he effectiveness inquiry involves only the question whether the [search] is a `reasonable method of deterring the prohibited conduct;' the test does not require that the [search] be `the most effective measure.'") (quoting Maxwell v. City of New York, 102 F.3d 664, 667 (2d Cir.1996)). In this case, the government determined that the ASP devised by the Passenger Vessel Association and adopted by LCT was a reasonable means of fulfilling the requirements of the MTSA. Thus, our task is to determine not whether LCT's ASP was optimally effective, but whether it was reasonably so.7
63
Congress made clear in the MTSA that the central purpose of random security screening on high-risk maritime vessels is to "deter[ ] a transportation security incident," 46 U.S.C. § 70103(a). The Secretary then determined that the statutory purpose would be served by "[d]eter[ring] the unauthorized introduction of dangerous substances and devices" onto such vessels. 33 C.F.R. § 104.265(a)(1). When evaluated in this context, the ASP adopted by LCT appears to be reasonably calculated to serve its goal of deterring potential terrorists because "[i]t provides a gauntlet, random as it is, that persons bent on mischief must traverse." United States v. Green, 293 F.3d 855, 862 (5th Cir.2002); see also id. (finding that a military base commander's decision that stopping every sixth car can be effective at preventing terrorism or keeping the roads and personnel of the installation safe from unlicensed drivers was "common sense" because it preserved scarce governmental resources and deterred individuals from attacking the base); cf. Von Raab, 489 U.S. at 675 n. 3, 109 S.Ct. 1384 ("Nor would we think, in view of the obvious deterrent purpose of these searches, that the validity of the Government's airport screening program necessarily turns on whether significant numbers of putative air pirates are actually discovered by the searches conducted under the program.") (emphasis added); Davis, 482 F.2d at 908 (purpose of airport screening is deterrence). Indeed, in MacWade, we expressly observed that deterrence "need not be reduced to a quotient before a court may recognize a search program as effective." 460 F.3d at 274.
64
Plaintiffs contend, however, that the government cannot intrude on privacy rights merely for symbolic purposes. In support of this argument, plaintiffs cite the Supreme Court's holding in Chandler v. Miller, that suspicionless drug testing of candidates for state office cannot be justified by the government's desire to communicate a message that "the candidates, if elected, would be fit to serve their constituents free from the influence of illegal drugs." 520 U.S. at 321, 117 S.Ct. 1295. The Chandler Court found that Georgia had not shown that candidates for state office were engaged in drug abuse and that a merely symbolic purpose that did not address an actual need could not justify a nontrivial invasion of privacy. Here, by contrast, the government is not seeking to convey a message that it disapproves of terrorism, but rather to deter an actual terrorist attack on a vessel that the Coast Guard has determined to be at an elevated risk of such attack. Unfortunately, the government's efforts to prevent terrorism in this case are not merely symbolic.
65
Plaintiffs further contend that the screening policy at issue in this case is not reasonably calculated to further Congress's aim of deterring a terrorist attack because it is not sufficiently thorough. The Supreme Court has been skeptical of challenges to the constitutionality of searches under the Fourth Amendment that suggest that a security policy's randomness or insufficient thoroughness contributes to its constitutional deficiencies:
66
[P]etitioners' objection is based on those features of the ... program ... that contribute significantly to diminish the program's intrusion on privacy.... Thus, under petitioners' view, the testing program would be more likely to be constitutional if it were more pervasive and more invasive of privacy.
67
Von Raab, 489 U.S. at 676 n. 4, 109 S.Ct. 1384 (citations and internal quotation marks omitted). In this case, Congress directed the Coast Guard to identify vessel types posing a high risk of being involved in a terrorist attack. 46 U.S.C. § 70102(a). The Coast Guard was then charged with implementing the statutory directive to "establish[ ] and maintain[] physical security [and] passenger and cargo security." Id. § 70103(c)(3)(C). Although the security policy implemented by LCT may not be maximally effective in preventing terrorist attacks on its ferries, it is minimally intrusive, and we cannot say, particularly in light of the deference we owe to the Coast Guard, that it does not constitute a "reasonable method of deterring the prohibited conduct." Mollica, 229 F.3d at 370 (internal quotation marks omitted). Indeed, "[a]n unexpected change of plans," resulting from "a would-be bomber declin[ing] a search" may "well stymie an attack, disrupt the synchronicity of multiple bombings, or at least reduce casualties." MacWade, 460 F.3d at 275.
68
Having determined that LCT's practice of searching carry-on baggage and vehicles of randomly selected passengers is justified by a special governmental need and that such searches are a reasonable method to discourage prohibited conduct, we weigh this factor heavily in the government's favor.
CONCLUSION
69
While plaintiffs enjoy undiminished privacy expectations in their carry-on baggage and we presume such undiminished expectation in the trunks of their vehicles, we find that the remaining two factors under the "special needs" doctrine weigh heavily in the government's favor. Indeed, given that both the intrusions on plaintiffs' privacy interests are minimal and the measures adopted by LCT are reasonably efficacious in serving the government's undisputedly important special need to protect ferry passengers and crew from terrorist acts, we find no constitutional violation. Accordingly, we affirm the district court's judgment granting defendants' motion to dismiss.
Notes:
1
After oral argument, plaintiffs filed a motion for leave to file supplemental briefs regarding the impact of our decision inMac Wade v. Kelly, 460 F.3d 260 (2d Cir.2006), in which a panel of this Court upheld suspicionless searches of subway passengers' carry-on-baggage as constitutional. We granted the motion and the parties have submitted their supplemental briefs.
2
We do not readMac Wade or Bond's privacy analysis (nor our discussion here) to suggest that Edwards no longer remains good law. Indeed, the Supreme Court, we observe, has specifically noted in its special needs jurisprudence that Edwards is a "leading case." Von Raab, 489 U.S. at 675 n. 3, 109 S.Ct. 1384 (citing Edwards and condoning "the Federal Government's practice of requiring the search of all passengers seeking to board commercial airliners, as well as the search of their carry-on luggage, without any basis for suspecting any particular passenger of an untoward motive").
3
Although plaintiffs contend that LCT's searches were unconstitutional, they concede that they acquiesced in the searches and did not experience any of the repercussions that might attend refusal to submit to a search. Cassidy and Cabin are therefore not representative of hypothetical plaintiffs claiming that their rights were violated as a result of their refusal to submit to LCT's searches. Our opinion does not address the constitutionality of any repercussions that might be visited upon a person who withholds consent
4
Given the very narrow circumstances here — where a motor vehicle's trunk is searched as part of a government-instituted anti-terrorism search regime before that vehicle itself is boarded onto a ferry — we are not presented with, and need not address, the potentially more troublesome question of the constitutionality of a similar search that occurs, for instance, on a highway
Finally, plaintiffs' briefs focus on the searches of carry-on bags and motor vehicles' trunks. To the extent that their complaint can be read to challenge the visual inspection of a vehicle's interior through its windows, the parties do not appear to dispute that, as we noted above, there is a diminished expectation of privacy in that context. This does not alter our analysis of the searches' constitutionality.
5
Plaintiffs contend that the intrusions on their privacy cannot be considered minimal because "[t]he Fourth Amendment privacy interest has a subjective as well [as] an objective component," and they found them subjectively intrusive. In support of this proposition, they cite Justice Harlan's concurrence inKatz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). Justice Harlan stated in Katz that in determining the nature of a search and seizure under the Fourth Amendment, courts require "first that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as `reasonable.'" Id. at 361, 88 S.Ct. 507 (Harlan, J., concurring). This analysis, however, is not relevant here to the nature of the intrusion but rather to the privacy interest involved — an analysis that we have already completed. Furthermore, to apply that test here would essentially collapse two of the factors in the special needs analysis into one by making both the privacy interest and the degree of the intrusion into the same question.
6
Plaintiffs take issue with the fact that the MTSA allowed LCT to implement the ASP designed by the Passenger Vessel Association that imposed relatively little cost on the ferry company when the company could instead have adopted other less intrusive, but more costly security measures. That LCT took cost into account in determining how to fulfill the requirements of the MTSA does not in and of itself render LCT's policy constitutionally suspect. All governmental search procedures, whether conducted by the government or by a private entity at the instigation of the government, take cost into account. An inexpensive search policy, like any search policy, runs afoul of the Fourth Amendment only insofar as it is unreasonable. Similarly, it is clear that a private entity, empowered by the government to conduct a search, need not choose the least restrictive means to avoid a violation of the Fourth AmendmentSee, e.g., Skinner, 489 U.S. at 611, 625-27, 109 S.Ct. 1402 (finding no constitutional violation where a private entity was granted substantial discretion by statute to conduct breath and urine tests on certain employees).
7
LCT's security measures were probably not optimally effective. As plaintiffs note, LCT's search policy applies to carry-on baggage, but not baggage stored in cars, and exempts tractor trailer trucks from search altogether. Furthermore, LCT's policy allows passengers to board the ferry with knives and guns, which may increase the risk that the ferry will be hijacked. Our task, however, is to determine not whether we could devise a superior plan, but whether LCT's security policy was reasonably effective in accomplishing its goals
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13 N.Y.3d 858 (2009)
PEOPLE
v.
ADAMS.
Court of Appeals of New York.
November 19, 2009.
Application in criminal case for leave to appeal denied. (Graffeo, J.).
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130 Ill. App.3d 416 (1985)
473 N.E.2d 1382
In re ESTATE OF DANIEL F. RICE et al., Deceased (Charles D. Donaldson et al., Ex'rs of the Estate of and Trustees under the Will of Daniel F. Rice, Appellants,
v.
Continental Illinois National Bank and Trust Company of Chicago, Co-Ex'r of Ada L. Rice Estate and Successor Trustee of Trusts under the Will of Daniel F. Rice, et al., Appellees.)
Nos. 83-819, 83-825 cons.
Illinois Appellate Court Second District.
Opinion filed February 1, 1985.
*417 *418 Jack Osswald, Daniel V. Kinsella, and Robert C. Stephens, all of Howington, Elworth, Osswald & Hough, of Chicago, for appellants.
Neil F. Hartigan, Attorney General, of Springfield, Louis G. Davidson, John B. Davidson and Robert L. Reifenberg, all of Louis G. Davidson & Associates, Ltd., Charles J. O'Laughlin, Barry Sullivan, and Cynthia G. Shoenberger, all of Jenner & Block, Don H. Reuben and Theodore J. Low, both of Reuben & Proctor, all of Chicago, and Hartman E. Stime, of Peregrine, Stime, Newman & Ritzman, of Wheaton (Paul M. Goldman, Christine H. Rosso, and Floyd D. Perkins, Assistant Attorneys General, and Matthias Lydon, Special Assistant Attorney General, all of Chicago, of counsel), for appellees.
Orders affirmed.
JUSTICE REINHARD delivered the opinion of the court:
Charles D. Donaldson, Victor A. Grossi, Walter L. Palka, and Philip A. Rashman, executors of the estate and trustees under the will of Daniel F. Rice, deceased, and hereinafter referred to as the executors, appeal from three orders of the trial court whereby, in an attempt to enforce a settlement agreement, the trial court ordered the executors to turn over the trust and remaining estate assets to the successor trustee, Continental Bank, reformed releases executed by Daniel F. Rice, Jr., and his wife, Mary L. Rice (hereinafter Rices, Jr.) *419 to comport with the parties' apparent intent, dismissed the executors' petition seeking damages and fees from Continental Bank for alleged negligence in preparing release forms and in exchanging funds and documents with the Rices, Jr., and denied the executors' motion for reconsideration.
The executors' principal contentions on appeal are that (1) the trial court lacked jurisdiction to enter the orders of August 4, September 8, and September 15, 1983; (2) the judicial reformation of the releases executed by the Rices, Jr., did not give the executors the benefit of their bargain; (3) the Rices, Jr., should have been compelled to execute and deliver appropriate releases and receipts; (4) the trial court erred by ordering the executors to turn over trust and estate assets before conditions precedent were met; (5) it was error to dismiss the executors' petition against Continental Bank for relief and damages, including corporate indemnification; and (6) the executors were denied due process of law by the trial court's actions and orders of August 4, September 8, and September 15.
Following the deaths of Daniel F. Rice in 1975 and Ada L. Rice in 1977, the various beneficiaries under their wills and executors of their estates commenced actions in Federal court and the courts of this State and sister States. As this is the fourth opinion issued by this court resulting from the protracted litigation ensuing from the probate of these estates, we refrain from reiterating the extensive history of this case, since it can be garnered from our prior decisions. See In re Estate of Rice (1982), 108 Ill. App.3d 751, 439 N.E.2d 1264; In re Estate of Rice (1981), 96 Ill. App.3d 1137, 421 N.E.2d 1034; and In re Estates of Rice (1979), 77 Ill. App.3d 641, 396 N.E.2d 298.
After the trial court's entry of settlement orders, reflecting the oral agreement of the parties, was affirmed by this court in In re Estate of Rice (1982), 108 Ill. App.3d 751, 439 N.E.2d 1264, the parties entered into another agreement, referred to as the February 28, 1983, agreement, which incorporated the earlier settlement orders and provided, inter alia, that the parties would dismiss appeals pending in the Illinois Supreme Court; that the Rice Foundation, Continental Bank, and Arthur Nolan, Jr., would file releases required under the earlier settlement orders; that the trust beneficiaries and the successor trustee would execute and deliver receipts to the executors; that the parties would execute and deliver general releases to the executors; and that certain trust beneficiaries, including the Rices, Jr., would execute and deliver an indemnification agreement to the executors.
*420 Under the order subsequently entered by the trial court pursuant to the February 28 agreement, the executors were discharged from all duties, obligations, liabilities and responsibilities arising directly or indirectly from any act taken or omission to act by them or any of them during and concerning the administration, funding, and distribution of the trusts; the court accepted the resignation of the executors and appointed Continental Bank as successor trustee; the successor trustee was directed to indemnify and hold harmless, to the extent of the trust assets, the executors; title to trust assets was vested in the successor trustee; and the executors were ordered to immediately execute and deliver all instruments and do all acts necessary to perfect title of all assets of the trust in the successor trustee.
On April 7, 1983, the Illinois Supreme Court continued the motions to dismiss the consolidated appeals. It remanded the cause to the circuit court for consideration of the proposed settlement in its entirety, directing that court to file a report to the supreme court on or before May 16, 1983, of the final disposition of the proposed settlement, and retained jurisdiction of the pending appeals.
After further negotiations and hearings, a "global settlement" was reached by the parties on May 11, 1983. At a hearing held on that date, the executors asked what date was to be on the releases. Counsel for the Rices, Jr., Mr. John Davidson, answered, "Today's date, the 11th of May." The following colloquy was held:
"MR. OSSWALD [counsel for the executors]: We would assume, therefore, that those releases are being current dated through this date and we also assume, our executors have assumed that the releases referred to in these orders are being as of through this date.
THE COURT: May 11th.
MR. JOHN DAVIDSON: That appears both on Page 1 in about the seventh line, and on Page 3 in the third line.
MR. HULL [counsel for the estate of Ada L. Rice]: It's the 11th day of May you want inserted?
MR. JOHN DAVIDSON: That's right."
The trial court entered the written agreed order on May 11, 1983, approved by all parties, which provided, inter alia, that the parties would move for the dismissal, with prejudice, of all pending appeals; that all parties to those appeals would execute and file a counterpart of the February 28 agreement provided that the undertakings and indemnities would not affect any trust in which the Rices, Jr., had an interest and would not require payment or repayment of any sums received or to be received by the Rices, Jr., under the wills of Daniel F. *421 and Ada L. Rice; that the Rices, Jr., would forthwith deliver to Continental Bank an executed counterpart of the February 28 agreement, agreed orders to dismiss certain matters, mutual and general releases in the form attached, and an original counterpart of the attached agreement by which Continental Bank would terminate the trust established by the codicil of the will of Ada L. Rice and distribute $360,000 of the principal to the joint order of the Rices, Jr. and their counsel simultaneously with the Rices, Jr.'s delivery of the aforementioned documents; that all parties listed would execute and file mutual and general releases; and that to the extent there was any inconsistency between the February 28 agreement and that May 11, 1983, order, the May 11, 1983, order would govern and control. The trial court specifically retained jurisdiction over the parties and subject matter for the purpose of enforcing the order.
Continental Bank, the Rice Foundation, and the Rices, Jr., exchanged the documents and funds on May 16, 1983. On the following day, the trial court issued a letter, along with copies of orders entered, to the chief justice of the Illinois Supreme Court, stating that the documents and funds were transferred and that all matters were resolved to everyone's satisfaction. However, it was later discovered that in the release documents the executors had been released from possible liability only through May 5, 1983, rather than through May 11, 1983. Also, the Rices, Jr.'s releases bore an incorrect attestation clause and the receipt executed by the Rices, Jr., carried a disclaimer of an agreement as to the accuracy of any accounts rendered after May 11, 1983. Corrected releases were obtained from all parties except the Rices, Jr., who persisted in refusing to sign a corrected release through May 11, 1983.
In July 1983, the Illinois Attorney General petitioned the Illinois Supreme Court for a rule to show cause why the Rices, Jr., and their counsel should not be held in contempt for the failure to execute proper releases. The Rice Foundation filed, in the circuit court, apparently in late July, a petition for rule to show cause why the executors should not be held in contempt for failure to turn over the trust assets.
At a status hearing on July 27, 1983, the executors complained that the Rices, Jr., had not complied with the May 11, 1983, order in that they executed releases dated May 5, 1983, instead of May 11, 1983. The Rice Foundation noted that the executors were still serving as trustees, contrary to the terms of the May 11, 1983, order. The Rices, Jr., wanted written assurances that changing the dates would not affect their rights. The trial court refused to issue orders prior to *422 appropriate motions being made.
On August 1, 1983, the executors filed a petition seeking relief and enforcement of the May 11, 1983, order, alleging, inter alia, that the releases executed by the Rices, Jr., and delivered to Continental Bank were improper because they included the language "that the said person [referring to the Rices, Jr.] signed and delivered the said instrument as the free and voluntary act of Continental Illinois National Bank & Trust Co. of Chicago, Ill." and contained the date of May 5, 1983, and that Continental Bank owed a duty to the executors, was negligent, and breached its duty by providing release forms with an effective date of May 5, 1983, rather than the global settlement date of May 11, 1983. The executors sought an order excusing them from their obligations under the May 11, 1983, order until the Rices, Jr., executed proper releases, requiring Continental Bank to indemnify them, and awarding compensatory and punitive damages.
On August 4, 1983, the Attorney General filed a motion in the circuit court, asking the court to implement and enforce the May 11, 1983, order by compelling the executors to transfer the trust assets and the Rices, Jr., to execute and tender releases dated May 11, 1983.
At a hearing held on that same date, August 4, after hearing arguments of counsel, the trial court stated, inter alia, that there was no question that jurisdiction was properly before it, that jurisdiction is taken away by appeal, not by merely filing a motion in some other court and that the parties had five days to file a response to the Attorney General's motion for a rule to show cause and Continental Bank had 14 days to file a verified response to the executors' petition. The trial court ordered the executors to turn over the trust assets within 24 hours. The section of the transcript of that hearing which contained the trial court's verbal order was filed on August 11, 1983.
On August 15, 1983, the executors filed an additional petition for confirmation and compliance of releases, seeking an order declaring that the releases to be provided under the May 11, 1983, order were to cover acts and omissions through May 11, 1983, and that releases that had already been executed be corrected to cover acts and omissions through May 11, 1983. On August 25, 1983, the Illinois Supreme Court denied the Attorney General's petition for rule to show cause why the Rices, Jr., should not be held in contempt for failing to execute and deliver proper releases.
At a hearing on September 8, 1983, following arguments of counsel, the trial judge stated, inter alia, that evidentiary hearings in this instance would serve no useful purpose; [that as the trial judge stated on May 11 and based on the wording, demeanor and actions of counsel, *423 the settlement agreement included mutual general releases for all conduct through May 11, 1983;] that the releases of Daniel Rice, Jr., and Mary Rice shall, as a matter of law, cover all actions or omissions as stated in the document through May 11, 1983; that the releases filed by Daniel Rice, Jr., and Mary Rice were their releases and not the act of Continental Bank; that the May 11 order specifically provided that the court shall enter such orders as are necessary to enforce the release provisions of the settlement agreement; that the Rices, Jr., were not required to execute the indemnification agreement; that having ruled on the sufficiency of the releases and receipts of the Rices, Jr., all of the conditions precedent to the closing of the estate were satisfied and entry of the final account in the Dan Rice estate would be on October 7, 1983; that although typically the assets of the estate are not all distributed until the entry of the final account, under the unique circumstances of this case there was merit to Continental Bank's motion to fund Trust B3 with the remaining estate assets; that the executors were to transfer all remaining estate assets to Continental Bank, as trustee of Trust B3, by September 12, 1983; that refunding agreements were to be drafted to protect the executors from any potential liability for transferring the assets or closing the estate; and that while there may have been some mishandling by Continental Bank involved in the transfer of documents, there was no useful purpose in pursuing the executors' petition, and made no finding in that regard. The trial court granted Continental Bank's motion to dismiss the petition and denied the executors' motion to compel discovery, stating that its rulings negated any need for discovery.
On September 12, 1983, the executors filed a motion for relief pursuant to section 2-1203 of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 2-1203), asking the trial court to vacate its order of September 8, 1983, by ordering specific performance of the May 11, 1983, settlement as to the execution of proper releases by the Rices, Jr. On the same date, the executors filed a notice of appeal to this court (No. 83-819) seeking review of the August 4 order, "filed of record on August 11, 1983."
At a hearing on September 15, 1983, on the section 2-1203 motion, following arguments of counsel including the argument by the executors that the court was without jurisdiction to consider their motion because of the filing of the notice of appeal, the trial court found that the executors' motion raised no new issues or argument why the ruling of September 8 should be modified, but merely asked for reconsideration; that it reviewed the matters again and must deny the motion; that it retained jurisdiction to enforce the settlement agreement *424 and the September 8 order did that; and that the September 8 ruling granted the relief requested by the executors. The trial court specifically commented on its ongoing practice of having the transcript stand as its order and noted that the transcript order was filed with the clerk by the executors' counsel on August 11, thereby in counsel's scenario extending the time for appeal, that the executors complied with the August 4 order on August 5, that the transcript was given to the executors on August 4 and that this was the first time in four years that a transcript was filed with the clerk. The executors appealed from the orders of September 8 and 15, 1983, on September 19, 1983 (No. 83-825).
Before addressing the appellate arguments of the executors, we note that the Rices, Jr., challenge the jurisdiction of this court to hear the appeal in No. 83-819. They maintain that the order appealed from was issued by the trial judge, without requiring a written order, during the hearing on August 4, 1983, and therefore the notice of appeal, filed on September 12, 1983, was not filed within 30 days. The executors argue that the 30-day period began to run on August 11, 1983, when the transcript of the August 4 proceeding was filed, so that the notice of appeal was timely.
1 Under Supreme Court Rule 303, notice of appeal must be filed with the clerk of the circuit court within 30 days after the entry of the final order. (87 Ill.2d R. 303(a)(1).) Supreme Court Rule 272 provides that "[i]f no such signed written judgment is to be filed, the judge or clerk shall forthwith make a notation of judgment and enter the judgment of record promptly, and the judgment is entered at the time it is entered of record." (87 Ill.2d R. 272.) While we find nothing in the record before us that indicates when the order, orally issued on August 4, was noted in a minute book or on a docket sheet or other record-keeping document, we conclude that under the unique circumstances here, where the trial court specifically stated that the transcript stood as its order, the notice of appeal in No. 83-819 was timely filed within 30 days of the filing of the transcript.
2 We next consider the executors' contention that the trial court was without jurisdiction to enter the orders of August 4 and September 8 and 15 because after 30 days from the date the agreed order of settlement was entered on May 11, 1983, the trial court retained jurisdiction only to enforce the settlement and lacked authority to modify it, yet the court's orders on those three dates effectively modified the terms of the settlement.
We disagree with the executors' characterization of the actions of the trial court following entry of the agreed order of settlement on *425 May 11, 1983. No appeal by any of the parties from the agreed order of settlement of May 11, 1983, was taken, and we regard all proceedings subsequent to May 11, 1983, as related to enforcement of the May 11, 1983, order. The trial court, by refusing to order the Rices, Jr., to execute an indemnification agreement and new releases and by ordering the executors to turn over the estate assets independent of the final account process, did not vary the agreed order of settlement, but merely sought to implement it. (See Cities Service Oil Co. v. Village of Oak Brook (1980), 84 Ill. App.3d 381, 405 N.E.2d 379.) This is consistent with the policy of Illinois courts, which is to encourage compromises and settlement of litigation and to construe and enforce them in the courts in which they are entered. W.R. Grace & Co. v. Beker Industries, Inc. (1984), 128 Ill. App.3d 215, 219, 470 N.E.2d 577.
In their additional petition for confirmation and compliance with the global settlement, the executors asked the trial court to declare that the releases to be provided under the global settlement were to cover acts and omissions through May 11, 1983, and that the releases that had been executed be corrected to cover acts and omissions through May 11, 1983. They did not request in that petition that the court order the Rices, Jr., to correct releases they had previously executed or to execute new releases to be in compliance with the global settlement. The trial court, within its sound discretion, granted the executors the relief they sought in enforcement of the global settlement when it judicially reformed the releases.
In ruling that the Rices, Jr., were not required to execute an indemnification agreement, the trial court properly construed all the provisions of the global settlement. While the Rices, Jr., were required to execute the indemnification agreement under the February 28, 1983, agreement and while that agreement is incorporated into the May 11, 1983, global settlement, the May 11, 1983, order specifically alters the indemnification obligations of the Rices, Jr., and the indemnification agreement is conspicuously absent from the list of documents the Rices, Jr., were required to execute. Furthermore, at the hearing on May 11, 1983, counsel for the Rices, Jr., stated that the May 11, 1983, settlement modified the February 28 agreement with respect to the obligations of Rices, Jr., to sign documents such that they were no longer required to sign indemnities. The executors did not, at that time, challenge the accuracy of counsel's representation, and thus implicitly agreed with that interpretation of the May 11, 1983, order.
As for ordering the transfer of estate assets independent of the *426 final account process, the global settlement does not establish a chronology of events. Thus, the trial court's order to turn over the estate assets was not a modification of the settlement terms in the agreed order of May 11, 1983.
3 The executors also claim that the trial court lacked jurisdiction because it acted while proceedings were pending before the Illinois Supreme Court. While the Attorney General had filed a petition for rule to show cause in the Illinois Supreme Court on July 25, 1983, we are not aware of any authority that the mere filing of a petition of this type in a reviewing court divests the trial court of its continuing jurisdiction to enforce its orders. At the time the petition was filed, the Illinois Supreme Court had already dismissed all appeals in this matter which were before it. Accordingly, this contention is meritless.
The executors additionally claim that once notice of appeal was filed on September 12, 1983, the trial court lost its jurisdiction so that the orders of September 15, 1983, are void.
4 The general rule is that the filing of a notice of appeal divests the trial court of jurisdiction; however, the trial court retains jurisdiction to determine matters collateral or incidental to the judgment. (In re Estate of Denaro (1983), 112 Ill. App.3d 872, 878, 445 N.E.2d 1308; In re Marriage of Legge (1982), 111 Ill. App.3d 198, 210, 443 N.E.2d 1089.) The hearing on September 15 was for the reconsideration of the orders of September 8. The September 8 orders involved turnover of the estate assets, reformation of the releases, denial of the petition for damages against Continental Bank, and other matters, all of which were only collateral to the August 4 order relating to the turnover of trust assets. Since the issues resolved during the hearings of September 8 and 15 were independent of those decided at the August 4 hearing, while admittedly all related to enforcement of the global settlement, notice of appeal from the August 4 orders did not divest the trial court of jurisdiction to rule on those independent matters.
5 The executors next contend that by reforming the releases, rather than ordering the Rices, Jr., to execute releases through May 11, 1983, the trial court denied them the benefit of their bargain which they claim is enforcement of the May 11, 1983, order and the peace of mind that they will not be exposed to liability for the period between May 5, 1983, and May 11, 1983. During that period, the executors filed fiduciary income tax returns for the trusts. Because of stays at various stages of litigation, distributions were not made and unanticipated tax consequences resulted. The executors fear that the reformation may not be held valid in potential future litigation and *427 that they will be responsible for deficiencies in trust distributions caused by the greater tax liability.
We see no basis for a future holding by any court that the reformation of the releases is invalid. We have already concluded that the trial court had jurisdiction at the time of the reformation. Here, the transcript of the hearing held on May 11, 1983, amply supports the trial court's finding that the parties intended the releases to cover acts and omissions through May 11, 1983. Although the Rices, Jr., have refused to execute releases absolving the executors of liability through May 11, 1983, they have not cross-appealed from the September 8, 1983, order granting judicial reformation of their releases, nor have the Rices, Jr., appealed from the May 11, 1983, settlement order. These unappealed-from orders are binding against Rices, Jr., in any other future court proceedings and effectively preclude the Rices, Jr., from contesting in the future the validity of the settlement order and the reformed releases. While the trial judge could have ordered the Rices, Jr., to execute new releases, his election to achieve the same result through judicial reformation was a proper exercise of his discretion.
Furthermore, the executors are concerned that the reformation is ineffective, yet they asked the trial court, in the prayer for relief in their additional petition for confirmation and compliance, for an order
"declaring that the releases required to be provided under the terms and conditions of the global settlement are required to cover acts and omissions of releasees through May 11, 1983, the date of the global settlement, and, further, that any and all releases which have been executed and filed or exchanged between and among the parties under the global agreement be and hereby are corrected to the effect that such releases cover the acts and omissions of releasees through May 11, 1983, rather than cover only those acts and omissions of releasees that occurred prior to May 5, 1983."
They did not, in that petition, specifically demand that the Rices, Jr., be ordered to correct the releases they had previously executed. The trial court essentially granted them the relief they sought when it judicially reformed the releases. A party cannot complain of error which does not prejudicially affect him, and one who has obtained by judgment all that has been asked for in the trial court cannot appeal from the judgment. (Material Service Corp. v. Department of Revenue (1983), 98 Ill.2d 382, 386, 457 N.E.2d 9.) Thus, we believe that the judicial reformation of the releases was proper and binding on the Rices, Jr., in this and in any future litigation, the reformed releases *428 are valid, and the executors have received the benefit of their settlement.
We note, in addition, that the executors have other sources of protection from liability. All beneficiaries except for the Rices, Jr., executed complying releases. Moreover, the February 28, 1983, agreement, included in the May 11, 1983, order, provides that the successor trustee, Continental Bank, shall indemnify the executors against any suit arising out of the administration of the estate or trusts to the extent of the trust assets.
6 The executors next argue that the execution of proper releases by the Rices, Jr., was a condition precedent to their resignation and to the turnover of the assets, and the trial court erred in ordering the executors to turn over the assets before proper releases were executed. A condition precedent is one which must be performed before a contract becomes effective or which is to be performed by one party to an existing contract before the other party is obligated. (Peoria Harbor Marina v. McGlasson (1982), 105 Ill. App.3d 723, 729, 434 N.E.2d 786.) The executors maintain that because the exchange between Continental Bank and the Rices, Jr., was to take place, according to the May 11, 1983, order, "forthwith," by definition, other obligations arose thereafter.
We are not convinced, as we noted earlier, that a definite chronology of events was established by the terms of the settlement. Even if we agreed, arguendo, with the executors' interpretation on this point and further agreed that the trial court altered the chronology, we would hold that the error did not cause any harm. The executors have not shown they were prejudiced by the delay in obtaining complying releases, and since we have upheld the validity of the reformation by the trial court, the executors have received all they have bargained for.
7 The executors next claim the trial court erred in dismissing their petition alleging negligence and seeking compensatory and punitive damages against Continental Bank. For Continental Bank to be liable for the tort of negligence, it must have had a duty towards the executors, it must have breached the duty, the breach must have been the proximate cause of the executors' injury, and there must be a resulting compensable injury. (Illinois Housing Development Authority v. Sjostrom & Sons, Inc. (1982), 105 Ill. App.3d 247, 259, 433 N.E.2d 1350.) We believe that Continental Bank owed no duty to the executors during the exchange of documents with the Rices, Jr. The executors argue that a duty arises because the bank is a professional fiduciary and had a duty arising out of the May 11, 1983, order which *429 provided that the Rices, Jr., would deliver the releases to the Continental Bank. The executors assert that the Continental Bank became an agent for all the parties, including them. The executors contend that the Continental Bank, as a professional fiduciary acting as their agent, had a duty to make sure the releases it accepted were proper. Although whether an agency exists is generally a question of fact, this is not the rule where, as here, the parties' relationship is so clear as to be undisputed. (Doyle v. Shlensky (1983), 120 Ill. App.3d 807, 821, 458 N.E.2d 1120.) Generally, the test of agency is the existence of the right to control the method or manner of accomplishing a task by the alleged agent as well as the agent's ability to subject the principal to personal liability. Kozasa v. Guardian Electric Manufacturing Co. (1981), 99 Ill. App.3d 669, 676, 425 N.E.2d 1137.
The May 11, 1983, order directed the Rices, Jr., to deliver to Continental Bank certain documents and their releases and, upon delivery, for the Continental Bank to deliver to Rices, Jr., certain documents and $360,000. That the Continental Bank was designated in the May 11, 1983, agreed order to accept the releases and perform other tasks upon delivery of certain documents was a part of the total settlement of the litigation. We reject the executors' contention that the May 11, 1983, order created an agency relationship between the Continental Bank and the other parties whereby the Continental Bank owed a fiduciary duty to the other parties to make certain the releases were properly executed. The May 11, 1983, order effectuated a settlement of the litigation requiring, in part, certain parties to do specified acts. The order did not create an agency relationship, and the executors' petition seeking damages for negligence was properly dismissed.
8 Furthermore, the executors have not demonstrated a compensable injury. Further litigation is mere speculation, especially in light of our approval of the reformation of the releases. Delay in enforcement of the May 11, 1983, order because of the failure to provide complying releases extended the litigation, but that was an inconvenience to all, including the bank. Therefore, we conclude that the executors failed to state a cause of action for negligence against the bank.
The trial court did not dismiss the petition on this basis, but rather found no useful purpose in pursuing the petition and specifically refused to make a finding on whether Continental Bank mishandled the transfer of documents. However, a reviewing court is not bound to accept the reasons given by the trial court for its judgment, and the judgment may be sustained upon any ground warranted, regardless of whether it was relied on by the trial court and regardless of whether the reason given by the trial court was correct. (Material *430 Service Corp. v. Department of Revenue (1983), 98 Ill.2d 382, 387, 457 N.E.2d 9; Roche v. County of Lake (1984), 126 Ill. App.3d 976, 982, 467 N.E.2d 1146.) Despite reasons given by the trial court, we believe that its dismissal of the executors' petition against Continental Bank was proper because the executors' allegations failed to support a cause of action under a negligence theory.
9 Lastly, the executors raise several due process arguments which, in essence, restate contentions already addressed in this opinion and need not be reviewed again. Executors additionally complain that the May 17, 1983, letter from the trial judge to the chief justice of the Illinois Supreme Court advising him that he had been advised by the parties that the matter was "resolved to everyone's satisfaction" indicates "ex parte communication" resulting in a denial of due process. Considering the number of parties and lawyers involved, and the ongoing efforts of the trial judge to effectuate a settlement of this litigation agreeable to all parties involved, we find the letter, in the context of the entire record, certainly does not disclose improper communication amounting to a due process violation. We find this argument without any foundation or merit.
10 Finally, the Rices, Jr., request, without corresponding argument, that they be awarded costs and attorney fees in responding to this "frivolous" appeal. When a judgment is affirmed on appeal, the appellee is entitled to costs (Ill. Rev. Stat. 1983, ch. 110, par. 5-120; 87 Ill.2d R. 374), but the request for fees is denied.
For the foregoing reasons, the judgment orders of the circuit court in Nos. 83-819 and 83-825 are affirmed.
Affirmed.
NASH, P.J., and SCHNAKE, J., concur.
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 97-6958
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
NILGEL R. PARKER,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Aiken. Charles E. Simons, Jr., Senior District
Judge. (CR-91-577, CA-96-3879-1)
Submitted: November 25, 1997 Decided: January 9, 1998
Before HALL, ERVIN, and WILKINS, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Nilgel R. Parker, Appellant Pro Se. Jane Barrett Taylor, OFFICE OF
THE UNITED STATES ATTORNEY, Columbia, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Nilgel Parker seeks to appeal the district court's order
denying his motion filed under 28 U.S.C.A. § 2255 (West 1994 &
Supp. 1997). We have reviewed the record and the district court's
opinion and find no reversible error. Accordingly, we deny a cer-
tificate of appealability and dismiss the appeal on the reasoning
of the district court.* United States v. Parker, Nos. CR-91-577;
CA-96-3879-1 (D.S.C. May 5, 1997). 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 deci-
sional process.
DISMISSED
*
Appellant's ineffective assistance of counsel claim is not
properly before this court because he did not raise it in the dis-
trict court. See Muth v. United States, 1 F.3d 246, 250 (4th Cir.
1993).
2
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STATE OF VERMONT
ENVIRONMENTAL COURT
Appeal of Thaddeus Lorentz }
and David H. Nelson }
} Docket No. 120-6-00 Vtec
}
}
Decision and Order
Appellants Thaddeus Lorentz and David H. Nelson appealed from several conditions imposed
by the decision of the then-Planning Commission of the City of Burlington granting them
approval for construction of a mini-storage facility with a detached office.
Appellants are represented by John D. Hansen, Esq. and Stephanie A. Lorentz, Esq.; the City
is represented by Kimberlee J. Sturtevant, Esq.; Interested Persons Marcia L. Mason, Lynn
Goldman, and Carolyn Bates appeared and represent themselves. An evidentiary hearing was
held in this matter before Merideth Wright, Environmental Judge, who also took a site visit with
the parties. The parties were given the opportunity to submit written requests for findings and
memoranda of law. Upon consideration of the evidence, the site visit, and the written
memoranda and proposed findings, the Court finds and concludes as follows.
Appellants had received major impact development approval and conditional use approval
from the then-Zoning Board of Adjustment for a 600-unit mini-storage facility on an
approximately 7.91-acre site at 199 Flynn Avenue in the Enterprise zoning district. The property
has frontage on Flynn Avenue, and is bordered on the west and south by residential
condominium or townhome developments in the Waterfront Residential Low-Density zoning
district. The property is a so-called > brownfields= site that contains a designated wetlands area
and an underground stormwater culvert, and a groundwater treatment system that would continue
to operate on the property. The property at present is vegetated, with large trees in the southwest
area of the property, and wetlands as shown on the site plan. The proposed use is allowed in the
Enterprise zoning district.
Appellants appealed the following conditions of the Planning Commission approval:
70-foot setbacks in the southwest corner of the project; additional green space at the ends of
certain buildings; pitched roofs instead of flat roofs; gable end detail on two-story buildings;
restriction of the hours of operation to 7 a.m. to 9 p.m. on weekdays and 9 a.m. to 5 p.m. on
weekends; after-hours security lighting to be activated only by motion detectors; and wood rather
than metal siding for the storage buildings. Appellants also appealed a condition that they black
top all internal drives, but have since agreed to that condition. Appellants= appeal of an additional
condition regarding a written release of liability, was granted on summary judgment and that
condition has been eliminated.
Appellants propose to install and maintain fencing completely surrounding the property.
Appellants propose to create a two-foot-high berm along the north side of the property along
Flynn Avenue, broken only by the facility= s driveway which is proposed to be equipped with a
gate. The berm is proposed to have black-coated vinyl fencing and landscaping installed on top
of the berm to provide landscaping and screening for the project as viewed from Flynn Avenue.
The primary view from Flynn Avenue of the buildings in the facility will be through the gate,
with a brief view of the rooftops from Flynn Avenue as drivers approach the facility from the
east.
Appellant proposes to install an office building and 22 mini-storage buildings. Each of the
mini-storage building will hold units that are either ten, fifteen or twenty feet in depth. The mini-
storage buildings are designated on Appellant= s proposed site plan (Exhibit 1) by the letters A
through V, and will be referred to as necessary by those letters in this decision. The lot coverage
proposed is 51.7%, less than the maximum lot coverage of 80% allowed under the regulations.
An existing berm at the westerly boundary of the property, and the expanse of Class III
wetlands occupying most of the westerly third of the property, provide sufficient buffer between
the proposal and the residential uses to the west, except for buildings S, T, U and V in the
southwest corner of the proposed facility. The design and layout of these four buildings is a
primary concern of the interested parties who live in the residential development to the south and
west of the project. The locations of the office building and of Buildings A through R are not
contested.
The office building, located near Flynn Avenue and the front gate, is proposed to have a
pitched roof and is well-landscaped; its design and landscaping is not at issue in this appeal.
Appellants propose hours of operation from 7:00 a.m. to 9:00 p.m., seven days a week, and that
the gate would be locked with no access other than during those hours. Appellant David Nelson=
s testimony at the hearing that the project would only be open to the public from 7 a.m. to 7 p.m.
daily appears to have been his statement of what the Appellants would be willing to accept,
rather than what they were applying for. As the Planning Commission decision appealed from
granted the hours of operation from 7:00 to 9:00 p.m. on weekdays, which are the hours
Appellants now request, and the City did not appeal, we will focus on Appellants= challenge to
the weekend hours of operation.
Appellants propose that all the mini-storage buildings have beige metal siding, with dark
green metal doors, and flat dark green roofs. Appellants only propose to landscape the northerly
end of building F, directly facing the gate. The City= s position is that the buildings should have
either pitched roofs or shed roofs, that both ends of buildings F, L, and M should be landscaped,
and that the northerly end of buildings E, Q and P and the southerly end of building G should be
landscaped, as shown on Exhibit C, and that the gable ends of those buildings with pitched roofs
have suitable gable-end detailing. During trial, the parties agreed as to the locations, wattage, and
types of lighting to be installed in the project. The remaining issue regarding lighting is whether
the lights should be left on continuously during the nighttime hours when the business is closed,
or whether the lights should be on motion detectors during those periods.
As the project proposes an allowed use for the Enterprise zoning district and meets the
minimum dimensional, setback, lot coverage and other specific zoning standards, the contested
conditions may only be imposed if they are made necessary by considerations under Article 6
(Design Review) and Article 7 (Site Plan Review) of the City= s zoning ordinance. We take each
contested condition in turn.
Roof Appearance, Materials and Landscaping of Buildings A through R
While the property is adjacent to residential uses in a residential zoning district, the property
itself is a former industrial property in an enterprise zoning district that allows commercial and
industrial uses. Uses in the area include residential buildings with pitched roofs, accessory
buildings such as sheds and garages with shed roofs, and commercial and industrial buildings,
some with flat roofs. Many of the older commercial and industrial buildings in the area are brick.
The proposed storage unit use is a good transitional use for the property, as it is a relatively low-
intensity use and relatively quiet.
The storage unit buildings are long and low, and relatively repetitious, but echo in a smaller
scale the industrial and railroad history of the area between Route 7 and the lake. To provide the
required relationship to the project= s context (' 6.1.10(a)) it is only necessary that the roofs
visible to be glimpsed from Flynn Avenue have a mixture of shed and pitched roof types, to
provide the visually harmonious relationship to existing buildings in the vicinity. (We will
address buildings S, T, U and V in a separate section). Accordingly, buildings A and I shall have
either shed or pitched roofs, and buildings E, F, G and H shall have pitched roofs, with gable end
detailing on their northerly ends. The remaining buildings B, C, D, J, K, L, M, N, O, P, Q and R
may have flat roofs as proposed by Appellants, although Appellants may install shed or gable
roofs on any of these buildings as well, at their election.
Nothing in ' 6.1.10(a) precludes the use of metal siding in buildings A through R. It is true
that metal siding > reads= as commercial or industrial and that it is not as > warm= or > welcoming=
a material as wood, brick or their imitations in plastic. However, the fact that this property makes
the transition between residential uses and commercial or industrial uses does not mean that the
storage units must imitate or blend in with the residential materials on the neighboring property,
especially as buildings A through R will not be seen from or in conjunction with the neighboring
residential properties, except perhaps at a considerable distance. If metal buildings are less
durable than wooden ones, or more difficult to maintain, such issues do not fall within the
considerations of ' 6.1.10(a). Accordingly, Appellants may use metal siding for buildings A
through R. However, to relate to the context of predominantly brick or dark wooden older
industrial buildings, the rear sides of buildings A (north side) and I (east side), which may be
seen from Flynn Avenue through the proposed landscaping, shall be a dark brown or dark red
brick color of metal siding.
Similarly, to comply with ' ' 7.1.6(c), 6.1.10(a), 6.1.10(b) and 6.1.10(e), green spaces are
only necessary on the northerly ends of buildings E, F and G, for the purposes of landscaping
and relating the project to the surroundings. The small additional green spaces proposed by the
City on the south ends of Buildings F and G and on buildings L M, P and Q are negligible in
relation to the size of the overall site and the green space, landscaping and vegetation to remain
on the periphery of the site and in the wetland area. They were not shown to have any
appreciable benefit to the microclimate or the ability of the property to handle runoff or snow
melt.
Appellants shall provide the peripheral landscaping as originally proposed to the Planning
Commission (other than on the west and south edges of the area containing buildings S, T, U,
and V), as they did not challenge that landscaping in their appeal. Appellants= statement of
questions only challenged the landscaping requirements regarding the southwestern area
containing buildings S, T, U and V, and regarding the landscaping at the ends of certain
buildings, discussed below.
The black-coated fencing proposed for the Flynn Avenue side of the property will blend in
with the proposed landscaping for the front of the property, and is approved.
Hours of Operation and Security Lights re Buildings A through R
Appellants challenge the condition restricting the weekend hours of operation to the hours of
9:00 a.m. to 5:00 p.m. on Saturday and Sunday. They propose hours of operation from 7:00 a.m.
to 9:00 p.m. on the weekends as well as the weekdays. While traffic to the facility will be
relatively low on average, because this property adjoins residential properties, it is necessary to
restrict weekend hours to some extent to protect the adjacent residential uses, especially in
summer when people make outdoor uses of their property.
If the area in the southwest of the property, comprising buildings S, T, U and V, had been
proposed to be furnished with a separate gate, it might have been possible to restrict only that
section of the property, and to allow access to the remainder of the property in the hours
requested by Appellants. Without such a separation, it is necessary to restrict the hours of
operation on weekends to 9 a.m. as an opening hour both on Saturdays and on Sundays, and to 5
p.m. as a closing hour on Sundays. However, a closing hour of 7 p.m. on Saturday evenings is
reasonable and will not unduly disrupt the neighboring residential uses, with the additional
protections discussed below with reference to the southwest area of the property.
It is important, however, that most of the after-hours security lighting only be activated by
motion detectors, to avoid an unnecessary generalized sky glow from the property as a whole.
Appellants may install the lighting without motion detectors on or northerly of the office, on the
east end of buildings A, B and C; on the north and east sides of buildings E and F; on the north,
east or west sides of buildings G, and H; and on the west side of building I, so that it is on
continuously after hours. All other lighting shall be installed on motion detectors. The motion
detectors and light bulbs shall be reasonably protected from vandalism and shall be tested
periodically to ensure they are in operating condition. Appellants may, but are not required to
place a sign at the gate, visible when the gate is closed, informing passers-by that the property is
protected by hidden security lighting.
Location, Appearance, Materials, Landscaping and Lighting of Buildings S, T, U and V
Because buildings S, T, U and V are located in the southwestern area of the property near the
neighboring residences, the Planning Commission imposed a much larger setback than required
by the zoning regulations: 70 feet from the boundary. Appellants now propose to excavate the
southwestern area of the property so that the buildings would be located approximately four feet
below ground level, and to place the buildings as near as 20 feet from the westerly property line
and as near as 25 feet from the southerly property line.
In order to meet the design review criteria and ' 7.1.6(c), the buildings in the southwestern
area of the property need not be set back as far from the property line as requested by the City,
but their location must be better designed to preserve a belt of trees between the property line
and the buildings, and to provide a better visual, aural and security separation of those buildings
from the residential uses in the neighboring residences.
To provide an adequate level of protection to meet ' ' 7.1.6(c), 6.1.10(a) and 6.1.10(b), the
buildings in the southwestern area shall be redesigned as necessary to place them so that they are
located no closer than thirty feet to the southern and western property lines, to avoid the die-back
of existing trees between the buildings and the boundary. They shall be placed to form a shallow
J shape, as shown on the following diagram, so that the rear walls of buildings V and U face the
southern and western property lines and so that the buildings form a continuous wall turning the
southwest corner and the northwest corner of the area, as follows:
The rear walls of buildings V and U shall be sheathed in wood or another sound-deadening
material, or a dark color, and buildings V and U shall have shed roofs sloping towards the back,
both to provide additional protection from the visibility of and sound of automobiles and people
using those storage units. Buildings S and T may be redesigned to accommodate the
requirements of this order and to provide a replacement snow storage area between building S
and the northerly end of building V. All the after-hours lighting in the southwestern corner of the
property shall be motion-activated.
In addition, to ensure an additional level of security for those residents from the users of
Appellants= facility, Appellants shall allow the residents or residents= association responsible for
the buildings directly to the south and west of buildings V and U to install motion-activated
security lighting on Appellants= perimeter fencing, and to allow the motion sensors and lights to
point onto Appellants= property.
Based on the foregoing, it is hereby ORDERED and ADJUDGED that the project is hereby
approved as conditioned by the Planning Commission decision, as modified above with respect
to each appealed condition. If the proposal to lower the slab elevation of the southwestern area
requires approval regarding its implications for stormwater and drainage, such approval is
beyond the scope of this appeal.
Dated at Barre, Vermont, this 22nd day of April, 2002.
___________________
Merideth Wright
Environmental Judge
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917 F.2d 1144
GOVERNMENT EMPLOYEES INSURANCE COMPANY, Appellee,v.Leonard SIMON, Personal representative of the Estate ofLewis E. Simon, Deceased,Susan Johnston, Lance E. Simon, (Intervenors Below), Appellants.
No. 89-1853WM.
United States Court of Appeals,Eighth Circuit.
Submitted Dec. 15, 1989.Decided Nov. 1, 1990.
John Housley, Springfield, Mo., for appellants.
Bradley J. Fisher and Rebecca B. Myers, Springfield, Mo., for appellee.
Before ARNOLD, FAGG and MAGILL, Circuit Judges.
MAGILL, Circuit Judge.
1
In this insurance coverage declaratory action, intervenors Susan Johnston and Lance Simon appeal from the district court's1 summary judgment order in favor of appellee Government Employees Insurance Company. Johnston and Simon make two arguments on appeal: (1) that the district court erred in determining that, under Missouri law, an insurance policy's household exclusion clause barred Johnston's claim against her ex-husband's estate for medical expenses on behalf of their son; and (2) that the district court erred in refusing to grant intervenors' motion to dismiss or stay pending the outcome of similar state court proceedings. Because we believe the district court's state law ruling was proper and that the district court did not abuse its discretion by refusing to abstain, we affirm.
I.
2
The facts in this case arise from a tragic automobile accident on December 22, 1985, in which Lance Simon was injured and his father, Lewis Simon, stepmother, and sister were killed. Lance's natural mother, Susan Johnston, incurred substantial medical expenses on behalf of her son and sought insurance coverage from Lewis Simon's insurer, Government Employees Insurance Company (GEICO). GEICO denied coverage based on the household exclusion clause of its insurance policy on March 31, 1986. The relevant provisions of GEICO's policy state:
LOSSES GEICO WILL PAY FOR YOU
3
Under Section I, we will pay damages, which an insured becomes legally obligated to pay because of:
4
1. bodily injury, sustained by a person, ... arising out of the ownership, maintenance or use of the owned auto....
5
EXCLUISIONS [sic]
When Section I Does Not Apply
6
1. Bodily injury to any insured is not covered.
7
....
PERSONS INJURED
Who Is Covered
8
Section I applies to the following as insureds with regard to an owned auto:
9
1. you and your relatives; ....
DEFINITIONS:
10
....
11
2. "Bodily injury" means bodily injury to a person,....
12
....
13
4. "Insured" means a person or organization described under "persons insured."
14
....
15
8. "Relative" means a person related to you who resides in your household.
16
Johnston and her son filed a lawsuit in Missouri state court against the estate of Lewis Simon and against American Family Insurance Company (American Family), Johnston's insurer. The state court action alleged negligence by Lewis Simon and sought damages from his estate for Lance Simon's injuries and for Susan Johnston's medical expenses on Lance Simon's behalf. The state court action also sought recovery from American Family under the uninsured motorist provisions of its policy on the theory that because GEICO denied coverage, Lewis Simon was an uninsured motorist.
17
On April 7, 1987, American Family filed a third-party complaint against GEICO, a cross-claim against Lewis Simon's estate, and a counterclaim against Johnston and Lance Simon. The complaint against GEICO alleged, inter alia, that GEICO wrongfully denied coverage to Johnston and Lance Simon, and asked the state court to determine the parties' rights and obligations under the various insurance policies.
18
On April 14, 1988, GEICO filed a declaratory judgment action in a Missouri federal district court against the estate of Lewis Simon. GEICO's complaint alleged that its liability to Johnston and Lance Simon was dependent on the construction of its insurance contract with Lewis Simon, and asked the federal court to determine whether GEICO would be liable for any judgments rendered in Johnston or Lance Simon's favor against the estate of Lewis Simon. Johnston and Lance Simon then sought permissive intervention pursuant to Fed.R.Civ.P. 24(b), claiming that the state and federal proceedings featured a common "primary" issue, namely, whether GEICO's policy provided coverage to Lance Simon. The district court granted the motion to intervene and in the ensuing petition in intervention, Johnston and Lance Simon alleged that GEICO sought to delay "wrongfully" their state court action and that GEICO was barred from seeking federal court declaratory relief because it had not initially sought to remove the state court action. The parties stipulated that their state court discovery would be used and filed in the federal action.
19
GEICO then moved for summary judgment, arguing that Lance Simon was an "insured" under the GEICO policy because he was related to Lewis Simon and resided in Lewis Simon's household. Because Lance Simon was an "insured," GEICO argued, the policy explicitly excluded his injuries from coverage. GEICO also contended that the household exclusion clause was not contrary to public policy. Johnston and Lance Simon argued in opposition to the motion that the household exclusion clause was void as a matter of public policy, and that the insurance policy was ambiguous. They also argued that even if the policy did not cover Lance Simon's damages, Johnston's claim for medical expenses was separate, and that because Johnston no longer resided with her ex-husband, she was not an "insured" and the policy covered her damages. Johnston and Simon moved the district court to stay or dismiss GEICO's action because of the pending state court proceedings.
20
On March 22, 1989, the district court granted GEICO's motion for summary judgment. After reviewing the grounds for granting a summary judgment motion, the district court found that Lance Simon was a member of Lewis Simon's household. Applying the relevant GEICO policy provisions, the district court held that the policy was clear and excluded insurance coverage for Lance Simon's injuries. The district court also addressed Johnston and Lance Simon's contention that the household exclusion clause was contrary to public policy. The district court noted that numerous Missouri courts had upheld such clauses, and cited two of the most recent cases. The district court stated that it "felt confident" that Missouri courts would continue to uphold the clauses, thus rejecting the public policy challenge.
21
The district court next addressed Johnston and Lance Simon's argument that Johnston's claim for medical expenses was separate from Lance Simon's claim for damages and that the household exclusion did not apply to Johnston. The district court characterized Johnston's claim as dependent on coverage for Lance Simon's injuries. The district court, after reviewing Missouri case law that held that the rights of an injured party against a negligent party's insurer are no greater than those of the insured, ruled that GEICO was entitled to summary judgment.
22
As a final matter, the district court rejected Johnston and Lance Simon's contention that it should have stayed or dismissed GEICO's action because of the pending state court action. The district court recognized that the state court action involved the same accident and claims as the federal action did, but decided that dismissal would be "inappropriate" and that there was no novel issue of Missouri law that would warrant a stay.
23
After the district court refused to grant Johnston and Lance Simon's motion for a new trial or to amend the judgment, they appealed to this court.
II.
A. Insurance Coverage
24
Johnston and Lance Simon's first argument on appeal is that the district court erred in determining that, under Missouri law, the GEICO policy's household exclusion clause barred Johnston's claim for medical expenses on Lance Simon's behalf. When we review a district court's grant of summary judgment, we must apply the same standard the district court applied. McCuen v. Polk County, Iowa, 893 F.2d 172, 173 (8th Cir.1990). The district court in this case discussed numerous summary judgment considerations, noting in particular that a summary judgment motion must be viewed in the light most favorable to the opposing party, and that the opposing party must receive the benefit of all reasonable inferences. See Green v. United States Dep't of Labor, 775 F.2d 964, 973 (8th Cir.1985).
25
Johnston and Lance Simon argue that the district court's finding that the GEICO policy does not provide Lance Simon with coverage does not automatically compel the finding that no coverage exists for Johnston's damages. The plain language of GEICO's insurance policy refutes this argument. The policy states that GEICO will not pay damages that the estate of Lewis Simon becomes obligated to pay resulting from bodily injury to an insured. Lance Simon is an "insured" under the policy: he is Lewis Simon's son and lived in Lewis Simon's household. Johnston and Lance Simon do not challenge the district court's finding concerning this issue. Johnston contends that her claim for medical expenses, together with the fact that she is not an "insured" under the policy because she did not reside with Lewis Simon, removes her from the purview of the policy exclusion. This contention is irrelevant; she is still trying to obtain damages resulting from bodily injuries to an insured. The policy's plain language bars this result.
26
The district court relied on two cases interpreting Missouri law that examined the rights of injured parties against an insurer to reach this conclusion. In McNeal v. Manchester Ins. & Indem. Co., 540 S.W.2d 113 (Mo.Ct.App.1976), a Missouri appellate court stated that "Missouri has held to the doctrine that the rights of the injured person are derivative and that those rights can rise no higher than those of the insured so that the insurer can set up as a defense [against the injured party a defense it had against the insured]." Id. at 119. The district court also cited State Farm Mut. Auto. Ins. Co. v. Worthington, 405 F.2d 683, 686 (8th Cir.1968), for the same proposition. Johnston and Lance Simon argue that these cases should be limited to their facts and are not applicable to the case at hand. Although Worthington was a garnishment action, and thus perhaps not directly applicable, there is nothing in the McNeal decision that lessens the broad sweep of the language quoted above.
27
It is our practice to defer to the state law rulings of a federal district court sitting in the state whose law is controlling, but we do not defer where the ruling is fundamentally deficient in analysis, without a reasonable basis, or contrary to reported state court opinion. Economy Fire & Cas. Co. v. Tri-State Ins. Co., 827 F.2d 373, 375 (8th Cir.1987). Here, the district court's state law determination was not fundamentally deficient or without a reasonable basis, and is not contrary to reported state court opinion. Based on a plain language reading of GEICO's insurance policy and the cases the district court relied on, we defer to the district court's ruling and hold that GEICO is not liable to Johnston for damages that resulted from medical expenses for Lance Simon's injuries.
B. Abstention
28
Johnston and Lance Simon also argue that the district court erred in refusing to grant their motion to dismiss or stay the federal court proceedings pending the outcome of the state court action. Johnston and Lance Simon argue as an initial matter that the district court's jurisdiction would have been proper only if GEICO had removed the state court case to federal district court pursuant to 28 U.S.C. Sec. 1441(c). This contention is meritless. The removal statute is discretionary; it states that a party may remove, not that a party must remove. See 28 U.S.C. Sec. 1441(c). Johnston and Lance Simon have adduced no relevant case law holding that Sec. 1441(c) should be interpreted any other way, and we reject their contention.
29
The essence of Johnston and Lance Simon's argument is that the district court should not have exercised jurisdiction over GEICO's declaratory judgment action because there was a case pending between the parties in Missouri state court, and that the state court was the proper forum to determine whether the household exclusion clause was contrary to state public policy. In support of this argument, they refer to the "fourth branch of the abstention doctrine"2 the Supreme Court announced in Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976). In Colorado River, Justice Brennan stated that there were "principles unrelated to considerations of proper constitutional adjudication and regard for federal-state relations which govern in situations involving the contemporaneous exercise of concurrent jurisdictions, either by federal courts or by state and federal courts." Id. at 817, 96 S.Ct. at 1246. These principles, reasoned Justice Brennan, rested on considerations of " '[w]ise judicial administration.' " Id. (quoting Kerotest Mfg. Co. v. C-O-Two Fire Equip. Co., 342 U.S. 180, 183, 72 S.Ct. 219, 221, 96 L.Ed. 200 (1952)). Justice Brennan noted that "as between state and federal courts, the rule is that 'the pendency of an action in the state court is no bar to proceedings concerning the same matter in the Federal court having jurisdiction....' " Id. (quoting McClellan v. Carland, 217 U.S. 268, 282, 30 S.Ct. 501, 504-05, 54 L.Ed. 762 (1910)). He then stated that federal courts have a "virtually unflagging obligation ... to exercise the jurisdiction given them." Id. (citations omitted; emphasis added).
30
Justice Brennan went on, however, to declare that in "exceptional circumstances," a federal district court may dismiss an action because of concurrent state proceedings. Colorado River, 424 U.S. at 818, 96 S.Ct. at 1246-47. He enunciated four factors courts should consider when determining whether "exceptional circumstances" exist: (1) whether the state court first obtained jurisdiction over real property; (2) whether the federal forum would be inconvenient; (3) whether piecemeal litigation would result; and (4) whether the state or federal court first obtained jurisdiction. Id. Justice Brennan stated that no one factor was necessarily determinative, and that only the "clearest of justifications will warrant dismissal." Id. at 818-19, 96 S.Ct. at 1247 (emphasis added).
31
The Supreme Court reexamined this type of abstention in Moses H. Cone Memorial Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983). In Moses H. Cone, the Supreme Court explained two of the Colorado River factors and added two more. The presence of piecemeal litigation, the Supreme Court explained, was not a significant factor where the relevant law required piecemeal resolution and the federal court issue was "easily severable from the merits of the underlying disputes." Id. at 20-21, 103 S.Ct. at 939. The Court also explained the "priority" factor. The Court stated that priority should not be measured by which party filed first, "but rather in terms of how much progress has been made in the two actions." Id. at 21, 103 S.Ct. at 940.
32
One of the two new factors the Supreme Court enunciated in Moses H. Cone was whether state or federal law provides the rule of decision; if federal law provides the rule of decision, that is always a major consideration weighing against abstention. Id. at 26, 103 S.Ct. at 942. The other new factor was the probable inadequacy of the state court proceedings to protect the federal plaintiff's rights. Id. at 26, 103 S.Ct. at 942.
33
Our examination of the district court's refusal to abstain is limited to determining whether the district court abused its discretion. See Moses H. Cone, 460 U.S. at 19, 103 S.Ct. at 938-39; Fiedler v. Reliance Elec. Co., 823 F.2d 269, 270 (8th Cir.1987). "A review of the exercise of discretion by a district court for a determination of abuse must be made on the facts and circumstances of the immediate case at hand." Watson v. Miears, 772 F.2d 433, 437 (8th Cir.1985).
34
The facts and circumstances of this case show that the district court did not abuse its discretion in refusing to abstain. A review of the Supreme Court's six factors for consideration reveals no "exceptional circumstances" mandating abstention. The parties agree that the first two factors are inapplicable. The third factor, the presence of piecemeal litigation, is a concern here. The clarifying language in Moses H. Cone, however, militates against this factor's receiving significant weight. As discussed above, the Supreme Court in Moses H. Cone downplayed the significance of the piecemeal litigation consideration where the relevant law requires piecemeal litigation and the federal action is easily severable from the state court action. In this case, Johnston and Lance Simon sued Lewis Simon's estate for negligence and American Family for coverage under Johnston's uninsured motorist insurance. American Family then sued GEICO to determine GEICO's liability under its insurance policy with Lewis Simon. The resolution of these suits necessarily requires piecemeal litigation in that whether GEICO's policy provides coverage is independent of whether Lewis Simon was negligent or whether American Family's policy provides coverage. The determination of GEICO's liability under its policy is easily severable from the state court action and the presence of piecemeal litigation is thus not a significant factor in this case.
35
The fourth factor, which forum acquired jurisdiction first, is also not significant in this case. Johnston and Lance Simon contend that because American Family filed its amended complaint against GEICO on April 7, 1987, and GEICO did not file its declaratory judgment action until April 14, 1988, this factor mandates abstention. As the Supreme Court has observed, however, courts must not give "too mechanical a reading to the 'priority' element." Moses H. Cone, 460 U.S. at 21, 103 S.Ct. at 939-40. Priority should be measured in terms of how much progress has been made in the two actions. Id. Johnston and Lance Simon state that "costly discovery" had been conducted in the state court action before GEICO commenced its federal court action. We note, however, that the parties stipulated that their state court discovery could also be used in the federal action. We also note GEICO's argument, which Johnston and Lance Simon do not contest, that the state court action had been pending for three years and was not set for trial.
36
The fifth factor for consideration is whether state or federal law provides the rule of decision. This factor is important primarily where federal law controls, and weighs against abstention. Johnston and Lance Simon argue that an unsettled question of Missouri law existed concerning the validity of household exclusion clauses and that a state court is the best forum for such a determination. But it is only in "rare circumstances" that the presence of state law issues will favor abstention. Id. at 26, 103 S.Ct. at 942. In this case the question of whether the household exclusion clause violated Missouri public policy was not unsettled. At least three Missouri appellate courts had determined that such clauses were valid, Hussman v. Government Employees Ins. Co., 768 S.W.2d 585 (Mo.Ct.App.1989) (construing the same clause involved in this case); Cameron Mut. Ins. Co. v. Proctor, 758 S.W.2d 67 (Mo.Ct.App.1988); and Foster v. State Farm Mut. Auto. Ins. Co., 750 S.W.2d 494 (Mo.Ct.App.1988), and Johnston and Lance Simon proffered no cases that had held otherwise.3 This case thus "does not involve complex questions of state law that a state court might be best suited to resolve." Noonan S., Inc. v. County of Volusia, 841 F.2d 380, 382 (11th Cir.1988).
37
The sixth and final factor for consideration is whether the state court proceedings would be adequate to protect the federal plaintiff's rights. Johnston and Lance Simon contend that the state court proceedings would be adequate to protect GEICO's rights, a contention GEICO strongly disputes. Viewing this contention in the light most favorable to Johnston and Lance Simon, however, this factor is still not significant. As the late Judge Vance observed in Noonan:
38
The fact that both forums are adequate to protect the parties' rights merely renders this factor neutral on the question of whether the federal action should be dismissed. This factor will only weigh in favor [of] or against dismissal when one of the forums is inadequate to protect a party's rights.
39
Id. at 383 (emphasis in original).
40
None of the factors for consideration the Supreme Court set forth in the Colorado River or Moses H. Cone opinions creates the "exceptional circumstances" necessary for abstention in this case. Although the district court may not have engaged in as thorough review of the factors as we would have liked, see Manley, Inc. v. Keystone Food Prods., Inc., 859 F.2d 80, 82 (8th Cir.1988); Fiedler, 823 F.2d at 270, based on our review of the facts and circumstances of this case, we conclude that the district court did not abuse its discretion in refusing to abstain.
III.
41
For the foregoing reasons, we defer to the state law ruling of the federal court sitting in the state whose law controls and hold that GEICO is not liable to Johnston for damages that resulted from medical expenses for Lance Simon's bodily injuries. We find no abuse of discretion in the district court's refusal to abstain. Accordingly, we affirm.
1
The Honorable Russell G. Clark, Senior United States District Judge for the Western District of Missouri
2
Mullenix, A Branch Too Far: Pruning the Abstention Doctrine, 75 Geo.L.J. 99, 99 (1986). See generally E. Chemerinsky, Federal Jurisdiction Sec. 14 (1989) (explaining and critiquing fourth branch abstention); C. Wright, A. Miller & E. Cooper, 17A Federal Practice & Procedure Sec. 4247 (1988) (same)
3
The district court proved prescient with its statement that it "felt confident" that Missouri courts would continue to uphold household exclusion clauses, because the Missouri Supreme Court held in May 1990 that such clauses did not violate Missouri public policy. See American Family Mut. Ins. Co. v. Ward, 789 S.W.2d 791 (Mo.1990)
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In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
Filed: February 7, 2020
* * * * * * * * * * * * * *
LINDA PARKER, * No. 14-979V
* Special Master Sanders
Petitioner, *
*
v. *
*
SECRETARY OF HEALTH * Attorneys’ Fees and Costs
AND HUMAN SERVICES, *
*
Respondent. *
* * * * * * * * * * * * * *
William E. Cochran, Jr., Black McLaren Jones Ryland & Griffee, PC, Memphis, TN, for
Petitioner.
Linda A. Watts, United States Department of Justice, Washington, D.C., for Respondent.
DECISION ON ATTORNEYS’ FEES AND COSTS1
On October 14, 2014, Linda Parker (“Petitioner”) filed a petition for compensation
pursuant to the National Vaccine Injury Compensation Program.2 42 U.S.C. §§ 300aa-10 to 34
(2012). Petitioner alleged the influenza (“flu”) vaccine that she received on October 19, 2013,
caused her to develop rheumatoid arthritis and polyarticular inflammation. Pet. at 1, ECF No. 1.
An entitlement hearing was held on August 16-17, 2018 in Washington, DC, and on June 24, 2019,
the undersigned issued her Decision denying compensation.
On August 8, 2019, Petitioner filed an application for attorneys’ fees and costs. ECF No.
1
The undersigned intends to post this Ruling on the United States Court of Federal Claims’ website. This
means the ruling 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, the undersigned
agrees that the identified material fits within this definition, the undersigned will redact such material from
public access. Because this unpublished ruling contains a reasoned explanation for the action in this case,
the undersigned is 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).
2
National Childhood Vaccine Injury Act of 1986, Pub L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease
of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa
(2012).
85 (“Fees App.”). Petitioner requests total attorneys’ fees and costs in the amount of $204,340.92
(representing $135,398.80 in fees and $68,942.12 in costs). Fees App. at 1. Pursuant to General
Order No. 9, Petitioner warrants that she has not incurred any costs related to the prosecution of
her petition. Fees App. Ex. 3. Respondent responded to the motion on August 15, 2019, indicating
that he “is satisfied the statutory requirements for an award of attorneys’ fees and costs are met in
this case” and requesting that the undersigned “exercise her discretion and determine a reasonable
award for attorneys’ fees and costs.” Resp’t’s Resp. at 2–3 (ECF No. 86). Petitioner did not file a
reply thereafter.
This matter is now ripe for consideration.
I. Reasonable Attorneys’ Fees and Costs
Section 15(e) (1) of the Vaccine Act allows for the Special Master to award “reasonable
attorneys' fees, and other costs.” § 300aa–15(e)(1)(A)–(B). Petitioners are entitled to an award of
reasonable attorneys' fees and costs if they are entitled to compensation under the Vaccine Act, or,
even if they are unsuccessful, they are eligible so long as the Special Master finds that the petition
was filed in good faith and with a reasonable basis. Avera v. Sec'y of Health & Human Servs., 515
F.3d 1343, 1352 (Fed. Cir. 2008). Here, the undersigned does not doubt that the petition was filed
in good faith, and although the petition was eventually dismissed, the matter necessitated an
entitlement hearing and the undersigned finds that there was reasonable basis to file the petition.
Respondent has also not challenged the reasonable basis of the petition. Accordingly, a final award
of fees is appropriate.
It is “well within the special master’s discretion” to determine the reasonableness of fees.
Saxton v. Sec’y of Health & Human Servs., 3 F.3d 1517, 1521–22 (Fed. Cir. 1993); see also Hines
v. Sec’y of Health & Human Servs., 22 Cl. Ct. 750, 753 (1991). (“[T]he reviewing court must grant
the special master wide latitude in determining the reasonableness of both attorneys’ fees and
costs.”). Applications for attorneys’ fees must include contemporaneous and specific billing
records that indicate the work performed and the number of hours spent on said work. See Savin
v. Sec’y of Health & Human Servs., 85 Fed. Cl. 313, 316–18 (2008). Such applications, however,
should not include hours that are “‘excessive, redundant, or otherwise unnecessary.’” Saxton, 3
F.3d at 1521 (quoting Hensley v. Eckerhart, 461 U.S. 424, 434 (1983)).
Reasonable hourly rates are determined by looking at the “prevailing market rate” in the
relevant community. See Blum, 465 U.S. at 895. The “prevailing market rate” is akin to the rate
“in the community for similar services by lawyers of reasonably comparable skill, experience and
reputation.” Id. at 895, n.11. Petitioners bear the burden of providing adequate evidence to prove
that the requested hourly rate is reasonable. Id.
Special masters can reduce a fee request sua sponte, without providing petitioners notice
and opportunity to respond. See Sabella v. Sec’y of Health & Human Servs., 86 Fed. Cl. 201, 209
(Fed. Cl. 2009). When determining the relevant fee reduction, special masters need not engage in
a line-by-line analysis of petitioners’ fee application. Broekelschen v. Sec’y of Health & Human
Servs., 102 Fed. Cl. 719, 729 (Fed. Cl. 2011). Instead, they may rely on their experience with the
Vaccine Program to determine the reasonable number of hours expended. Wasson v. Sec’y of Dep’t
2
of Health & Human Servs., 24 Cl. Ct. 482, 484 (1991), rev’d on other grounds and aff’d in relevant
part, 988 F.2d 131 (Fed. Cir. 1993). Just as “[t]rial courts routinely use their prior experience to
reduce hourly rates and the number of hours claimed in attorney fee requests . . . Vaccine program
special masters are also entitled to use their prior experience in reviewing fee applications.” Saxton,
3 F.3d at 1521.
a. Hourly Rates
The decision in McCulloch provides a framework for consideration of appropriate ranges
for attorneys’ fees based upon the experience of the practicing attorney. McCulloch v. Sec’y of
Health & Human Servs., No. 09-293V, 2015 WL 5634323, at *19 (Fed. Cl. Spec. Mstr. Sept. 1,
2015), motion for recons. denied, 2015 WL 6181910 (Fed. Cl. Spec. Mstr. Sept. 21, 2015). The
Court has since updated the McCulloch rates, and the Attorneys’ Forum Hourly Rate Fee
Schedules for 2015–2016, 2017, 2018, and 2019 can be accessed online.3
The undersigned has reviewed the requested rates for various Black McLaren attorneys and
staff (the billing records indicate that Mr. William Cochran performed the majority of the attorney
work, although two other attorneys and numerous law clerks and paralegals also worked on the
case) and finds that the requested rates are mostly consistent with what these attorneys and staff
have previously been awarded for their Vaccine Program work. The only exception is for the rate
requested for Mr. Michael McLaren in 2018 ($456.00 per hour) and 2019 ($473.00) per hour.
These rates are excessive because they exceed the maximum amount awardable per the Office of
Special Masters Attorneys’ Forum Hourly Rate Fee Schedules for 2018 and 2019. Accordingly,
Mr. McLaren has previously been awarded the maximum amount possible for those years, $455.00
per hour in 2018 and $464.00 per hour in 2019. Applying those rates to Mr. McLaren’s billed
hours in the instant case results in a reduction of $13.30.4
b. Hours Expended
Attorneys’ fees are awarded for the “number of hours reasonably expended on the
litigation.” Avera, 515 F.3d at 1348. Counsel should not include in their fee requests hours that are
“excessive, redundant, or otherwise unnecessary.” Saxton, 3 F.3d at 1521.
Upon review, the undersigned finds the billed hours to be mostly reasonable, but several
minor issues consistent throughout the billing records require a small overall reduction. First,
3
The 2015–2016 Fee Schedule can be accessed at:
http://www.cofc.uscourts.gov/sites/default/files/Attorneys-Forum-Rate-Fee-Schedule2015-2016.pdf. The
2017 Fee Schedule can be accessed at: http://www.cofc.uscourts.gov/sites/default/files/Attorneys-Forum-
Rate-Fee-Schedule-2017.pdf. The 2018 Fee Schedule can be accessed at:
http://www.cofc.uscourts.gov/sites/default/files/Attorneys%27%20Forum%20Rate%20Fee%20Schedule
%202018.pdf. The 2019 Fee Schedule can be accessed at:
http://www.cofc.uscourts.gov/sites/default/files/Attorneys%27%20Forum%20Rate%20Fee%20Schedule
%202019.pdf. The hourly rates contained within the schedules are updated from the decision in
McCulloch, 2015 WL 5634323.
4
2019: ($473.00 per hour requested - $464.00 per hour awarded) * 0.8 hours billed = $7.20.
2018: ($456.00 per hour requested - $455.00 per hour awarded) * 6.1 hours billed = $6.10.
3
paralegals billed time for doing clerical work, such as receiving and processing invoices for
medical records and other firm-incurred costs and for calendaring deadlines (e.g., entries on 8/9/14,
10/9/14, 2/5/18, 9/6/18 among others). Paralegals also occasionally overbilled for de minimus
tasks, such as reviewing scheduling orders and filing documents. Second, court orders were
routinely reviewed by three different people, leading to overbilling (e.g., entries on 8/11/15-
8/12/15, 9/8/15-9/9/15, 11/24/15-11/25/15, 3/30/17-3/31/17 among others). In the undersigned’s
experience, it is not reasonable for two partners and a paralegal to all bill for review of routine
court orders as it leads to nearly half an hour of billed time for each filing. Third, some of the time
billed by Mr. McLaren and Mr. Webb is vague and/or unnecessary given the progression of the
case. For example, on 10/11/15, Mr. McLaren billed 0.2 hours for review of a scheduling order
despite the fact that no order was filed within a week of that date. On 11/25/15, he billed for “Seek
more time” and “Order on extension of time” without any detail as to how these two tasks are
different. On 3/12/18 he billed 0.2 hours for “Go over the medical literature submitted by DOJ”
despite the fact that his involvement in the case up to this point was minimal and largely
supervisory in nature and that 0.2 hours is not enough time to perform any sort of meaningful
review of the submitted literature that would add value to the case. A similar entry exists on
3/24/18.5
These issues are all minor when viewed in isolation considering they are individually only
fractions of an hour. But in totality across a case in which work began early in 2014, the sum total
is not unsubstantial. In reducing an award of fees, the goal is to achieve rough justice, and therefore
a special master may take into account their overall sense of a case and may use estimates when
reducing an award. See Florence v. Sec’y of Health & Human Servs., No. 15-255V, 2016 WL
6459592, at *5 (Fed. Cl. Spec. Mstr. Oct. 6, 2016) (citing Fox v. Vice, 563 U.S. 826, 838 (2011).
Therefore, to account for these issues, the undersigned shall reduce the final award of fees by
$4,000.00.
Also requiring reduction is time spent by Mr. Cochran in traveling to meet with petitioner’s
expert witness Dr. Utz in California. The billing records indicate that Mr. Cochran billed a total of
24.4 hours on travel alone (at half his typical rate) on travel for what was, at most, a 3.8 hour in-
person meeting with Dr. Utz (the billing records state that 3.8 hours were billed for “Prepare for
and meet with Dr. Utz to prepare for trial”, indicating that not all of that time was spent with Dr.
Utz). Fees App. at 29. The McLaren firm has previously had attorneys’ fees reduced for this issue.
See Reichert v. Sec’y of Health & Human Servs., No. 16-697V, 2018 WL 3989429, at *3 (Fed. Cl.
Spec. Mstr. Jun. 20, 2018). No doubt cognizant of this, petitioner argues that the travel to Dr. Utz
was reasonable “for several reasons. This was the first case in which Petitioner’s counsel worked
with Dr. Utz and it was helpful to meet with him in person before trial to build a rapport. More
importantly, given the complexities of the medicine and science involved it was very beneficial to
meet in person to prepare.” Fees App. at 4.
Despite Petitioner’s vague, conclusory defense of this trip, the undersigned finds the travel
to be unreasonable. It is not readily apparent what transpired at this meeting that necessitated over
24 hours of travel to facilitate, or why a rapport could not have been built over the telephone or
via video conferencing. Both Mr. Cochran and Dr. Utz have participated in numerous Vaccine
5
These examples are merely illustrative of the types of issues noted and do not represent an exhaustive
list of all such issues.
4
Program hearings prior to the instant case, and thus are eminently familiar with the process. Mr.
Cochran’s travel time alone accounts for $4,486.30 in fees, and as will be discussed later,
$1,921.79 more in associated costs for a total of $6,408.09. This is an unreasonable amount of
money to expend merely to facilitate a meeting that lasted less than half a working day.
Accordingly, the undersigned shall not compensate Petitioner for any of the time spent traveling
for this meeting, $4,486.30. Petitioner is therefore awarded final attorneys’ fees of $126,899.20.
c. Attorneys’ Costs
Like attorneys’ fees, a request for reimbursement of attorneys’ costs must be reasonable.
Perreira v. Sec’y of Health & Human Servs., 27 Fed. Cl. 29, 34 (Fed. Cl. 1992). Petitioner requests
a total of $68,942.12 in attorneys’ costs. The majority of this amount ($57,851.00) is attributable
to the work of Petitioner’s expert, Dr. Paul Utz, with the remainder comprised of acquiring medical
records, travel expenses, postage, the Court’s filing fee, and payment for a transcript of the
entitlement hearing.
The amount attributable to the work of Dr. Utz is reasonable - $500.00 per hour is
reasonable for the work of an individual with Dr. Utz’s credentials and prior Vaccine Program
experience, and in light of the amount of work performed by Dr. Utz (three reports plus preparation
for and participation in the entitlement hearing), the billed amount of hours is reasonable as well.
However, minor reductions must be made to some of the travel costs incurred by Dr. Utz. First,
Dr. Utz expended $140.00 for round trip limousine service between his house and the San
Francisco airport. Fees App. at 129. The use of limousine/black car service has consistently been
held to be excessive. See Schoeberlein v. Sec'y of Health & Human Servs., No. 14-697V, 2018 WL
3991219, at *4 (Fed. Cl. Spec. Mstr. Jun. 22, 2018); Raymo v. Sec'y of Health & Human Servs.,
No. 11-654V, 2016 WL 7212323, at *23 (Fed. Cl. Spec. Mstr. Nov. 2, 2016). The undersigned
will reduce this amount by 50%, resulting in a $70.00 reduction. Dr. Utz’s airfare also raises
concerns. The total amount ($1,404.40) appears high in the undersigned’s experience, and
petitioner did not submit a receipt documenting the cost or whether the high price was attributable
to first-class airfare. The undersigned will therefore reduce this cost by 50% as well, resulting in a
reduction of $702.20.
Finally, the undersigned finds it necessary to reduce the costs attributable to Mr. Cochran’s
trip to meet with Dr. Utz that was previously found to be unreasonable. These costs are comprised
of airfare, hotel, food, and a rental car. The total reduction attributable to this trip is $1,921.79.
The remainder of the costs are reasonable in the undersigned’s experience and have been
supported with proper documentation. Petitioner is therefore entitled to final attorneys’ costs of
$66,248.13.
II. Conclusion
Based on all the above, the undersigned finds that Petitioners are entitled to the following
award of reasonable attorneys’ fees and costs:
5
Attorneys’ Fees Requested $135,398.80
(Reduction to Fees) - ($8,499.60)
Total Attorneys’ Fees Awarded $126,899.20
Attorneys’ Costs Requested $68,942.12
(Reduction of Costs) - ($2,693.99)
Total Attorneys’ Costs Awarded $66,248.13
Total Attorneys’ Fees and Costs $193,147.33
In accordance with the Vaccine Act, 42 U.S.C. § 300aa-15(e) (2012), the undersigned has
reviewed the billing records and costs in this case and finds that Petitioner’s request for fees and
costs, other than the reductions noted above, is reasonable. Accordingly, the undersigned awards
the following:
1) A lump sum in the amount of $193,147.33, representing reimbursement for
Petitioners’ attorneys’ fees and costs, in the form of a check payable to Petitioner and
Petitioner’s attorney, Mr. William Cochran, Jr.
In the absence of a motion for review filed pursuant to RCFC Appendix B, the Clerk of the
Court shall enter judgment in accordance herewith.6
IT IS SO ORDERED.
s/Herbrina D. Sanders
Herbrina D. Sanders
Special Master
6
Entry of judgment can be expedited by each party’s filing of a notice renouncing the right to seek
review. Vaccine Rule 11(a).
6
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Order Michigan Supreme Court
Lansing, Michigan
March 9, 2011 Robert P. Young, Jr.,
Chief Justice
141859 Michael F. Cavanagh
Marilyn Kelly
Stephen J. Markman
Diane M. Hathaway
Mary Beth Kelly
PEOPLE OF THE STATE OF MICHIGAN, Brian K. Zahra,
Plaintiff-Appellee, Justices
v SC: 141859
COA: 293397
Barry CC: 09-100048-FH
JUSTIN MALIK,
Defendant-Appellant.
_________________________________________/
On order of the Court, the application for leave to appeal the August 10, 2010
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 prior to
completion of the proceedings ordered by the Court of Appeals.
CAVANAGH, J., would grant leave to appeal.
I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
March 9, 2011 _________________________________________
p0302 Clerk
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TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-05-00081-CR
Tettus Davis, Appellant
v.
The State of Texas, Appellee
FROM THE DISTRICT COURT OF WILLIAMSON COUNTY, 368TH JUDICIAL DISTRICT
NO. 04-122-K368, HONORABLE BURT CARNES, JUDGE PRESIDING
M E M O R A N D U M O P I N I O N
Appellant’s brief was originally due on August 5, 2005. The time for filing was
extended twice on counsel’s motion. On October 18, 2005, in granting the second extension, this
Court ordered appellant’s retained attorney, Mr. Scott L. Steele, to file a brief on appellant’s behalf
no later than November 4, 2005. Counsel did not file a brief as ordered.
The appeal is abated. The district court is ordered to conduct a hearing to determine
whether counsel has abandoned this appeal. Tex. R. App. P. 38.8(b)(2). The court shall make
appropriate findings, recommendations, and orders. If appellant is now indigent, the court shall, if
necessary, appoint substitute counsel to effectively represent appellant on appeal. A record from this
hearing, including copies of all findings and orders and a transcription of the court reporter’s notes,
shall be forwarded to the Clerk of this Court for filing as a supplemental record no later than
December 9, 2005. Rule 38.8(b)(3).
__________________________________________
Bea Ann Smith, Justice
Before Justices B. A. Smith, Patterson and Puryear
Filed: November 18, 2005
Do Not Publish
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835 F.2d 289
Halev.U.S.*
NO. 86-8669
United States Court of Appeals,Eleventh Circuit.
NOV 24, 1987
1
Appeal From: N.D.Ga.
2
AFFIRMED.
*
Fed.R.App.P. 34(a); 11th Cir.R. 23
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446 F.Supp. 803 (1977)
UNITED STATES of America, Plaintiff,
v.
AMERICAN SOCIETY OF CIVIL ENGINEERS, Defendant.
No. 72 Civ. 1776 (JMC).
United States District Court, S. D. New York.
August 4, 1977.
*804 Thomas E. Kauper, Asst. Atty. Gen., U.S. Dept. of Justice, Antitrust Div. and Bernard M. Hollander, Chief, Judgment Enforcement Section, Washington, D.C., for plaintiff United States Government; Stephen F. Sonnett, Kenneth L. Jost, Ruth Dicker, Washington, D.C., of counsel.
Cleary, Gottlieb, Steen & Hamilton, Washington, D.C., for defendant American Society of Civil Engineers; Fred D. Turnage, Kenneth L. Bachman, Jr., John S. Magney, Washington, D.C., of counsel.
OPINION AND ORDER
CANNELLA, District Judge:
The Government's motion for an order adjudging defendant, the American Society of Civil Engineers ["ASCE" or "Society"], in contempt of a consent decree entered on June 1, 1972, is hereby granted.
FACTS
On May 1, 1972 the United States filed suit against the American Society of Civil Engineers alleging that Section 1 of the Sherman Act, 15 U.S.C. § 1, had been violated and requesting that ASCE be enjoined from enforcing any provision of its Code of Ethics that had as its purpose or effect the restriction of price competition among Society members. On the same day the parties executed a stipulation settling the litigation. Pursuant to this stipulation and a consent judgment entered into thereunder, the Society was, inter alia,
*805 enjoined and restrained from adopting any plan, program or course of action which prohibits members of the defendant from at any time submitting price quotations for engineering services.
On February 7, 1975 Franklin Y.K. Sunn, president of Metcalf & Eddy Limited ["M&E"] and George K. Tozer, vice president of M&E, were found guilty of violating Article 3 of the ASCE Code of Ethics and suspended from the Society for periods of three and two years, respectively. Article 3 of the Code provides that
[i]t shall be considered unprofessional and inconsistent with honorable and dignified conduct and contrary to the public interest for any member . . . :
To attempt to supplant another engineer in a particular engagement after definite steps have been taken toward his employment.
Also implicated was paragraph 1 of Article 3 of the Society's Guide to Professional Practice Under the Code of Ethics, which states that
[a member] shall not continue to seek employment on a specific engagement after being advised that another engineer has been selected subject to approval of detailed arrangements.
The Government contends that Messrs. Sunn and Tozer were disciplined under these "attempt to supplant" provisions for doing nothing more than submitting price quotations, an activity that is protected under the May 1, 1972 agreement and subsequent judgment. The Society defends its actions and argues that the submission of price quotations by Sunn and Tozer constitutes an "attempt to supplant," an independent violation of the Code of Ethics that is punishable notwithstanding the 1972 consent decree.
This being the posture of the case, an examination of the events that gave rise to the disciplinary proceedings is in order. The following chronology is reconstructed from the proceedings before the ASCE Board of Direction[1] and other documents before the Court.
On December 26, 1972 the Board of Directors of the Metropolitan Water Works Authority of Bangkok, Thailand ["MWWA" or "Authority"] established a committee and authorized it to begin negotiations with a joint venture composed of Black & Veatch International Ltd. ["BVI"] and Camp Dresser & McKee Ltd. ["CDM"], two engineering firms, regarding supervision of a proposed water works construction project. The joint venture was called BVI-CDM Associates ["BVI-CDM"]. Formal negotiations began on February 7, 1973 and a tentative accord was reached on July 11, 1973. On July 19 the MWWA Board of Directors empowered the Authority to engage BVI-CDM as the engineering concern for supervision of the construction project and to issue a letter of intent to that effect.[2]
After formal negotiations with BVI-CDM had commenced, but before the joint venture was actually hired by the Authority, Metcalf & Eddy received a telegram from an engineering consulting firm known as Thai Engineering Consultants Co., Ltd. ["TEC"] advising M&E of an available "water supply construction supervision contract" in Bangkok, Thailand and inquiring if it was interested.[3] Sunn immediately *806 wired back, expressing M&E's enthusiasm.[4] As a consequence, TEC tendered its projection of the maximum man-months required for the project and requested that M&E submit an estimate of the man/month cost per job classification. After receiving still another Telex apparently designed to further whet its appetite and encourage a streamlined cost estimate,[5] M&E answered TEC's inquiry with the sought-after information.
Armed with this data, TEC approached General Charusathira Prapass, Thailand's Minister of the Interior and Chairman of the Board of the MWWA, with a suggestion that a joint venture between TEC and either Metcalf & Eddy or another engineering firm could be substituted for BVI-CDM on the water works project at a substantial savings.[6] On July 23, 1973 TEC sent a similar, albeit more detailed, letter to General Prapass. In essence, this letter indicated that TEC and one of two named engineering consultants (one being Metcalf & Eddy) could provide the required supervisory services with no loss of expertise and little loss of time at a greatly reduced cost. The next day, apparently because of TEC's intervention, Prapass instructed the MWWA to study BVI-CDM's proposed fee in comparison with that of "a local firm." On July 25 the MWWA requested that TEC get confirmation from M&E that it would participate in a joint venture with TEC on the water works project and that it would do so for the previously quoted fee. TEC forwarded this request to M&E, on whose behalf Tozer responded, confirming both the cost estimate and M&E's enthusiasm about the project.
On September 12, 1973, as a result of the comparison between BVI-CDM's proposed fee and the figures submitted by TEC, the MWWA decided to reject the BVI-CDM proposal because "the fees quoted far exceed reasonable estimates for such services,"[7] and solicit one from TEC and M&E. BVI-CDM was notified of this decision by letter dated September 20, 1973; a letter dated September 21, 1973 so informed M&E. Negotiations ensued and on December 24, 1973 the joint venture composed of TEC and M&E was formally selected for *807 design review and construction supervision of the water works project. On February 11, 1974 MWWA issued a letter of intent authorizing M&E and TEC to proceed.
Based upon the above events, both Sunn and Tozer were charged with and found guilty of violation of the ASCE Code of Ethics because they
approved joining with the firm of Thai Engineering Consultants Co., Ltd., in submitting a proposal for engineering work to the Metropolitan Water Works Authority (MWWA), Bangkok, Thailand, with the knowledge and understanding that negotiations between MWWA and the Joint Venture of Black & Veatch International Ltd. Camp Dresser & McKee, Inc. (BVI-CDM) were in progress.
DISCUSSION
Civil Contempt Standard
Civil contempt is established when it is proved by clear and convincing evidence[8] that there is a lawful order and that such order was violated. United States v. Greyhound Corp., 363 F.Supp. 525, 570 (N.D.Ill. 1973). Wilfulness need not be shown. McComb v. Jacksonville Paper Co., 336 U.S. 187, 191, 69 S.Ct. 497, 93 L.Ed. 599 (1949); United States v. Greyhound Corp., supra. The existence of a lawful order is not contested by the defendant.[9] Thus, the only issue for the Court's adjudication is whether defendant's actions violated the consent decree.
Violation of the Order
In very simple terms, Section III of the consent judgment enjoins the defendant "from adopting any plan, program or course of action which prohibits members of the defendant from at any time submitting price quotations for engineering services." (emphasis added).
At the threshold, defendant argues that neither Sunn nor Tozer were disciplined for submitting price quotations, but rather for an independent ethical code violation, an attempt to supplant. Referring to a provision of the code of ethics of the American Institute of Certified Public Accountants,[10] ASCE argues that otherwise unethical conduct remains subject to disciplinary sanctions "regardless of whether or not such unethical conduct is preceded by, associated with, or followed by a submission of price quotations. . . ." Although the Court agrees with this proposition, it has no application where, as here, no otherwise unethical conduct was preceded by, associated with or followed by the submission of price quotations. Sunn and Tozer did no more than submit a price quotation, M&E's estimated charge for a job requiring a particular number of man/months.[11]
The fee quoted by Metcalf & Eddy in the June 12 Telex was merely a response to an inquiry regarding the cost of a project on which certain employees of M&E would be required to devote a specified amount of time. M&E had no information regarding the magnitude of the job or the amount of work involved. The July 26, 1973 letter from Tozer to Prakob Dej Udom[12] essentially confirmed the cost estimate and reiterated *808 M&E's position that it would not become further involved until the MWWA broke off negotiations with BVI-CDM.
Likewise, the two letters sent by TEC to General Prapass merely stated that TEC, together with a qualified foreign consultant (to wit, M&E), could supervise the water works project as well as BVI-CDM, but at a substantial savings. This was in essence the submission of a price quotation. Thus, it cannot be maintained that Sunn and Tozer were suspended for doing anything more than supplying price information for engineering services.[13]
ASCE also maintains that the 1972 consent decree was not meant to prohibit the submission of price quotations if done at a time when such activity would violate the "attempt to supplant" provisions of the Code of Ethics. The Society argues that the sole purpose of the 1972 litigation was the elimination of its blanket prohibition of price competition; it was not meant to affect submission of price information in certain other situations, such as the one presently before the Court.
While an argument such as this might have proven persuasive if presented to a court responsible for formulating relief under the original complaint, it is out of place here, where the Court deals with the construction of a consent decree. See United States v. Armour & Co., 402 U.S. 673, 681, 91 S.Ct. 1752, 29 L.Ed.2d 256 (1971). The Court's task in such a case is to give full effect to the plain meaning of the decree.[14]United States v. Browning, 518 F.2d 714, 717 (10th Cir. 1975). In that a consent decree represents a carefully worked-out agreement between the parties and is executed in exchange for the right to litigate the issues, it must be applied as written, not as it might have been written. United States v. Armour & Co., 402 U.S. 673, 677-82, 91 S.Ct. 1752, 29 L.Ed.2d 256 (1971); Hart Schaffner & Marx v. Alexander's Dep't Stores, Inc., 341 F.2d 101 (2d Cir. 1965) (per curiam).
Applying these principals, defendant's interpretation of the decree must be rejected. The decree, and particularly Section III thereof, enjoins ASCE from prohibiting the submission of price quotations for engineering services whenever it occurs. ASCE seeks to have the Court engraft onto Section III the words "except when the submission of price quotations constitutes an attempt to supplant." Such a construction flies in the face of the plain meaning of the judgment. If the parties had agreed to such an exception, it would have been a simple matter to include language to memorialize it. See United States v. Armour & Co., 402 U.S. 673, 679, 91 S.Ct. 1752, 29 L.Ed.2d 256 (1971).
Accordingly, the Court finds by clear and convincing evidence that, in disciplining Franklin Sunn and George Tozer, the American Society of Civil Engineers violated the consent judgment entered on June 1, 1972 in this case.[15]
Relief
The American Society of Civil Engineers is directed to reinstate Franklin Sunn and George Tozer as members in good standing of the Society and to expunge from their *809 records any mention of the disciplinary proceedings.
Because notice of the suspensions appeared in the March 1975 issue of the publication Civil Engineering, defendant is further ordered to publish in that magazine a notice stating that these disciplinary actions were taken in violation of the consent judgment and that the activities did not constitute unethical conduct.
The Society is directed to accord similar treatment to any other members disciplined under Article 3 of its Code of Ethics solely for submitting price quotations after definite steps had been taken toward another engineer's employment.
In addition to the above, the Government requests the complete elimination of Article 3 of the ASCE Code of Ethics. This relief is unwarranted. The Court has before it what is in reality merely a single instance in which Article 3 was applied in violation of the consent decree. There is no reason to believe that it has been or will be used to thwart the purposes of the consent decree. However, the Court does direct the Society to refrain from enforcing Article 3 in a manner which inhibits the submission of price quotations for engineering services.
The foregoing constitute the findings of fact and conclusions of law of the Court pursuant to Rule 52(a) of the Federal Rules of Civil Procedure.
The Government is directed to submit, on notice within ten days, a proposed order adjudging the defendant in contempt.
SO ORDERED.
NOTES
[1] Under the constitution and by-laws of the Society, complaints concerning possible ethical code violations are referred to the Committee on Professional Conduct ["CPC"] for investigation. If the CPC determines that there may have been a violation, it refers the complaint to the Board of Direction to conduct a hearing.
[2] In the view of the ASCE Board of Direction BVI-CDM was the only consultant with which the MWWA was negotiating after February 7, 1973. Thus, the Board concluded, after February 7 definite steps had been taken toward the employment of BVI-CDM by MWWA.
[3] Our firm address Thai Engineering Consultants Co. Ltd 146 Rama I Bangkok stop We are local consulting engineers founded 12 years ago stop Immediate potential exists for five year Bangkok water supply construction supervision contract stop If you are interested to associate with our firm we will send you all the details by Telex Please give us your Telex address Text of Telex from Prakob Dej Udom, President, Thai Engineering Consultants Co., Ltd. to Franklin Y.K. Sunn, President, Metcalf & Eddy Limited, dated June 5, 1973.
[4] are enthusiastic about joint venturing with you on this work stop However we assume that negotiations between Metropolitan Water Works and Black and Veatch and Camp Dresser would be terminated before preliminary negotiations initiated with us stop Please send details stop Our TWX NUMBER XXXXXXXXXX.
Telex from Franklin Y.K. Sunn to Prakob Dej Udom, dated June 6, 1973.
[5] Bangkok Water Supply Project present proposed fee is extremely excessive stop We were unofficially approached to obtain estimates from reliable firm to confirm expected savings for Thai Government of a few million dollars stop If your figures confirm such feeling we will be able to obtain invitation from authority without your involvement in breaking present negotiation after which your firm and ours joint venture will be solely invited to negotiate stop Imperative that you move fast supplying us with requested costs or it may be too late stop Items 8 chief cost schedule engineer stop.
Telex from Prakob Dej Udom to Franklin Y.K. Sunn, dated June 11, 1973.
[6] TEC understands cost of BVI-CDM contract is 243 million Baht.a
TEC claims they can provide service at saving of 57 million.
2. TEC claims BVI-CDM taking advantage of Thai Government and people and that BVI-CDM fooled negotiating committee.
3. TEC claims they are familiar with all aspects of design.
4. TEC claims they are just as qualified to do the supervision as BVI-CDM.
5. TEC proposes Minister terminate negotiations with BVI-CDM.
6. TEC proposes to employ a qualified foreign consultant to assist in work and states that arrangements have been discussed with (and agreed to by) two firms Ralph M. Parsons and Metcalf & Eddy. Countries where each firm has or is working are listed (also states).
a. Baht is the unit of currency used in Thailand. 20.8 Baht=One U.S. Dollar.
Letter from W. D. Morgan of Thai Engineering Consultants Co., Ltd. to General Prapass, dated June 26, 1973.
[7] Letter from Krachok Suprituilppkahn, Acting General Manager of MWWA, to D.G. MacLean of CDM, dated September 20, 1973.
[8] Hart Schaffner & Marx v. Alexander's Dep't Stores, Inc., 341 F.2d 101 (2d Cir. 1965) (per curiam); Stringfellow v. Haines, 309 F.2d 910, 912 (2d Cir. 1962); Coca-Cola Co. v. Feulner, 7 F.Supp. 364, 365 (S.D.Tex. 1934).
[9] Nor for that matter is the jurisdiction of the Court, which is predicated on the following provisions of Section IX of the consent judgment:
Jurisdiction is retained for the purpose of enabling any of the parties to this Final Judgment to apply to this Court at any time for such further orders and directions as may be necessary or appropriate for the construction or carrying out of this Final Judgment, . . or for the enforcement of compliance therewith, and for the punishment of violations of any of the provisions contained [therein].
[10] This provision apparently has not been challenged by the Justice Department to date.
[11] ASCE's further argument, that providing an estimate of man/month costs is different from submission of a price quotation, is frivolous.
[12] Prakob Dej Udom was TEC's president at the time.
[13] It is noteworthy that during their deliberations on the Sunn and Tozer charges, the ASCE Board of Direction was exclusively concerned with M&E's submission of the cost estimate in response to TEC's inquiry.
[14] Because a consent decree is to be construed in much the same manner as a contract, aids to construction may be used where its terms are ambiguous. United States v. ITT Continental Baking Co., 420 U.S. 223, 238 & n.11, 95 S.Ct. 926, 43 L.Ed.2d 148 (1975). However, as indicated below, the judgment in the instant case is crystal clear.
[15] At trial, certain documents were offered into evidence and objected to on grounds of relevance. The Court reserved decision. These documents include the codes of ethics of other professional societies, complaints filed by the Justice Department against other professional societies, and consent judgments entered in these suits. Because the Court finds that these exhibits are not material to the issues it decides today, the objections to admission of defendant's exhibits A, B, C, E, F, G, J, K, L, M, Q, R and HH are sustained. The objection to receipt of defendant's exhibit CC into evidence is also sustained.
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623 F.Supp.2d 683 (2009)
UNITED STATES of America
v.
William J. JEFFERSON.
No. 1:07cr209.
United States District Court, E.D. Virginia, Alexandria Division.
May 27, 2009.
*684 Mark Lytle, Rebeca H. Bellows, United States Attorney's Office, Alexandria, VA, Charles E. Duross, U.S. Department of Justice, Washington, DC, for United States of America.
Amy Berman Jackson, Robert Powel Trout, Gloria B. Solomon, Trout Cacheris PLLC, Washington, DC, for William J. Jefferson.
ORDER
T.S. ELLIS, III, District Judge.
In this multi-count bribery, RICO, money laundering, and honest services wire fraud prosecution of a now-former Member of Congress,[1] defendant seeks to exclude the proposed testimony of the government's expert, former Congressman Matthew F. McHugh. The government forecasts that Mr. McHugh will offer background and opinion testimony with respect to certain factual predicatesspecifically, the customary activities and settled practices of congressional membersrelevant to the bribery-related charges in this case.[2]*685 Defendant has filed a motion to exclude Mr. McHugh's proposed testimony on two grounds, namely (i) that the proposed testimony is inadmissible under Rules 702, 402, and 403, Fed.R.Evid., because Mr. McHugh's forecasted opinions merely state legal conclusions and will not assist the jury; and (ii) that certain portions of Mr. McHugh's proposed testimony are barred by the Speech or Debate Clause of Art. I, § 6 of the U.S. Constitution.
Defendant's motion was fully briefed and argued orally, and in the end, for the reasons stated from the Bench at a May 27, 2009, hearing, defendant's motion was denied.[3] This Order reflects that ruling and further explains the reasons stated from the Bench.
I.
On June 4, 2007, a federal grand jury sitting in the Eastern District of Virginia indicted defendant, then a sitting congressman, for a variety of crimes including conspiracy, bribery, wire fraud, foreign corrupt practices, money laundering, obstruction of justice, and racketeering. Pertinent here are the bribery allegations, namely that beginning in or about January 2001, defendant used his office and status as a Member of the U.S. House of Representatives to advance the business interests of various individuals and corporations in return for things of value. More specifically, the Indictment's bribery-related counts allege that defendant conspired to solicit or solicited money and other things of value in exchange for being influenced in the performance of various "official acts," all in violation of 18 U.S.C. § 201(b)(2)(A). The alleged "official acts" generally involved defendant's efforts through a pattern of meetings, correspondence, and overseas travelto obtain financial and other business development assistance from U.S. and foreign government officials and entities on behalf of those who made or promised payments to defendant.
On February 12, 2009, the government filed a notice of expert testimony explaining Mr. McHugh's service from 1975 to 1993 as a U.S. House Representative for New York and setting forth his anticipated expert testimony concerning the following areas relevant to the Indictment's bribery allegations:
(i) "a general description of the activities of a Member of the U.S. House of Representatives and its various Caucuses and Committees (`Member')";
(ii) "his opinion that constituent services are routinely performed by Members and that settled practice dictates that constituent services are matters ... routinely brought before Members in their official capacity";
(iii) "his opinion that the types of official acts alleged . . ., including [those alleged by] paragraphs 49 and 149 of the Indictment, are among the constituent services [i] that are routinely performed by Members and [ii] that settled practice dictates are matters . . . routinely brought before Members in their official capacity"; and
(iv) his opinion "that membership in certain congressional committees and caucuses, such as the House Ways *686 and Means Committee, its subcommittees, and various other committees and caucuses provides the Member with influence and access to various foreign government agencies and U.S. government agencies, including, but not limited to, the U.S. Department of State, U.S. Embassies and Consulates, the U.S. Army, the Export-Import Bank of the United States, and the United States Trade Development Agency."
Gov't Notice of Substitution Related to Expert Testimony (Docket No. 299), at 2.
On February 23, 2009, defendant moved to exclude Mr. McHugh's testimony on two grounds. First, defendant contends that Mr. McHugh's forecasted testimony includes impermissible legal conclusions that will not be helpful to the jury and are thus inadmissible under Rules 702, 402, and 403. More specifically, defendant objects to Mr. McHugh's proposed use of the words and phrases "routinely performed," "settled practice," "matters," "decisions," and "routinely brought before Members in their official capacity" because those words and phrases track the language and principles of the bribery statute. Second, defendant contends that Mr. McHugh's proposed testimony with respect to the influence derived by defendant's congressional committee and caucus memberships is barred by the Speech or Debate Clause because it relies on and requires inferences based on defendant's protected legislative acts.
In response, the government first points out that it does not intend to ask Mr. McHugh to give an expert opinion regarding whether any of defendant's alleged acts constituted "official acts."[4] Although the government acknowledges that Mr. McHugh may use some words and phrases similar to the language and principles of the bribery statute, the government contends that use of such words and phrases does not render Mr. McHugh's opinions inadmissible, as those words and phrases are within the limited vernacular available to express a helpful expert opinion explaining congressional members' customary activities and settled practices. With respect to defendant's Speech or Debate Clause objection, the government argues that the Speech or Debate Clause does not bar Mr. McHugh's proposed testimony because Mr. McHugh will not rely on any evidence of defendant's legislative acts, nor will the government ask the jury to infer any knowledge by defendant gained from particular legislative acts. Instead, the government contends that Mr. McHugh's testimony regarding committee and caucus memberships will be offered as evidence of defendant's status to demonstrate why those who allegedly paid bribes to defendant sought his influence.
II.
The analysis with respect to defendant's Rule 702, 402, and 403 objections must begin with Rule 702's text, which provides, in pertinent part, that where "specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert ... may testify thereto in the form of an opinion or otherwise[.]" Importantly, Rule 702 must be read in conjunction with Rule 704(a), Fed.R.Evid., which provides that "testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact." In this respect, "Rule 704(a) was designed specifically to abolish *687 the `ultimate issue' rule" which, at common law, barred such opinions. United States v. Barile, 286 F.3d 749, 759 (4th Cir.2002) (citation omitted). But Rule 704(a) "does not lower the bar[] so as to admit all opinions"; rather, as Rule 704's advisory committee notes make clear,
[u]nder Rule[ ] ... 702, opinions must be helpful to the trier of fact, and Rule 403 provides for exclusion of evidence which wastes time. These provisions afford ample assurances against the admission of opinions which would merely tell the jury what result to reach, somewhat in the manner of oath-helpers of an earlier day. They also stand ready to exclude opinions phrased in terms of inadequately explored legal criteria.
Rule 704, Fed.R.Evid., advisory committee notes, quoted in Barile, 286 F.3d at 759-60. Thus, the Fourth Circuit has held that "opinion testimony that states a legal standard or draws a legal conclusion by applying law to the facts is generally inadmissible." United States v. McIver, 470 F.3d 550, 562 (4th Cir.2006) (citation omitted). Yet, mere usage of words and phrases that "track[] the language of the legal principle at issue or of the applicable statute" is insufficient to render an expert's testimony inadmissible. Barile, 286 F.3d at 760. Rather, the Fourth Circuit "indentif[ies] improper legal conclusions by determining whether the terms used by the witness have a separate, distinct and specialized meaning in the law different from that present in the vernacular.'" Mclver, 470 F.3d at 562 (quoting Barile, 286 F.3d at 760).[5] And in such an inquiry, "[t]he touchstone of admissibility... is helpfulness to the jury." United States v. Perkins, 470 F.3d 150, 157 (4th Cir.2006) (citations omitted).
These principles, applied here, compel the conclusion that Mr. McHugh's forecasted expert opinions neither constitute, nor include, impermissible legal conclusions. Specifically, it appears at this stage that Mr. McHugh's proposed testimony, which will be based on his specialized knowledge as a former congressman, will assist the jury to understand the evidence and determine the facts in issue in this case without merely telling the jury what result to reach. In this respect, it is clear that Mr. McHugh's proposed testimony that certain activities are "routinely performed" by congressmen neither tracks the language of the applicable statute, nor arguably states a legal conclusion. Further, although words such as "decision" or "matter" are also used in the bribery statute's definition of "official act,"[6] those words are within the limited vernacular available to express the issues in this case, and those words' legal meanings are not so distinct as to render Mr. McHugh's proposed testimony unhelpful to the jury. Similarly, Mr. McHugh's proposed use of the phrases "settled practice" and "routinely brought before Members in their official capacity" does not render his testimony *688 inadmissible. To be sure, the phrase "brought before Members in their official capacity" tracks language used in the definition of "official act," and "settled practice" is a phrase that courts have frequently used to elucidate the principle that acts taken as part of a public official's customary activities may fall within the statutory definition of "official act."[7] Yet, neither phrase contains such a "separate, distinct and specialized meaning in the law different from that present in the vernacular" so as to render Mr. McHugh's proposed testimony unhelpful to the jury. Barile, 286 F.3d at 760 (quotation omitted). In summary, Mr. McHugh's forecasted testimony is (i) plainly relevant, indeed centrally so; (ii) certainly helpful to the jury without running afoul of Rule 704's advisory committee notes; and (iii) not unfairly prejudicial in any way. Accordingly, defendant's objections must be rejected.
The result reached here is consistent with the result in McIver, where the Fourth Circuit upheld the admission of expert medical testimony that a particular doctor's conduct was "illegitimate," "inappropriate," and "way outside the course of legitimate medical treatment," 470 F.3d at 562, 556. In so holding, the Fourth Circuit explained that "[a]lthough [the doctor] used terms similar to that which this court has employed to express the underlying issue," those terms fell "within the limited vernacular that is available to express whether a doctor acted outside the bounds of his professional practice." Id. at 562. Similarly, the words and phrases at issue in Mr. McHugh's proposed testimony are within the limited vernacular available to express whether a congressman acted within the bounds of a congressman's settled practices and customary activities, which is a relevant factual predicate for the "official act" element.[8] In addition, in McIver the Fourth Circuit cited several examples from other circuits of inadmissible legal conclusions that are instructive here, namely that "a defendant's actions constituted `extortion,' . . . that a dog bite constituted `deadly force,' . . . that defendants held a `fiduciary' relationship to plaintiffs, . . . and that a product was `unreasonably dangerous[.]'" Id. (citations omitted). Put succinctly, these examples demonstrate that the similarly inadmissible opinion in this case would be an opinion that an act constitutes an "official act," not use of the words and phrases to which defendant objects here.[9]
*689 III.
Next, defendant's Speech or Debate Clause objection to Mr. McHugh's proposed testimony is, in essence, a variation on a similar Speech or Debate Clause argument that has already been considered and rejected in this case. See United States v. Jefferson, 534 F.Supp.2d 645, 650-55 (E.D.Va.), aff'd, 546 F.3d 300, 310-312 (4th Cir.2008), cert. denied, ___ U.S. ___, 129 S.Ct. 2383, 173 L.Ed.2d 1294 (2009). In this regard, defendant argues here that Mr. McHugh's testimony will violate the Speech or Debate Clause because his proposed opinions rely on, and will urge inferences by the jury based on, defendant's protected legislative acts. This argument is essentially the same as defendant's previously rejected argument in support of his motion to dismiss the Indictment's charges on Speech or Debate Clause grounds, namely that submission to the grand jury of materials "contain[ing] references to defendant's status as a congressman and as a member of various congressional committees" mandates dismissal of the Indictment. Jefferson, 534 F.Supp.2d at 652. This prior argument was rejected based on "[s]ettled authority" equally applicable to defendant's present argument, namely, United States v. McDade, 28 F.3d 283 (3d Cir.1994), in which "Justice Alitothen Judge Alito wrote that the Speech or Debate Clause does not require dismissal of any count of [an] indictment simply because it refers to [a] defendant's status as a member or ranking member of [a] congressional committee[].'" Jefferson, 534 F.Supp.2d at 652 (quoting McDade, 28 F.3d at 291). Based on this passage in McDade, defendant's prior motion was denied, as "mere reference... to defendant's status . . . does not offend the Speech or Debate Clause provided, of course, that neither the [I]ndictment nor the prosecution entails inquiry into defendant's participation in the consideration and passage of legislation" Id. (emphasis added). Similarly, defendant's Speech or Debate Clause objection here must be rejected, as the government's anticipated examination of Mr. McHugh will not inquire into defendant's participation in the consideration and passage of legislation.[10] Thus, so long as Mr. McHugh's testimony is not used for the purpose of inferring that defendant, through his committee and caucus memberships, derived particular knowledge from particular legislative acts, the Speech or Debate Clause is not offended. Accordingly, both generalized testimony as to the influence derived *690 by (and thought by others to be derived by) certain committee and caucus memberships,[11] as well as evidence that defendant gained knowledge through nonlegislative acts taken as a member of those committees and caucuses,[12] is permissible.[13]
IV.
In summary, Mr. McHugh's forecasted testimony is admissible under Rules 702, 402, and 403, inasmuch as Mr. McHugh's anticipated testimony and opinions are not mere legal conclusions, but rather consist of matters helpful to the jury and phrased in the limited vernacular available to explain certain factual predicates pertinent to an important disputed issue in this case, namely whether defendant engaged in "official acts" in return for bribes. It is also clear that neither Mr. McHugh's forecasted testimony, nor the government's forecasted arguments based on that testimony, violate the Speech or Debate Clause.
Accordingly, for the reasons stated from the Bench and elucidated herein, and for good cause,
It is hereby ORDERED that defendant's motion to exclude the proposed testimony of Mr. Matthew F. McHugh is DENIED.
The Clerk is directed to send a copy of this Order to all counsel of record.
NOTES
[1] Defendant represented Louisiana's 2nd Congressional District from 1991 until he left office following his defeat in a 2008 bid for reelection.
[2] The ninety-four page, sixteen-count indictment (the "Indictment") includes eleven bribery-related counts, namely (i) two counts alleging conspiracies between defendant and others to commit various crimes, including bribery; (ii) two substantive bribery counts; (iii) six counts alleging wire fraud predicated on, inter alia, bribery offenses; and (iv) one racketeering count alleging approximately twelve racketeering acts predicated on, inter alia, bribery offenses. The Indictment's allegations are set forth in greater detail in United States v. Jefferson, ___ F.Supp.2d ___, ___ _ ___, 2009 WL 1491323, at *1-2 (E.D.Va. May 22, 2009); United States v. Jefferson, 562 F.Supp.2d 687, 689-90 (E.D.Va. 2008); and United States v. Jefferson, 534 F.Supp.2d 645, 646-48 (E.D.Va.), aff'd, 546 F.3d 300 (4th Cir.2008), cert. denied, ___ U.S. ___, 129 S.Ct. 2383, 173 L.Ed.2d 1294 (2009).
[3] Although defendant's motion was denied, defense counsel was granted leave to renew his objections at trial should Mr. McHugh's testimony exceed the bounds of the forecasted testimony held admissible here.
[4] Indeed, the government concedes that such testimony "[c]learly ... would call for an improper legal conclusion[.]" Gov't Mem. in Opp'n (Docket No. 334), at 7.
[5] For example, Rule 704's advisory committee notes provide the following example:
[T]he question, "Did T have capacity to make a will?" would be excluded, while the question, "Did T have sufficient mental capacity to know the nature and extent of his property and the natural objects of his bounty and to formulate a rational scheme of distribution?" would be allowed.
See also Barile, 286 F.3d at 761 (quoting the advisory committee note example).
[6] Specifically, "official act" is defined by the bribery statute as
any decision or action on any question, matter, cause, suit, proceeding or controversy, which may at any time be pending, or which may by law be brought before any public official, in such official's official capacity, or in such official's place of trust or profit.
18 U.S.C. § 201(a)(3).
[7] See Jefferson, ___ F.Supp.2d at ___, 2009 WL 1491323, at *6 (observing that the phrases "question, matter, cause, suit, proceeding or controversy" and "which may at any time be pending, or which may by law be brought before any public official, in such official's official capacity, or in such official's place of trust or profit" are "intended to describe those activities that have been `clearly established by settled practice' as part of a public official's position" (quoting United States v. Birdsall, 233 U.S. 223, 231, 34 S.Ct. 512, 58 L.Ed. 930 (1914))); see also United States v. Biaggi, 853 F.2d 89, 96-99 (2d Cir.1988) (applying the Birdsall "settled practice" principle); United States v. Carson, 464 F.2d 424, 431-34 (2d Cir.1972) (same).
[8] See Jefferson, ___ F.Supp.2d at ___, 2009 WL 1491323, at *7 ("[R]elevant expert testimony might include ... testimony by a former congressman that a congressman's customary use of his office, as clearly established by settled practice, includes exertion of influence on U.S. and foreign government officials on behalf of individuals seeking to advance business interests in the United States and abroad." (citations omitted)).
[9] See also Barile, 286 F.3d at 760-61 ("In many circumstances, a problematic question can be more carefully phrased to elicit similar information yet avoid a response that constitutes a mere legal conclusion." (citing Torres v. County of Oakland, 758 F.2d 147, 151 (6thCir.1985) (observing in Title VII context that although opinion that certain conduct constituted "discrimination" was unhelpful to jury, opinion that national origin "motivated" certain treatment would be admissible))).
[10] In opposition to this point, defendant relies, as he did in his motion to dismiss the Indictment on Speech or Debate Clause grounds, on United States v. Swindall, 971 F.2d 1531 (11th Cir.1992). In Swindall, the Eleventh Circuit held that a prosecutor's arguments that a defendant congressman had knowledge of certain bills based on that congressman's particular committee membership violated the Speech or Debate Clause. But as then-Judge Alito pointed out in McDade, the opinion in Swindall does not suggest a categorical bar to proof of a congressman's committee memberships; rather, Swindall stands for the proposition that the Speech or Debate Clause is violated where "prosecutors ... inquire into a member's committee status for the purpose of showing that the member had acquired knowledge of the contents of the bills considered by his or her committees." McDade, 28 F.3d at 293 (emphasis in original), cited in United States v. Rostenkowski, 59 F.3d 1291, 1303 (D.C.Cir. 1995) ("[P]roof of a congressman's status as a member of a particular committee does not violate the Speech [or] Debate Clause."). It is clear, based on the government's notice and the government's arguments in its brief and at oral argument, that the government is not offering Mr. McHugh's testimony for that prohibited purpose. Accordingly, defendant's reliance on Swindall is, as it was before, misplaced.
[11] Indeed, defendant's argument that the Speech or Debate Clause bars such relevant motive evidence has already been rejected. See Jefferson, 534 F.Supp.2d at 653 (observing that Speech or Debate Clause is also not offended by evidence that "simply relates to defendant's influence and status, [i.e.,] matters only incidentally related to defendant's past legislative activities that may be relevant to the motivation some persons might have to bribe defendant"). The Fourth Circuit acknowledged as much when it observed, in rejecting defendant's interlocutory Speech or Debate Clause appeal, that "the Supreme Court [has] carefully surveyed the contours of the Speech or Debate Clause[][and] conclud[ed] that the Clause does not prevent the prosecution from introducing, in a bribery proceeding, relevant evidence of a legislator's status." Jefferson, 546 F.3d at 310 (citing United States v. Brewster, 408 U.S. 501, 512, 92 S.Ct. 2531, 33 L.Ed.2d 507 (1972)). See also McDade, 28 F.3d at 293 (observing that the Speech or Debate Clause is not offended where a congressman's committee memberships are used "not to show that he actually performed any legislative acts, but to show that he was thought by those offering him bribes and illegal gratuities to have performed such acts and to have the capacity to perform other similar acts").
[12] See, e.g., Jefferson, 546 F.3d at 311 ("It is thus apparent that nonlegislative acts, such as making appointments with agencies, assisting constituents in securing government contracts, preparing newsletters or news releases, or making speeches outside Congress, are within the scope of an appropriate inquiry." (citing Brewster, 408 U.S. at 515-16, 92 S.Ct. 2531)).
[13] Of course, it is important to remember that the Speech or Debate Clause does not prohibit defendant from "choos[ing] to offer rebuttal evidence of legislative acts" that would otherwise be barred from the government's case-in-chief. McDade, 28 F.3d at 294.
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Case: 13-13572 Date Filed: 03/19/2014 Page: 1 of 4
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 13-13572
Non-Argument Calendar
________________________
D.C. Docket No. 1:13-cr-20220-JLK-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JEAN DORVIL,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(March 19, 2014)
Before TJOFLAT, WILSON and ANDERSON, Circuit Judges.
PER CURIAM:
Jean Dorvil is a native and citizen of Haiti. In November 1996, while in the
United States, he pled guilty to two counts of sexual assault on a minor, both
Case: 13-13572 Date Filed: 03/19/2014 Page: 2 of 4
felonies, and was sentenced to probation for a term of five years. 1 In subsequent
removal proceedings, Dorvil was removed to Haiti pursuant to the order of the
Immigration Judge.
Dorvil soon re-entered the United States illegally in 2000. In January 2013,
the Department of Homeland Security received information that Dorvil was here
illegally and, on March 28, he was arrested. On May 28, 2013, Dorvil pled guilty
to an indictment charging him with illegal reentry after removal, in violation of 8
U.S.C. § 1326(a) and (b)(2), and the District Court sentenced him to a prison term
of 48 months, a sentence within the Guidelines sentence range of 41 to 51 months.
He now appeals his sentence, arguing that, although the District Court properly
calculated the applicable Guidelines sentence range, it imposed an unreasonable
sentence because it gave too much weight to his 1996 convictions for sexual
assault on a minor; they occurred 17 years ago.
We review the reasonableness of a sentence under a deferential abuse of
discretion standard. Gall v. United States, 552 U.S. 38, 41, 128 S.Ct. 586, 591,
169 L.Ed.2d 445 (2007). The sentencing court must impose a sentence “sufficient,
but not greater than necessary to comply with the purposes” a sentence is to
achieve, listed in 18 U.S.C. § 3553(a)(2), including the need to reflect the
seriousness of the offense, promote respect for the law, provide just punishment for
1
The victim of the offenses was Dorvil’s 17-year old step daughter. The offenses occurred
while she was visiting her mother in Miami, Florida.
2
Case: 13-13572 Date Filed: 03/19/2014 Page: 3 of 4
the offense, deter criminal conduct, and protect the public from the defendant’s
future criminal conduct. See 18 U.S.C. § 3553(a)(2). In imposing a particular
sentence, the court must also consider the nature and circumstances of the offense,
the history and characteristics of the defendant, the kinds of sentences available,
the applicable guidelines range, the pertinent policy statements of the Sentencing
Commission, the need to avoid unwarranted sentencing disparities, and the need to
provide restitution to victims. Id. § 3553(a)(1), (3)-(7).
We ordinarily expect a sentence within the Guidelines sentence range to be
reasonable. United States v. Hunt, 526 F.3d 739, 746 (11th Cir. 2008). A sentence
imposed well below the statutory maximum penalty, as is the case here, 2 is another
indicator of a reasonable sentence. See United States v. Gonzalez, 550 F.3d 1319,
1324 (11th Cir. 2008) (holding that the sentence was reasonable in part because it
was well below the statutory maximum). The weight accorded any specific
§ 3553(a) factor is committed to the sound discretion of the district court. United
States v. Clay, 483 F.3d 739, 743 (11th Cir. 2007). However, we will reverse the
district court’s decision if left with the “firm conviction that the district court
committed a clear error of judgment in weighing the § 3553(a) factors by arriving
at a sentence that lies outside the range of reasonable sentences dictated by the
2
The maximum penalty for the instant offense is 20 years. See 8 U.S.C. § 1326(b)(2).
3
Case: 13-13572 Date Filed: 03/19/2014 Page: 4 of 4
facts of the case.” United States v. Irey, 612 F.3d 1160, 1190 (11th Cir. 2010) (en
banc) (citation omitted).
We conclude that Dorvil’s 48-month’s sentence is reasonable. It falls within
the Guidelines sentence range and well below the year statutory maximum. While
the District Court did give specific emphasis to Dorvil’s prior convictions for
sexual battery, it also considered his mitigating evidence. In all, we thus find no
lawful basis for setting aside the sentence in this case.
AFFIRMED.
4
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Fourth Court of Appeals
San Antonio, Texas
April 3, 2020
No. 04-20-00146-CV
The Most Reverend Wm. Michael MULVEY, S.T.L., D.D. Bishop of Corpus Christi
Appellant/Cross-Appellee,
v.
BAY, LTD.,
Appellee/Cross-Appellant
From the 79th Judicial District Court, Jim Wells County, Texas
Trial Court No. 12-09-51494-CV
Honorable Richard C. Terrell, Judge Presiding
ORDER
The reporter’s record was due on April 2, 2020. See TEX. R. APP. P. 35.1. After the due
date, court reporter Sonia G. Trevino filed a notice of late record and advised this court that
Appellant has not paid the fee to prepare the reporter’s record.
We ORDER Appellant to provide written proof to this court by April 13, 2020, that (1)
the reporter’s fee has been paid or arrangements have been made to pay the reporter’s fee, or (2)
Appellant is entitled to appeal without paying the reporter’s fee.
If Appellant fails to respond within the time provided, Appellant must file a brief with
this court within THIRTY DAYS after the clerk’s record is filed, and the court will only
“consider and decide those issues or points [raised in Appellant’s brief] that do not require a
reporter’s record for a decision.” See id. R. 37.3(c).
If Appellant timely complies with this order, the reporter’s record will be due THIRTY
DAYS after Appellant files written proof showing compliance with this order and our order of
April 2, 2020, pertaining to the reporter’s record from Irene Salazar. See id. R. 35.3(c) (limiting
an extension of time to file the record in a regular appeal to thirty days).
_________________________________
Patricia O. Alvarez, Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said
court on this 3rd day of April, 2020.
___________________________________
Michael A. Cruz,
Clerk of Court
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210 P.3d 705 (2007)
ANDERSON
v.
DIST. CT. (ANDERSON).
No. 49960.
Supreme Court of Nevada.
November 9, 2007.
Decision without published opinion. Petition Denied.
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STATE OF MICHIGAN
COURT OF APPEALS
UNPUBLISHED
In re S. A. BRUCE, Minor. May 22, 2018
No. 341091
Dickinson Circuit Court
Family Division
LC No. 16-000507-NA
Before: MURRAY, C.J., and SERVITTO and BOONSTRA, JJ.
PER CURIAM.
Respondent-mother appeals by right the October 24, 2017 order terminating her parental
rights to her child, SAB, under MCL 712A.19b(3)(c)(ii) (failure to rectify other conditions),
MCL 712A.19b(3)(g) (failure to provide proper care or custody), and MCL 712A.19b(3)(j)
(reasonable likelihood that child will be harmed if returned to the parent).1 Because of the
discretion afforded trial courts to make these decisions, which is reflected by the deferential
standard of review, we affirm.
Upon review of respondent’s arguments and the trial court record, we conclude that the
trial court did not clearly err in finding that statutory grounds for termination existed under MCL
712A.19b(3)(c)(ii), (g), and (j).
This Court reviews a determination whether statutory grounds exist to terminate parental
rights for clear error. In re Trejo, 462 Mich 341, 356-357; 612 NW2d 407 (2000). “Clear error
exists when some evidence supports a finding, but a review of the entire record leaves the
reviewing court with the definite and firm conviction that the lower court made a mistake.” In re
Dearmon, 303 Mich App 684, 700; 847 NW2d 514 (2014). This Court must defer to the trial
court’s special opportunity to observe the witnesses. Id.
To terminate parental rights, the trial court must find clear and convincing evidence of
one or more of the statutory grounds set forth in MCL 712A.19b(3). In re Olive/Metts, 297 Mich
App 35, 40; 823 NW2d 144 (2012). In this case, the court terminated respondent’s parental
1
The parental rights of SAB’s biological father, who is not party to this appeal, were terminated
on March 22, 2017.
-1-
rights under MCL 712A.19b(3)(c)(ii), (g), and (j), which provide that termination is proper
when:
(ii) Other conditions exist that cause the child to come within the court’s
jurisdiction, the parent has received recommendations to rectify those conditions,
the conditions have not been rectified by the parent after the parent has received
notice and a hearing and has been given a reasonable opportunity to rectify the
conditions, and there is no reasonable likelihood that the conditions will be
rectified within a reasonable time considering the child’s age.
* * *
(g) The parent, without regard to intent, fails to provide proper care or
custody for the child and there is no reasonable expectation that the parent will be
able to provide proper care and custody within a reasonable time considering the
child’s age.
* * *
(j) There is a reasonable likelihood, based on the conduct or capacity of
the child’s parent, that the child will be harmed if he or she is returned to the
home of the parent.
I. GROUNDS FOR TERMINATION UNDER MCL 712A.19b(3)(c)(ii)
The trial court found that termination was appropriate under MCL 712A.19b(3)(c)(ii)
because
it appears to the Court that there may be other conditions that caused the child to
come within the jurisdiction of the Court. [Those conditions] would be other care
necessary for the child’s health or morals, or subjecting the child to a substantial
risk of harm to the child’s mental wellbeing.
The court stated that these conditions were
the ability to deal with normal day-to-day occurrences in childrearing: Coping
with a child when a child’s upset and the child is sick; addressing things like
changing diapers, feeding . . . .
The trial court stated that respondent was given ample notice of her parenting skills deficiencies
and was provided therapy, education, and training to address those deficiencies.
From the very commencement of these proceedings, respondent received
recommendations to rectify her problems in providing day-to-day childcare for SAB, and she
was given a reasonable opportunity to rectify those conditions. On many occasions, DHHS
spoke with respondent about the way she dealt with the day-to-day functions and frustrations of
child rearing. DHHS scheduled, completed, and, sometimes, ensured that respondent attended
-2-
parenting skills classes and behavioral therapy sessions with SAB. At these classes and therapy
sessions, appropriate child rearing behavior was discussed, and respondent received advice from
DHHS workers and her counselor about how she should care for and speak with SAB. DHHS
also provided respondent with homework and assignments in an attempt to educate respondent
about how to conduct herself while caring for SAB.
In making its findings under MCL 712A.19b(3)(c)(ii), the trial court noted that despite
the extensive services provided to respondent, she still showed a fundamental deficiency in her
ability to interact with SAB in an age-appropriate manner, could not avoid becoming frustrated
with basic childcare, and was unable to handle care for two children at a time. The record shows
that respondent did not benefit from services or guidance, and was still frequently unable to
accept the normal behavioral issues a two-year-old child may display. Respondent became
frustrated when SAB was seeking attention and crying because she was sick in the hospital; she
became distraught when SAB could not sit still; she had difficulty reading SAB’s cues and
giving the child age-appropriate responses; and she became frustrated and overwhelmed while
changing SAB’s diaper. In April and May 2017, DHHS still had concerns with respondent’s
ability to interact with SAB in an age-appropriate manner. Despite having many opportunities to
rectify these deficiencies, respondent did not rectify the “other conditions” outlined by the court.
Further, the trial court did not clearly err in finding that “other conditions” that brought
SAB under its jurisdiction would not have been rectified within a reasonable amount of time
given SAB’s age. Respondent argues that had the court given her more time to respond to her
MS medication, the “other conditions” would have been rectified within a reasonable amount of
time. Respondent began receiving treatment for MS in February 2017, and she began taking
medication in August 2017 that she stated worked “very, very well.” Though it is likely that her
medical condition could have affected her interactions with SAB, respondent was being treated
for MS for a significant period of time before the termination of her parental rights. During this
period, despite having the benefit of medical treatment, including a purportedly effective MS
medication, DHHS and agency services, and counseling, respondent still had difficulty
interacting with SAB appropriately and dealing with the day-to-day issues of child rearing.
Because respondent continued to have inappropriate interactions with SAB that were noted by
officials involved in the case as late as September 2017, the trial court did not clearly err in
determining that respondent would not rectify the “other conditions” within a reasonable amount
of time given SAB’s age.
II. GROUNDS FOR TERMINATION UNDER MCL 712A.19b(3)(g)
The trial court justified its finding under MCL 712A.19b(3)(g) by incorporating its
reasoning for terminating respondent’s parental rights under MCL 712A.19b(3)(c)(ii) and by
highlighting respondent’s inability to care for SAB in the past, and how respondent would be
unable to do so in a reasonable amount of time considering SAB’s age.
Respondent argues in part that the court clearly erred in finding grounds for termination
under MCL 712A.19b(3)(g) because she was not able to rectify her deficiencies in providing
care or custody for SAB when SAB was moved in February 2017 to a foster home that was far
away from respondent’s home. We disagree. DHHS attempted to coordinate and facilitate
services for respondent while respondent was in the hospital in late February. In March 2017,
-3-
DHHS conducted supervised visitations with respondent and SAB, and transported respondent to
a check-in with SAB, where respondent “appear[ed] to become frustrated and overwhelmed”
while she changed SAB’s diaper. Between April and May 2017, DHHS conducted more
supervised visits with respondent and SAB, and expressed concerns that respondent did not
interact with SAB in an appropriate manner. Services were paused in late May because
respondent gave birth to her son, ZM. In July 2017, DHHS conducted a supervised visit and
reported that respondent snapped at SAB when respondent became frustrated. A court
caseworker reported that after respondent obtained full-time employment in August 2017, she
canceled visits and failed to keep in touch with the court caseworker, the DHHS caseworker, or
her counselor, and that her parenting time was suspended on September 12, 2017.
Rather than being unable to rectify her inability to provide care or custody to SAB due to
the distance between her home and the foster home, DHHS continued to provide respondent with
opportunities to improve her parenting skills and demonstrate her ability to provide proper care
and custody for SAB. After nearly 16 months of services and counseling, respondent became
increasingly disengaged, demonstrated the same parenting deficiencies identified by DHHS at
the initiation of the proceedings, and eventually lost touch with DHHS and caseworkers.
Respondent also argues that the court clearly erred in finding grounds for termination
under MCL 712A.19b(3)(g) because she complied with all DHHS and court expectations.
Although the record indicates that respondent cooperated with DHHS and the court, it cannot be
said that she complied with all DHHS and court expectations. Throughout the pendency of the
proceedings, respondent was subject to the following pertinent orders:
Respondent will not use, possess, or consume alcohol, controlled substances or
any other intoxicants not prescribed to her; continue to seek and maintain
employment; attend and demonstrate benefit from parenting education programs;
and not engage in any other dating or romantic relationship.
In its findings, the trial court highlighted that although respondent cooperated with DHHS, she
did not comply with all of DHHS’s and the court’s expectations. The court stated that it took
issue with respondent’s use of alcohol while diagnosed with MS and with her initiation of online
relationships, which it noted were contrary to court orders and exhibited unnecessarily risky
behavior. The court was concerned that respondent had nearly 10 different jobs in 20 months. It
further found that respondent’s choice to take a full-time job despite having her housing and food
covered by state programs evidenced her inability to prioritize fully committing to the DHHS
process to reunite with SAB. The court also noted that despite DHHS’s 16-month attempt to
render services that would benefit respondent, respondent had not benefitted from parenting
programs. The court expressed concern that despite the limited time respondent had with SAB
during visitations, she often chose to have SAB watch videos and play with her telephone instead
of interacting in a more personal fashion. Viewing these findings in light of respondent’s
continued parenting and temperamental deficiencies, the length of time she was provided
services to rectify these deficiencies, and her noncompliance with DHHS and court expectations,
we conclude that the trial court did not clearly err.
-4-
III. STATUTORY GROUNDS UNDER MCL 712A.19b(3)(j)
The trial court incorporated by reference all findings it previously made under MCL
712A.19b(3)(c)(ii) and (g) as support for finding that termination was also proper under MCL
712A.19b(3)(j).
When these proceedings were initiated, SAB was being treated in the hospital for
abscesses and diaper rash, which were likely caused by being left to sit in her own bodily fluids
and excrement for considerable lengths of time. The court noted that even after receiving 16
months of parenting counseling and services, no one who observed respondent interact with SAB
would recommend that respondent could handle caring for SAB while unsupervised.
Professionals stated that respondent parented well while in a structured environment, but could
not if not given support and coaching. These considerations support the conclusion that there is
a reasonable likelihood that if SAB were returned to respondent’s care, her physical health and
mental well-being would be harmed.
Moreover, a court may consider a parent’s failure to comply with a case service plan in
assessing if harm may come to a child if returned to a parent’s care. In re Mason, 486 Mich 142,
159 n 9; 782 NW2d 747 (2010). As the trial court noted, respondent did not fully comply with
the case service plan and the court’s expectations.
Finally, respondent again argues that had the court given her more time to respond to her
MS medication, the problems she was working on that would harm SAB would be rectified. As
stated above, however, respondent has demonstrated that the effects of her MS medication have
minimal bearing on her parenting abilities or her ability to rectify the conditions that led to the
trial court’s assumption of jurisdiction.
IV. BEST-INTERESTS DETERMINATION
Finally, the trial court did not clearly err in finding termination of respondent’s parental
rights to be in SAB’s best interests.
An appellate court “review[s] for clear error . . . the court’s decision regarding the child’s
best interest.” In re Trejo, 462 Mich at 356-357. “If the court finds that there are grounds for
termination of parental rights and that termination of parental rights is in the child’s best
interests, the court shall order termination of parental rights and order that additional efforts for
reunification of the child with the parent not be made.” In re Olive/Metts Minors, 297 Mich App
at 42 (quotation marks and citation omitted). Factors to consider include child-parent bonding,
parenting skills, the child’s need for permanency, stability, and finality, and also how the child’s
foster home compares with the parent’s home. Id. at 41-42. The court may also consider the
length of time the child was in care, the likelihood that the child could be returned to the parent’s
home within the foreseeable future, and compliance with the case service plan. In re
Payne/Pumphrey/Fortson, 311 Mich App 49, 64; 874 NW2d 205 (2015). In addition, the court
may consider the child’s “well-being while in care, and the possibility of adoption.” In re White,
303 Mich App 701, 714; 846 NW2d 61 (2014).
The trial court found that termination of respondent’s parental rights was in SAB’s best
interests because respondent was unable “to give [SAB] the attention and the nurturing that she
-5-
needs”; that respondent could not care for SAB when the toddler was acting in a manner
respondent found challenging or less than ideal; that her life was unstable; that she continued to
maintain occasional contact with SAB’s father, who once physically abused her; and that she did
not provide SAB with age-appropriate responses. The court properly cited these facts present in
the record and assessed DHHS witnesses and their credibility in making its determination. See
In re Fried, 266 Mich App 535, 541, 544; 702 NW2d 192 (2005). Moreover, respondent failed
to comply with the case service plan, and SAB’s caretakers expressed that she was not
responding well to a prolonged period in foster care. These facts further underscore the court’s
best-interest findings. Given respondent’s demonstrated lack of fundamental parenting skills and
her unaddressed poor temperament in rearing her daughter, the trial court did not clearly err in
finding that termination of respondent’s parental rights was in SAB’s best interests.
Affirmed.
/s/ Christopher M. Murray
/s/ Deborah A. Servitto
/s/ Mark T. Boonstra
-6-
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464 F.Supp. 1295 (1979)
DONNER HANNA COKE CORPORATION, Plaintiff,
v.
Douglas M. COSTLE, Administrator of the United States Environmental Protection Agency, Defendant.
No. Civ.-77-232.
United States District Court, W. D. New York.
February 12, 1979.
*1296 Hodgson, Russ, Andrews, Woods & Goodyear, Buffalo, N. Y. (Stephen H. Kelly, and Robert B. Conklin, Buffalo, N. Y., of counsel), for plaintiff.
Richard J. Arcara, U. S. Atty., Buffalo, N. Y. (James A. Fronk, Sp. Asst. U. S. Atty., Buffalo, N. Y., Walter E. Mugdan and Stephen A. Dvorkin, U. S. Environmental Protection Agency, New York City, and Doug G. Farnsworth, U. S. Environmental Protection Agency, Washington, D. C., of counsel), for defendant.
CURTIN, Chief Judge.
In this action, the plaintiff seeks judicial review of an administrative order issued by the Administrator of the Environmental Protection Agency [EPA] directing the plaintiff to permit EPA to inspect the plaintiff's coke oven batteries. The EPA has counterclaimed for enforcement of its order of inspection. The case was tried before the court. What follows is the court's findings of fact and conclusions of law, made in accordance with Rule 52 of the Federal Rules of Civil Procedure.
I. BACKGROUND
Donner Hanna is a New York corporation engaged in the business of operating a by-product coke plant. Its coke oven batteries are located in Buffalo, New York, a short distance inland from Lake Erie. Its three batteries are in line, running west southwest *1297 to east northeast. Battery A-B is the westernmost battery, battery # 3 is immediately east of battery A-B, and battery # 4 is immediately east of battery # 3. The batteries are black in color and are exposed to wind, sun, snow, and rain.
Each battery consists of approximately 50 ovens measuring about 17 inches wide, 13 feet high, and 32 feet long. Between each oven are heating ducts which permit the heating of a special mixture of coal in the absence of oxygen to very high temperatures (about 2000°) to produce coke. The operation of each oven is cyclical and is performed in established regular order throughout the battery.
On top of each battery is a larry car, which operates on rails and carries coal from a storage facility to the individual oven. The coal is discharged from the larry car into the oven to be "charged" through lidded openings in the top of the oven. After the individual oven is charged, the lids are replaced and the volatile components of the coal driven off by the heating process are removed by a "standpipe" to a "collector main" to a by-product recovery plant.
When the coking cycle is completed (16-17 hours), the coal in the oven has been transformed into coke. At that time the doors on each end of the oven are opened and a ram-like device is inserted from the "pusher side" in order to push the coke out the other end ("coke side") into a railroad car. The railroad car carries the hot coke under a "quench tower" where the hot coke is drenched with water.
Coke oven batteries do not continuously discharge smoke into the atmosphere but rather emit smoke for short periods of time from a large number of discrete sources. They are therefore classified as intermittent sources of air pollution.
When the damp coal is charged into the hot oven from the larry car, emissions may occur at the charging holes, the larry car hoppers, the larry car control system, and the standpipe lid. This group of emissions is referred to as "charging emissions" and can be reduced or eliminated by carefully controlling the sequence of charging and creating a negative pressure in the oven with an aspiration system. Another group of emissions may occur at the doors, lids and standpipes located at each end of the oven when the volatile components of the coal are removed from the oven after charging. A third group of emissions may occur during the pushing operation and is caused by burning coal which has not been completely converted to coke at the time that it is pushed out of the oven. Finally, if there are defects or leaks in the oven walls, volatile materials may escape into the heating ducts, causing emissions from the waste heat stack. Charging and pushing emissions are typically of very short duration and rarely exceed six minutes.
As a result of a state inspection in 1974 indicating that battery A-B was not in compliance with the three-minute rule, Donner Hanna improved its pushing emission controls on battery A-B. At trial, testimony was introduced to the effect that Donner Hanna now uses state of the art pollution control technology on all of its operations and is in good condition compared to other coke plants in the United States. Barnes at 452, 454-56. This testimony was not challenged by EPA.
In September of 1976, EPA attempted to inspect Donner Hanna's coke oven batteries for the purpose of determining compliance with emission standards contained in New York's State Implementation Plan [SIP], 6 N.Y.C.R.R. § 214.3. Donner Hanna refused to allow the inspection because it disputed the reliability of the testing method which EPA proposed to use. This testing method is the focal point of the controversy between the parties.
Under the Clean Air Act, EPA is authorized to inspect sources of air pollution to determine compliance with the Act. 42 U.S.C. § 7414(a)(2)(A).[1] It is also authorized to order compliance with its inspection *1298 requests. Id. § 7413(a)(3). On October 1, 1976, EPA issued an order pursuant to its statutory powers directing Donner Hanna to allow the proposed inspection. At that time and on all later occasions pertinent to this litigation, EPA has made clear that it intended to conduct the proposed inspection in accordance with the testing procedures set forth in "EPA Visible Emission Inspection Procedures (August 1975)" (1975 EPA Guidelines) (Ex. 2), and that it would use the "stopwatch" technique of measuring the duration of emissions. See EPA's Counterclaim ¶ 19; Ogg at 23-32.
After a conference pursuant to 42 U.S.C. § 7413(a)(4) proved unsuccessful, Donner Hanna filed an action in this court seeking judicial review of the October 1, 1976 order. Donner Hanna v. Costle, Civ. No. 76-567. This action was discontinued without prejudice when EPA withdrew its October 1, 1976 order.
On April 12, 1977, EPA issued a new order substantially restating the provisions of the order of October 1, 1976.
On May 23, 1977, a conference hearing was held in the EPA Region II offices, and representatives of Donner Hanna and EPA attended. At the hearing, EPA refused to modify the order of April 12, 1977. It also advised Donner Hanna that EPA intended to seek criminal sanctions against the plaintiff and its officers and employees in the event of noncompliance with the order.[2]
Immediately thereafter, Donner Hanna filed this action in the district court, seeking a declaratory judgment as to the constitutionality of the proposed inspection under the fourth amendment and judicial review of the April 12, 1977 order under the Administrative Procedure Act. EPA answered the complaint and also asserted a counterclaim pursuant to 42 U.S.C. § 7413(b) seeking a mandatory injunction directing the plaintiff to grant access to its plant. EPA's motion for summary judgment was denied and the case proceeded to trial.
II. JURISDICTION AND SCOPE OF REVIEW
Jurisdiction over the complaint and the counterclaim is alleged under 28 U.S.C. §§ 1331, 1345, and 2201; 5 U.S.C. § 702; and 42 U.S.C. § 7413(b). Although EPA originally objected to the court's jurisdiction to grant the relief requested by Donner Hanna, this objection was withdrawn in open court in order to have this court rule on the testing method. In return, Donner Hanna withdrew its objection to the inspection based on the fourth amendment. The only issue now before the court is the validity of the April 12, 1977 order seeking inspection of the plaintiff's coke oven batteries.[3]
Although the parties now agree that the court has jurisdiction to review EPA's order, the court recognizes its obligation to engage in an independent inquiry into subject matter jurisdiction. For the reasons stated below, I find that the district court has jurisdiction over EPA's counterclaim under 42 U.S.C. § 7413(b) and that this jurisdiction includes the power to decide whether EPA's proposed testing method is subject to rulemaking requirements.[4]
As previously mentioned, the Clean Air Act gives EPA the power to enter onto the premises of persons operating emission sources and to sample the emissions in order to determine compliance with emission standards. Id. § 7414(a)(2). Where permission to inspect is denied, the EPA "may issue an order requiring such person to comply" with the inspection request. Id. § 7413(a)(3). If the person "violates or fails or refuses to comply with any order issued *1299 under [§ 7414(a)]," EPA may commence a civil action for a permanent or temporary injunction "in the district court of the United States for the district in which the violation occurred or in which the defendant resides or has his principal place of business ...." Id. § 7413(b). These provisions expressly give the court jurisdiction to enforce EPA's order of April 12, 1977.
Although EPA's right to enter Donner Hanna's plant and its right to use a particular test method are conceptually distinct, under the circumstances of this case the two questions are inextricably connected. Donner Hanna has from the outset been willing to permit EPA to inspect using the "remote" method. EPA states that it seeks permission to inspect for the sole purpose of using its proposed method. EPA's counterclaim, ¶ 19. The government has stipulated to the determination of the proper inspection method by the district court. In its brief filed on June 24, 1977, EPA states:
EPA believes that its right to enter and inspect the Donner-Hanna facility pursuant to § 114 of the Act is entirely independent of the applicability, as a matter of law, of a particular test method. The latter question, the Agency believes, relates strictly to the evidentiary value of any resulting measurements, and like any other evidentiary matter, is therefore not ripe for review until EPA seeks to assert those measurements as evidence against the company. However, raising the issue of ripeness in this connection would seem to be inconsistent with the stipulation between the Agency and Donner-Hanna. Therefore, while the stipulation might not strictly be viewed as governing this issue, as a matter of good faith EPA will not assert a lack of ripeness as a bar to review at this time of the applicability, as a matter of law, of Reference Method 9 as opposed to the company's suggested observation method.
Brief at 26 n. 12.
It would serve no useful purpose to allow the inspection without giving some consideration to EPA's testing method because EPA has made clear its intent to seek criminal sanctions against Donner Hanna if the plant does not permit the inspection on EPA's terms. The manner in which EPA intends to conduct the inspection therefore should be considered in this proceeding.
In connection with the court's jurisdiction, two additional points should be noted. First, one of the defects in EPA's proposed testing method alleged by Donner Hanna is that it was never adopted pursuant to rulemaking procedures, either as part of New York's SIP or as part of EPA's testing methods for new emission sources. See 40 C.F.R. §§ 52.12(c)(1), 60 Appendix A. As a result, the method was never subject to judicial review by the appropriate Court of Appeals as expressly provided in 42 U.S.C. § 7607(b)(1). Thus § 7607(b)(2), which provides that actions reviewable under (b)(1) cannot be reviewed in civil or criminal enforcement proceedings, does not preclude the district court from reviewing the method in enforcement proceedings. West Penn Power Co. v. Train, 522 F.2d 302, 309, 312 (3d Cir. 1975), cert. denied, 426 U.S. 947, 96 S.Ct. 3165, 49 L.Ed.2d 1183 (1976).
Second, several courts have found that preenforcement review of the validity of § 7413 orders is barred by the Clean Air Act. Lloyd A. Fry Roofing Co. v. EPA, 554 F.2d 885 (8th Cir. 1977); West Penn Power Co. v. Train, supra; Getty Oil Co. v. Ruckelshaus, 467 F.2d 349 (3d Cir. 1972), cert. denied, 409 U.S. 1125, 93 S.Ct. 937, 35 L.Ed.2d 256 (1973). But these cases do not preclude judicial review of the counterclaim because the counterclaim was brought under the federal enforcement provisions of the Clean Air Act, 42 U.S.C. § 7413, and can be classified as an enforcement proceeding.
Having found that the court has jurisdiction to review EPA's proposed testing method, the next question is the scope of review. This is governed by the Administrative Procedure Act, 5 U.S.C. § 706. See, e. g., Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 413-14, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971); Texas v. EPA, 499 F.2d 289, 296 (5th Cir. 1974), cert. denied, 427 U.S. 905, 96 S.Ct. 3191, 49 L.Ed.2d 1199 (1976). Under § 706, the court must determine whether EPA followed lawful procedures *1300 in deciding to use its proposed testing method for inspecting Donner Hanna and whether use of its method would be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.
III. STATUTORY AND REGULATORY BACKGROUND
Under the Clean Air Act, each state must submit to EPA for its approval an SIP providing for the attainment, maintenance and enforcement of national ambient air quality standards. 42 U.S.C. § 7410(a). If a state fails to submit a plan, or if the plan submitted does not meet federal requirements, EPA is authorized to promulgate an implementation plan for the state. Id. § 7410(c)(1).
New York submitted an SIP in accordance with these provisions in 1972, and it was approved by EPA. Both the adoption of the SIP and its approval by EPA followed rulemaking procedures and could have been subjected to judicial review. The portion of the New York SIP relevant to this action provides as follows:
Smoke emissions.
(a) After December 31, 1974, or such later date as determined by an order of the commissioner, no person shall operate a by-product coke oven battery which emits a smoke equal to Ringlemann No. 1 or 20 percent opacity.
(b) Such person who operates a by-product coke oven battery shall be allowed an emission of smoke from the battery of greater than Ringlemann No. 1 or 20 percent opacity if such emission continues for a period or periods aggregating no more than three minutes of any consecutive 60 minute period.
6 N.Y.C.R.R. § 214.3.
This regulation, referred to as the "three-minute rule," does not specify the method to be used in measuring smoke opacity nor does any other part of the SIP.
The three-minute rule is known as an "aggregate opacity" regulation because it allows emissions from the coke oven battery in excess of the regulatory opacity limitation (20% opacity) for a period or periods aggregating no more than three minutes out of any consecutive 60 minutes. By contrast, some opacity standards prohibit any emissions in excess of a certain opacity limitation, for any amount of time. This sort of standard is typically applied to industrial sources which have smoke stacks and which emit smoke fairly steadily and without great variance in the opacity level.
Where the SIP does not specify testing procedures, federal regulations allow EPA to determine compliance by means of "appropriate procedures and methods prescribed in Part 60 of this chapter ..." 40 C.F.R. § 52.12(c)(1). Part 60 sets forth the new source performance standards established by EPA for newly constructed or modified sources of air pollution. Appendix A of Part 60 contains certain "Reference Methods" for determining compliance with the new source performance standards. One of these methods is Method 9, which establishes a procedure by which human observers can determine the opacity of emissions from stationary sources.
Method 9 was originally promulgated in December, 1971. 36 Fed.Reg. 24,895 (Dec. 23, 1971). In response to the court's direction in Portland Cement Association v. Ruckelshaus, 158 U.S.App.D.C. 308, 486 F.2d 375 (1973), cert. denied, 417 U.S. 921, 94 S.Ct. 2628, 41 L.Ed.2d 226 (1974), it was revised in November, 1974 in an effort to increase its accuracy. 39 Fed.Reg. 39,873 (Nov. 12, 1974). Revised Method 9 requires the determination of compliance with opacity standards to be based on an average of 24 consecutive readings taken at 15-second intervals. A finding of violation can be made only if the average of 24 observations exceeds the applicable emission standard by 7.5%. The observer must be positioned in such a manner that the sun is oriented in the 140° sector to his back, his line of vision is perpendicular to the plume direction, and no more than one plume is in his line of vision. The observer must have a clear view of the plume and must estimate opacity at its darkest point. If visible water vapor is present with the smoke, opacity cannot be estimated until the water vapor has dissipated.
In addition to setting forth a method for measuring opacity, Method 9 establishes a *1301 program for training observers to correctly associate an observed contrast with opacity and for certifying observers who successfully complete the training program. Observers are not trained or certified for the use of the stopwatch technique, discussed below. Ogg at 86.
The 1975 EPA Guidelines (Ex. 2), which EPA seeks to use along with the stopwatch technique to determine compliance with the three-minute rule, are not contained in Part 60 of the regulations and were not promulgated by formal rulemaking procedures. They represent EPA's attempt to "adapt" Method 9 to the testing of various types of stationary sources of air pollution, including coke oven batteries.
The 1975 EPA Guidelines translate the general positioning requirements of Method 9 into specific procedures applicable to coke oven batteries. Thus, the Guidelines suggest that particular contrasting backgrounds be used for viewing the various types of emissions produced by coke oven batteries. They also specify where observers should stand in order to obtain a "clear and unobstructed" view of the various emissions. Ex. 2 at 25-27.
The 1975 EPA Guidelines do not specify whether averaging or direct unaveraged measurements should be used in testing coke oven emissions. According to the testimony of Robert N. Ogg, the chief EPA engineer responsible for stationary source compliance in Region II (New York and the Virgin Islands), inspectors in this region are instructed to use the "stopwatch" technique for timing coke oven emissions. Ogg at 22-25. Rather than averaging opacity readings, the inspector views the emission continuously and records the total time the emission equals or exceeds 20% opacity. Two stopwatches are used: one to record violation times and the other to record the time of day when the violation begins and ends. During a period noted as a violation, only three readings are required: the first is at the time that the emission equals or exceeds 20% opacity, the second is the highest reading during a period of violation, and the third is when the violation ends (i. e., the opacity of the emission falls below 20%). The inspection team, which consists of a minimum of three observers, views the battery for one hour and then totals the emissions exceeding 20% opacity. Overlapping observations are excluded by referring to the exact time of day at which the observations were made. A violation is found if the total exceeds the three minutes allowed in Part 214 of the SIP. Ogg at 23-32.
The stopwatch technique was apparently devised by regional EPA officials in order to address the particular problems of monitoring coke oven compliance with New York's three-minute rule. It is used to time emissions which are too short in duration to use 15-second averaging. As the record stands in this case, the stopwatch technique has not been officially adopted by EPA. None of the inspection manuals or other exhibits introduced into evidence describe the details of the technique. The inspection method which Donner Hanna claims should be used in lieu of EPA's proposed method is referred to as the "remote" or "off-site" method.[5] It was used by the New York State Department of Environmental Conservation in inspecting Donner Hanna in 1974 after Donner Hanna objected to the use of topside observers. It differs from EPA's proposed method in that observers are not placed on top of the battery to observe charging and topside leak emissions but rather stand on the catwalk approximately 200 feet away from the battery. The remote method apparently uses the stopwatch technique to measure the duration of emissions. The parties agree that it is much easier for Donner Hanna to meet the state emission standard using the remote testing method than using the 1975 EPA Guidelines.[6]
*1302 The issue in this case is whether EPA can test Donner Hanna's compliance with the three-minute rule by using the 1975 EPA Guidelines in conjunction with the stopwatch technique. Donner Hanna maintains that it cannot for a number of reasons. First, it argues that EPA's proposed testing method is not merely an interpretation or adaptation of Method 9 because Method 9 does not apply to intermittent sources, such as coke oven batteries. Second, Donner Hanna maintains that the proposed testing method must be formally adopted in order to comply with the regulatory scheme of the Clean Air Act and with the due process clause of the Constitution. Finally, the plaintiff contends that the proposed testing method is arbitrary and unreliable and that EPA should use the "remote" method in inspecting coke oven batteries.
EPA contends that Method 9 provides a basic framework for determining opacity but does not purport to set forth specific testing procedures for each major type of air pollution source. Coke oven batteries, EPA argues, present various problems which must be solved on a case-by-case basis due to the complexity of the industrial processes involved, the numerous types of emissions encountered, their widely varying durations and other characteristics, and (in the case of the New York SIP) the lack of a promulgated set of procedures for determining compliance with regulatory standards. EPA's position is that it is entitled to develop a method applicable to intermittent emissions and to enforcement of a state SIP containing a time exception, and that it may do so without resort to rulemaking and without formal revision to Method 9. The Agency characterizes its proposed testing method as an adaptation or interpretation of Method 9 and argues that its interpretation is entitled to great deference.
IV. FINDINGS
I have carefully considered the positions of both parties in light of the evidence produced at trial and make the following findings.
First, I find that Revised Method 9, which requires averaging of 24 consecutive readings, is not an appropriate method or procedure for determining compliance with an aggregate-type standard such as New York's three-minute rule. By EPA's own admission, utilization of the averaging technique in Method 9 would preclude the aggregation of the durations of all emissions in excess of 20% opacity observed during a given 60-minute period. This fact is acknowledged in the preamble to revised Method 9:
In developing this regulation we have taken into account the comments received in response to the September 11, 1974 (39 FR 35852) notice of proposed rulemaking which proposed among other things certain minor changes to Reference Method 9. This regulation represents the rulemaking with respect to the revisions to Method 9.
The determination of compliance with applicable opacity standards will be based on an average of 24 consecutive opacity readings taken at 15 second intervals. This approach is a satisfactory means of enforcing opacity standards in cases where the violation is a continuing one and time exceptions are not part of the applicable opacity standard. However, the opacity standards for steam electric generators in 40 CFR 60.42 and fluid catalytic cracking unit catalyst regenerators in 40 CFR 60.102 and numerous opacity standards in State implementation plans specify various time exceptions. Many State and local air pollution control agencies use a different approach in enforcing opacity standards than the six-minute average period specified in this revision to Method 9. EPA recognizes that certain types of opacity violations that are intermittent in nature require a different approach in applying the opacity standards than this revision to Method 9. It is EPA's intent to propose an additional revision to Method 9 specifying an alternative method to enforce opacity *1303 standards. It is our intent that this method specify a minimum number of readings that must be taken, such as a minimum of ten readings above the standard in any one hour period prior to citing a violation. EPA is in the process of analyzing available data and determining the error involved in reading opacity in this manner and will propose this revision to Method 9 as soon as this analysis is completed. The Agency solicits comments and recommendations on the need for this additional revision to Method 9 and would welcome any suggestions particularly from air pollution control agencies on how we might make Method 9 more responsive to the needs of these agencies.
39 Fed.Reg. 39,873 (Nov. 12, 1974) (emphasis added). See also Ex. 26 at 7-8. Since the 1974 revision, there has been no additional revision of Method 9 to make it applicable to intermittent sources or to opacity standards with time exceptions. It is therefore clear as EPA admits that Method 9 itself cannot be used to test Donner Hanna's compliance with the three-minute rule.
EPA nevertheless argues that its proposed testing method is merely an interpretation or adaptation of Method 9. In other words, the agency argues that it can adopt the applicable parts of Method 9, reject the inapplicable parts, and substitute the stopwatch technique for six-minute averaging.
For a number of reasons, I find EPA's position untenable. First, it is internally inconsistent. On the one hand, EPA admits that Method 9 cannot be used because the averaging technique cannot be applied to coke oven batteries. On the other hand, at trial it characterizes the rejection of averaging as merely an interpretation of or insignificant deviation from Method 9. The preamble recognizes, however, that the averaging of 24 readings at 15-second intervals is central to its reliability. Since EPA's proposed testing method does not include one of the central features of Method 9, it cannot purport to represent an interpretation or adaptation of Method 9.
Second, a testing method which contains an averaging technique is fundamentally different from a testing method which aggregates unaveraged readings. Under the stopwatch technique, a single reading exceeding 20% opacity would count toward the three minutes allowed under the New York opacity standard, thereby increasing the probability that the source will be found to be in violation of the standard. If, however, readings taken at fifteen-second intervals are averaged over six minutes, a single high reading would not necessarily contribute toward a finding of a violation because it could well be offset or at least reduced by lower readings.
The difference between averaging and straight aggregation is exacerbated where human observers are used to make the readings, because averaging makes it possible to assess the observers' general patterns of accuracy and to reduce the impact of occasional erroneous opacity estimates. Government's Post-Trial Brief at 11. EPA's own witness admitted that comparing the stopwatch technique to six-minute averaging was "mixing apples and oranges." Ogg at 32.
In an attempt to demonstrate that the stopwatch technique and Method 9 were not significantly different in terms of quantifying coke oven emissions, EPA presented at trial an analysis of emission data, which compared observations made at 15-second intervals with observations made in accordance with the stopwatch technique. Ex. 29. Mr. Hopkins, who performed the analysis, testified that there was no significant difference between the two types of readings. Because of several serious flaws in the analysis, however, it cannot be accepted in support of EPA's position. First and most important, the readings taken over 15-second intervals were never averaged as contemplated by Method 9. As a result, the analysis did not compare Method 9 to the stopwatch technique and cannot be used to demonstrate the insignificance of averaging. In addition, as EPA acknowledges, the data base used for the analysis was small, it was gathered for other purposes, and it was not in a form which was useful for purposes of this litigation. Finally, the analysis did not take into account a number of significant *1304 variables, such as weather conditions and observer continuity.
A final reason for rejecting EPA's proposed testing method as an adaptation of Method 9 is EPA's failure to justify its adaptation. With the exception of Hopkins' analysis, no studies were introduced supporting the reliability of the stopwatch technique or its relationship to averaging. Although the agency was granted an adjournment in the trial in order to call an expert witness to rebut the testimony of Donner Hanna's expert, Dr. Ensor, it failed to do so. It also failed to call the author of the 1975 EPA Guidelines, Kenneth B. Malmberg.
EPA argues that an agency's judgment in interpreting its own regulations is normally entitled to judicial deference. This is an accurate statement of the law. See, e. g., Train v. NRDC, 421 U.S. 60, 87, 95 S.Ct. 1470, 43 L.Ed.2d 731 (1975); Udall v. Tallman, 380 U.S. 1, 4, 85 S.Ct. 792, 13 L.Ed.2d 616 (1964). But from this it does not follow that EPA is entitled to deference in this case. A well-established corollary to the above principle is that no deference is in order where the agency's interpretation is plainly erroneous or inconsistent with the regulation. See, e. g., Bowles v. Seminole Rock Co., 325 U.S. 410, 413-14, 65 S.Ct. 1215, 89 L.Ed. 1700 (1975).
Here, EPA's position at trial is inconsistent with its published position in the preamble to Method 9. Moreover, the evidence introduced at trial made clear that the test procedures which EPA intended to use were not adopted by EPA at its higher levels but were more akin to on-the-spot determinations made in the field by EPA regional inspectors. See, e. g., Ogg at 22-24; 33-34; Bloom at 38-41. At the same time that the regional inspectors were "adapting" Method 9 to coke ovens, EPA commissioned a study of the application of Method 9 to intermittent sources and to emission standards containing time exceptions. Ex. 5. Performed by Research Triangle Institute and dated July, 1976, the study concluded that there was insufficient data available to assess the accuracy of Method 9 when applied to a standard such as New York's containing a time exception. In order to make this assessment, data must be collected "on single minute opacity averages over one hour periods." Ex. 5 at 19. The data which was available indicated that accumulation of noncontiguous high readings, such as would be necessary in determining compliance with a time exception emission standard, would significantly increase the risk of error. Ex. 5 at 17-18. In light of these circumstances, I find that EPA's interpretation is not entitled to judicial deference and, in the absence of supporting evidence, cannot stand.
The cases cited by EPA in support of judicial deference are readily distinguishable. McLaren v. Fleischer, 256 U.S. 477, 41 S.Ct. 577, 65 L.Ed. 1052 (1921), involved a practical construction of a federal statute which was adopted by the Secretary of the Department of Interior, had been in effect long before the controversy arose, and was later converted into a regulation. Udall v. Tallman, supra, involved the Secretary of Interior's interpretation of an executive order. The interpretation was a matter of public record and had been applied on a number of prior occasions. In Train v. NRDC, supra, the administrative decision was made by the top officials in EPA and was publicized. In none of these cases was the agency's published position plainly inconsistent with the administrative interpretation upheld by the Court.
Having found that EPA's proposed testing method is not an interpretation of Method 9, I now turn to the question of whether rulemaking is required before EPA can use its proposed testing method in determining whether coke oven batteries are in compliance with applicable emission standards. I find that under the Administrative Procedure Act and EPA's own regulations, rulemaking is necessary.
It is undisputed that the method of determining compliance with an emission standard can affect the level of performance required by the standard, even though the standard itself has not changed. See Ex. 12; Portland Cement Association v. Ruckelshaus, supra at 400-01. The performance *1305 standard for smoke opacity, which was promulgated by the state and approved by EPA in New York's SIP, cannot be changed without following rulemaking procedures under state law. 42 U.S.C. § 7410(a)(3)(A). Similarly, EPA's regulations, including new source performance standards and reference methods, cannot be changed without following rulemaking procedures. 42 U.S.C. § 7607(d); Detroit Edison Co. v. E.P.A., 496 F.2d 244, 249 (6th Cir. 1974). Enforcement officials cannot circumvent the rulemaking requirements of the Clean Air Act by making substantial changes in testing methods without notice and a hearing. The importance of developing an objective method of testing opacity has been recognized in Portland Cement, and the clear implication of that decision is that opacity tests are subject to rulemaking requirements.
Apart from these considerations, EPA's own regulations require rulemaking. 40 C.F.R. § 52.12(c) instructs EPA in determining compliance with the Act to use the test procedures specified in the SIP or, if none are specified, the test procedures and methods applicable to new source performance standards. Regardless of which test methods are used, both would have been subjected to rulemaking, either at the state or the federal level. Moreover, the preamble to revised Method 9 specifically recognizes that further rulemaking is necessary in order to develop a testing method for intermittent sources or emission standards containing a time exception.
The significance of rulemaking cannot be underemphasized. It gives parties affected by a decision an opportunity to participate in the decision-making process and forces EPA to articulate the bases for its decisions. See Buckeye Power, Inc. v. EPA, 481 F.2d 162, 170-73 (6th Cir. 1973). These procedures tend to produce more objective testing methods. Portland Cement, supra. It also enables aggrieved parties to seek judicial review under the Clean Air Act. 42 U.S.C. § 7607(b); Citizens to Preserve Overton Park v. Volpe, supra, 401 U.S. at 416, 91 S.Ct. 814.
In finding that rulemaking is necessary in order to develop an appropriate testing method for coke oven batteries, I do not intend to suggest that regional representatives of EPA should not be given some leeway in adapting formally promulgated guidelines to local conditions. It must be emphasized that the finding in this case is premised on my conclusion that the agency, in "adapting" Method 9, strayed so far from the original substance and intent of Method 9 that it in effect created a new and different method, not subject to the scrutiny of rulemaking procedures.
Since the remote method has not been subjected to rulemaking proceedings and is not part of New York's SIP, Donner Hanna is not entitled to an order requiring EPA to use the remote method in testing smoke opacity. But as an interim measure pending completion of rulemaking on a testing method for coke ovens, and in order to enable EPA to continue its enforcement efforts, EPA may use the remote method at the Donner Hanna facility.
At trial, Donner Hanna introduced considerable evidence challenging the objectivity of the 1975 EPA Guidelines. It called an expert witness, Dr. Ensor, who conducted a study of Method 9 and the 1975 EPA Guidelines (Ex. 26), to testify at length about his findings. Dr. Ensor concluded that the EPA Guidelines for the application of Method 9 to coke ovens "result in serious compromises which cause significant errors overestimating the opacity and duration of coke oven emissions." Ex. 26 at 8. The primary difficulty involves the positioning of the observers as specified in the Guidelines, which affects the background against which the plume is observed and consequently the accuracy of the estimate. An additional source of unreliability concerns the 15% margin of error allowed in the observer training school and its effect on the reported duration of emissions observed continuously rather than at fifteen-second intervals. Although the trial was adjourned for several weeks in order to give EPA an opportunity to respond to Dr. Ensor's report, EPA decided not to attempt to rebut the testimony or report.
*1306 Although Donner Hanna's evidence on this point was persuasive, I find that it would be inappropriate at this stage to make a determination as to the validity of the 1975 EPA Guidelines since this question is the proper subject of rulemaking proceedings and is reviewable only by the Court of Appeals. 42 U.S.C. § 7607(b)(1).
Donner Hanna is directed to prepare a proposed judgment on notice to defendant.
So ordered.
NOTES
[1] The Clean Air Act was amended in 1977 and the provisions were renumbered. Although the parties' briefs refer to the old section numbers, references throughout this decision shall be to the new numbers.
[2] This fact is alleged in the Complaint (¶ 29) and admitted in EPA's Answer (¶ 9).
[3] See order of September 21, 1977, denying EPA's motion for summary judgment.
[4] As discussed in greater detail infra, EPA's proposed testing method had what amounts to two separate components. First, the 1975 EPA Guidelines specified observer positioning and background requirements. Second, the stopwatch technique, rather than an averaging technique, was used to time the duration of pushing and charging emissions. Unless otherwise indicated, references in this opinion to EPA's proposed testing method are intended to encompass both components.
[5] At trial, the parties disagreed about whether the "remote" method had been endorsed by the state and could be referred to as the "state" method. Since they agreed that it had not been promulgated by the state in accordance with rulemaking procedures, see discussion infra, I find it unnecessary to make a finding of fact on this issue.
[6] The State conducted a second inspection of Donner Hanna in 1977 using both the remote method and EPA's proposed method. Exhibit 12 summarizes the observations and compares the results. Over six 60-minute periods, the remote method resulted in one finding of violation and the EPA method in five.
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In the
United States Court of Appeals
For the Seventh Circuit
No. 11-2903
P ETER P OOLE III,
Plaintiff-Appellant,
v.
D EBBIE ISAACS, et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Southern District of Illinois.
No. 09-1070-GPM—G. Patrick Murphy, Judge.
S UBMITTED N OVEMBER 29, 2012 —D ECIDED D ECEMBER 28, 2012
Before E ASTERBROOK, Chief Judge, and W OOD and
S YKES, Circuit Judges.
W OOD , Circuit Judge. Peter Poole, an Illinois prisoner,
firmly believes that a required $2 co-payment for
dental care furnished at the Big Muddy River Correc-
tional Center violates his rights under the Eighth Amend-
After examining the parties’ briefs and the record, we
have concluded that oral argument is unnecessary. Thus, the
appeal is submitted on the briefs and the record. See F ED . R.
A PP . P. 34(a)(2)(C).
2 No. 11-2903
ment to the federal Constitution. After a lengthy period
during which he refused to make the payment, he
finally capitulated and promptly received the necessary
care. Later, however, he filed this case under 42 U.S.C.
§ 1983 against several prison officials, asserting that
his constitutional rights had been violated. Poole’s com-
plaint frivolously accuses the defendants of “committing
strong arm robbery” against a “captive market of inmates.”
After screening the complaint as required by 28 U.S.C.
§ 1915A, the district court dismissed Poole’s claims
against several defendants with prejudice, but it allowed
the action to proceed against Debbie Isaacs, the health-
care administrator at Big Muddy, because Poole alleged
that he “didn’t have any money” for the co-payment.
That allegation was false, and thus after discovery
the district court granted summary judgment for Isaacs.
Poole appeals.
Most of the material evidence presented with the sum-
mary judgment motions was undisputed. At the time
Poole was incarcerated at Big Muddy, he had serious
dental problems. He had a routine examination with
a dentist on September 17, 2007. Ordinarily he would
have had to wait two years for a new exam, but on July 29,
2008, he was examined by Dr. Malcharek, who is a
dentist employed by Wexford Health Services, a private
company that furnishes healthcare services at the
prison. Dr. Malcharek (who was not named as a defen-
dant) noted from Poole’s dental chart that on an earlier
occasion a colleague had recommended extracting one
tooth and filling two others. Dr. Malcharek offered to
schedule those procedures, but Poole balked when
told that he first had to authorize withdrawal of the
No. 11-2903 3
$2 co-payment from his inmate trust account. Poole
complained to healthcare administrator Isaacs about the
need to pay; Isaacs was responsible for monitoring
Wexford’s compliance with administrative directives
governing medical care. In Poole’s opinion, the July 2008
visit should have been categorized as a follow-up to
the September 2007 appointment; if that were correct,
the 2008 visit would have been exempt from the co-pay-
ment requirement. See 730 ILCS 5/3-6-2(f) (2006). Issacs,
however, agreed with Dr. Malcharek that the 2008 visit
was not a follow-up and that payment was required.
Poole had more than enough money in his trust account
to cover that modest sum, but rather than pay, he
declined treatment and filed a grievance against Isaacs
and the Wexford dentists. By refusing to provide free
dental care, Poole argued, they had caused him to
suffer headaches as well as extreme tooth pain that
made eating difficult. His grievance was denied, and
the decision was upheld through both levels of admin-
istrative appeal.
The grievance process was complete in April 2009,
but after that, Poole restarted the cycle. In July 2009 he
was examined by Dr. Dennis Meyers, who agreed with
Dr. Malcharek that work needed to be done, and also
that it could not proceed without a co-payment. Poole
still had adequate funds in his trust account, but for
several months he continued stubbornly to maintain
that he was exempt from the co-payment. Finally, in
October 2009, he authorized the withdrawal of the $2
and received treatment.
Poole then sued. He named as defendants not only
Isaacs but also Wexford, the warden at Big Muddy, and
4 No. 11-2903
the director of the Department of Corrections. (Poole
also named Dr. Meyers but voluntarily dismissed him.)
The district court recruited counsel to assist Poole in
litigating his claim against Isaacs, but it dismissed the
other defendants because Poole failed to allege their
personal involvement in the alleged denial of care. Later
the district court granted summary judgment to Isaacs,
reasoning that the co-payment plan was not unconstitu-
tional, and even if it was, Isaacs was entitled to quali-
fied immunity because she acted reasonably given the
law at the time.
Under the regulation in force during the relevant
period, the Department of Corrections typically required
a $2 co-payment (now $5) from inmates whose trust-
fund balance was $2 or greater either at the time
medical services were provided or during the preceding
60 days (“or since arrival at the offender’s current
facility, whichever occurred most recently”). See 730 ILCS
5/3-6-2(f) (2006); 730 ILCS 5/3-6-2(f) (2010); I LL. A DMIN.
C ODE, tit. 20, § 415.30(g)(3) (2007). Poole concedes
that he was able to pay that amount. He also seems to
acknowledge that the Eighth Amendment does not
compel prison administrators to provide cost-free
medical services to inmates who are able to contribute
to the cost of their care.
In fact, that proposition is by now well established.
In City of Revere v. Massachusetts General Hospital, 463 U.S.
239 (1983), the Supreme Court looked at one aspect of
the question. The specific issue before the Court was
whether a state entity (there a municipality) could be
No. 11-2903 5
compelled to reimburse the provider of emergency
medical services. The state supreme court held that the
answer was yes; otherwise, it feared, persons in police
custody might be denied necessary services in violation
of the Eighth Amendment. The Supreme Court began
by noting that the relevant constitutional provision for
this situation was the Due Process Clause, not the
Eighth Amendment. Ultimately it held that “as long as
the governmental entity ensures that the medical care
needed is in fact provided, the Constitution does not
dictate how the cost of that care should be allocated as
between the entity and the provider of the care.” 463
U.S. at 245. In a footnote, the Court reserved the
question now before us: “Nothing we say here affects
any right a hospital or governmental entity may have
to recover from a detainee the cost of the medical
services provided to him.” Id. n. 7.
Other courts have taken the next step, however. For
example, in Reynolds v. Wagner, 128 F.3d 166 (3d Cir.
1997), the Third Circuit squarely rejected the argument
that “a program that requires that inmates with
adequate resources pay a small portion of their medical
care” automatically violates the Constitution. Id. at 174;
accord, Tillman v. Lebanon Cnty. Corr. Facility, 221 F.3d
410, 418-19 (3d Cir. 2000). See also Shapley v. Nevada Bd. of
State Prison Comm’rs, 766 F.2d 404, 408 (9th Cir. 1985);
Negron v. Gillespie, 111 P.3d 556, 558-59 (Colo. Ct. App.
2005); Mourning v. Correctional Med. Servs., (CMS) of
St. Louis, Mo., 692 A.2d 529, 539 (N.J. App. Div. 1997). In
our view, these cases are well reasoned and consistent
with the general rationale of City of Revere. We thus join
6 No. 11-2903
our fellow courts in holding that the imposition of a
modest fee for medical services, standing alone, does
not violate the Constitution. To the extent that Poole is
arguing for some form of per se unconstitutionality, we
reject his position. And this is not a case in which the
required payment exceeds the inmate’s resources. In
fact, had Poole been truly indigent, he would have
been exempt from the requirement. The Illinois statute
contains a number of exemptions from the co-payment
requirement, including one for people with chronic
illnesses, one for follow-up visits, one for those meeting
the statute’s definition of indigency, and one for juvenile
offenders. 730 ILCS 5/3-6-2(f). We have no occasion
either to comment on these particular exemptions or to
speculate whether others might be needed. It is enough
to say that Poole was not deprived of dental services
for reasons beyond his control.
Poole does, however, urge that he should have been
given the benefit of one of those exemptions: the one for
a follow-up visit ordered by a physician. But that is just
a state-law question that cannot be pursued under
§ 1983. E.g., Allison v. Snyder, 332 F.3d 1076, 1078-79 (7th
Cir. 2003) (citing Pennhurst State Sch. & Hosp. v. Halderman,
465 U.S. 89, 106 (1984)); McMullen v. Maple Shade Twp.,
643 F.3d 96, 101 (3d Cir. 2011).
Isaacs did not deny dental care for Poole, nor is she
to blame for the delay in treatment. Poole had sufficient
funds in his trust fund account but opted to refuse treat-
ment rather than part with his money. Even though he
was in pain until he received treatment, the delay in
No. 11-2903 7
receiving care was of his own making. For that reason
the district court correctly ruled that Isaacs was entitled
to summary judgment in her favor and that Poole failed
to state a claim against the other defendants.
We have reviewed Poole’s remaining arguments, and
none has merit. Indeed, both the original lawsuit and
this appeal are so lacking in merit that they warrant the
imposition of two strikes under 28 U.S.C. § 1915(g). The
judgment of the district court is A FFIRMED.
12-28-12
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787 So.2d 350 (2001)
Sandra Watkins TERRICK, Individually and as Natural Tutrix of Summer Watkins, Odessa Watkins Crouch, Wife of the Decedent Alexander Crouch, Individually and as Natural Tutrix of Jacqueline Watkins, Sallie B. Crouch, et al.
v.
STATE of Louisiana Through the DEPARTMENT OF CULTURE, RECREATION AND TOURISM, the City of New Orleans, New Orleans City Park Amusement, Inc., ABC Paddle Boat Company and XYZ Insurance Company.
No. 2000-CA-0822.
Court of Appeal of Louisiana, Fourth Circuit.
March 21, 2001.
*351 Gerald P. Webre, Metairie, Thomas A. Gennusa, II, Gina A. Gennusa, The Law Offices of Thomas A. Gennusa, II, Metairie, Counsel for Plaintiffs/Appellants.
David M. Latham, Jan T. Van Loon, Brook, Van Loon & Latham, L.L.P., New Orleans, Counsel for Defendant/Appellee.
Court composed of Judge DENNIS R. BAGNERIS Sr., Judge MICHAEL E. KIRBY, Judge DAVID S. GORBATY.
KIRBY, J.
Sandy Terrick and Willie Watkins appeal the Judgment of the trial court, which denied their Motion to Set Matter for Trial and their Partial Motion to Vacate. We affirm the trial court.
STATEMENT OF THE CASE
On September 24, 1993, Plaintiffs-Appellants initiated this action seeking damages for injuries resulting from a tragic paddle boat accident which occurred in the *352 New Orleans City Park lagoon adjacent to Marconi Meadows. Parties to the original petition included Plaintiffs Sandra Watkins Terrick, Individually and as Natural Tutrix of Summer Watkins, Odessa Watkins Crouch, wife of the decedent, Alexander Crouch, Individually and as Natural Tutrix of Jacqueline Watkins, Alexander Hutchinson, son of decedent Alexander Crouch, Lovie Modene Osborn, as Natural Tutrix of Decharo Olinta Osburn, daughter of decedent, and Alphonse Crouch. Defendants-Appellees are the State of Louisiana through the Department of Culture, Recreation and Tourism, the City of New Orleans, New Orleans City Park Amusement, Inc., ABC Paddle Boat Company and XYZ Insurance Company. Plaintiffs filed a "First Supplemental and Amending Petition" on February 17, 1994, deleting defendant Department of Culture, Recreation and Tourism from the caption of the lawsuit and naming as defendant New Orleans City Park Improvement Association. On June 30, 1994, Plaintiffs filed a "Second Supplemental and Amending Petition" to add as Plaintiffs Sandy Terrick, through her Natural Tutrix Sandra Watkins Terrick, James Crouch, brother of the decedent Alexander Crouch, Henry Crouch, brother of the decedent Alexander Crouch, and Willie Watkins, grandmother of Summer Watkins.
Prior to trial on the merits, the parties agreed to a settlement of the litigation. The basic provisions of the settlement were placed on the record before the Honorable Gerald P. Fedoroff on November 28, 1994. Plaintiffs counsel prepared a first draft of a consent judgment, and on February 3, 1995, he forwarded the draft to counsel for Defendants. The Consent Judgment was to reflect the terms and conditions placed on the record in the trial court on November 28, 1994. The Consent Judgment was rendered, signed and read into the record on February 24, 1995. Thereafter, a "Receipt, Release and Indemnification Agreement" was executed by the parties and duly notarized on June 16, 1995, in which Plaintiffs directed and authorized their attorneys of record to enter a satisfaction of judgment whereby the Consent Judgment was to be noted as fully paid, satisfied, fulfilled and released of record. On October 1, 1995, Plaintiffs executed a "Satisfaction of Judgment" acknowledging that the Consent Judgment had been fully satisfied and paid by the Defendants.
On or about June 26, 1998, Plaintiffs filed a Partial Motion to Vacate Judgment Dismissing Case on the Grounds of Nullity ("Partial Motion to Vacate"). In their Partial Motion to Vacate, Plaintiffs acknowledged Defendants' settlement with Summer A. Watkins, Jacqueline N. Watkins, Decharo Olinta Osborne, Alexander Hutchinson, Sandra Watkins Terrick, Odessa Watkins Crouch, Alphonse Crouch, James Crouch and Henry Crouch and stated that they executed "in error" a Motion to Dismiss all claims of all Plaintiffs. Plaintiffs requested that the matter be set for trial on the merits to dispose of the claims of all the unspecified Plaintiffs whose claims had not been settled.
Defendants opposed the Plaintiffs' Partial Motion to Vacate, on the grounds that the Consent Judgment was a final judgment, the validity of which could only be challenged within the framework of Louisiana law. The procedural law sets forth a one year peremptive period to bring the action of nullity on the grounds of fraud or ill practice. Thus, Plaintiffs' challenge to the Consent Judgment was untimely. Defendants also contended that the parties contemplated a full and final settlement of all claims raised by all parties to the litigation, as reflected by the Consent Judgment and the circumstances surrounding the execution of the Consent Judgment, as well *353 as the Receipt, Release and Indemnification and Satisfaction of Judgment executed by the Plaintiffs and their counsel.
By Judgment dated June 7, 1999, the trial court denied the Plaintiffs' Partial Motion to Vacate, thereby refusing to vacate or nullify the Consent Judgment. Plaintiffs filed a motion for new trial, which was also denied by judgment dated January 12, 2000. Plaintiffs Sandy Terrick and Willie Watkins now seek relief in this Court.
ASSIGNMENT OF ERROR
The trial court erred when it denied plaintiffs' Motion to Vacate and Motion for New Trial because the Consent Judgment allegedly did not settle all claims.
STATEMENT OF THE LAW
At the crux of this dispute is the interpretation of the Consent Judgment, the Receipt, Release and Indemnification Agreement and the Satisfaction of Judgment.
In interpreting contracts, we are guided by the general rules contained in La. C.C. arts 2045-2057. Subject to the limits imposed by law, parties are free to contract as they choose. Zeigler v. Pleasant Manor Nursing Home, 600 So.2d 819, 822 (La.App. 3 Cir.1992). The cardinal rule, as set forth in La. C.C. art.2045, is: "Interpretation of a contract is the determination of the common intent of the parties." See Amend v. McCabe, 95-0316, p. 7 (La.12/1/95); 664 So.2d 1183, 1187; McCrory v. Terminix Service Co. Inc., 609 So.2d 883, 885 (La.App. 4 Cir.1992). When they are clear and explicit, no further interpretation may be made in search of the parties' intent. Amend, 95-0316 at p. 7, 664 So.2d at 1187; McCrory, 609 So.2d at 885.
Although Judge Fedoroff assigned no written reasons for judgment, we feel the language of these contracts[1] speaks for themselves. The query is whether these contracts were intended to terminate the litigation at hand.
The Receipt, Release and Indemnification Agreement is very demonstrative of the fact that the intent of the parties was for this agreement to terminate the litigation, to wit:
6. Indemnification of the State of Louisiana. In further consideration of the Cash Payments and Deferred Fund Payment, the Plaintiffs, severally and jointly agree to defend, protect, indemnify and hold harmless the Defendant, State of Louisiana, from and against every claim, demand, loss and expense of every kind, including but not limited to, reasonable attorney's fees, costs and expenses which may be asserted by Benson, Incorporated and/or the estate of any of the Crouch beneficiaries or heirs as a result of any claims of the Plaintiffs. Further, the Plaintiffs, respectively and each of them individually, agree to defend, protect, indemnify and hold harmless, the State of Louisiana from and against any and every claim, demand, loss and expense of every kind, including but not limited to, reasonable attorney's fees, costs and expenses which may be asserted by anyone as a result of the incident forming the basis for the Litigation. (Emphasis added.)
Receipt, Release and Indemnification Agreement, Paragraph 6.
It is inconceivable to us how this language could be interpreted in any other *354 way than that of the trial court, which viewed the contract as terminating this litigation. "When the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties' intent." La. C.C. art. 2046. "The words of a contract must be given their generally prevailing meaning." La. C.C. art. 2047. See also Inter City Express v. Canal Indemnity Company, 97-2022, p. 2 (La. App. 4 Cir. 3/18/98), 709 So.2d 1021, 1022. The Receipt, Release and Indemnification Agreement was signed by Plaintiffs' counsel.
The Consent Judgment, which was prepared and signed by Plaintiffs counsel, also indicates an intent to end litigation with said agreements. It goes into great detail about how the sums of money will be paid and when, but at the same time, it does state in its caption, Sandra Watkins Terrick, et al. and the official case number. The et al. is the abbreviation of et alii, which means "and others." This abbreviation is used to quickly refer to every plaintiff included in the original or supplemental petition(s). In this case Sandy Terrick and Willie Watkins were made Plaintiffs via the Second Supplemental and Amending Petition. Thus, the Plaintiffs-Appellants, Sandy Terrick and Willie Watkins, are included in this Consent Judgment by way of the abbreviation and case number. The fact that they did not receive any money is not indicative of any intent to exclude their claims. This is supported by the fact that there are a total of four (4) Plaintiffs who receive no monetary damages, i.e. Sandy Terrick, Willie Watkins, Sallie B. Crouch, Lovie Modene Osburn.
The Satisfaction of Judgment states that the Consent Judgment has now been fully satisfied and paid by the Defendant. It also states:
... satisfaction of the Consent Judgment is hereby acknowledged and the Clerk of Civil District Court for the Parish of Orleans is hereby authorized by the Plaintiffs, by and through their respective undersigned counsel of record to mark the docket satisfied in this matter and to otherwise, cancel and discharge the Consent Judgment. (Emphasis added.)
SATISFACTION OF JUDGMENT
This judgment has the signature of Plaintiffs' Counsel as well.
In the Trial Court Transcript on the Motion to Enter and Approve the Consent Judgment, Plaintiffs' Counsel states: Plaintiffs' Counsel:
... All plaintiffs will hold harmless the State of Louisiana and City Park against any claims brought by ... the Estate of any of the Crouch beneficiaries or heirs.
Plaintiffs' counsel argues that he placed his signature in error on all of these documents. La.C.C. Art.1949 is the law on when error vitiates consent. Comment (d), which deals with the granting of relief in such cases, gives us some guidelines. Our first question is whether this was unilateral or bilateral error. To answer this question we look to the principal cause of the State of Louisiana to enter this settlement. From the record and oral argument we conclude this was a unilateral error because the principal cause for the State was to settle and terminate this litigation. Whether an aunt or cousin of the deceased got money was not a principal cause for them to enter these contracts.
The fact that plaintiffs' counsel was in error alone may theoretically imply there was no meeting of the minds, but granting relief to plaintiffs' counsel will unjustly injure the interest of the State. Louisiana courts have often refused relief *355 for unilateral error for this reason. Hello World Broadcasting Corp. v. International Broadcasting Corp., 186 La. 589, 173 So. 115 (1937); Scoggin v. Bagley, 368 So.2d 763 (La.App. 2 Cir.1979).
Thus, although there may have been an error on the part of the Plaintiffs, it was unilateral error. To void the Consent Judgment, Receipt, Release and Indemnification Agreement and the Satisfaction of Judgment would unjustly injure the interest of the State who has already exhausted time and energy in settling and bringing this litigation to a just end. We affirm the trial court's denial of the Motion to Vacate and Motion for New Trial because we believe, as the trial court did, that the intent of the parties in their contracts was to bring this litigation to an end.
AFFIRMED.
NOTES
[1] We refer to the Consent Judgment, the Receipt, Release and Indemnification Agreement and the Satisfaction of Judgment.
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IN THE SUPREME COURT OF MISSISSIPPI
NO. 1998-CT-01727-SCT
WILLIE ALEXANDER AND CARLA VEAL ALEXANDER
v.
LYNELL BROWN AND PAMELA BROWN
ON WRIT OF CERTIORARI
DATE OF JUDGMENT: 10/22/1998
TRIAL JUDGE: HON. WILLIAM JOSEPH LUTZ
COURT FROM WHICH APPEALED: MADISON COUNTY CHANCERY COURT
ATTORNEY FOR APPELLANTS: WES W. PETERS
ATTORNEY FOR APPELLEES: DAVEY L. TUCKER
NATURE OF THE CASE: CIVIL - REAL PROPERTY
DISPOSITION: REVERSED - 08/30/2001
MOTION FOR REHEARING FILED:
MANDATE ISSUED: 9/20/2001
EN BANC.
MILLS, JUSTICE, FOR THE COURT:
¶1. Willie and Carla Veal Alexander appealed the Madison County Chancery Court's dismissal of their
trespass action against Lynell and Pamela Brown. Willie Alexander also appealed his conviction of
contempt which was based upon his actions on July 19, 1998, that were in violation of an agreed protective
order. The appeal was assigned to the Court of Appeals which affirmed the contempt conviction and
reversed and remanded the dismissal of the trespass action. The Browns petitioned for writ of certiorari
seeking reversal of the Court of Appeals' decision regarding dismissal of the trespass action and seeking to
reinstate the chancery court decision. We granted certiorari. After finding that the Court of Appeals erred in
applying an erroneous standard of review and in reversing the dismissal of the trespass action, we now
reverse the Court of Appeals' decision as it affects the trespass action and reinstate the chancery court's
dismissal of the trespass action.
FACTS
¶2. Lynell and Pamela Brown ("the Browns") purchased Lot 6 in Ingleside East Subdivision in Madison
County. Willie and Carla Alexander ("the Alexanders") owned Lots 9 and 5. The Alexanders live on Lot 9.
Lot 5 is a vacant lot adjacent to Lot 6, and is the subject of the trespass action. Prior to construction, Mr.
Alexander showed Mr. Brown what he considered the boundary between Lots 5 and 6 and suggested that
the Browns obtain a survey. Mr. Alexander also told Mr. Brown that he did not want anyone on his
property.
¶3. The Browns contracted for bulldozer work to prepare their lot for construction. On a Thursday, Mrs.
Alexander and her neighbor, Kelly Kersh, owner and resident of Lot 7, witnessed a bulldozer cross onto
Lot 5 as it was preparing Lot 6. Mrs. Alexander, accompanied by Mrs. Kersh, approached Buddy
McGowan ("McGowan"), the bulldozer operator, and asked him to stay off Lot 5. The following day, Mrs.
Kersh again witnessed the bulldozer at work on Lot 5, the Alexanders' property. She informed Mrs.
Alexander who called Mr. Alexander at his job and informed him that the bulldozer operator was again
damaging Lot 5. Mr. Alexander left work and came to deal with the problem. Mr. Alexander confronted
McGowan about the trespass and ascertained that he was working for the Browns. According to Mr.
Alexander, the bulldozer had removed dirt, grass and young trees from a strip of Lot 5, measuring 20' wide
by 150' long.
¶4. The Alexanders requested the Browns to compensate them for the alleged damage to Lot 5. The
Browns refused and sought a declaratory judgment that no trespass had occurred on Lot 5. The
Alexanders responded by filing an action for damages against the Browns caused by the alleged trespass.
The two cases were consolidated for disposition.
¶5. The Alexanders were called upon by Chancellor Lutz to present their case-in-chief first. After the
Alexanders rested, the Browns moved for dismissal based upon the failure of the Alexanders to make a
prima facie case on the issue of liability for trespass. After deliberation, Chancellor Lutz granted the
Browns' motion and dismissed the case. The Alexanders filed a motion for reconsideration which was heard
a few weeks later. Chancellor Lutz denied the motion and made more specific findings. At the hearing,
Chancellor Lutz stated that although he believed that McGowan had moved some dirt from Lot 5, the
Alexanders did not prove the elements of trespass and did not prove damages with regard to the Browns.
Chancellor Lutz stated "I have nothing in there that ties the removal of that dirt to these people [the Browns]
." The Alexanders did not call McGowan to testify.
ANALYSIS
A.
STANDARD OF REVIEW
¶6. This Court has held that the standard of review applicable on a motion to dismiss under Miss. R. Civ. P.
41(b) is different than that applicable on a motion for directed verdict. Stewart v. Merchants Nat'l Bank,
700 So. 2d 255, 258 (Miss. 1997).
In considering a motion to dismiss, the judge should consider "the evidence fairly, as distinguished
from in the light most favorable to the Plaintiff," and the judge should dismiss the case if it would find
for the defendant. "The court must deny a motion to dismiss only if the judge would be obliged to find
for the plaintiff if the plaintiff's evidence were all the evidence offered in the case." "This Court applies
the substantial evidence/manifest error standards to an appeal of a grant or denial of a motion to
dismiss pursuant to M.R.C.P. 41 (b)."
Id. at 259 (interior citations omitted).
B.
¶7. The Browns contend that the Court of Appeals applied an incorrect standard in reviewing the trial
court's decision. The Browns assert that the Court of Appeals applied the standard of review applicable to
a directed verdict in a jury case, rather than the standard of review applicable to a case before a trial judge
sitting as the trier of fact.
¶8. The record reveals that at the close of the Alexanders' case-in-chief the Browns moved to dismiss the
case based upon the Alexanders' failure to prove by a preponderance of the evidence that the Browns
committed any trespass either directly or indirectly through McGowan. The chancellor on the record stated
"I have come to the inescapable conclusion that the Alexanders failed to make a prima facie case, and I am
therefore granting the Motion to Dismiss with Prejudice."
¶9. It is clear from its recitation of the facts that the Court of Appeals realized that the trial judge had
granted a motion to dismiss rather than a directed verdict. However, the Court of Appeals erroneously
applied the standard of review of abuse of discretion, which is applicable to directed verdict. In utilizing this
erroneous standard, the Court of Appeals stated that "[b]ecause there was no proof, nor any attempt at
proof, of an independent contractor relationship, this Court finds that the chancellor abused his discretion."
¶10. Clearly, the Court of Appeals' application of an erroneous standard of review in its analysis rendered
its decision in conflict with prior cases of this Court providing the applicable standard of review for motions
to dismiss under Rule 41(b).
C.
¶11. We now turn to the issue of whether, utilizing the proper standard of review, the motion to dismiss was
properly granted. In deciding to reverse the chancellor's decision, the Court of Appeals majority states:
There are two basic flaws in the chancellor's decision. They are his findings (1) there was nothing to
connect Mr. McGowan to the damage done on Friday, and (2) Mr. McGowan was an independent
contractor.
Kelly Kersh testified to seeing the bulldozer digging on the Alexanders' property on that Friday. This
testimony is found in the trial transcript at page 30.
Mr. Alexander testified to confronting Mr. McGowan on his property on Friday.
His testimony is found in the record on pages 92-94. The testimony of these two witnesses is sufficient
to connect Mr. McGowan to the Friday damage.
The chancellor found that Mr. McGowan was an independent contractor and that therefore the
Browns were not responsible for his actions. An employer is not generally liable for the torts of an
independent contractor. Hester v. Bandy, 627 So. 2d 833,841 (Miss. 1993). However, the trial
court cannot assume that an independent contractor relationship exists. There must be some proof of
that relationship. The record is absolutely devoid of any evidence to establish that Mr. McGowan was
an independent contractor. In the absence of such evidence, the chancellor committed reversible error
in holding that McGowan was an independent contractor for whom the Browns had no responsibility.
¶12. The Court of Appeals was correct in noting that there was testimony linking McGowan to the damage
done on Friday. However, the issue was not whether McGowan had committed trespass, but instead
whether the Browns had committed trespass, either directly or indirectly through McGowan. As noted by
Chancellor Lutz, and the Court of Appeals' dissent, the Alexanders failed to prove that McGowan was an
"employee" of the Browns. This was an element on which proof was necessary in order for the Alexanders
to make a prima facie case of trespass. McGowan was not called to testify though he would have in all
likelihood provided the link necessary to hold the Browns liable for trespass. The failure to establish
employment was fatal to the Alexanders' case.
¶13. The Court of Appeals majority, however, turns the chancellor's view around, and holds that absent
proof that McGowan was not the Browns' employee, the case should have been permitted to proceed. We
disagree. McGowan's status as an independent contractor was not an affirmative defense. To the contrary,
the burden of proving that McGowan was an agent or employee of the Browns' was on the Alexanders'.
When the Alexanders rested their case, McGowan's status should have already been proven. If
McGowan's status as an employee or independent contractor was an affirmative defense, the Browns
would have accepted as true all the assertions of the complaint, and then would have raised McGowan's
status as a basis for avoidance of liability. Hertz Commercial Leasing Div. v. Morrison, 567 So.2d 832,
834-35 (Miss.1990). However, in order to make out a prima facie case against the Browns for trespass,
the Alexanders needed to prove that the Browns were liable for McGowan's actions because he was their
employee. This they failed to do. The Browns' position that McGowan was an independent contractor was
not an acceptance of the Alexanders' assertions. It was a denial.
¶14. While others testified, only two witnesses' testimony bears substantially on the present issue: Kelly
Kersh and Willie Alexander. Kelly Kersh, owner and resident of Lot 7, testified that she could observe
both the Alexander and the Brown lots from her kitchen window. In a fashion reminiscent of Gladys Kravitz
on the television series Bewitched, Mrs. Kersh watched the activity on the Brown and Alexander lots with
keen interest. In keeping with her Gladys Kravitz persona, Mrs. Kersh promptly reported her observations
to anyone who would listen. She phoned Entergy and complained that the Browns were about to hook up
to her electrical power box without her consent. She phoned the water treatment plant to find out where the
ground water on the property was going to drain. She also phoned the building inspector because she was
concerned about the slab being poured on the Brown lot, believing it to be too thin. She also kept the
Alexanders updated regarding the activities occurring on the Brown property. All in all, she recalled having
at least ten conversations with the Alexanders regarding the activities on the Brown property.
¶15. Willie Alexander also complained that workers on the Brown property crossed his vacant lot to get to
an adjoining neighbor's outdoor bathroom and that they used his property to park their vehicles. He
admitted, however, that none of the workers told him that the Browns directed them to use his property in
such a manner. In fact, Mr. Brown had a notice stating that no contractor was to go onto Lot 5 posted on
the job site. Clearly, these acts were taken despite the Browns' directions otherwise. These acts constitute
lone adventures, not joint ventures.
¶16. Mr. Alexander further admitted that he hired McGowan to do work on his own lot. He testified that he
spotted McGowan bulldozing on his property. Mr. Alexander stopped McGowan and told him to "get off
his property and stay off." McGowan explained that he had seen a snake in the brush nearby and was trying
to clear it out. Mr. Alexander, apparently no Crocodile Dundee, and fearing snakes, said "by all means,
clear that out, but keep your bulldozer off my property." Four days later, he hired McGowan to do
additional work on his own driveway. Perhaps this proof explains the Alexanders' recalcitrance to call Mr.
McGowan to testify.
¶17. Mr. Alexander also testified that he spoke with Sammy Winder, a dirt contractor, on the Brown
property. He had previously contracted with Winder to deliver a dump truck load of dirt. He himself went
onto the Brown property to pay Winder.
¶18. A review of the testimony reveals that there was a good bit of invading of neighboring lots done by the
lone adventurers in their mixed roles. Add this to the side dealings and it is difficult to know what exactly the
lone adventurers were doing at any given time. Also, it is impossible to tell at whose direction, if anyone's at
all, they were acting.
¶19. The case presented by the Alexanders was that the Browns committed a trespass solely through
McGowan, who was not a defendant in the case, and who was not called to testify. The Court of Appeals
cites authority that a person can be liable for trespass by causing someone else to commit the tortious act.
W. Page Keeton, Prosser & Keeton on the Law of Torts §13, at 73 (5th ed. 1984). We do not disagree
with the law. The point, however, is that no evidence was presented that the Browns caused McGowan to
commit the trespass. The case fails on the facts. The only evidence linking the Browns to McGowan was
that the Browns retained McGowan's services. This fact alone does not render them liable for his torts. If it
did, then the Alexanders have an additional problem, since they retained his services too. As Dean Keeton
further states in section 13, the intent necessary for a trespass is for one "to be at the place on the land
where the trespass allegedly occurred." Id. It was the absence of any proof that the Browns had this intent
that the chancellor relied upon to reject liability.
¶20. One who retains the services of an independent contractor is not generally liable for the torts that he
commits:
It is well settled that one who contracts with an independent contractor to perform certain work or
service which is not illegal, dangerous or harmful, is not liable for torts committed by him. Where,
however, the work or service to be performed in itself entails the commission of some illegal,
dangerous or tortious act, the rule obviously cannot apply, because in such instance the principal and
the independent contractor both play an integral part, are both proximate causes, of whatever harm
ensues.
Hester v. Bandy, 627 So.2d 833, 841 (Miss. 1993) (citation omitted). This general rule is applicable to
the instant case, as there was nothing illegal, dangerous, or harmful about having this lot cleared so the
Browns could build their home.
¶21. Relying on Long v. Magnolia Hotel Co., 227 Miss. 625, 86 So. 2d 493 (1956), the Alexanders, as
well as the dissent in this case, assert that the Court of Appeals properly reversed and remanded the case.
In Long, after the close of all of the evidence, the trial court granted a peremptory instruction and entered
judgment for the defendants, the adjoining landowner and contractor. The basis for the peremptory
instruction was that at least some of the damage was caused by a tornado. This Court reversed the trial
court and found that the question of negligence of the contractor and the adjoining landowner should have
been presented to the jury.
¶22. The facts of the instant case are clearly not analogous to Long, and the law used to decide Long does
not control in this case. Based upon a fair reading of the record presented before the chancellor, we find
that the evidence supports the chancellor's finding that the Alexanders failed to make a prima facie case of
trespass against the Browns. Consequently, we also find that the motion to dismiss was properly granted.
CONCLUSION
¶23. For these reasons, we reverse the judgment of the Court of Appeals and reinstate the judgment of the
chancellor as it relates to the trespass action.
¶24. JUDGMENT OF THE COURT OF APPEALS IS REVERSED.
BANKS, P.J., SMITH, WALLER AND COBB, JJ., CONCUR. McRAE, P.J., DISSENTS
WITH SEPARATE WRITTEN OPINION JOINED BY PITTMAN, C.J., AND EASLEY, J.
DIAZ, J., NOT PARTICIPATING.
McRAE, PRESIDING JUSTICE, DISSENTING:
¶25. The majority errs when it states that the Alexanders failed to prove McGowan was an agent/employee
of the Browns. Even the chancellor found that McGowan had an "employee/employer relationship with Mr.
Brown." The Alexanders proved their prima facie case of trespass when they obtained a survey of their land
and introduced this survey into evidence; proved that McGowan was an employee of the Browns; proved
McGowan was on their property on Friday, the day in question; and proved that McGowan destroyed
some of their property. For the majority to assume that McGowan was an independent contractor of the
Browns is preposterous when absolutely no evidence was presented to support this assumption. The
majority also agrees with the Court of Appeals opinion that sufficient evidence was brought forth to tie
McGowan to the Alexanders' property on Friday. The Alexanders sufficiently proved an agency
relationship between McGowan and the Browns, and this was sufficient for their case to proceed. The
Alexanders case for trespass against the Browns should not have been dismissed. For these reasons, I
dissent.
¶26. The majority, citing the chancellor and the Court of Appeals opinion, states that, "the Alexanders failed
to prove that McGowan was an 'employee' of the Browns. This was an element on which proof was
necessary in order for the Alexanders to make a prima facie case of trespass. The failure to establish
employment was fatal to the Alexanders' case." The Alexanders did in fact make their prima facie case
because they did prove that McGowan was an employee of the Browns, and therefore, was an agent of the
Browns.
¶27. An agent's authority may be actual or apparent. Under the law of agency, "a principle is bound by the
actions of its agent within the scope of that agent's real or apparent authority." Ford v. Lamar Life Ins.
Co., 513 So. 2d 880, 888 (Miss. 1987) (citing Baxter Porter & Sons Well Servicing Co. v. Venture
Oil Corp., 488 So. 2d 793 (Miss. 1986); Parmes v. Illinois Cent. Gulf R.R., 440 So. 2d 261 (Miss.
1983); College Life Ins. Co. of Am. v. Byrd, 367 So. 2d 929 (Miss. 1979)). If an agent has apparent
authority to bind his principle, then the issue of actual authority need not be reached. Baxter Porter, 488
So. 2d at 796 (citing McPherson v. McLendon, 221 So. 2d 75 (Miss. 1969); Steen v. Andrews, 223
Miss. 694, 78 So. 2d 881 (1955)). Apparent authority exists when a reasonably, prudent person with
knowledge of the nature and usages of the business involved would be justified in supposing that the agent
has the power he is assumed to have. Ford, 513 So. 2d at 888 (emphasis added); see also Bryant, Inc.
v. Walters, 493 So. 2d 933, 937 (Miss. 1986) (stating that, "If an agent wishes to escape personal liability,
he is under a positive duty to clearly disclose, and (in the absence of knowledge) not the duty of the third
party to find out on his own, that he, the agent, is not acting for himself, but on behalf of a principle.")
(citations omitted & emphasis added).
¶28. In D.L. Fair Lumber Co. v. Weems, 196 Miss. 201 (1944), 16 So. 2d 770, 771, a lumber
company owned timber that was located on Weems's land. The lumber company planned to cut and
remove the timber and obtained permission from Weems to do so. However, Weems requested that if any
of the trees were cut and hence, damaged his fence, then the employee/agent of the company, Willis, would
repair the fence before leaving the premises, so that Weems's cattle would not escape. Id.
¶29. In D.L. Fair Lumber, we held that
the owner of the timber standing on the land of another owes the latter the duty to use reasonable care
in removing the timber so as not to injure the other's property; and this duty is owed likewise to a
tenant of the landowner so far as concerns the possession and use of tenant. The obligation is one put
in or raised by the law and results from the relation of the timber owner and the owner of the land at
the time of the removal of the timber, without the necessity of any contract between them so
prescribing. The duty, moreover, is nondelegable, else the timber owner would have the
power to place its performance in the hands of a party wholly without moral or financial
responsibility and thus strip the landowner of any effective remedy for violation of the
stated duty, however gross and oppressive, other than a recourse to the nonlegal preventive
remedy of force and violence.
Therefore, the timber owner may not commit the work of the removal of the timber to an independent
contractor and thereby escape responsibility for negligent and unnecessary injury to the property of
the landowner or his tenant; and as to such injury the so-called independent contractor will be
deemed the servant or employee of the timber owner, and the latter will be liable to the landowner or
his tenant for negligent and unnecessary injuries to the same extent and as fully as had the damage
been done by the timber owner himself.
Id. at 772-73 (emphasis added).
¶30. In Long v. Magnolia Hotel Co., 227 Miss. 625, 631, 86 So. 2d 493, 495 (1956), a hotel
attempted to escape liability for damages caused by bricks and other building materials hanging over Long's
property as a result of a tornado and subsequent building repairs. The hotel denied the allegations and
further stated that if anyone should be held liable, it should be the construction company, who was an
independent contractor for the hotel. The circuit court granted the defendants a peremptory instruction and
on appeal, we reversed and remanded for a new trial, stating that, "a landowner who, himself or by others
under his direction or permission, negligently or unskillfully performs an act on his premises which may and
does inflict injury on an adjoining owner is liable for the damage so caused." Id. at 496 (citing 2 C.J.S.,
Adjoining Landowners, § 45a, at 38.) The Browns owed this duty of adjoining landowners to the
Alexanders in this case.
¶31. In this matter, the Alexanders clearly had adequate and sufficient reason to "suppose" that the
bulldozer driver, McGowan, was acting as an apparent agent of the Browns. See Ford, 513 So. 2d at 888.
Brown informed Alexander, almost immediately after meeting Alexander for the first time, that he intended
to perform construction on Lot 6. Alexander responded that he owned Lot 5 and that he did not want
Brown to trespass upon his property. Ms. Alexander and Ms. Kersh testified that they witnessed
McGowan using a bulldozer to remove dirt from the Alexanders' property, and Mr. Alexander confronted
McGowan while he was working on the property. Upon this conversation, Mr. Alexander asked
McGowan where Mr. Brown was, and McGowan stated that he did not know. However, McGowan
stated that he possessed a pager number for Mr. Brown, although he did not have it on his person at the
time. In addition, the Court of Appeals opinion and the majority agree that there was sufficient evidence
provided linking McGowan to the work done on the Alexanders' property on Friday. It is also undisputed
that dirt was removed from the Alexander lot.
¶32. These facts sufficiently meet the requirements to establish an agency relationship between McGowan
and the Browns as set forth under the law of agency and of this State. The Alexanders were correct in
assuming that McGowan was acting under the apparent authority of the Browns. In addition, the
Alexanders had a survey done illustrating the boundaries of their property, Lot 5, and introduced this survey
into evidence before the chancellor.
¶33. Contrary to the majority's assertion, the Alexanders proved their prima facie case before the
chancellor by proving McGowan's status as an apparent agent of the Browns. If the Browns wished to
disagree with this status, they had the option of raising an affirmative defense and pleading that McGowan
was an independent contractor. Furthermore, the Browns had a duty to the Alexanders as adjoining
landowners, and claiming McGowan was an independent contractor, will not relieve them of this duty. No
proof of this independent contractor status was brought before the chancellor, and the Alexanders' case
should not have been dismissed. Instead, it should be allowed to proceed to a final determination on the
merits.
¶34. For these reasons, I dissent.
PITTMAN, C.J., AND EASLEY, J., JOIN THIS OPINION.
| {
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Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
06/19/2020 12:08 AM CDT
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Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
STATE v. VANN
Cite as 306 Neb. 91
State of Nebraska, appellee, v.
Abdul F. Vann, appellant.
___ N.W.2d ___
Filed June 12, 2020. No. S-18-928.
1. Criminal Law: Convictions: Evidence: Appeal and Error. When
reviewing a criminal conviction for sufficiency of the evidence to
sustain the conviction, the relevant question for an appellate court is
whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential ele-
ments of the crime beyond a reasonable doubt.
2. Motions to Dismiss: Directed Verdict: Waiver: Appeal and Error. A
defendant who moves for dismissal or a directed verdict at the close of
the evidence in the State’s case in chief in a criminal prosecution and
who, when the court overrules the dismissal or directed verdict motion,
proceeds with trial and introduces evidence, waives the appellate right
to challenge correctness in the trial court’s overruling the motion for
dismissal or a directed verdict but may still challenge the sufficiency of
the evidence.
3. Criminal Law: Evidence: Appeal and Error. When a criminal defend
ant challenges the sufficiency of the evidence upon which a conviction
is based, the relevant question for an appellate court is whether, after
viewing the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.
4. Evidence: Waiver: Appeal and Error. A party who fails to make a
timely objection to evidence waives the right on appeal to assert preju-
dicial error concerning the evidence received without objection.
5. Convictions: Presumptions: Right to Counsel: Waiver: Proof.
Convictions obtained after Gideon v. Wainwright, 372 U.S. 335, 83 S.
Ct. 792, 9 L. Ed. 2d 799 (1963), are entitled to a presumption of regu-
larity such that records of conviction are admissible unless the defend
ant can show that he or she did not have or waive counsel at the time
of conviction.
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STATE v. VANN
Cite as 306 Neb. 91
Appeal from the District Court for Sarpy County: Stefanie
A. Martinez, Judge. Affirmed.
Thomas P. Strigenz, Sarpy County Public Defender, and
Mitchell Sell, Senior Certified Law Student, for appellant.
Douglas J. Peterson, Attorney General, and Melissa R.
Vincent for appellee.
Miller-Lerman, Cassel, Stacy, Funke, Papik, and
Freudenberg, JJ.
Papik, J.
Abdul F. Vann appeals his conviction for possession of
a deadly weapon by a prohibited person. Vann argues that
his conviction should be overturned because the State did
not introduce evidence affirmatively showing that he had or
waived counsel at the time of his prior felony conviction.
We, however, find that there was sufficient evidence to sup-
port Vann’s conviction and that the district court did not err
in admitting into evidence certified court records showing that
Vann had counsel at the time he was sentenced for his prior
conviction, but was silent as to whether he had counsel at the
time he entered his plea. Finding no error, we affirm.
BACKGROUND
This case arises out of an incident in which a law enforce-
ment officer found a set of brass knuckles in Vann’s pocket
during a search. This led the State to bring charges against
Vann for possession of a deadly weapon by a prohibited person
and carrying a concealed weapon, among other charges.
To prove that Vann was a felon and therefore prohibited
from possessing a deadly weapon, the State offered docu-
mentary evidence that Vann was convicted of possession of
cocaine in the district court for Douglas County in 1992. In
particular, the State offered exhibit 7, a five-page court record
authenticated by the clerk of the district court for Douglas
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STATE v. VANN
Cite as 306 Neb. 91
County. Exhibit 7 indicated that Vann was charged in that
court with possession of cocaine and that he appeared with
counsel for sentencing following a guilty plea. Nothing in
exhibit 7 expressly indicated that Vann was represented by
counsel at the time he entered his guilty plea or that he had
waived that right. When the State offered exhibit 7, Vann’s
counsel stated, “I have no objection to Exhibit 7 as an authen-
ticated, certified copy.” The district court received exhibit 7
into evidence.
At the conclusion of the State’s case, Vann moved to dis-
miss the charge of possession of a deadly weapon by a prohib-
ited person. Vann argued that exhibit 7 did not show that he
had or waived counsel at the time of his prior guilty plea and
was thus insufficient to establish that Vann was a prohibited
person under State v. Portsche, 258 Neb. 926, 606 N.W.2d 794
(2000). The district court denied Vann’s motion to dismiss.
Vann went on to introduce evidence of his own. After the con-
clusion of all evidence, Vann renewed his motion to dismiss on
the ground that the evidence was insufficient. The district court
overruled the motion.
The jury convicted Vann of both possession of a deadly
weapon by a prohibited person and possession of a concealed
weapon. Vann was sentenced to a term of imprisonment of 1
year for possession of a deadly weapon by a prohibited person
and 6 months for possession of a concealed weapon. The sen-
tences were ordered to be served concurrently to each other
and with a sentence for a conviction in North Dakota. After
Vann timely appealed, we moved the case to our docket. See
Neb. Rev. Stat. § 24-1106(3) (Cum. Supp. 2018).
ASSIGNMENTS OF ERROR
Vann assigns that the district court erred by (1) overruling
his motion to dismiss at the conclusion of the State’s case and
(2) finding that exhibit 7 was a valid prior conviction that
could be used to prove that he had previously been convicted
of a felony.
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STATE v. VANN
Cite as 306 Neb. 91
STANDARD OF REVIEW
[1] When reviewing a criminal conviction for sufficiency of
the evidence to sustain the conviction, the relevant question
for an appellate court is whether, after viewing the evidence in
the light most favorable to the prosecution, any rational trier
of fact could have found the essential elements of the crime
beyond a reasonable doubt. State v. Stubbendieck, 302 Neb.
702, 924 N.W.2d 711 (2019).
ANALYSIS
Vann’s assignments of error pertain only to his conviction
for possession of a deadly weapon by a prohibited person.
Both of his assignments of error challenge the State’s use of
exhibit 7 to prove that Vann had a prior felony conviction.
Vann argues that because exhibit 7 did not affirmatively show
that Vann had or waived counsel at the time of his guilty
plea in his prior case, his motion to dismiss should have been
granted and exhibit 7 should not have been admitted into evi-
dence. Though Vann’s assignments of error are similar, they
are analytically distinct and we thus consider them separately
in the sections below.
Sufficiency of Evidence.
[2] Vann’s first argument is that the district court erred
by denying the motion to dismiss he filed at the conclusion
of the State’s case. The record, however, shows that after
the State rested and Vann’s motion was denied, Vann put on
evidence of his own. Vann thereby waived the right to chal-
lenge the district court’s denial of his motion to dismiss. A
defendant who moves for dismissal or a directed verdict at the
close of the evidence in the State’s case in chief in a criminal
prosecution and who, when the court overrules the dismissal
or directed verdict motion, proceeds with trial and introduces
evidence, waives the appellate right to challenge correct-
ness in the trial court’s overruling the motion for dismissal
or a directed verdict but may still challenge the sufficiency
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STATE v. VANN
Cite as 306 Neb. 91
of the evidence. State v. Briggs, 303 Neb. 352, 929 N.W.2d
65 (2019).
[3] Vann also asserts that the evidence was insufficient to
support his conviction. When a criminal defendant challenges
the sufficiency of the evidence upon which a conviction is
based, the relevant question for an appellate court is whether,
after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.
State v. Montoya, 304 Neb. 96, 933 N.W.2d 558 (2019). In
order to review whether there was sufficient evidence to sup-
port Vann’s conviction for possession of a deadly weapon by a
prohibited person, we must therefore first determine the essen-
tial elements of the offense.
To determine the elements of a crime, we look to the text
of the statute. State v. Mann, 302 Neb. 804, 925 N.W.2d 324
(2019). The statutory definition of possession of a deadly
weapon by a prohibited person in effect at the time of the
offense is set forth in Neb. Rev. Stat. § 28-1206 (Reissue
2016). It provides, in pertinent part, that a person commits
the offense if he or she “possesses a firearm, a knife, or brass
or iron knuckles” and “has previously been convicted of a
felony.” The statutory text thus sets forth two elements that the
State was required to prove in order to convict Vann: (1) that
he possessed a firearm, a knife, or brass or iron knuckles and
(2) that he had a previous felony conviction. See, also, State
v. Castor, 257 Neb. 572, 599 N.W.2d 201 (1999) (finding that
prior felony conviction is essential element of offense of felon
in possession of firearm).
Vann does not and could not dispute that there was suf-
ficient evidence of both of the elements listed above—there
was evidence that he possessed brass knuckles and that he
had a prior felony conviction. Instead, Vann argues that the
evidence to convict was insufficient because it did not show
that he had or waived counsel at the time of his prior convic-
tion. Vann argues that our opinion in State v. Portsche, 258
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STATE v. VANN
Cite as 306 Neb. 91
Neb. 926, 606 N.W.2d 794 (2000), requires such evidence.
As we will explain below, however, Portsche did not recog-
nize any essential elements beyond those that appear in the
text of § 28-1206, and thus, an argument based on Portsche
is not properly framed as a challenge to the sufficiency of
the evidence.
In Portsche, the defendant was charged with being a felon
in possession of a firearm in violation of § 28-1206. At a
bench trial, the State offered records of a prior plea-based
conviction, but the district court found that the conviction
was not valid for purposes of § 28-1206 because the records
did not reflect that the defendant had an attorney or waived
his right to an attorney at the time of his plea. The district
court found the defendant not guilty of the charge, and the
State brought an error proceeding pursuant to Neb. Rev.
Stat. § 29-2315.01 (Reissue 1995). In the error proceeding,
the State argued that a prior uncounseled conviction could
establish that a defendant had “previously been convicted of
a felony” for purposes of § 28-1206.
We rejected the State’s argument in Portsche, citing a
prior felon in possession case, State v. Groves, 239 Neb. 660,
477 N.W.2d 789 (1991). In Groves, the defendant argued
that the trial court erred by allowing the admission of evi-
dence that he had a prior burglary conviction. The defendant
argued that evidence of his prior conviction should have
been excluded because the records failed to show that at
the time of his prior conviction, he had or waived counsel.
We noted we had previously held in the sentence enhance-
ment context that in order to prove a prior conviction, the
State was required to prove that, at the time of the convic-
tion, the defendant had or waived counsel. We determined
the State should be required to prove the same in order to
prove a prior conviction for purposes of § 28-1206. Notably,
the defendant in Groves did not frame his challenge as one
of insufficient evidence. Instead, he argued that evidence
of a prior conviction could not be admitted without proof
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STATE v. VANN
Cite as 306 Neb. 91
that the defendant had or waived counsel at the time of the
prior conviction.
We understand Portsche to have adopted a rule pertain-
ing to the admissibility of evidence of prior convictions in
felon in possession prosecutions, as opposed to recognizing
additional essential elements under § 28-1206. We reach this
conclusion for several reasons. First, as we have noted, we
look to statutory language to determine the essential elements
of the offense, and no statutory language makes reference to
the role of counsel in a prior conviction. Second, we relied
upon Groves, which discussed the same rule in the context of
an evidence admissibility challenge. Third, we summarized
our holding in admissibility terms: “Before a prior felony
conviction can be used to prove that a defendant is a felon
in a felon in possession case, the State must prove either that
the prior felony conviction was counseled or that counsel was
waived.” State v. Portsche, 258 Neb. 926, 940, 606 N.W.2d
794, 803 (2000) (emphasis supplied). And finally, if Portsche
actually made the presence or waiver of counsel at the time of
a prior conviction an essential element of the offense, juries
could be placed in the position of deciding the legal question
of whether a defendant validly waived counsel.
We recognize that in State v. Watt, 285 Neb. 647, 832
N.W.2d 459 (2013), we briefly considered a sufficiency of the
evidence argument based on Portsche. To the extent this aspect
of Watt could be read to suggest that the State is required to
prove that a defendant charged with violating § 28-1206 had
or waived counsel at the time of a prior conviction as an
essential element of the crime, it is disapproved.
For the reasons we have explained, the only essential ele-
ments the State was required to prove to convict Vann were
that he possessed brass knuckles and that he was previously
convicted of a felony. Because a rational trier of fact could
have found both of these elements beyond a reasonable doubt,
his sufficiency of the evidence challenge fails.
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Cite as 306 Neb. 91
Admissibility of Exhibit 7.
[4] Vann’s other assignment of error is that the district court
erred by finding that exhibit 7 could be used to prove that he
had previously been convicted of a felony. We understand this
assignment of error to challenge the admissibility of exhibit
7. At the time exhibit 7 was offered, Vann did not object. We
have held that a party who fails to make a timely objection to
evidence waives the right on appeal to assert prejudicial error
concerning the evidence received without objection. See, e.g.,
State v. Harris, 263 Neb. 331, 640 N.W.2d 24 (2002).
At oral argument, Vann argued that the lack of a contempo-
raneous objection to exhibit 7 does not preclude reversal of his
conviction in this case because the admission of exhibit 7 was
plain error. Vann is, of course, correct that we can recognize
plain error even when evidence is received without a timely
objection. See, e.g., State v. Kuhl, 276 Neb. 497, 755 N.W.2d
389 (2008). As we will explain, however, we do not believe
the district court committed any error, let alone plain error, by
receiving exhibit 7.
In support of his argument that exhibit 7 should not have
been admitted, Vann relies primarily on Portsche. He points
to language in Portsche stating that where a record is silent
as to whether a defendant had or waived counsel at the time
of a prior conviction, courts may not presume that the defend
ant had or waived counsel. This language from Portsche is
consistent with a line of cases from this court. Particularly
relevant to the facts of Vann’s appeal are cases within that
line of precedent, which hold that, even if there is evidence
a defendant had counsel at the time of sentencing for a prior
conviction, evidence of that conviction should not be consid-
ered in the absence of proof that the defendant also had or
waived counsel at the time of conviction. See, e.g., State v.
Hall, 268 Neb. 91, 679 N.W.2d 760 (2004); State v. Thomas,
262 Neb. 985, 637 N.W.2d 632 (2002).
This line of cases appears to have begun with State v. Smith,
213 Neb. 446, 329 N.W.2d 564 (1983). In Smith, this court
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held that courts could not presume that a defendant’s prior con-
viction was obtained in compliance with the Sixth Amendment
right to counsel. We did so in reliance on the U.S. Supreme
Court’s opinion in Burgett v. Texas, 389 U.S. 109, 88 S. Ct.
258, 19 L. Ed. 2d 319 (1967).
In Burgett, the U.S. Supreme Court held that prosecutors
in a Texas case could not use records of a prior Tennessee
conviction when those records did not show that the defend
ant had or waived counsel in the Tennessee case. The U.S.
Supreme Court held that it could not presume the defendant
had or waived counsel in the Tennessee proceedings. The
Court stated, “To permit a conviction obtained in violation of
Gideon v. Wainwright[, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed.
2d 799 (1963),] to be used against a person either to support
guilt or enhance punishment for another offense . . . is to erode
the principle of that case.” Burgett, 389 U.S. at 115.
After Smith, we continued to apply the principle we rec-
ognized in reliance on Burgett. See, e.g., State v. Orduna,
250 Neb. 602, 550 N.W.2d 356 (1996); State v. Ristau, 245
Neb. 52, 511 N.W.2d 83 (1994); State v. Nowicki, 239 Neb.
130, 474 N.W.2d 478 (1991). We were not alone among state
high courts in understanding Burgett to prohibit courts from
presuming that a prior conviction was obtained in compliance
with the Sixth Amendment. See, e.g., State v. Grenvik, 291 Or.
99, 628 P.2d 1195 (1981), overruled, State v. Probst, 339 Or.
612, 124 P.3d 1237 (2005); State v. Reagan, 103 Ariz. 287, 440
P.2d 907 (1968), overruled, State v. McCann, 200 Ariz. 27, 21
P.3d 845 (2001).
But while the principle Vann relies upon rests on a particu-
lar understanding of Burgett, a subsequent U.S. Supreme Court
decision indicated that Burgett should not be read so broadly.
In Parke v. Raley, 506 U.S. 20, 113 S. Ct. 517, 121 L. Ed. 2d
391 (1992), a federal habeas petitioner contended a Kentucky
sentencing enhancement procedure that presumed the validity
of prior convictions and required the defendant to show the
conviction was somehow invalid was unconstitutional. The
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U.S. Supreme Court disagreed, reasoning that the habeas peti-
tioner was collaterally attacking his prior convictions and that
under those circumstances, a “‘presumption of regularity’”
should attach to the prior convictions. Parke, 506 U.S. at 29.
In the course of the opinion, the Court found no merit to an
argument that Burgett would not permit a presumption that
the prior convictions were constitutionally valid. It explained
that at the time the prior conviction at issue in Burgett was
entered, state criminal defendants’ federal constitutional right
to counsel had not yet been recognized. Under those cir-
cumstances, the Parke Court said, it was not reasonable to
presume from a silent record that the prior conviction was
validly obtained.
After oral argument in this case, we asked the parties to
submit supplemental briefs addressing whether, in light of
Parke, the State or the defendant bears the burden of proving
that a prior conviction was or was not obtained in violation
of the Sixth Amendment right to counsel. Vann argued that
Parke does not call the principle first expressed in Smith into
question. The State argued that Parke rejected the broad read-
ing of Burgett upon which Smith and its progeny relied and
that a prior criminal conviction was entitled to a presumption
of regularity.
Having considered Parke and the parties’ arguments regard-
ing it, we do not believe we were correct to say that a court
can never presume that a defendant had or waived counsel
at the time of a prior conviction. Although the line of cases
beginning with Smith read Burgett to prohibit such a presump-
tion as a constitutional matter, Parke makes clear that reading
of Burgett was too broad and that Burgett does not speak to
prior convictions obtained after the recognition of a federal
constitutional right to counsel in state court in Gideon.
Not only do we believe it is not unconstitutional for a court
to extend a presumption of regularity to post-Gideon prior
convictions, we believe such a presumption is consistent with
the way our law generally treats final judgments in criminal
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cases. We have long held that judgments imposing sentences
in a criminal case are entitled to a presumption of regular-
ity and validity. See, e.g., Nicholson v. Sigler, 183 Neb. 24,
157 N.W.2d 872 (1968); Sedlacek v. Hann, 156 Neb. 340, 56
N.W.2d 138 (1952).
Furthermore, as a factual matter, we think it unlikely
that many modern convictions are obtained in violation of
a defendant’s Sixth Amendment rights. As other courts have
observed, the recognition of a constitutional right to counsel
in Gideon and the further recognition of that right in state stat-
utes or rules of criminal procedure, see, e.g., Neb. Rev. Stat.
§ 29-3903 (Cum. Supp. 2018), make it unlikely that defendants
are convicted without counsel or waiving the right thereto.
See, e.g., Com. v. Saunders, 435 Mass. 691, 761 N.E.2d 490
(2002); State v. McCann, 200 Ariz. 27, 21 P.3d 845 (2001);
State v. Glenn, No. 34790-3-II, 2007 WL 2379655 (Wash. App.
Aug. 21, 2007) (unpublished opinion listed at 140 Wash. App.
1014 (2007)). And even if a conviction is somehow obtained
in violation of Gideon, a defendant can successfully challenge
that conviction. Glenn, supra.
We are in no way breaking new ground by concluding that
Burgett does not prohibit courts from presuming that convic-
tions obtained after Gideon were obtained in compliance with
the Sixth Amendment. After Parke, many state and federal
courts have concluded that post-Gideon convictions are enti-
tled to a presumption of regularity, such that once the govern-
ment establishes the existence of a prior conviction, it becomes
the defendant’s burden to prove that he or she did not have
counsel and did not waive the right to counsel at the time of
conviction. See, e.g., U.S. v. Coppage, 772 F.3d 557 (8th Cir.
2014); U.S. v. Guerrero-Robledo, 565 F.3d 940 (5th Cir. 2009);
U.S. v. Bush, 405 F.3d 909 (10th Cir. 2005); U.S. v. Cline, 362
F.3d 343 (6th Cir. 2004); U.S. v. Jones, 332 F.3d 688 (3d Cir.
2003); U.S. v. Gray, 177 F.3d 86 (1st Cir. 1999); State v. Von
Ferguson, 169 P.3d 423 (Utah 2007); Nicely v. Commonwealth,
25 Va. App. 579, 490 S.E.2d 281 (1997). Included among
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the state high courts that have adopted this position are those
that, like us, once understood Burgett to prohibit courts from
presuming that a prior conviction was obtained in compliance
with the Sixth Amendment. See, e.g., State v. Probst, 339 Or.
612, 124 P.3d 1237 (2005); State v. McCann, 200 Ariz. 27, 21
P.3d 845 (2001).
[5] Persuaded that this approach is correct, we overrule our
prior cases to the extent they hold that courts cannot presume
that the defendant had or waived counsel at the time of a prior
conviction. See, e.g., State v. Garcia, 281 Neb. 1, 792 N.W.2d
882 (2011); State v. King, 272 Neb. 638, 724 N.W.2d 80 (2006);
State v. King, 269 Neb. 326, 693 N.W.2d 250 (2005); State v.
Hall, 268 Neb. 91, 679 N.W.2d 760 (2004); State v. Thomas,
262 Neb. 985, 637 N.W.2d 632 (2002); State v. Nelson, 262
Neb. 896, 636 N.W.2d 620 (2001); State v. Portsche, 258
Neb. 926, 606 N.W.2d 794 (2000); State v. Orduna, 250 Neb.
602, 550 N.W.2d 356 (1996); State v. Ristau, 245 Neb. 52,
511 N.W.2d 83 (1994); State v. Reimers, 242 Neb. 704, 496
N.W.2d 518 (1993); State v. Nowicki, 239 Neb. 130, 474
N.W.2d 478 (1991); State v. Green, 238 Neb. 328, 470 N.W.2d
736 (1991); State v. Sherrod, 229 Neb. 128, 425 N.W.2d 616
(1988); State v. Foster, 224 Neb. 267, 398 N.W.2d 101 (1986);
State v. Huffman, 222 Neb. 512, 385 N.W.2d 85 (1986); State
v. Schaf, 218 Neb. 437, 355 N.W.2d 793 (1984); State v. Ellis,
216 Neb. 699, 345 N.W.2d 323 (1984); State v. Ziemba, 216
Neb. 612, 346 N.W.2d 208 (1984); State v. Smith, 213 Neb.
446, 329 N.W.2d 564 (1983). We hold that post-Gideon con-
victions are entitled to a presumption of regularity such that
records of conviction are admissible unless the defendant can
show that he or she did not have or waive counsel at the time
of conviction.
To be clear, our decision leaves untouched the central
holding of Portsche that the State may not rely upon a con-
viction obtained in violation of the Sixth Amendment in
order to establish a violation of § 28-1206. Only the lan-
guage in Portsche stating that a court cannot presume that a
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prior conviction was obtained in compliance with the Sixth
Amendment is disapproved.
Additionally, we note that even though this is a case in
which a prior conviction is an element of the offense, our deci-
sion today also overrules cases in which the State attempted to
rely on prior convictions to enhance a sentence. As mentioned
above, we have previously treated rules governing the con-
sideration of records of conviction when a prior conviction is
an element of the offense as equally applicable to attempts to
use a prior conviction to enhance a sentence. See, e.g., State
v. Groves, 239 Neb. 660, 477 N.W.2d 789 (1991). Like other
courts, we see no reason to treat the two situations differently
today. See, e.g., Probst, 339 Or. at 624, 124 P.3d at 1244 (col-
lecting cases in which courts “adopted the presumption of
regularity for prior convictions used to enhance sentences or
as elements of a crime”); State v. McCann, 200 Ariz. 27, 21
P.3d 845 (2001) (holding that presumption of regularity applies
to prior convictions regardless of whether they are used to
enhance sentence or to prove element of offense).
Turning to the facts of the present case, the application
of the foregoing principles is straightforward. Via exhibit 7,
the State demonstrated the existence of a prior conviction
obtained decades after the establishment of a federal constitu-
tional right to counsel, and Vann did not object to its admis-
sion. At that point, the conviction was entitled to a presump-
tion of regularity and Vann had the burden to show that he
did not have counsel at the time of the conviction and did not
waive the right to counsel. Vann, however, introduced no evi-
dence even suggesting as much. Accordingly, the district court
did not err in receiving exhibit 7.
Response to Concurring Opinion.
Prior to concluding, we write in response to the concurring
opinion’s assertion that, in this opinion, we have adopted “new
principles of appellate law.” It appears the concurring opin-
ion believes we have done so because of the circumstances
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under which we considered the State’s argument that the line
of cases that began with State v. Smith, 213 Neb. 446, 329
N.W.2d 564 (1983), rested on a misunderstanding of Burgett v.
Texas, 389 U.S. 109, 88 S. Ct. 258, 19 L. Ed. 2d 319 (1967),
and should be overruled. As we will explain, however, the
result we reach today comes about through the application of
existing principles, not the establishment of new ones.
First, this opinion does not change our rule that generally
we do not consider issues raised for the first time on appeal.
As we recently explained, “[t]his is primarily so because a
trial court cannot commit error regarding an issue that was
never presented to it or submitted for its disposition.” State v.
Kruse, 303 Neb. 799, 811, 931 N.W.2d 148, 156 (2019). In that
same opinion, we said that “where the record adequately dem-
onstrates that the decision of a trial court is correct, although
such correctness is based on a ground or reason different
from that articulated by the trial court, an appellate court will
affirm.” Id. In the present case, we are not finding that the
trial court erred regarding an issue that was not presented to it.
Rather, we are affirming the decision of the trial court on an
alternate basis, a well-worn path in our jurisprudence.
There was also no reason for the State to raise the continu-
ing vitality of the Smith line of cases before the district court.
Not only was exhibit 7 received into evidence, Vann did not
object to its receipt. While we certainly understand that a
party generally must make objections to the actions of the trial
court to preserve subsequent appellate review, the admission of
exhibit 7 was not even a contested issue in the trial court, let
alone an issue to which the State would be expected to enter
an objection.
Neither do we believe our opinion establishes any new
principles regarding the raising of issues for the first time at
oral argument. We do not dispute that it is generally advis-
able for parties to raise issues on appeal before oral argu-
ment, but again, we have long recognized that appellate
courts may affirm a decision of a trial court where the record
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demonstrates it is correct, even if for a different reason than
that expressed by the trial court. Here, the State raised at oral
argument the continuing vitality of the line of cases beginning
with Smith; we gave the parties the opportunity to address the
issue in supplemental briefing; and ultimately, we determined
the trial court decision was correct, albeit for a reason not
expressed by the trial court judge.
Further, our own precedent indicates that we may con-
sider this issue on appeal even though the State did not
raise it in the trial court or until oral argument on appeal.
In Bassinger v. Nebraska Heart Hosp., 282 Neb. 835, 806
N.W.2d 395 (2011), an employee in a workers’ compensation
matter argued for the first time on appeal that one of our prior
cases was wrongly decided. The employer asserted that the
employee waived the argument because she did not present
it to the workers’ compensation review panel. We rejected
the employer’s position, explaining that the employee did
not waive the argument because the review panel lacked the
power to overturn our precedent. In this case, the State obvi-
ously could not have asked the trial court to overrule any
of our cases. And, under the circumstances, neither do we
believe the omission of the issue from the State’s brief on
appeal can be considered a waiver. The State filed its brief
before we moved the case to our docket, when it was pending
before the Nebraska Court of Appeals. The Court of Appeals,
like the review panel in Bassinger, lacks the authority to
overrule our precedent.
We also disagree that this opinion makes any changes to our
plain error review standard. When we review an issue for plain
error, we will reverse only when an error is plainly evident
from the record and certain other requirements are met. See,
e.g., State v. Guzman, 305 Neb. 376, 940 N.W.2d 552 (2020).
We applied that standard here, found no plain error, and there-
fore affirmed.
The concurrence does not say how it would resolve this
case under plain error review, but to the extent it suggests
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that we should have found that the receipt of exhibit 7 merely
did not rise to the level of plain error without reconsider-
ing any precedent, that course was not open to us here. Our
precedent held that it was plain error to presume that a prior
conviction was obtained in compliance with a defendant’s
Sixth Amendment rights. See, e.g., State v. Thomas, 262 Neb.
985, 637 N.W.2d 632 (2002). And to the extent the concur-
rence would have us refuse to reconsider whether something
we have held is plain error is actually error at all, that would,
rather strangely, allow a party to insulate shaky precedent
from review by declining to object at trial. We reviewed
for plain error because Vann did not object to the receipt of
exhibit 7. We do not understand why his failure to object
would preclude us from considering whether the precedent he
relied upon remains good law.
CONCLUSION
Because the district court did not err in receiving exhibit 7
and because there was sufficient evidence to support the chal-
lenged conviction under § 28-1206, we affirm.
Affirmed.
Heavican, C.J., not participating.
Miller-Lerman, J., concurring.
Regrettably, today the majority announces a wholly unforced
new chapter in Nebraska appellate jurisprudence. The major-
ity opinion establishes the following precedents:
• The Nebraska Supreme Court will consider new arguments
made by any party for the first time at oral argument before
the Nebraska Supreme Court (i.e., parties are no longer
required to present or preserve a controlling issue earlier in
the appellate process or in the lower courts); and
• “Plain error review” is now a vehicle for the Nebraska
Supreme Court for overruling precedent (i.e., the Nebraska
Supreme Court’s plain error review doctrine is no longer
limited to correcting errors committed by the trial court under
existing law plainly evident from the record).
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In my view, adoption of these new principles of appellate law
injects instability and diminishes confidence in Nebraska’s
appellate process.
Notwithstanding the foregoing, I agree that the Smith line of
precedents has become at odds with the progeny of Parke. So
applying the new substantive law announced today, I concur.
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United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 99-3524
___________
Terry Lynn Harris, *
*
Appellant, *
*
v. *
*
St. Charles County Commissioner; St. * Appeal from the United States
Charles County Sheriff; Tony Tipton, * District Court for the Eastern
Officer, Badge No. 411; Phillip * District of Missouri.
Adams, Officer, Badge No. 484; *
Unknown Simmon, Officer, Badge * [UNPUBLISHED]
No. 447; Robert Smith, Officer, *
Badge No. 471; Unknown Seager, *
Officer, Badge No. 472; R. Gatewood, *
Officer, Badge No. Unknown, *
*
Appellees. *
___________
Submitted: June 22, 2000
Filed: June 29, 2000
___________
Before WOLLMAN, Chief Judge, FAGG and BOWMAN, Circuit Judges.
___________
PER CURIAM.
Terry Lynn Harris appeals the district court's denial of his 42 U.S.C. § 1983
action, alleging various correctional officers violated his Eighth Amendment rights by
failing timely to administer medication and by using unreasonable force constituting
cruel and unusual punishment. Having carefully reviewed the record and the parties'
briefs, we conclude extended discussion is not required and affirm for the reasons
stated in the district court's thorough opinion. See 8th Cir. R. 47B.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
-2-
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Case: 19-11234 Date Filed: 01/08/2020 Page: 1 of 7
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 19-11234
Non-Argument Calendar
________________________
Agency No. A206-838-227
MARIA HERNANDEZ-GUEVARA, et al.,
Petitioners,
versus
UNITED STATES ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(January 8, 2020)
Before MARCUS, WILSON, and ANDERSON, Circuit Judges.
PER CURIAM:
Case: 19-11234 Date Filed: 01/08/2020 Page: 2 of 7
Maria Hernandez-Guevara and her son seek review of the Board of
Immigration Appeals’ (BIA) final order adopting and affirming the Immigration
Judge’s (IJ) denial of her application for asylum, withholding of removal, and
relief under the United Nations Convention Against Torture and Other Cruel,
Inhuman, or Degrading Treatment or Punishment (CAT). The agency denied
relief, in part, because Hernandez-Guevara did not allege a cognizable particular
social group under the Immigration and Nationality Act (INA), and because she
did not establish the necessary likelihood of torture by the Honduran government
or with its acquiescence. We affirm the BIA’s and IJ’s decisions and deny
Hernandez-Guevara’s petition.
I. ASYLUM AND WITHHOLDING OF REMOVAL
To start, Hernandez-Guevara did not abandon her opportunity to challenge
the BIA’s determinations regarding asylum and withholding of removal. We will
consider Hernandez-Guevara’s arguments because she adequately identified the
issues and relevant arguments in her brief. See Cole v. U.S. Att’y. Gen., 712 F.3d
517, 530–31 (11th Cir. 2013). Despite the dearth of citations to the record and
applicable law, she sufficiently developed her arguments—certainly making more
than “passing references” to the core issues—to avoid abandonment or waiver. See
Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 681–82 (11th Cir. 2014).
2
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We review only the BIA’s decision, “except to the extent that it expressly
adopts the IJ’s opinion.” Al Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir.
2001). Because the BIA adopted the IJ’s decision here, we review both decisions.
See id.
Hernandez-Guevara seeks asylum as a refugee. She has the burden of
proving statutory “refugee” status. INA § 208(b)(1)(B)(i), 8 U.S.C. §
1158(b)(1)(B)(i). To establish refugee status, an applicant must prove “persecution
or a well-founded fear of persecution on account of race, religion, nationality,
membership in a particular social group, or political opinion.” INA
§ 101(a)(42)(A), 8 U.S.C. § 1101(a)(42)(A).
At issue here, first, is whether Hernandez-Guevara asserted a cognizable
“particular social group,” a question of law that we review de novo. See Gonzalez
v. U.S. Att’y Gen., 820 F.3d 399, 403 (11th Cir. 2016) (per curiam). While the
INA does not define “particular social group,” we have applied Chevron deference
to the BIA’s formulation of the criteria that must be satisfied. Castillo-Arias v.
U.S. Att’y Gen., 446 F.3d 1190, 1196–97 (11th Cir. 2006). A “particular social
group” is “a group of persons all of whom share a common, immutable
characteristic.” Perez-Zenteno v. U.S. Att’y Gen., 913 F.3d 1301, 1308–09 (11th
Cir. 2019) (quoting Matter of Acosta, 19 I. & N. Dec. 211, 233 (BIA 1985),
overruled on other grounds by Matter of Mogharrabi, 19 I. & N. Dec. 439 (BIA
3
Case: 19-11234 Date Filed: 01/08/2020 Page: 4 of 7
1987)). The characteristic must be unchangeable or fundamental to individual
identities or consciences. Id. at 1309. The group must be socially distinct within
the relevant society and defined with particularity, not overbroadly or
amorphously. Id. The common characteristic must be something other than the
risk of being persecuted. See Rodriguez v. U.S. Att’y Gen., 735 F.3d 1302, 1310
(11th Cir. 2013) (per curiam); see also Matter of E-A-G-, 24 I. & N. Dec. 591,
594–95 (BIA 2008) (finding that people who resist joining gangs are not part of a
socially distinct group within Honduran society).
Here, the IJ and BIA properly found that Hernandez-Guevara’s asserted
social group—Honduran women who have been victimized by the Mara 18 for
opposition to their acts—did not constitute a particular social group under the INA.
For one, Hernandez-Guevara provides no evidence suggesting that the group is
recognized as distinct in Honduran society. See Perez-Zenteno, 913 F.3d at 1309.
Further, her group is amorphous and lacks particularity. See id. Women of all
ages and backgrounds could be members. And only the human imagination limits
potential forms of victimization, making definition impossible. The same is true
for forms of opposition. Beyond that, the group is defined by the alleged
persecution, which cannot create a particular social group. See Rodriguez, 735
F.3d at 1310. Therefore, we agree with the IJ and BIA; Hernandez-Guevara’s
asserted group is not cognizable.
4
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Because the IJ and BIA properly held that Hernandez-Guevara’s alleged
group is not cognizable, we need not address her challenge to the factual findings
that she failed to show past persecution or a well-founded fear of future
persecution. Also, because Hernandez-Guevara cannot show a particular social
group for asylum, she likewise cannot show one for purposes of proving
withholding of removal. See INA § 241(b)(3)(A), 8 U.S.C. § 1231(b)(3)(A).
Accordingly, the IJ and BIA did not err in denying Hernandez-Guevara’s asylum
and withholding of removal claims.
II. CAT
Turning to Hernandez-Guevara’s CAT relief claim, we must address the
government’s argument that we lack jurisdiction because she failed to exhaust her
administrative remedies. We “may review a final order of removal only if . . . the
alien has exhausted all administrative remedies available to [her] as of right.” INA
§ 242(d)(1), 8 U.S.C. § 1252(d)(1). The exhaustion requirement is jurisdictional
and precludes review of a claim not presented to the BIA. Amaya-Artunduaga v.
U.S. Att’y Gen., 463 F.3d 1247, 1250 (11th Cir. 2006) (per curiam). To exhaust an
issue, all we require is that the party raise before the BIA the “core issue” now on
appeal, not the specific reasons the IJ gave for denying relief. Montano Cisneros v.
U.S. Att’y Gen., 514 F.3d 1224, 1228 n.3 (11th Cir. 2008). A petitioner need not
have used “precise legal terminology” or provided the BIA with “a well-developed
5
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argument,” so long as she gave the BIA sufficient information to allow it to review
and correct any errors. Indrawati v. U.S. Att’y Gen., 779 F.3d 1284, 1297 (11th
Cir. 2015) (alteration accepted). “This is not a stringent requirement.” Id.
Here, Hernandez-Guevara exhausted her administrative remedies. In her
brief to the BIA, she raised the “core issue” of the IJ’s denial of her CAT claim.
See Montano Cisneros, 514 F.3d at 1228 n.3. She provided a legal standard
evoking torture and the more-likely-than-not standard, argued that the IJ erred in
weighing the evidence, and stated that she had established that she would more
likely than not be tortured upon return to Honduras. Indeed, the BIA then
addressed these arguments in its decision. Though her arguments were not
necessarily well developed, she gave the BIA sufficient information to allow it to
review and correct errors as to the weighing of the evidence. See Indrawati, 779
F.3d at 1297.
Turning to the merits, we uphold a denial of CAT relief if it is supported by
substantial evidence; the record must compel reversal. See Alim v. Gonzales, 446
F.3d 1239, 1254–55, 1257 (11th Cir. 2006). The applicant bears the burden of
proving that it is more likely than not that she would be tortured if removed to the
proposed country of removal. Reyes-Sanchez v. U.S. Att’y Gen., 369 F.3d 1239,
1242 (11th Cir. 2004); 8 C.F.R. § 208.16(c)(2). To qualify as torture, the requisite
pain and suffering must be “inflicted by or at the instigation of or with the consent
6
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or acquiescence of a public official or other person acting in an official capacity.”
8 C.F.R. § 208.18(a)(1). Acquiescence requires that the government, prior to the
activity constituting torture, be aware of such activity and fail to intervene.
Reyes-Sanchez, 369 F.3d at 1242.
Hernandez-Guevara argues that, if she returns to Honduras, it is more likely
than not that she will be killed or kidnapped by the Mara 18 with the government’s
acquiescence because the gang’s crimes are a normal occurrence and the police do
not protect citizens from the gang. Though some record evidence may support a
contrary conclusion, the record does not compel us to find that Hernandez-Guevara
would more likely than not suffer torture by the Honduran government or with its
acquiescence. See Alim, 446 F.3d at 1254–55. The Honduran constitution and
laws prohibit government torture, and the government formed a commission to
address the problem of persons displaced by violence and gang activity. More
specifically to Hernandez-Guevara, the police responded to the report her family
filed concerning the incident where the Mara 18 tied and beat her and her
grandparents and shot her cousin. Thus, substantial evidence supports the IJ’s and
BIA’s denial of Hernandez-Guevara’s claim for CAT relief.
PETITION DENIED.
7
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991 F.2d 800
NOTICE: Seventh Circuit Rule 53(b)(2) states unpublished orders shall not be cited or used as precedent except to support a claim of res judicata, collateral estoppel or law of the case in any federal court within the circuit.UNITED STATES of America, Plaintiff-Appellee,v.Gary P. KAMMERUD, Defendant-Appellant.
No. 92-1768.
United States Court of Appeals, Seventh Circuit.
Submitted March 30, 1993.*Decided April 6, 1993.
Before BAUER, Chief Judge, and EASTERBROOK, and RIPPLE, Circuit Judges.
ORDER
1
Gary Kammerud is serving a sentence of 41 months in the federal correctional facility in Yankton, South Dakota. He appeals from the district court's denial of his pro se motion for correction of the judgment and commitment order, a request the court may grant under Federal Rule of Criminal Procedure 36.
2
* Kammerud pleaded guilty to one count of possession with intent to distribute cocaine. At the time he broke the federal drug laws, he was on probation for violating the laws of Wisconsin. Due in part to his federal conviction, Kammerud's state probation was revoked and he was sentenced to a term of imprisonment that he served in a Wisconsin state prison. Before federal sentencing, however, the state of Wisconsin placed him on parole and turned him over to federal authorities.
3
At sentencing, Chief Judge Crabb stated that "[t]he sentence is to be served concurrently with any term of confinement the defendant is currently serving with the Wisconsin Department of Corrections." R. 72. The judgment order differs by one word: "This sentence is to be served concurrently with any term of confinement the defendant is currently serving with the Wisconsin Department of Corrections." R. 69, at 2 (emphasis added).
4
Kammerud's pro se motion asserts that the BOP "is not crediting Defendant in a manner that would constitute a concurrent sentence". Appellant's Brief, filed Aug. 17, 1992, App. at 7. According to Kammerud, the BOP is computing the federal term of imprisonment to begin after Kammerud's parole from the Wisconsin Department of Corrections. Kammerud states that the only "true" way for the state and federal sentences to run concurrently under the United States Sentencing Guidelines is for the judgment to state that he serve his sentence in a Wisconsin correctional facility.
5
The district court interpreted Kammerud's motion under Rule 36 as a demand for credit on his federal sentence for the time he spent in state custody prior to sentencing. In her order Chief Judge Crabb stated that she did not intend for Kammerud to receive this sort of credit when sentencing him to concurrent state and federal sentences. Concluding that the judgment order therefore required no correction, the court denied Kammerud's motion.
II
6
On appeal counsel contends that the motion is not an attempt by Kammerud to receive credit on the federal sentence for time spent in a Wisconsin prison. Rather, the motion endeavors to modify the judgment "to effectuate the trial court's expressed intent to make the defendant's sentence concurrent with his state sentence." Appellant's Reply Brief, filed Sept. 29, 1992, at 1.
7
By Kammerud's estimation the sole question on appeal requires the court to consider de novo whether the language in the district court order was legally sufficient to achieve concurrent state and federal sentences. We do not agree either with this broad framing of the issue or that our review is plenary in this case. The district court had discretion to deny Kammerud's motion under Rule 36, and we will set aside its decision only for abuse of that discretion. United States v. Niemiec, 689 F.2d 688, 692 (7th Cir.1982). The trial court can abuse its discretion either by committing an error of law, United States v. Barber, 881 F.2d 345, 349 (7th Cir.1989), cert. denied, 495 U.S. 922 (1990), or by exceeding the "permissible bounds of judgment." American Hospital Supply v. Hospital Products, Ltd., 780 F.2d 589, 594 (7th Cir.1986).
8
The limited remedy provided by Rule 36 gives district courts a narrow berth to correct at any time "[c]lerical mistakes in judgments, orders or other parts of the record and errors in the record arising from oversight or omission...." Regardless of whether a judge, clerk, or secretary makes the mistake, Rule 36 offers possible relief to a defendant alleging clerical error in the form of either typographical errors, internal ambiguities, or inconsistencies with the expressed intent of the judge. See, e.g., United States v. McGee, 981 F.2d 271, 272 (7th Cir.1992) (discrepancy between orally expressed intention at sentencing and judgment); Niemiec, 689 F.2d at 692 (ambiguous order inconsistent with court's intent at sentencing); United States v. Dandridge, 437 F.2d 1324, 1328-29 (7th Cir.) (error in written judgment and commitment as revealed by record), cert. denied, 403 U.S. 934 (1971); United States v. Frye, 358 F.2d 140, 141 (7th Cir.1966) (ambiguous sentencing directive inconsistent with judgment and commitment order), cert. denied, 386 U.S. 1008 (1967); United States v. Gibas, 328 F.2d 833, 834 (7th Cir.1964) (divergence between oral pronouncement of sentence and written order of commitment). But in the absence of true clerical error, Rule 36 is the wrong vessel for effecting substantive changes in an order or judgment.1 See, e.g., United States v. Mares, 868 F.2d 151 (5th Cir.1989) (denial of Rule 36 motion for crediting time served prior to start of federal sentence); United States v. Ferguson, 918 F.2d 627, 630 (6th Cir.1990) (denial of Rule 36 motion for sentence to commence on a certain date).
9
Kammerud asserts that the court has failed to impose concurrent state and federal sentences because the judgment is missing language that directs service of the terms in a specific Wisconsin state correctional institution. However, far from alleging ambiguity, Kammerud acknowledges that the court's intent to impose concurrent state and federal sentences was "unambiguous and indisputable". Appellant's Brief at 8. And the only variance between the court's oral pronouncement and written judgment is the latter's substitution of "this" for "the". Nowhere in the transcript does the district court indicate that it needed to sentence Kammerud to a state prison in order to carry out concurrent state and federal sentences.
10
The cases Kammerud cites are unavailing and serve only to highlight why his motion falls beyond the scope of Rule 36. See, e.g., United States v. Thomas, 774 F.2d 807, 814 (7th Cir.1985) (involving district court's creation of "ambiguous verbiage" in sentencing directive), cert. denied, 475 U.S. 1024 (1986); United States v. Strozier, 940 F.2d 985, 987 n. 2 (6th Cir.1991) (concerning court's unintentional omission from sentencing order of its stated intention to impose a term of supervised release). Given what Kammerud is attempting to accomplish through the narrowly tailored remedy provided by Rule 36, the district court did not abuse its discretion in denying the motion to correct. As Chief Judge Crabb observed, there was nothing to correct.
11
Besides invoking the wrong procedural remedy, Kammerud is incorrect in his insistence that state and federal sentences will not run concurrently with one other unless the court orders that the prisoner serve the terms at a state rather than a federal correctional institution. In the first place, ultimate responsibility for designating the place of confinement rests with the BOP, not the district court. 18 U.S.C. § 3621(b). See also United States v. Wilson, 112 S.Ct. 1351 (1992). Be that as it may, a prisoner serving a federal sentence at a federal penitentiary can simultaneously serve a state sentence there as well. See Meagher v. Clark, 943 F.2d 1277, 1284 (11th Cir.1991) (dictum); Banach v. Ward, 404 N.Y.S.2d 926, 927 (N.Y.App.Div.1978); People v. Vitale, 360 N.Y.S.2d 375, 385 (N.Y.Cty.Ct.1974). Wisconsin law, under which Kammerud was sentenced and paroled, also provides for "sentences to be served in whole or in part concurrently with a sentence being served or to be served in a federal institution or an institution in another state." WIS.STAT. § 973.15(3) (1989-90). See also State v. Toy, 371 N.W.2d 386, 387-88 (Wis.Ct.App.1985). Concurrent sentences are nothing more than at least two terms of imprisonment, all or part of which run at the same time as each other. Carnine v. United States, 974 F.2d 924, 929 (7th Cir.1992). By no means need they always involve the crediting of time served on one against the other. In any event, Kammerud now denies that he is seeking nunc pro tunc credit under 18 U.S.C. § 3585(b) against his federal sentence for the time he spent incarcerated in a Wisconsin prison prior to the imposition of the federal sentence. See United States v. Brumbaugh, 909 F.2d 289 (7th Cir.1990). In short, the parole time remaining on his Wisconsin conviction can run concurrently with the 41-month federal sentence he is now serving in the federal facility at Yankton. As the district court noted, there is nothing to correct.
12
AFFIRMED.
*
After preliminary examination of the briefs, the court notified the parties that it had tentatively concluded that oral argument would not be helpful to the court in this case. The notice provided that any party might file a "Statement as to Need of Oral Argument." See Fed.R.App.P. 34(a); Circuit Rule 34(f). Kammerud filed a statement agreeing that oral argument would not be necessary. Accordingly, we consider the appeal on the basis of the briefs and the record
1
"Rule 36 was intended to allow correction of clerical errors, not to allow reassessment of the merits of an earlier decision after the time for reconsideration or appeal had elapsed." United States v. Jones, 608 F.2d 386, 389 (9th Cir.1979) (footnote omitted). A prisoner may challenge the computation of his federal sentence by filing a petition for habeas corpus in the district where he is incarcerated, 28 U.S.C. § 2241, but only after exhausting administrative remedies. United States v. Brumbaugh, 909 F.2d 289, 291 (7th Cir.1990). By contrast, in order to attack the validity of a conviction or sentence, a prisoner must file a motion under 28 U.S.C. § 2255--provided that he is proceeding in "a procedurally appropriate manner" or can show good cause for and actual prejudice resulting from his default. Theodorou v. United States, 887 F.2d 1336, 1339 (7th Cir.1989). See generally Carnine v. United States, 974 F.2d 924, 927-28 (7th Cir.1992) (comparing §§ 2241 and 2255)
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Case: 11-40096 Document: 00511788419 Page: 1 Date Filed: 03/14/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
March 14, 2012
No. 11-40096
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
JOEL LINARES-SOBERANIS,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:10-CR-331-1
Before DAVIS, DeMOSS, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Joel Linares-Soberanis (Linares) appeals his jury trial conviction and
sentence for conspiracy to possess one kilogram or more of heroin with intent to
distribute and conspiracy to import into the United States one kilogram or more
of heroin and his guilty plea conviction and sentence for possession of a firearm
by an alien in the United States on a non-immigrant visa. For the first time on
appeal, Linares argues that the Government committed prosecutorial
misconduct amounting to plain error by impermissibly bolstering witness
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
Case: 11-40096 Document: 00511788419 Page: 2 Date Filed: 03/14/2012
No. 11-40096
testimony during its examination of witnesses and jury argument. He maintains
that counsel for the Government improperly imputed the existence of a drug
conspiracy during the questioning of witnesses when the existence of a
conspiracy was an issue for the jury to determine. He asserts that counsel for
the Government improperly bolstered the credibility of witnesses by personally
vouching that witnesses would testify truthfully during opening arguments, by
asking a witness why he truthfully spoke to law enforcement officers and why
he testified truthfully, and by introducing evidence that prosecutors and law
enforcement officers stressed to witnesses that they must testify truthfully.
Linares maintains that the bolstering was improper because it implied that the
Government had superior knowledge regarding whether witnesses were
testifying truthfully. He contends that the prosecutorial misconduct affected his
substantial rights and adversely affected the fairness, integrity, and public
reputation of judicial proceedings.
Because Linares did not raise an objection in the district court, we review
for plain error only. United States v. Gracia, 522 F.3d 597, 599-600 (5th Cir.
2008). To show plain error, Linares must show an error that is clear or obvious
and that affects his substantial rights. See id. at 600. If he makes such a
showing, we have the discretion to correct the error but will do so only if it
seriously affects the fairness, integrity, or public reputation of judicial
proceedings. See id.
While questioning Government witnesses, the prosecutors imputed the
existence of a drug conspiracy. All of the questions imputing a drug conspiracy,
however, were asked after the Government had presented testimony and other
evidence that there was a drug conspiracy. Thus, the questions were based upon
the prosecutors’ fair appraisal of the testimony already given and were not
impermissible imputations that Linares was guilty based upon extrinsic
evidence not presented at trial. Cf. United States v. Tomblin, 46 F.3d 1369, 1389
2
Case: 11-40096 Document: 00511788419 Page: 3 Date Filed: 03/14/2012
No. 11-40096
(5th Cir. 1995) (holding that a prosecutor may give “a fair appraisal” of evidence
presented at trial during closing arguments).
Linares’s challenge to the statements made by a prosecutor during opening
arguments is not supported by the record. While Linares asserts that a
prosecutor declared that two cooperating co-conspirators would testify truthfully
during opening arguments, the record shows that the prosecutor stated that the
co-conspirators had entered into plea agreements requiring them to provide
truthful testimony and that the Government would recommend sentence
reductions for them after they testified truthfully. As the evidence presented at
trial showed that these were the terms of the plea agreements, the statements
made by the prosecutor during opening arguments were permissible. See United
States v. Casel, 995 F.2d 1299, 1309 (5th Cir.1993), vacated on other grounds as
to one defendant sub nom. Reed v. United States, 510 U.S. 1188 (1994).
The record shows that a prosecutor elicited testimony that she had
emphasized to a co-conspirator that he should tell the truth and testimony from
the co-conspirator that he had told the truth. A prosecutor asked one of the co-
conspirators if he was concerned about how Linares and his brothers would react
if they knew he had told the truth to law enforcement officers. Prosecutors also
elicited testimony that the plea agreements of the co-conspirators required them
to testify truthfully and that law enforcement officers had stressed to them that
they should tell the truth. While eliciting this type of testimony may sometimes
be inappropriate, it was not improper in the present case because Linares’s
defense strategy involved challenging the credibility of the co-conspirators who
testified against him. See United States v. Aguilar, 645 F.3d 319, 323 (5th Cir.
2011); United States v. Setser, 568 F.3d 482, 494 (5th Cir. 2009). Linares has not
shown that counsel for the Government committed prosecutorial misconduct,
whether constituting plain error or otherwise, by asking improper questions or
making improper arguments.
3
Case: 11-40096 Document: 00511788419 Page: 4 Date Filed: 03/14/2012
No. 11-40096
Linares argues that his counsel provided ineffective assistance at trial.
Linares, however, did not raise his ineffective assistance of counsel claims in the
district court, and the district court did not hear any evidence regarding the trial
strategy of Linares’s counsel or any other matter related to Linares’s ineffective
assistance of counsel claims. Accordingly, the record is not sufficiently developed
for us to consider Linares’s ineffective assistance of counsel claims, and the
claims are denied without prejudice to Linares’s right to raise them in a motion
to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255. See United
States v. Cantwell, 470 F.3d 1087, 1091 (5th Cir. 2006); United States v. Kizzee,
150 F.3d 497, 502-03 (5th Cir. 1998).
AFFIRMED.
4
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Order entered April 10, 2015
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-14-00054-CV
FATIMA DOLORES RODAS, Appellant
V.
LA MADELEINE OF TEXAS, INC. AND LUIS BLAS, Appellees
On Appeal from the 162nd Judicial District Court
Dallas County, Texas
Trial Court Cause No. 10-04672
ORDER
We DENY appellant’s motion for sanctions filed on March 31, 2014.
We DENY appellant’s amended motion for sanctions filed on March 31, 2014.
We DENY AS MOOT appellant’s amended emergency motion for rehearing filed on
April 2, 2014.
We OVERRULE AS MOOT appellees’ objection to appellant’s request for a free
supplemental reporter’s record filed on April 15, 2014.
We OVERRULE appellant’s objection to order denying appellant’s assertion of
inaccuracies filed on April 28, 2014.
We DENY AS MOOT appellant’s amended second motion for extension of time to file
brief filed on April 28, 2014.
/s/ BILL WHITEHILL
JUSTICE
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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
MAY 18, 2007
No. 06-12720 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-60242-CR-JIC
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ANTONIO CRUZ,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(May 18, 2007)
Before DUBINA, CARNES and KRAVITCH, Circuit Judges.
PER CURIAM:
I.
Antonio Cruz appeals his conviction for drug and firearm related offenses.
II.
Cruz was arrested after a Hallandale Beach police officer observed what
appeared to be Cruz and two other individuals selling drugs in a parking lot outside
an apartment complex. On September 22, 2005, Cruz was indicted for possession
with intent to distribute crack cocaine near a playground, in violation of 21 U.S.C.
§§ 841 and 860 (Count I); carrying a firearm in relation to a drug trafficking
offense, in violation of 18 U.S.C. § 924(c) (Count II); and possession of a firearm
by a convicted felon, in violation of 18 U.S.C. § 922(g) (Count III).
At the beginning of Cruz’s trial, the court learned that a security officer had
told several jurors not to wear their badges outside the courthouse because a female
juror had been attacked. This information then filtered through the entire jury.
Defense counsel stated the he was concerned the jury would draw conclusions
about Cruz given that he was charged with drug and firearm offenses. The district
court disagreed, but believed a curative instruction might be appropriate. The
district court then instructed the jury that it was unaware of any problems or
attacks, and asked whether any of the jurors were concerned. None of the jurors
expressed any concern, except one juror did state that he did not wish his name to
2
be part of the public record. The district court agreed to seal the names and refer to
jurors by number. Defense counsel argued that this would not cure the harm, and
he requested a mistrial. The district court denied the motion, finding that sealing
the names alleviated any concerns.
During the trial, the government called Hallandale Beach Police Department
special operations officer Thomas Honan. Honan testified that the department had
received some complaints about drugs, and, while patrolling the area in question,
he observed people loitering in the parking lot outside an apartment building. He
then obtained an unmarked car and returned to the location where he observed
Cruz and two other individuals, Earl Jackson and Mitchell Beachum, engage in
what appeared to be three separate drug transactions. In each transaction, the
purchaser would hand money to Cruz, who would place the cash in his front right
pocket, and then receive drugs from Jackson. After the third deal, Honan and
backup officers converged on the parking lot and the men were arrested. Cruz was
arrested by Officer Marsha Roaden, who conducted a pat-down and found a
firearm.
At the police station, an officer searched Cruz and found money in his right
front pocket. Cruz was then taken to another area of the station and strip searched.
While this search was occurring, Honan heard a struggle and entered the room
3
where Cruz was being searched. Honan heard Cruz say that he had swallowed the
“rock,” which Honan knew to be the street name of crack. According to Honan,
drug dealers sometimes store crack in their mouth and swallow it if police try to
search them. He also testified, however, that he did not see Cruz put drugs in his
mouth or take drugs out of his mouth at any time during the surveillance. Police
did find drugs on Jackson and Beachum, including 1.9 grams of crack on Jackson.
Officer Thomas Montellancio testified that he conducted the search of Cruz
at the station. He explained that when he took Cruz to another room for a strip
search, he removed Cruz’s handcuffs. Cruz then put his hands to his mouth and
Montellancio noticed a white rock-like object. He ordered Cruz to spit it out, but
Cruz closed his mouth and chewed. When ordered to spit it out, Cruz stated
several times that he had swallowed it. Montellancio opened Cruz’s mouth and
saw a milky white substance on his tongue.
ATF Agent Richard Young also testified at trial. He testified regarding the
firearm found on Cruz. During his testimony, he referred to the weapon once as a
“Saturday Night Special.” Defense counsel objected, asserting that the statement
was prejudicial and gave the impression the firearm was obtained illegally.
Counsel then moved for a mistrial, or at least a curative instruction. The court
concluded that the name was simply a name and was not prejudicial. The court
4
denied the motion for a mistrial and found that a curative instruction was
unnecessary.
The government then reminded the district court that it intended to introduce
evidence of prior bad acts. Prior to trial, the government had issued notice of its
intent to admit evidence of three prior bad acts under Federal Rule of Evidence
404(b) to establish intent and lack of mistake. Cruz had objected, arguing that the
evidence was prejudicial, irrelevant to the issue of intent, and too remote in time.
At trial, the government sought to admit evidence of only one prior bad act, an
incident from 1998 in which Cruz stored crack in his mouth before selling it to an
undercover officer. The government argued that this evidence was relevant to
show intent, absence of mistake, and Cruz’s method of operation. Cruz’s counsel
renewed his objection. The district court found that the evidence was relevant and
probative, and, therefore, overruled the objection. The district court did, however,
issue a limiting instruction to the jury. Officer Andrew Raphael then testified that
he had conducted an undercover drug buy from Cruz in 1998. According to
Raphael, when he arrived for the buy, Cruz removed the drugs from his mouth and
exchanged them for money.
At the conclusion of the trial, Cruz was convicted on all three counts. The
court sentenced Cruz to 188 months on Counts I and III, to run concurrently, with a
5
consecutive 60-month sentence on Count II.
III.
We review a district court’s refusal to grant a mistrial for abuse of
discretion. United States v. Newsome, 475 F.3d 1221, 1227 (11th Cir. 2007);
United States v. Perez, 30 F.3d 1407, 1410 (11th Cir. 1994). A mistrial should be
granted if the defendant’s substantial rights are prejudicially affected. Newson,
475 F.3d at 1227. This occurs when there is a reasonable probability that, but for
the remarks, the outcome of the trial would have been different. Id. In
determining whether the defendant’s substantial rights were affected, this court
considers the context of the entire trial and whether any curative instruction was
given. Id. Furthermore, when the record contains sufficient independent evidence
of guilt, any error is harmless. United States v. Adams, 74 F.3d 1093, 1097-98
(11th Cir. 1996).
We review a district court’s decision to admit evidence for abuse of
discretion. United States v. Smith, 459 F.3d 1276, 1295 (11th Cir. 2006).
IV.
A mistrial or new trial is required only if the extrinsic evidence known by
the jury posed a reasonable possibility of prejudice to the defendant. United States
v. Ronda, 455 F.3d 1273, 1299 (11th Cir. 2006); United States v. Perkins, 748 F.2d
6
1519, 1533 (11th Cir. 1984). The court must investigate the alleged impropriety,
and the defendant has the burden to show that the jury has been exposed to
extrinsic evidence or extrinsic contacts. Remmer v. United States, 347 U.S. 227,
229, 74 S.Ct. 450, 451, 98 L.Ed. 654 (1954); McNair v. Campbell, 416 F.3d 1291,
1307-08 (11th Cir. 2005), cert. denied, 126 S.Ct. 1828 (2006); United States v.
Counsins, 842 F.2d 1245, 1247 (11th Cir. 1988). Once the defendant establishes
that such exposure in fact occurred, prejudice is presumed and the burden shifts to
the government to rebut the presumption. See Remmer, 347 U.S. at 229; McNair,
416 F.3d at 1307-08.1 To rebut the presumption of prejudice, the government must
show that the jurors’ consideration of extrinsic evidence was harmless to the
defendant. Remmer, 347 U.S. at 229; McNair, 416 F.3d at 1307-08. To evaluate
whether the government has rebutted that presumption, we consider the totality of
the circumstances surrounding the introduction of the extrinsic evidence to the
1
Although prior precedent recognized the presumption of prejudice from Remmer, this
Court, on at least two later occasions, has stated that prejudice is not presumed even when jurors
considered extrinsic evidence. United States v. Rowe, 906 F.2d 654, 656-57 (11th Cir. 1990);
United States v. De La Vega, 913 F.2d 861, 870 (11th Cir. 1990). In Martinez, we recognized
“the apparent conflict between the standard pronounced in Rowe and the unambiguous mandate
of Remmer.” Martinez, 14 F.3d at 550 n.3. We declined to resolve the conflict because it had
no bearing on the outcome in Martinez. Id.
As in Martinez, the presumption of prejudice does not drive the outcome of this appeal.
Even granting Appellant the presumption of prejudice, we conclude that the government has
sufficiently rebutted that presumption. Accordingly, we again decline to consider the issue
further.
7
jury. Remmer, 347 U.S. at 229-30; McNair, 416 F.3d at 1307-08. The factors we
consider “include (1) the nature of the extrinsic evidence; (2) the manner in which
the information reached the jury; (3) the factual findings in the district court and
the manner of the court’s inquiry into the juror issues; and (4) the strength of the
government’s case.” See McNair, 416 F.3d at 1307-08.
Cruz first argues that he was denied a fair and impartial jury when the
district court denied his motion for a mistrial because the jurors were influenced
and biased by the comment that other jurors had been attacked. Nothing in the
statement by the security guard to the jury, however, connected the alleged attack
to Cruz. Furthermore, when the district court questioned the jurors, only one juror
expressed concern about his name being made public. Finally, after the district
court assured the jury that their names would be sealed, none of the jurors
expressed any further concern. As such, it does not appear that the security guard’s
comments prejudiced the jury. Even if we were to assume prejudice, the
government rebutted the presumption. The government’s case was strong,
including officer Honan’s observation of Cruz participating in three drug deals and
placing money from the deals in his right front pocket, where cash was later found,
the discovery of a firearm when Cruz was searched by officer Roaden, Cruz’s
admission that he swallowed the drugs, and the observation of officer Montellancio
8
that Cruz shoved something in his mouth and that there was a milky substance on
Cruz’s tongue. Moreover, each juror confirmed that they did not have any
concerns and could be impartial. Ronda, 455 F.3d at 1300-01; United States v.
Gabay, 923 F.2d 1536, 1542-43 (11th Cir. 1991) (considering the court’s actions to
ensure the jury was impartial). Accordingly, the district court did not abuse its
discretion in denying the mistrial on these grounds.
Cruz next argues that a mistrial should have been granted when one of the
witnesses referred to the gun as a “Saturday Night Special.” Contrary to Cruz’s
argument, there is no improper or prejudicial connotation associated with this term
for the gun. The term is often used to describe small, inexpensive handguns. See
United States v. Coleman, 22 F.3d 126, 131 n.4 (7th Cir. 1994). Moreover, it was
a single and isolated comment. See United States v. Ruz-Salazar, 764 F.2d 1433
(11th Cir. 1985); United States v. Benz, 740 F.2d 903 (11th Cir. 1984). Even if the
comment was improper, we should not reverse “when there is other significant
evidence of guilt which reduces the likelihood that the otherwise improper
testimony had a substantial impact upon the verdict of the jury.” United States v.
Perez, 30 F.3d 1407, 1411 (11th Cir. 1994) (internal citations and quotation marks
omitted). As discussed above, the government’s evidence against Cruz was strong.
Accordingly, the district court did not abuse its discretion by denying the motion
9
for a mistrial on these grounds.
Finally, Cruz argues that the evidence related to his prior conviction was
prejudicial and should not have been admitted. He argues that the prior conviction
was seven years earlier and too remote in time and that in the instant case he was
not the person supplying the drugs, and, therefore, the prior crime did not establish
any intent.
Under Rule 404(b), “[e]vidence of other crimes, wrongs, or acts is not
admissible to prove the character of a person in order to show action in conformity
therewith. It may, however, be admissible for other purposes, such as proof of
motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of
mistake or accident . . . .” Fed. R. Evid. 404(b). Evidence is admissible under
Rule 404(b) if: “(1) it is relevant to an issue other than the defendant’s character;
(2) the prior act is proved sufficiently to permit a jury determination the defendant
committed the act; and (3) the evidence’s probative value cannot be substantially
outweighed by its undue prejudice, and it must satisfy Federal Rule of Evidence
403.” United States v. Eckhardt, 466 F.3d 938, 946 (11th Cir. 2006); Jernigan, 341
F.3d 1273, 1280 (11th Cir. 2003). Cruz does not challenge whether the prior
convictions were proven sufficiently, and, therefore, only the first and third prongs
of the Eckardt analysis are at issue.
10
Here, the prior conviction was relevant to show intent and absence of
mistake. Cruz’s defense was that here he was merely present, was not a supplier,
and was not involved in the drug buys. As such, Cruz placed his intent and lack of
mistake at issue, and the evidence was admissible to prove these elements.
Jernigan, 341 F.3d at 1281-82. We also conclude that the time span between
Cruz’s 1998 conduct and the conduct here does not render the previous incident
too remote for proper consideration. See, e.g., United States v. Calderon, 127 F.3d
1314, 1332 (11th Cir. 1997) (a six-year span did not render the extrinsic acts too
remote for proper consideration); United States v. Lampley, 68 F.3d 1296, 1300
(11th Cir. 1995) (the district court’s admission of testimony regarding prior drug
dealing fifteen years before was not an abuse of discretion); United States v.
Pollock, 926 F.2d 1044, 1048 (11th Cir. 1991) (a five-year span did not render the
extrinsic conduct too remote for proper consideration). Furthermore, the probative
value of the evidence outweighed the prejudicial value. The evidence established
that Cruz used this technique to store and conceal drugs in the past. The evidence
also corroborated the officers’ testimony that Cruz put something in his mouth and
stated that he swallowed the drugs. Thus, the evidence was relevant and probative.
Moreover, the district court instructed the jury that the evidence was admissible for
the limited purpose of showing intent and absence of mistake, and not to determine
11
whether Cruz committed the instant offense. Jernigan, 341 F.3d at 1282.
Therefore, the court did not abuse its discretion by admitting the prior conduct.
Even had the court erred in admitting the prior conduct, we conclude that it was
harmless error in light of the overwhelming evidence against Cruz. United States
v. Gunn, 369 F.3d 1229, 1236 (11th Cir. 2004); United States v. Harriston, 329
F.3d 779, 789 (11th Cir. 2003).
V.
Accordingly, we AFFIRM.
12
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PURSUANT TO INTERNAL REVENUE CODE
SECTION 7463(b),THIS OPINION MAY NOT
BE TREATED AS PRECEDENT FOR ANY
OTHER CASE.
T.C. Summary Opinion 2014-106
UNITED STATES TAX COURT
AJ SCROGGINS AND KELLY E. SCROGGINS, Petitioners v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 27403-12S. Filed November 13, 2014.
AJ Scroggins, pro se.
Jeffrey A. Schlei, for respondent.
SUMMARY OPINION
CARLUZZO, Special Trial Judge: This case was heard pursuant to the
provisions of section 7463 of the Internal Revenue Code in effect when the
petition was filed.1 Pursuant to section 7463(b), the decision to be entered is not
1
Unless otherwise indicated, subsequent section references are to the
Internal Revenue Code of 1986, as amended, in effect for 2010. Rule references
(continued...)
-2-
reviewable by any other court, and this opinion shall not be treated as precedent
for any other case.
In a notice of deficiency dated August 6, 2012 (notice), respondent
determined an $8,393 deficiency in petitioners’ 2010 Federal income tax and
imposed a section 6662(a) accuracy-related penalty.2 The issue for decision is
whether as of the close of 2010 a loan that Mr. Scroggins (petitioner) had obtained
in a prior year from a qualified employer plan (retirement plan) was in default so
as to constitute a “distribution” from that retirement plan during 2010.
Background
Some of the facts have been stipulated and are so found. At all times
relevant, petitioners were married to each other.3 At the time the petition was
filed, petitioners resided in California.
1
(...continued)
are to the Tax Court Rules of Practice and Procedure.
2
Respondent now concedes that petitioners are not liable for the accuracy-
related penalty.
3
Kelly E. Scroggins did not appear at trial and did not sign the stipulation of
facts admitted into evidence at trial. Accordingly, the case will be dismissed as to
her for lack of prosecution. See Rule 123. The decision to be entered with respect
to her, however, will be consistent with the decision to be entered with respect to
petitioner.
-3-
In December 2007 petitioner borrowed $29,700 from his section 401(k)
retirement plan. The retirement plan was administered by the Mercer Trust Co.
(Mercer), a subsidiary of Marsh & McLennan Cos., Inc. The proceeds of the loan
were paid to him in a lump sum by check on December 24 of that year. Although
it is not clear from the record, it appears that during 2008 he used some, or all, of
the loan proceeds to purchase stock in Quebecor World (Quebecor), the company
that he was employed by at the time. Petitioner sold or disposed of some, or all, of
his Quebecor stock during 2009 with a resulting capital loss that was reported on
his 2009 Federal income tax return and carried forward at least into the year in
issue.
Not all of the terms of the loan have been provided. However, it appears
that petitioner was obligated to repay the loan in monthly payments of $562.66.
The payments started in March 2008 and ended in September or October 2010,
before the loan was repaid, when petitioner lost his job with Quebecor because of
an undescribed disability.
According to Mercer’s records, the loan was in default as of the close of
2010 because petitioner failed to make the payments as required. Mercer issued to
petitioner a Form 1099-R, Distributions From Pensions, Annuities, Retirement or
Profit-Sharing Plans, IRAs, Insurance Contracts, etc., showing a $17,459.19
-4-
taxable distribution--the amount then outstanding on the loan after taking into
account the amounts repaid (retirement plan distribution). Petitioners did not
include the retirement plan distribution in the income reported on their timely filed
joint 2010 Federal income tax return. According to respondent, the retirement
plan distribution is includable in petitioners’ 2010 income.4
Discussion
Section 402(a) provides generally that distributions from a qualified plan
are taxable to the distributee in the taxable year in which the distribution occurs
pursuant to the provisions of section 72. The parties agree that the retirement plan
distribution was made from a qualified plan within the meaning of section 402.
Generally, a loan from a qualified plan is treated as a distribution from the
plan in the year the loan was made. See sec. 72(p)(1)(A). See generally Owusu v.
Commissioner, T.C. Memo. 2010-186; Plotkin v. Commissioner, T.C. Memo.
2001-71. There is an exception to this general rule, however, if the terms of the
4
The deficiency here in dispute includes the additional tax imposed by sec.
72(t). Except for the imposition of the tax in the notice, neither party made any
reference to that additional tax in anything submitted before or during trial, and
there is no evidence in the record regarding its applicability under the
circumstances before us. We assume and proceed as though the parties have
resolved the matter between them, and their agreement can be reflected in
computations to be submitted pursuant to Rule 155.
-5-
loan satisfy certain conditions. See sec. 72(p)(2).5 If the exception applies, then
no distribution is considered to have been made from the qualified plan if the
borrower satisfied the terms of the loan. If the borrower defaults, however, a
deemed distribution from the qualified plan is considered to have been made in the
year of the default. See sec. 72(p)(2)(C); Owusu v. Commissioner, T.C. Memo.
2010-186; Plotkin v. Commissioner, T.C. Memo. 2001-71.
Petitioner now agrees, more or less, that he defaulted on the loan from the
retirement plan; petitioners disagree with respondent on the year that the default
occurred and on the year that the retirement plan distribution should be deemed to
have been made. According to petitioners, the default and deemed distribution
occurred in 2011 although nothing in the record suggests that they treated the
retirement plan distribution as taxable for that year. According to respondent, the
default, and therefore the deemed distribution, occurred in 2010.
Section 1.72(p)-1, Q&A-10, Income Tax Regs., addresses the timing of a
deemed distribution upon a default on a loan from a qualified plan as follows:
5
The parties proceed as though the exception applies to the retirement plan
distribution; neither party suggests that the loan should be treated as a distribution
in the year it was made.
-6-
“Failure to make any installment payment when due in accordance
with the terms of the loan violates section 72(p)(2)(C) and,
accordingly, results in a deemed distribution at the time of such
failure.”
Petitioners have offered no reason why the default should be treated as
having occurred in 2011. Their claim that the default occurred in 2011 is
undermined not only by their agreement that petitioner failed to make any payment
on the loan after September or October 2010, but also by the records of Mercer
that confirm that fact. We find that the default occurred in 2010. It follows that
the retirement plan distribution is deemed to have been made during 2010 and is
includable in petitioners’ income for that year. Respondent’s adjustment in that
regard is sustained.
To reflect the foregoing as well as the express and apparent concessions of
the parties,
An appropriate order of dismissal
and decision will be entered under Rule
155.
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IN THE SUPREME COURT OF THE STATE OF NEVADA
NEVADA DIRECT INSURANCE No. 68905
COMPANY, A NEVADA COMPANY,
Petitioner,
vs.
THE EIGHTH JUDICIAL DISTRICT
COURT OF THE STATE OF NEVADA,
IN AND FOR THE COUNTY OF CLARK;
AND THE HONORABLE KENNETH C.
FILE
CORY, DISTRICT JUDGE, FEB 26 2016
Respondents, TRACE K. LINDEMAN
CLERK OF SUPREME COURT
and
MICHAEL SMITH AND SHARON DEPUTY CLERK
SMITH AS ASSIGNEES OF GAY
KUPERMAN; AND GAY KUPERMAN,
Real Parties in Interest.
ORDER DENYING PETITION FOR
WRIT OF MANDAMUS OR PROHIBITION
This is an original petition for a writ of mandamus or
prohibition challenging a district court order denying a motion to stay the
underlying proceedings pending resolution of an appeal in a related
matter. In light of this court's resolution of Nevada Direct Insurance's
appeal in Docket No. 66561, the issue presented in this writ petition is
moot. Accordingly, we
ORDER the petition DENIED.
Hardesty
Saitta Pickering
SUPREME COURT
OF
NEVADA
(0) 1947A e
- 0 6 14114
cc: Hon. Kenneth C. Cory, District Judge
Emerson & Manke, LLP
Ganz & Hauf/Las Vegas
Eighth District Court Clerk
SUPREME COURT
OF
NEVADA
2
(Oj 1947A 441,13444
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-4069
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
GREGORY BENJAMIN,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. J. Frederick Motz, District Judge. (CR-
01-62)
Submitted: June 3, 2003 Decided: June 19, 2003
Before WILKINSON, KING, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
James Wyda, Federal Public Defender, Melissa M. Moore, Staff
Attorney, Baltimore, Maryland, for Appellant. Thomas M. DiBiagio,
United States Attorney, Jacabed Rodriguez-Coss, Assistant United
States Attorney, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Gregory Benjamin appeals his 238-month sentence for possession
of a firearm by a convicted felon. Benjamin asserts that the
district court erred in sentencing him as an armed career criminal
because his 1995 predicate conviction for resisting arrest was
obtained without the benefit of counsel. We have reviewed the
briefs and joint appendix, and we find no reversible error.
Accordingly, we affirm Benjamin’s sentence for the reasons stated
by the district court. (J.A. at 101-03). We dispense with oral
argument, because the facts and legal contentions are adequately
presented in the materials before the court and argument would not
aid the decisional process.
AFFIRMED
2
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431 F.2d 469
Charles MAJURI and Joseph Caruanov.UNITED STATES of America, John N. Mitchell, Attorney General of the U. S., Frederick B. Lacey, United States Att'y for the District of New Jersey, and John Doe, any Federal Law Enforcement OfficerJoseph Caruano, Appellant in No. 18903Charles Majuri, Appellant in No. 18904.
No. 18903.
No. 18904.
United States Court of Appeals, Third Circuit.
Argued June 23, 1970.
Decided August 17, 1970.
Certiorari Denied December 7, 1970.
See 91 S.Ct. 245.
Filindo B. Masino, Berk, Masino & Moonblatt, Philadelphia, Pa., for appellants.
Frederick P. Hafetz, Justice Dept., Newark, N. J., for appellees.
Before WINTER,* ALDISERT and GIBBONS, Circuit Judges.
OPINION OF THE COURT
GIBBONS, Circuit Judge.
1
On December 16, 1969 a Federal Grand Jury sitting at Newark, New Jersey, handed up a seven count indictment (Crim. No. 545-69) against appellants, Majuri and Caruano, along with others not parties to this action. Three counts of that indictment charged appellants with conspiracy to make, the making of, and the collection of extortionate extension of credit, in violation of 18 U.S.C. §§ 891, 892, and 894 (Supp. V, 1970). That criminal case was routinely assigned to the Honorable Leonard I. Garth for pretrial motions, and he directed a time schedule for the orderly filing, briefing and argument of such motions. In the criminal case the defendants have filed a motion to dismiss so much of the indictment as charges them with violations of 18 U.S.C. §§ 891, 892, and 894, on the ground that those sections of Title 18 were enacted by Congress without constitutional authority and in violation of the Ninth and Tenth Amendments to the United States Constitution. Their contention is that Congress is without power to prohibit intrastate loansharking.
2
Appellants' motion to dismiss the loansharking counts of the indictment is still pending and undecided in the district court, solely because of the pendency of the civil action in which this appeal arises. On March 30, 1970, appellants filed a complaint alleging the fact of indictment Crim. No. 545-69, and:
3
4. Plaintiffs alleged that Sections 891, 892, and 894 of Title 18, United States Code, are repugnant to the 9th and 10th Amendments to the United States Constitution, in that they are vague, speculative, and do not charge an offense cognizable under the United States Constitution.
4
5. Plaintiffs allege that unless the defendants are restrained from enforcement of these provisions, the plaintiffs will suffer severe and irreparable harm, as more fully set forth in the affidavits attached hereto.
5
Appendix at 19.
6
In the affidavits referred to, Majuri and Caruano allege their indictment, that they have been arrested, and that they are free on substantial bail awaiting trial. They also allege:
7
3. As a consequence of the same, they have already expended, and will be in the future obliged to expend, great sums of money, as well as to undergo grave personal inconvenience and anxiety in the preparation of a defense to these charges.
8
4. Unless the Defendants are enjoined and restricted from committing the threatened acts, the Plaintiffs will suffer great and irreparable damage in that they believe, upon the advice of counsel, that Sections 891, 892 and 894 of Title 18, U.S.C. are unconstitutional and repugnant to the 9th and 10th Amendments to the United States Constitution * * *.
9
Appendix at 24-25.
10
Defendants in this civil action are described in the complaint as "the sovereign, and Law Enforcement Officials charged with the Prosecution of these matters." The prayer for relief seeks a preliminary and a permanent injunction restraining the defendants from proceeding with "any prosecution based on the provisions of Sections 891, 892, and 894 * * *."
11
With the complaint and affidavits, appellants filed a motion pursuant to 28 U.S.C. § 2284 (1964) for the convening of a three-judge district court and a motion for a preliminary injunction. The civil action was also assigned to Judge Garth. Both motions were heard by him on April 13, 1970. No answering pleadings were filed but the United States Attorney appeared and filed an extensive memorandum raising legal issues as to the sufficiency of the complaint in several particulars.
12
The government contended (1) that the claim of unconstitutionality is so insubstantial as to be frivolous, and (2) that the complaint and affidavits show no basis for equitable relief. On May 7, 1970 the district court filed a memorandum and order disposing of these contentions. Recognizing that those courts which had considered the constitutionality of the subject statutes had uniformly upheld them,1 it found, nevertheless, that the constitutional issue was at least sufficiently substantial to be beyond the province of a single judge. On the second issue, however, it held that the complaint failed to allege facts sufficient to invoke traditional equitable jurisdiction. Therefore, it denied injunctive relief, denied appellants' motion to convene a three-judge court, and dismissed the complaint.
13
Appellants filed notices of appeal and on May 19, 1970, applied to a panel of this court for injunctive relief pending appeal and for a stay of the judgment of the district court. The panel ordered an accelerated briefing schedule and referred those motions to the panel which would hear argument on the merits.
14
Although it was not always so,2 it is now clear that, at least in cases where, as here, the district court enters an appealable order, review of a refusal to convene a three-judge court lies in this court. Gunn v. University Committee, 399 U.S. 383, 90 S.Ct. 2013, 26 L. Ed.2d 684 (1970); Mengelkoch v. Industrial Welfare Commission, 393 U.S. 83, 89 S.Ct. 60, 21 L.Ed.2d 215 (1968); Wilson v. City of Port Lavaca, 391 U.S. 352, 88 S.Ct. 1502, 20 L. Ed.2d 636 (1968); Schackman v. Arnebergh, 387 U.S. 427, 87 S.Ct. 1622, 18 L. Ed.2d 865 (1967); Buchanan v. Rhodes, 385 U.S. 3, 87 S.Ct. 33, 17 L.Ed.2d 3 (1966); Idlewild Bon Voyage Liquor Corp. v. Epstein, 370 U.S. 713, 82 S.Ct. 1294, 8 L.Ed.2d 794 (1962). Since in this case we affirm that refusal, we need not now decide whether or not there is jurisdiction in the court of appeals to grant preliminary injunctive relief pending appeal, or equivalent preliminary relief within the federal judicial system by way of mandamus pending appeal, or mandamus relief in the absence of an appealable order.3
15
Appellants contend that having found the federal constitutional question to be at least not frivolous, the district court should have made no further inquiry, but should thereupon have entertained the request for a three judge court as a matter of form. Principal reliance for this position is upon the language of Idlewild Bon Voyage Liquor Corp. v. Epstein, supra 370 U.S. at 715, 82 S.Ct. at 1296:
16
When an application for a statutory three-judge court is addressed to a district court, the court's inquiry is appropriately limited to determining whether the constitutional question raised is substantial, whether the complaint at least formally alleges a basis for equitable relief, and whether the case presented otherwise comes within the requirements of the three-judge statute. (Italics added)
17
Appellants emphasize that their prayer for relief asks for an injunction, that the complaint contains the words "irreparable injury" and that this is all the Supreme Court intended to require by the language "at least formally alleges a basis for equitable relief."
18
We do not agree. It is clear that in determining the substantiality of the claimed constitutional question the district court makes a judicial decision. Schneider v. Rusk, 372 U.S. 224, 83 S.Ct. 621, 9 L.Ed.2d 695 (1963); Ex parte Poresky, 290 U.S. 30, 54 S.Ct. 3, 78 L. Ed. 152 (1933); Fiumara v. Texaco, Inc., 240 F.Supp. 325, 326 (E.D.Pa. 1965); Miller v. Smith, supra note 2. Its function is analagous to that of a court reviewing a complaint for legal sufficiency under Rules 12(b)(1) or 12(b)(6) of the Fed.R.Civ.P. Hargrave v. McKinney, 413 F.2d 320, 324 (5 Cir. 1969). We cannot attribute to the Supreme Court the intention, in the same sentence of Idlewild Bon Voyage Liquor Corp. v. Epstein, supra 370 U.S. at 715, 82 S.Ct. at 1294, to distinguish between the district court's role in determining substantiality of a constitutional question and its role in determining the existence of a ground for equitable relief. Both decisions are judicial rather than ministerial. Both require that the district court look beyond the prayer for relief to the substantive allegations of the complaint.
19
Appellants suggest, however, that the decision as to substantiality of the federal constitutional question is "jurisdictional", at least in non-diversity cases, whereas a decision that the complaint fails to state a claim for equitable relief is a decision "on the merits" and hence one which by virtue of 28 U.S.C. § 2284 a single judge may not make. But it seems to us that a decision that a claimed question of constitutional law is insubstantial is even more clearly on the merits, and such decision is now a firmly established duty of a single district court judge. A finding of insubstantiality of the constitutional question is, moreover, one involving a more sophisticated judgment than that required to determine whether or not a complaint states a cause of action for injunctive relief. Over recent history far greater growth and change has taken place, and undoubtedly will continue to take place, in federal constitutional law than in the law of equitable remedies.
20
We agree, therefore, that it was the district court judge's duty to examine the complaint for substantive allegations which would support a claim for injunctive relief, and not to look merely at the prayer for relief and the conclusive allegation of irreparable injury.
21
Appellants are not faced with the choice of committing a violation of the criminal statute in order to test their constitutional contentions. There is no allegation that the pendency of the criminal charge inhibits them from engaging in protected activities. They do not allege that they should be free to continue intrastate loansharking. They say, only, that it is inconvenient and expensive to raise their constitutional contentions by appropriate pretrial and trial motions in the criminal case, though they have in fact done so. They do not even explain how it will be any less expensive to try the constitutional issues in this civil case than in the criminal case.
22
The district court, referring to Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965), and Reed Enterprises v. Corcoran, 122 U.S. App.D.C. 387, 354 F.2d 519 (1965), stressed in its memorandum the absence of any alleged infringement of first amendment rights. While activities protected by the first amendment are a common basis for injunctive relief against actual or threatened criminal prosecution, they are not the only activities worthy of such protection in appropriate circumstances. See, e.g., Hynes v. Grimes Packing Co., 337 U.S. 86, 98, 69 S.Ct. 968, 93 L.Ed. 1231 (1949); Cline v. Frink Dairy Co., 274 U.S. 445, 451, 47 S.Ct. 681, 71 L.Ed. 1146 (1927); Pierce v. Society of Sisters, 268 U.S. 510, 535, 45 S.Ct. 571, 69 L.Ed. 1070 (1925); Hygrade Provision Co. v. Sherman, 266 U.S. 497, 500, 45 S.Ct. 141, 69 L.Ed 402 (1925); Terrace v. Thompson, 263 U.S. 197, 214, 44 S.Ct. 15, 68 L.Ed. 255 (1923); Truax v. Raich, 239 U.S. 33, 37, 36 S.Ct. 7, 60 L.Ed. 131 (1915). We do not, by affirming, therefore, suggest agreement with a possible interpretation of the district court opinion, that first amendment rights are a sine qua non for injunctions against criminal prosecutions.
23
But, where, as here, the only allegation advanced in support of an injunction against a pending federal criminal prosecution is the inconvenience of that trial and the preference for a civil remedy before three judges instead of one, the complaint fails to state a claim for injunctive relief, and does not fall within the province of 28 U.S.C. §§ 2282 and 2284.
24
What is here approved is a judicious screening by the district courts of applications for three-judge panels. That screening should be done cautiously, of course, because of the procedural and jurisdictional morass into which litigants may be led by these troublesome three-judge court statutes. 28 U.S.C. §§ 2281, 2282, and 2284. But the role of the single district judge should be more than a conditioned reflex to such an application, especially now that the Supreme Court has provided for judicial review in the circuit courts of appeals at least when an appealable order has been entered.4 In most if not all cases, refusal to convene a three-judge court will be accompanied by the denial of a preliminary injunction and hence will be appealable. 28 U.S.C. § 1292 (1964).
25
One other problem remains. The district court not only denied appellants' motions to convene a three-judge court and to grant a preliminary injunction, but also dismissed the complaint. On another record the latter step might well be questionable, since it would dispose, without hearing, of a possible claim for declaratory relief. See Note, The Federal Anti-Injunction Statute and Declaratory Judgments in Constitutional Litigation, 83 Harv.L.Rev. 1870 (1970). Such relief, assuming subject matter jurisdiction, would be available from a single judge. But the Declaratory Judgment Act, 28 U.S.C. §§ 2201-02 (1964), is limited in operation to those cases which would be otherwise within the jurisdiction of the federal courts. Jurisdiction in this case depends upon 28 U. S.C. § 1331 (1964), and there is no allegation in the complaint or affidavits of the requisite jurisdictional amount. The situation might be different if the suit challenged a state statute and jurisdiction were asserted under 28 U.S.C. § 1343 (1964). Hague v. C. I. O., 307 U. S. 496, 513, 59 S.Ct. 954, 83 L.Ed. 1423 (1939). The complaint here was properly dismissed. The order of the district court will be in all respects affirmed. All motions made in this court and not heretofore disposed of will be denied.
Notes:
*
Circuit Judge of the Court of Appeals for the Fourth Circuit, sitting by designation
1
United States v. Perez, 426 F.2d 1073 (2 Cir., May 1, 1970); United States v. Biancofiori, 422 F.2d 584 (7 Cir. 1970); United States v. Curcio, 310 F.Supp. 351 (D.Conn.1970); United States v. Calegro De Lutro, 309 F.Supp. 462 (S.D.N.Y. 1970)
2
Stratton v. St. Louis S. W. Ry., 282 U.S. 10, 51 S.Ct. 8, 75 L.Ed. 135 (1930), Ex parte Metropolitan Water Co., 220 U.S. 539, 31 S.Ct. 600, 55 L.Ed. 575 (1911); Miller v. Smith, 236 F.Supp. 927 (E.D. Pa.1965)
3
See Gunn v. University Committee,supra; Jackson v. Choote, 404 F.2d 910, 912 (5 Cir. 1968); Lyons v. Davoren, 402 F.2d 890, 892 (1 Cir. 1968), cert. denied, 393 U.S. 1081, 89 S.Ct. 861, 21 L.Ed.2d 774 (1969); Sinatra v. New Jersey State Commission, 311 F.Supp. 678 (D.N.J. 1970).
4
See cases cited at 472 supra
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COURT OF APPEALS FOR THE
FIRST DISTRICT OF TEXAS AT HOUSTON
MEMORANDUM ORDER
Appellate case name: In the Interest of A. H., B. S., M. B., F.M.B, aka F. B.S., M. B. aka
S. M. and M. M. B. v. Department of Family and Protective Services
Appellate case number: 01-14-00322-CV
Trial court case number: 2013-01651J
Trial court: 314th District Court of Harris County
On March 21, 2014, a notice of appeal in this parental termination case was filed on
behalf of both the mother, H.B. (“Appellant Mother”) and father, B.B., of the subject children.
The trial court’s judgment was signed subsequently on April 3, 2014, and the notice of appeal
was received in our Court on April 23, 2014. The Clerk’s record was filed on April 25, 2014, and
the complete Reporter’s Record was filed on June 27, 2014. The father’s appellant’s brief was
filed on August 4, 2014. An appellant’s brief for the Appellant Mother has not been filed.
On August 21, 2014, retained counsel for Appellant Mother filed a “motion to withdraw
as counsel of record” in this Court. The motion states that withdrawal is sought to avoid potential
conflicts of interest and that Appellant Mother approves of the withdrawal.
Accordingly, we abate the appeal and remand the cause to the trial court to conduct a
hearing no later than August 26, 2014 at which hearing a representative of the Texas
Department of Family & Protective Services (the “Department”) and appellant’s retained counsel
shall be present. At a conference call held with the Court on August 25, 2014, the Court notified
the counsel for the parties that it would issue this abatement order.
We direct the trial court to:
1) Determine whether Appellant Mother still wishes to pursue this appeal;
2) Determine whether Appellant Mother is now indigent, and
a. If Appellant Mother is indigent, appoint substitute appellate counsel at no
expense to appellant who shall be required to file appellant’s brief by no
later than Tuesday, September 9, 2014; or
b. If Appellant Mother is not indigent, admonish appellant regarding the
dangers and disadvantages of self-representation, and:
1. determine whether appellant is knowingly and intelligently
waiving her right to counsel and, if so, obtain a written
waiver of the right to counsel; or
2. if appellant does not wish to proceed pro se, order appellant
to hire an attorney and further order that such attorney must
file appellant’s brief by no later than September 9, 2014;
3) Determine whether to allow Appellant Mother’s retained counsel to withdraw;
and
4) Make these and any other findings and conclusions that the trial court deems
appropriate on the record.
The trial court shall have a court reporter, or court recorder, record the hearing. A
supplemental clerk’s record containing any findings, recommendations, and orders of the trial
court made pursuant to this order shall be sent to this Court no later than August 27, 2014. See
TEX. R. APP. P. 34.5(c).
The appeal will be reinstated on this Court’s active docket when the supplemental clerk’s
record and the supplemental reporter’s record of the hearing are filed in this Court. The court
coordinator of the trial court shall set a hearing date and notify the parties and the Clerk of this
Court of such date.
Appellant Mother’s brief is due by no later than Tuesday, September 9, 2014. The
Department’s response brief shall be due no later than Friday, September 19, 2014. Given the
time constraints of this case, extensions of time will not be granted.
It is so ORDERED.
Judge’s signature: /s/ Jane Bland
Acting individually Acting for the Court
Date: August 25, 2014
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403 U.S. 29 (1971)
ROSENBLOOM
v.
METROMEDIA, INC.
No. 66.
Supreme Court of United States.
Argued December 7-8, 1970.
Decided June 7, 1971.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT.
*30 Ramsey Clark argued the cause for petitioner. With him on the brief was Benjamin Paul.
Bernard G. Segal argued the cause for respondent. With him on the brief were Irving R. Segal, Samuel D. Slade, and Carleton G. Eldridge, Jr.
MR. JUSTICE BRENNAN announced the judgment of the Court and an opinion in which THE CHIEF JUSTICE and MR. JUSTICE BLACKMUN join.
In a series of cases beginning with New York Times Co. v. Sullivan, 376 U. S. 254 (1964), the Court has considered the limitations upon state libel laws imposed by the constitutional guarantees of freedom of speech and of the press. New York Times held that in a civil libel action by a public official against a newspaper those guarantees required clear and convincing proof that a defamatory falsehood alleged as libel was uttered with "knowledge that it was false or with reckless disregard of whether it was false or not." Id., at 280. The same requirement was later held to apply to "public figures" who sued in libel on the basis of alleged defamatory falsehoods. The several cases considered since New York Times involved actions of "public officials" or "public figures," usually, but not always, against newspapers or magazines.[1] Common to all the cases was a *31 defamatory falsehood in the report of an event of "public or general interest."[2] The instant case presents the question whether the New York Times' knowing-or-reckless-falsity standard applies in a state civil libel action brought not by a "public official" or a "public figure" but by a private individual for a defamatory falsehood uttered in a news broadcast by a radio station about the individual's involvement in an event of public or general *32 interest.[3] The District Court for the Eastern District of Pennsylvania held that the New York Times standard did not apply and that Pennsylvania law determined respondent's liability in this diversity case, 289 F. Supp. 737 (1968). The Court of Appeals for the Third Circuit held that the New York Times standard did apply and reversed the judgment for damages awarded to petitioner by the jury. 415 F. 2d 892 (1969). We granted certiorari, 397 U. S. 904 (1970). We agree with the Court of Appeals and affirm that court's judgment.
I
In 1963, petitioner was a distributor of nudist magazines in the Philadelphia metropolitan area. During the fall of that year, in response to citizen complaints, the Special Investigations Squad of the Philadelphia Police Department initiated a series of enforcement actions under the city's obscenity laws. The police, under the command of Captain Ferguson, purchased various magazines from more than 20 newsstands throughout the city. Based upon Captain Ferguson's determination that the magazines were obscene,[4] police on October 1, 1963, arrested most of the newsstand operators[5] on charges of selling obscene material. While the police were making an arrest at one newsstand, petitioner arrived to deliver some of his nudist magazines and was immediately arrested *33 along with the newsboy.[6] Three days later, on October 4, the police obtained a warrant to search petitioner's home and the rented barn he used as a warehouse, and seized the inventory of magazines and books found at these locations. Upon learning of the seizures, petitioner, who had been released on bail after his first arrest, surrendered to the police and was arrested for a second time.
Following the second arrest, Captain Ferguson telephoned respondent's radio station WIP and another local radio station, a wire service, and a local newspaper to inform them of the raid on petitioner's home and of his arrest. WIP broadcast news reports every half hour to the Philadelphia metropolitan area. These news programs ran either five or ten minutes and generally contained from six to twenty different items that averaged about thirty seconds each. WIP's 6 p. m. broadcast on October 4, 1963, included the following item:
"City Cracks Down on Smut Merchants
"The Special Investigations Squad raided the home of George Rosenbloom in the 1800 block of Vesta Street this afternoon. Police confiscated 1,000 allegedly obscene books at Rosenbloom's home and arrested him on charges of possession of obscene literature. The Special Investigations Squad also raided a barn in the 20 Hundred block of Welsh Road near Bustleton Avenue and confiscated 3,000 obscene books. Capt. Ferguson says he believes they have hit the supply of a main distributor of obscene material in Philadelphia."
*34 This report was rebroadcast in substantially the same form at 6:30 p. m., but at 8 p. m. when the item was broadcast for the third time, WIP corrected the third sentence to read "reportedly obscene." News of petitioner's arrest was broadcast five more times in the following twelve hours, but each report described the seized books as "allegedly" or "reportedly" obscene. From October 5 to October 21, WIP broadcast no further reports relating to petitioner.
On October 16 petitioner brought an action in Federal District Court against various city and police officials and against several local news media.[7] The suit alleged that the magazines petitioner distributed were not obscene and sought injunctive relief prohibiting further police interference with his business as well as further publicity of the earlier arrests. The second series of allegedly defamatory broadcasts related to WIP's news reports of the lawsuit. There were ten broadcasts on October 21, two on October 25, and one on November 1. None mentioned petitioner by name. The first at 6:30 a. m. on October 21 was pretty much like those that followed:
"Federal District Judge Lord, will hear arguments today from two publishers and a distributor all seeking an injunction against Philadelphia Police Commissioner Howard Leary . . . District Attorney James C. Crumlish . . . a local television station and a newspaper . . . ordering them to lay off the smut literature racket.
"The girlie-book peddlers say the police crackdown *35 and continued reference to their borderline literature as smut or filth is hurting their business. Judge Lord refused to issue a temporary injunction when he was first approached. Today he'll decide the issue. It will set a precedent . . . and if the injunction is not granted . . . it could signal an even more intense effort to rid the city of pornography."
On October 27, petitioner went to WIP's studios after hearing from a friend that the station had broadcast news about his lawsuit. Using a lobby telephone to talk with a part-time newscaster, petitioner inquired what stories WIP had broadcast about him. The newscaster asked him to be more specific about dates and times. Petitioner then asked for the noon news broadcast on October 21, 1963, which the newscaster read to him over the phone; it was similar to the above 6:30 a. m. broadcast. According to petitioner, the ensuing interchange was brief. Petitioner told the newscaster that his magazines were "found to be completely legal and legitimate by the United States Supreme Court." When the newscaster replied the district attorney had said the magazines were obscene, petitioner countered that he had a public statement of the district attorney declaring the magazines legal. At that point, petitioner testified, "the telephone conversation was terminated . . . He just hung up." Petitioner apparently made no request for a retraction or correction, and none was forthcoming. WIP's final report on petitioner's lawsuitthe only one after petitioner's unsatisfactory conversation at the stationoccurred on November 1 after the station had checked the story with the judge involved.[8]
*36 II
In May 1964 a jury acquitted petitioner in state court of the criminal obscenity charges under instructions of the trial judge that, as a matter of law, the nudist magazines distributed by petitioner were not obscene. Following his acquittal, petitioner filed this diversity action in District Court seeking damages under Pennsylvania's libel law. Petitioner alleged that WIP's unqualified characterization of the books seized as "obscene" in the 6 and 6:30 p. m. broadcasts of October 4, describing his arrest, constituted libel per se and was proved false by petitioner's subsequent acquittal. In addition, he alleged that the broadcasts in the second series describing his court suit for injunctive relief were also false and defamatory in that WIP characterized petitioner and his business associates as "smut distributors" and "girlie-book peddlers" and, further, falsely characterized the suit as an attempt to force the defendants "to lay off the smut literature racket."
At the trial WIP's defenses were truth and privilege. WIP's news director testified that his eight-man staff of reporters prepared their own newscasts and broadcast their material themselves, and that material for the news programs usually came either from the wire services or from telephone tips. None of the writers or broadcasters involved in preparing the broadcasts in this case testified. The news director's recollection was that the primary source of information for the first series of broadcasts *37 about petitioner's arrest was Captain Ferguson, but that, to the director's knowledge, the station did not have any further verification. Captain Ferguson testified that he had informed WIP and other media of the police action and that WIP had accurately broadcast what he told the station. The evidence regarding WIP's investigation of petitioner's lawsuit in the second series of broadcasts was even more sparse. The news director testified that he was "sure we would check with the District Attorney's office also and with the Police Department," but "it would be difficult for me to specifically state what additional corroboration we had." In general, he testified that WIP's half-hour deadlines required it to rely on wire-service copy and oral reports from previously reliable sources subject to the general policy that "we will contact as many sources as we possibly can on any kind of a story."
III
Pennsylvania's libel law tracks almost precisely the Restatement (First) of Torts provisions on the subject. Pennsylvania holds actionable any unprivileged "malicious"[9] publication of matter which tends to harm a person's reputation and expose him to public hatred, contempt, or ridicule. Schnabel v. Meredith, 378 Pa. 609, 107 A. 2d 860 (1954); Restatement of Torts §§ 558, 559 (1938). Pennsylvania law recognizes truth as a complete defense to a libel action. Schonek v. WJAC, Inc., 436 Pa. 78, 84, 258 A. 2d 504, 507 (1969); Restatement of Torts § 582. It recognizes an absolute immunity for defamatory statements made by high state officials, even if published with an improper motive, actual malice, or knowing falsity. Montgomery v. Philadelphia, 392 Pa. 178, 140 A. 2d 100 (1958); Restatement of Torts § 591, *38 and it recognizes a conditional privilege for news media to report judicial, administrative, or legislative proceedings if the account is fair and accurate, and not published solely for the purpose of causing harm to the person defamed, even though the official information is false or inaccurate. Sciandra v. Lynett, 409 Pa. 595, 600-601, 187 A. 2d 586, 588-589 (1963); Restatement of Torts § 611. The conditional privilege of the news media may be defeated, however, by " `want of reasonable care and diligence to ascertain the truth, before giving currency to an untrue communication.' The failure to employ such `reasonable care and diligence' can destroy a privilege which otherwise would protect the utterer of the communication." Purcell v. Westinghouse Broadcasting Co., 411 Pa. 167, 179, 191 A. 2d 662, 668 (1963). Pennsylvania has also enacted verbatim the Restatement's provisions on burden of proof, which place the burden of proof for the affirmative defenses of truth and privilege upon the defendant.[10]
*39 At the close of the evidence, the District Court denied respondent's motion for a directed verdict and charged the jury, in conformity with Pennsylvania law, that four findings were necessary to return a verdict for petitioner: (1) that one or more of the broadcasts were defamatory; (2) that a reasonable listener would conclude that the defamatory statement referred to petitioner; (3) that WIP had forfeited its privilege to report official proceedings fairly and accurately, either because it intended to injure the plaintiff personally or because it exercised the privilege unreasonably and without reasonable care; and (4) that the reporting was false. The jury was instructed that petitioner had the burden of proof on the first three issues, but that respondent had the burden of proving that the reporting was true. The jury was further instructed that "as a matter of law" petitioner was not entitled to actual damages claimed for loss of business "not because it wouldn't ordinarily be but because there has been evidence that this same subject matter was the subject" of broadcasts over other television and radio stations and of newspaper reports, "so if there was any business lost . . . we have no proof . . . that [it] resulted directly from the broadcasts by WIP . . . ." App. 331a. On the question of punitive damages, the judge gave the following instruction:
"[I]f you find that this publication arose from a bad motive or malice toward the plaintiff, or if you find that it was published with reckless indifference to the truth, if you find that it was not true, you would be entitled to award punitive damages, and punitive damages are awarded as a deterrent from future conduct of the same sort.
"They really are awarded only for outrageous conduct, as I have said, with a bad motive or with reckless disregard of the interests of others, and before *40 you would award punitive damages you must find that these broadcasts were published with a bad motive or with reckless disregard of the rights of others, or reckless indifference to the rights of others . . . ."
The jury returned a verdict for petitioner and awarded $25,000 in general damages, and $725,000 in punitive damages. The District Court reduced the punitive damages award to $250,000 on remittitur, but denied respondent's motion for judgment n. o. v. In reversing, the Court of Appeals emphasized that the broadcasts concerned matters of public interest and that they involved "hot news" prepared under deadline pressure. The Court of Appeals concluded that "the fact that plaintiff was not a public figure cannot be accorded decisive importance if the recognized important guarantees of the First Amendment are to be adequately implemented." 415 F. 2d, at 896. For that reason, the court held that the New York Times standard applied and, further, directed that judgment be entered for respondent, holding that, as a matter of law, petitioner's evidence did not meet that standard.
IV
Petitioner concedes that the police campaign to enforce the obscenity laws was an issue of public interest, and, therefore, that the constitutional guarantees for freedom of speech and press imposed limits upon Pennsylvania's power to apply its libel laws to compel respondent to compensate him in damages for the alleged defamatory falsehoods broadcast about his involvement. As noted, the narrow question he raises is whether, because he is not a "public official" or a "public figure" but a private individual, those limits required that he prove that the falsehoods resulted from a failure of respondent to exercise reasonable care, or required that he prove that *41 the falsehoods were broadcast with knowledge of their falsity or with reckless disregard of whether they were false or not. That question must be answered against the background of the functions of the constitutional guarantees for freedom of expression. Rosenblatt v. Baer, 383 U. S. 75, at 84-85, n. 10 (1966).
Self-governance in the United States presupposes far more than knowledge and debate about the strictly official activities of various levels of government. The commitment of the country to the institution of private property, protected by the Due Process and Just Compensation Clauses in the Constitution, places in private hands vast areas of economic and social power that vitally affect the nature and quality of life in the Nation. Our efforts to live and work together in a free society not completely dominated by governmental regulation necessarily encompass far more than politics in a narrow sense. "The guarantees for speech and press are not the preserve of political expression or comment upon public affairs." Time, Inc. v. Hill, 385 U. S. 374, 388 (1967). "Freedom of discussion, if it would fulfill its historic function in this nation, must embrace all issues about which information is needed or appropriate to enable the members of society to cope with the exigencies of their period." Thornhill v. Alabama, 310 U. S. 88, 102 (1940).
Although the limitations upon civil libel actions, first held in New York Times to be required by the First Amendment, were applied in that case in the context of defamatory falsehoods about the official conduct of a public official, later decisions have disclosed the artificiality, in terms of the public's interest, of a simple distinction between "public" and "private" individuals or institutions:
"Increasingly in this country, the distinctions between governmental and private sectors are blurred. . . . In many situations, policy determinations *42 which traditionally were channeled through formal political institutions are now originated and implemented through a complex array of boards, committees, commissions, corporations, and associations, some only loosely connected with the Government. This blending of positions and power has also occurred in the case of individuals so that many who do not hold public office at the moment are nevertheless intimately involved in the resolution of important public questions . . . .
". . . Our citizenry has a legitimate and substantial interest in the conduct of such persons, and freedom of the press to engage in uninhibited debate about their involvement in public issues and events is as crucial as it is in the case of `public officials.' " Curtis Publishing Co. v. Butts, 388 U. S. 130, 163-164 (1967) (Warren, C. J., concurring in result).
Moreover, the constitutional protection was not intended to be limited to matters bearing broadly on issues of responsible government. "[T]he Founders . . . felt that a free press would advance `truth, science, morality, and arts in general' as well as responsible government." Id., at 147 (opinion of HARLAN, J.). Comments in other cases reiterate this judgment that the First Amendment extends to myriad matters of public interest. In Time, Inc. v. Hill, supra, we had "no doubt that the . . . opening of a new play linked to an actual incident, is a matter of public interest," 385 U. S., at 388, which was entitled to constitutional protection. Butts held that an alleged "fix" of a college football game was a public issue. Associated Press v. Walker, 388 U. S. 130 (1967), a companion case to Butts, established that the public had a similar interest in the events and personalities involved in federal efforts to enforce a court decree ordering the enrollment of a Negro student in the University of Mississippi. Thus, these cases underscore the vitality, as *43 well as the scope, of the "profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open." New York Times Co. v. Sullivan, 376 U. S., at 270-271 (emphasis added).
If a matter is a subject of public or general interest, it cannot suddenly become less so merely because a private individual is involved, or because in some sense the individual did not "voluntarily" choose to become involved. The public's primary interest is in the event; the public focus is on the conduct of the participant and the content, effect, and significance of the conduct, not the participant's prior anonymity or notoriety.[11] The present case illustrates the point. The community has a vital interest in the proper enforcement of its criminal laws, particularly in an area such as obscenity where a number of highly important values are potentially in conflict: the public has an interest both in seeing that the criminal law is adequately enforced and in assuring that the law is not used unconstitutionally to suppress free expression. Whether the person involved is a famous large-scale magazine distributor or a "private" businessman running a corner newsstand has no relevance in ascertaining whether the public has an interest in the issue. We honor the commitment to robust debate on public issues, which is embodied in the First Amendment, *44 by extending constitutional protection to all discussion and communication involving matters of public or general concern, without regard to whether the persons involved are famous or anonymous.[12]
Our Brother WHITE agrees that the protection afforded by the First Amendment depends upon whether the issue involved in the publication is an issue of public or general concern. He would, however, confine our holding to the situation raised by the facts in this case, that is, limit it to issues involving "official actions of public servants." In our view that might be misleading. It is clear that there has emerged from our cases decided since New York Times the concept that the First Amendment's impact upon state libel laws derives not so much from whether the plaintiff is a "public official," "public figure," or "private individual," as it derives from the question whether the allegedly defamatory publication concerns a matter of public or general interest. See T. Emerson, The System of Freedom of Expression 531-532, 540 (1970). In that circumstance we think the time has come forthrightly to announce that the determinant whether the First Amendment applies to state libel actions is whether the utterance involved concerns an issue of public or general concern, albeit leaving the *45 delineation of the reach of that term to future cases. As our Brother WHITE observes, that is not a problem in this case, since police arrest of a person for distributing allegedly obscene magazines clearly constitutes an issue of public or general interest.[13]
V
We turn then to the question to be decided. Petitioner's argument that the Constitution should be held to require that the private individual prove only that the publisher failed to exercise "reasonable care" in publishing defamatory falsehoods proceeds along two lines. First, he argues that the private individual, unlike the public figure, does not have access to the media to counter the defamatory material and that the private individual, unlike the public figure, has not assumed the risk of defamation by thrusting himself into the public arena. Second, petitioner focuses on the important values served by the law of defamation in preventing and redressing attacks upon reputation.
We have recognized the force of petitioner's arguments, Time, Inc. v. Hill, supra, at 391, and we adhere to the caution expressed in that case against "blind application" of the New York Times standard. Id., at 390. Analysis of the particular factors involved, however, convinces us that petitioner's arguments cannot be reconciled with the purposes of the First Amendment, with our cases, and with the traditional doctrines of libel law itself. Drawing a distinction between "public" *46 and "private" figures makes no sense in terms of the First Amendment guarantees.[14] The New York Times standard was applied to libel of a public official or public figure to give effect to the Amendment's function to encourage ventilation of public issues, not because the public official has any less interest in protecting his reputation than an individual in private life. While the argument that public figures need less protection because they can command media attention to counter criticism may be true for some very prominent people, even then it is the rare case where the denial overtakes the original charge. Denials, retractions, and corrections are not "hot" news, and rarely receive the prominence of the original story. When the public official or public figure is a minor functionary, or has left the position that put him in the public eye, see Rosenblatt v. Baer, supra, the argument loses all of its force. In the vast majority of libels involving public officials or public figures, the ability to respond through the media will depend on the same complex factor on which the ability of a private individual depends: the unpredictable event of the media's continuing interest in the story. Thus the unproved, and highly improbable, generalization that an as yet undefined class of "public figures" involved in matters of public concern will be better able to respond *47 through the media than private individuals also involved in such matters seems too insubstantial a reed on which to rest a constitutional distinction. Furthermore, in First Amendment terms, the cure seems far worse than the disease. If the States fear that private citizens will not be able to respond adequately to publicity involving them, the solution lies in the direction of ensuring their ability to respond, rather than in stifling public discussion of matters of public concern.[15]
Further reflection over the years since New York Times was decided persuades us that the view of the "public official" or "public figure" as assuming the risk of defamation by voluntarily thrusting himself into the public eye bears little relationship either to the values protected by the First Amendment or to the nature of our society. We have recognized that "[e]xposure of the self to others in varying degrees is a concomitant of life in a civilized community." Time, Inc. v. Hill, *48 supra, at 388. Voluntarily or not, we are all "public" men to some degree. Conversely, some aspects of the lives of even the most public men fall outside the area of matters of public or general concern. See n. 12, supra; Griswold v. Connecticut, 381 U. S. 479 (1965).[16] Thus, the idea that certain "public" figures have voluntarily exposed their entire lives to public inspection, while private individuals have kept theirs carefully shrouded from public view is, at best, a legal fiction. In any event, such a distinction could easily produce the paradoxical result of dampening discussion of issues of public or general concern because they happen to involve private citizens while extending constitutional encouragement to discussion of aspects of the lives of "public figures" that are not in the area of public or general concern.
General references to the values protected by the law of libel conceal important distinctions. Traditional arguments suggest that libel law protects two separate interests of the individual: first, his desire to preserve a certain privacy around his personality from unwarranted intrusion, and, second, a desire to preserve his public good name and reputation. See Rosenblatt v. Baer, 383 U. S., at 92 (STEWART, J., concurring). The individual's interest in privacyin preventing unwarranted intrusion upon the private aspects of his life is not involved in this case, or even in the class of cases under consideration, since, by hypothesis, the individual is involved in matters of public or general concern.[17] In *49 the present case, however, petitioner's business reputation is involved, and thus the relevant interests protected by state libel law are petitioner's public reputation and good name.
These are important interests. Consonant with the libel laws of most of the States, however, Pennsylvania's libel law subordinates these interests of the individual in a number of circumstances. Thus, high government officials are immune from liabilityabsolutely privileged even if they publish defamatory material from an improper motive, with actual malice, and with knowledge of its falsity. Montgomery v. Philadelphia, 392 Pa. 178, 140 A. 2d 100 (1958). This absolute privilege attaches to judges, attorneys at law in connection with a judicial proceeding, parties and witnesses to judicial proceedings, Congressmen and state legislators, and high national and state executive officials. Restatement of Torts §§ 585-592. Moreover, a conditional privilege allows newspapers to report the false defamatory material originally published under the absolute privileges listed above, if done accurately. Sciandra v. Lynett, 409 Pa. 595, 187 A. 2d 586 (1963).
Even without the presence of a specific constitutional command, therefore, Pennsylvania libel law recognizes that society's interest in protecting individual reputation *50 often yields to other important social goals. In this case, the vital needs of freedom of the press and freedom of speech persuade us that allowing private citizens to obtain damage judgments on the basis of a jury determination that a publisher probably failed to use reasonable care would not provide adequate "breathing space" for these great freedoms. Reasonable care is an "elusive standard" that "would place on the press the intolerable burden of guessing how a jury might assess the reasonableness of steps taken by it to verify the accuracy of every reference to a name, picture or portrait." Time, Inc. v. Hill, 385 U. S., at 389. Fear of guessing wrong must inevitably cause self-censorship and thus create the danger that the legitimate utterance will be deterred. Cf. Speiser v. Randall, 357 U. S. 513, 526 (1958).
Moreover, we ordinarily decide civil litigation by the preponderance of the evidence. Indeed, the judge instructed the jury to decide the present case by that standard. In the normal civil suit where this standard is employed, "we view it as no more serious in general for there to be an erroneous verdict in the defendant's favor than for there to be an erroneous verdict in the plaintiff's favor." In re Winship, 397 U. S. 358, 371 (1970) (HARLAN, J., concurring). In libel cases, however, we view an erroneous verdict for the plaintiff as most serious. Not only does it mulet the defendant for an innocent misstatementthe three-quarter-million-dollar jury verdict in this case could rest on such an errorbut the possibility of such error, even beyond the vagueness of the negligence standard itself, would create a strong impetus toward self-censorship, which the First Amendment cannot tolerate. These dangers for freedom of speech and press led us to reject the reasonable-man standard of liability as "simply inconsistent" with our national commitment under the First Amendment when sought to be applied to the *51 conduct of a political campaign. Monitor Patriot Co. v. Roy, 401 U. S. 265, 276 (1971). The same considerations lead us to reject that standard here.
We are aware that the press has, on occasion, grossly abused the freedom it is given by the Constitution. All must deplore such excesses. In an ideal world, the responsibility of the press would match the freedom and public trust given it. But from the earliest days of our history, this free society, dependent as it is for its survival upon a vigorous free press, has tolerated some abuse. In 1799, James Madison made the point in quoting (and adopting) John Marshall's answer to Talleyrand's complaints about American newspapers, American State Papers, 2 Foreign Relations 196 (U. S. Cong. 1832):
" `Among those principles deemed sacred in America, among those sacred rights considered as forming the bulwark of their liberty, which the Government contemplates with awful reverence and would approach only with the most cautious circumspection, there is no one of which the importance is more deeply impressed on the public mind than the liberty of the press. That this liberty is often carried to excess; that it has sometimes degenerated into licentiousness, is seen and lamented, but the remedy has not yet been discovered. Perhaps it is an evil inseparable from the good with which it is allied; perhaps it is a shoot which cannot be stripped from the stalk without wounding vitally the plant from which it is torn. However desirable those measures might be which might correct without enslaving the press, they have never yet been devised in America.' " 6 Writings of James Madison, 1790-1802, p. 336 (G. Hunt ed. 1906) (emphasis in original).
This Court has recognized this imperative: "[T]o insure the ascertainment and publication of the truth about public affairs, it is essential that the First Amendment *52 protect some erroneous publications as well as true ones." St. Amant v. Thompson, 390 U. S. 727, 732 (1968). We thus hold that a libel action, as here, by a private individual against a licensed radio station for a defamatory falsehood in a newscast relating to his involvement in an event of public or general concern may be sustained only upon clear and convincing proof that the defamatory falsehood was published with knowledge that it was false or with reckless disregard of whether it was false or not.[18] Calculated falsehood, of course, falls outside "the fruitful exercise of the right of free speech." Garrison v. Louisiana, 379 U. S. 64, 75 (1964).
Our Brothers HARLAN and MARSHALL reject the knowing-or-reckless-falsehood standard in favor of a test that would require, at least, that the person defamed establish that the publisher negligently failed to ascertain the truth of his story; they would also limit any recovery to "actual" damages. For the reasons we have stated, the negligence standard gives insufficient breathing space to First Amendment values. Limiting recovery to actual damages has the same defects. In the first instance, that standard, too, leaves the First Amendment insufficient elbow room within which to function. It is not simply the possibility of a judgment for damages that results in self-censorship. The very possibility of having to engage in litigation, an expensive and protracted process, *53 is threat enough to cause discussion and debate to "steer far wider of the unlawful zone" thereby keeping protected discussion from public cognizance. Speiser v. Randall, 357 U. S., at 526. Cf. Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, 402 U. S. 313, 334-339 (1971). Too, a small newspaper suffers equally from a substantial damage award, whether the label of the award be "actual" or "punitive."
The real thrust of Brothers HARLAN'S and MARSHALL'S position, however, is their assertion that their proposal will not "constitutionalize" the factfinding process. But this clearly is not the way their test would work in practice. Their approach means only that factfinding will shift from an inquiry into whether the defamatory statements were knowingly or recklessly uttered to the inquiry whether they were negligently uttered, and if so, to an inquiry whether plaintiff suffered "actual" damages. This latter inquiry will involve judges even more deeply in factfinding. Would the mere announcement by a state legislature that embarrassment and pain and suffering are measurable actual losses mean that such damages may be awarded in libel actions? No matter how the problem is approached, this Court would ultimately have to fashion constitutional definitions of "negligence" and of "actual damages."
Aside from these particularized considerations, we have repeatedly recognized that courts may not avoid an excursion into factfinding in this area simply because it is time consuming or difficult. We stated in Pennekamp v. Florida, 328 U. S. 331, 335 (1946), that:
"The Constitution has imposed upon this Court final authority to determine the meaning and application of those words of that instrument which require interpretation to resolve judicial issues. With that responsibility, we are compelled to examine for ourselves the statements in issue and the circumstances *54 under which they were made to see whether or not they . . . are of a character which the principles of the First Amendment, as adopted by the Due Process Clause of the Fourteenth Amendment, protect." (Footnote omitted.)
Clearly, then, this Court has an "obligation to test challenged judgments against the guarantees of the First and Fourteenth Amendments," and in doing so "this Court cannot avoid making an independent constitutional judgment on the facts of the case." Jacobellis v. Ohio, 378 U. S. 184, 190 (1964). The simple fact is that First Amendment questions of "constitutional fact" compel this Court's de novo review. See Edwards v. South Carolina, 372 U. S. 229, 235 (1963); Blackburn v. Alabama, 361 U. S. 199, 205 n. 5 (1960).
VI
Petitioner argues that the instructions on punitive damages either cured or rendered harmless the instructions permitting an award of general damages based on a finding of failure of WIP to exercise reasonable care. We have doubts of the merits of the premise,[19] but even *55 assuming that instructions were given satisfying the standard of knowing or reckless falsity, the evidence was insufficient to sustain an award for the petitioner under that standard. In these cases our "duty is not limited to the elaboration of constitutional principles; we must also in proper cases review the evidence to make certain that those principles have been constitutionally applied." New York Times Co. v. Sullivan, 376 U. S., at 285. Our independent analysis of the record leads us to agree with the Court of Appeals that none of the proofs, considered either singly or cumulatively, satisfies the constitutional standard with the convincing clarity necessary to raise a jury question whether the defamatory falsehoods were broadcast with knowledge that they were false or with reckless disregard of whether they were false or not.
The evidence most strongly supporting petitioner is that concerning his visit to WIP's studio where a part-time newscaster hung up the telephone when petitioner disputed the newscaster's statement that the District Attorney had characterized petitioner's magazines as obscene. This contact occurred, however, after all but one of the second series of broadcasts had been aired. The incident has no probative value insofar as it bears on petitioner's case as to the first series of broadcasts. That portion of petitioner's case was based upon the omission from the first two broadcasts at 6 and 6:30 p. m. on October 4 of the word "alleged" preceding a characterization of the magazines distributed by petitioner. But that omission was corrected with the 8 p. m. broadcast and was not repeated in the five broadcasts that followed. And we agree with the analysis of the Court of Appeals that led that court, and leads us, to conclude that the episode failed to provide evidence satisfying the New York Times standard insofar as it bore on petitioner's *56 case based upon the broadcasts on and after October 21 concerning petitioner's lawsuit:
"Only one broadcast took place after this conversation. It is attacked on the ground that it contains an inaccurate statement concerning plaintiff's injunction action in that it stated that the district attorney considered plaintiff's publications to be smut and immoral literature. The transcript of the testimony shows that plaintiff's own attorney, when questioning defendant's representative concerning the allegedly defamatory portion of the last broadcast, said that he was not questioning its `accuracy'. Furthermore, his examination of the same witness brought out that defendant's representative confirmed the story with the judge involved before the broadcast was made. We think that the episode described failed to provide evidence of actual malice with the requisite convincing clarity to create a jury issue under federal standards." 415 F. 2d, at 897.
Petitioner argues finally that WIP's failure to communicate with him to learn his side of the case and to obtain a copy of the magazine for examination, sufficed to support a verdict under the New York Times standard. But our "cases are clear that reckless conduct is not measured by whether a reasonably prudent man would have published, or would have investigated before publishing. There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication." St. Amant v. Thompson, 390 U. S., at 731. Respondent here relied on information supplied by police officials. Following petitioner's complaint about the accuracy of the broadcasts, WIP checked its last report with the judge who presided in the case. While we may assume that the District Court correctly held to be defamatory *57 respondent's characterizations of petitioner's business as "the smut literature racket," and of those engaged in it as "girlie-book peddlers," there is no evidence in the record to support a conclusion that respondent "in fact entertained serious doubts as to the truth" of its reports.
Affirmed.
MR. JUSTICE DOUGLAS took no part in the consideration or decision of this case.
MR. JUSTICE BLACK, concurring in the judgment.
I concur in the judgment of the Court for the reasons stated in my concurring opinion in New York Times Co. v. Sullivan, 376 U. S. 254, 293 (1964), in my concurring and dissenting opinion in Curtis Publishing Co. v. Butts, 388 U. S. 130, 170 (1967), and in MR. JUSTICE DOUGLAS' concurring opinion in Garrison v. Louisiana, 379 U. S. 64, 80 (1964). I agree of course that First Amendment protection extends to "all discussion and communication involving matters of public or general concern, without regard to whether the persons involved are famous or anonymous." Ante, at 44. However, in my view, the First Amendment does not permit the recovery of libel judgments against the news media even when statements are broadcast with knowledge they are false. As I stated in Curtis Publishing Co. v. Butts, supra, "[I]t is time for this Court to abandon New York Times Co. v. Sullivan and adopt the rule to the effect that the First Amendment was intended to leave the press free from the harassment of libel judgments." Id., at 172.
MR. JUSTICE WHITE, concurring in the judgment.
I
Under existing law the First Amendment is deemed to permit recoveries for damaging falsehoods published *58 about public officials or public figures only if the defamation is knowingly or recklessly false. But until today the First Amendment has not been thought to prevent citizens who are neither public officials nor public figures from recovering damages for defamation upon proving publication of a false statement injurious to their reputation. There has been no necessity to show deliberate falsehood, recklessness, or even negligence.
The Court has now decided that the First Amendment requires further restrictions on state defamation laws. MR. JUSTICE BRENNAN and two other members of the Court would require proof of knowing or reckless misrepresentation of the facts whenever the publication concerns a subject of legitimate public interest, even though the target is a "private" citizen. Only residual areas would remain in which a lower degree of proof would obtain.
Three other members of the Court also agree that private reputation has enjoyed too much protection and the media too little. But in the interest of protecting reputation, they would not roll back state laws so far. They would interpret the First Amendment as proscribing liability without fault and would equate non-negligent falsehood with faultless conduct. The burden of the damaging lie would be shifted from the media to the private citizen unless the latter could prove negligence or some higher degree of fault. They would also drastically limit the authority of the States to award compensatory and punitive damages for injury to reputation.
MR. JUSTICE BLACK, consistently with the views that he and MR. JUSTICE DOUGLAS have long held, finds no room in the First Amendment for any defamation recovery whatsoever.
Given this spectrum of proposed restrictions on state defamation laws and assuming that MR. JUSTICE BLACK and MR. JUSTICE DOUGLAS will continue in future cases *59 to support the severest of the restrictions, it would seem that at least five members of the Court would support each of the following rules:
For public officers and public figures to recover for damage to their reputations for libelous falsehoods, they must prove either knowing or reckless disregard of the truth. All other plaintiffs must prove at least negligent falsehood, but if the publication about them was in an area of legitimate public interest, then they too must prove deliberate or reckless error. In all actions for libel or slander, actual damages must be proved, and awards of punitive damages will be strictly limited.
II
For myself, I cannot join any of the opinions filed in this case. Each of them decides broader constitutional issues and displaces more state libel law than is necessary for the decision in this case. As I have said, MR. JUSTICE BRENNAN would extend the privilege enunciated in New York Times Co. v. Sullivan, 376 U. S. 254 (1964), to publications upon any "subject of public or general interest." See ante, at 43. He would thereby extend the constitutional protection to false and damaging, but non-malicious, publications about such matters as the health and environmental hazards of widely used manufactured products the mental and emotional stability of executives of business establishments, and the racial and religious prejudices of many groups and individuals. All of these are of course, subjects of real concern, and arguments for placing them within the scope of New York Times are by no means frivolous.
For MR. JUSTICE MARSHALL and MR. JUSTICE HARLAN, MR. JUSTICE BRENNAN'S opinion is both too severe and too limited. They would make more sweeping incursions into state tort law but purportedly with less destructive weapons. They would permit suit by some plaintiffs *60 barred under MR. JUSTICE BRENNAN'S opinion, but would require all plaintiffs to prove at least negligence before any recovery would be allowed.
I prefer at this juncture not to proceed on such a broad front. I am quite sure that New York Times Co. v. Sullivan was the wiser course, but I am unaware that state libel laws with respect to private citizens have proved a hazard to the existence or operations of the communications industry in this country. Some members of the Court seem haunted by fears of self-censorship by the press and of damage judgments that will threaten its financial health. But technology has immeasurably increased the power of the press to do both good and evil. Vast communication combines have been built into profitable ventures. My interest is not in protecting the treasuries of communicators but in implementing the First Amendment by insuring that effective communication which is essential to the continued functioning of our free society. I am not aware that self-censorship has caused the press to tread too gingerly in reporting "news" concerning private citizens and private affairs or that the reputation of private citizens has received inordinate protection from falsehood. I am not convinced that we must fashion a constitutional rule protecting a whole range of damaging falsehoods and so shift the burden from those who publish to those who are injured.
I say this with considerable deference since all my Brethren have contrary views. But I would not nullify a major part of state libel law until we have given the matter the most thorough consideration and can articulate some solid First Amendment grounds based on experience and our present condition. As it is, today's experiment rests almost entirely on theoretical grounds and represents a purely intellectual derivation from what are thought to be important principles of tort *61 law as viewed in the light of the primacy of the written and spoken word.
This case lends itself to more limited adjudication. New York Times Co. v. Sullivan itself made clear that discussion of the official actions of public servants such as the police is constitutionally privileged. "The right of free public discussion of the stewardship of public officials" is, in the language of that case, "a fundamental principle of the American form of government." 376 U. S., at 275. Discussion of the conduct of public officials cannot, however, be subjected to artificial limitations designed to protect others involved in an episode with officials from unfavorable publicity. Such limitations would deprive the public of full information about the official action that took place. In the present case, for example, the public would learn nothing if publication only of the fact that the police made an arrest were permitted; it is also necessary that the grounds for the arrest and, in many circumstances, the identity of the person arrested be stated. In short, it is rarely informative for a newspaper or broadcaster to state merely that officials acted unless he also states the reasons for their action and the persons whom their action affected.
Nor can New York Times be read as permitting publications that invade the privacy or injure the reputations of officials, but forbidding those that invade the privacy or injure the reputations of private citizens against whom official action is directed. New York Times gives the broadcasting media and the press the right not only to censure and criticize officials but also to praise them and the concomitant right to censure and criticize their adversaries. To extend constitutional protection to criticism only of officials would be to authorize precisely that sort of thought control that the First Amendment forbids government to exercise.
*62 I would accordingly hold that in defamation actions, absent actual malice as defined in New York Times Co. v. Sullivan, the First Amendment gives the press and the broadcast media a privilege to report and comment upon the official actions of public servants in full detail, with no requirement that the reputation or the privacy of an individual involved in or affected by the official action be spared from public view. Since respondent Metro-media did nothing more in the instant case, I join in holding its broadcasts privileged. I would not, however, adjudicate cases not now before the Court.
MR. JUSTICE HARLAN, dissenting.
The very facts of this case demonstrate that uncritical acceptance of the Pennsylvania libel law here involved would be inconsistent with those important First and Fourteenth Amendment values we first treated with in an analogous context in New York Times Co. v. Sullivan, 376 U. S. 254 (1964). However, as the plurality opinion implicitly recognizes, only an undiscriminating assessment of those values would lead us to extend the New York Times rule in full force to all purely private libels. My Brother BRENNAN'S opinion would resolve the dilemma by distinguishing those private libels that arise out of events found to be of "public or general concern" from those that do not, and subjecting the former to full-scale application of the New York Times rule.
For the reasons set forth in Part I of my Brother MARSHALL'S dissent, I cannot agree to such a solution. As he so well demonstrates, the principal failing of the plurality opinion is its inadequate appreciation of the limitations imposed by the legal process in accommodating the tension between state libel laws and the federal constitutional protection given to freedom of speech and press.
*63 Once the evident need to balance the values underlying each is perceived, it might seem, purely as an abstract matter, that the most utilitarian approach would be to scrutinize carefully every jury verdict in every libel case, in order to ascertain whether the final judgment leaves fully protected whatever First Amendment values[1] transcend the legitimate state interest in protecting the particular plaintiff who prevailed. This seems to be what is done in the plurality opinion. But we did not embrace this technique in New York Times, supra. Instead, as my Brother MARSHALL observes, we there announced a rule of general application, not ordinarily dependent for its implementation upon a case-by-case examination of trial court verdicts. See also my dissent in Time, Inc. v. Pape, 401 U. S. 279, 293 (1971). Nor do I perceive any developments in the seven years since we decided New York Times, supra, that suggest our original method should now be abandoned. At least where we can discern generally applicable rules that should balance with fair precision the competing interests at stake, such rules should be preferred to the plurality's approach both in order to preserve a measure of order and predictability in the law that must govern the daily conduct of affairs and to avoid subjecting the press to judicial second-guessing of the newsworthiness of each item they print Consequently, I fully concur in Part I of MR. JUSTICE MARSHALL'S dissent.
*64 Further, I largely agree with the alternative proposals of that dissent. I, too, think that, when dealing with private libel, the States should be free to define for themselves the applicable standard of care so long as they do not impose liability without fault; that a showing of actual damage should be a requisite to recovery for libel; and that it is impermissible, given the substantial constitutional values involved, to fail to confine the amount of jury verdicts in such cases within any ascertainable limits. However, my reasons for so concluding are somewhat different than his, and I therefore reach a different result than he does with respect to the tolerable limits of punitive damages.
I
I think we all agree on certain core propositions. First, as a general matter, the States have a perfectly legitimate interest, exercised in a variety of ways, in redressing and preventing careless conduct, no matter who is responsible for it, that inflicts actual, measurable injury upon individual citizens. Secondly, there is no identifiable value worthy of constitutional protection in the publication of falsehoods. Third, although libel law provides that truth is a complete defense, that principle, standing alone, is insufficient to satisfy the constitutional interest in freedom of speech and press. For we have recognized that it is inevitable that there will be "some error in the situation presented in free debate," Time, Inc. v. Hill, 385 U. S. 374, 406 (1967) (opinion of this writer), a process that needs "breathing space," NAACP v. Button, 371 U. S. 415, 433 (1963), to flourish, and that "putting to the pre-existing prejudices of a jury the determination of what is `true' may effectively institute a system of censorship." Time, Inc. v. Hill, supra, at 406.
Moreover, any system that punishes certain speech is likely to induce self-censorship by those who would otherwise *65 exercise their constitutional freedom. Given the constitutionally protected interest in unfettered speech, it requires an identifiable, countervailing state interest, consistent with First Amendment values, to justify a regulatory scheme that produces such results. And, because the presence of such values dictates closer scrutiny of this aspect of state tort law than the Fourteenth Amendment would otherwise command, it may well be that certain rules, impervious to constitutional attack when applied to ordinary human conduct, may have to be altered or abandoned where used to regulate speech. Finally, as determined in New York Times, the constitutional interest in tolerance of falsehood as well as the need to adjust competing societal interests, prohibits, at a minimum, the imposition of liability without fault.
The precise standard of care necessary to achieve these goals is, however, a matter of dispute as is the range of penalties a State may prescribe for a breach of that standard. In analyzing these problems it is necessary to begin with a general analytical framework that defines those competing interests that must be reconciled. My Brother MARSHALL'S opinion, I think, dwells too lightly upon the nature of the legitimate countervailing interests promoted by the State's libel law and, as a result, overstates the case against punitive damages. Because we deal with a set of legal rules that treat truth as a complete defense it strikes, I think, somewhat wide of the mark to treat the State's interest as one of protecting reputations from "unjustified invasion." Post, at 78. By hypothesis, the respondent here was free to reveal any true facts about petitioner's "obscure private life."[2]
*66 Given the defense of truth, it is my judgment that, in order to assure that it promotes purposes consistent with First Amendment values, the legitimate function of libel law must be understood as that of compensating individuals for actual, measurable harm caused by the conduct of others. This can best be demonstrated by postulating a law that subjects publishers to jury verdicts for falsehoods that have done the plaintiff no harm. In my view, such a rule can only serve a purpose antithetical to those of the First Amendment. It penalizes speech, not to redress or avoid the infliction of harm, but only to deter the press from publishing material regarding private behavior that turns out to be false simply because of its falsity. This the First Amendment will not tolerate. Where the State cannot point to any tangible danger, even knowingly erroneous publication is entitled to constitutional protection because of the interest in avoiding an inquiry into the mere truth or falsity of speech. Moreover, such a scheme would impose a burden on speaking not generally placed upon constitutionally unprotected conductthe payment of private fines for conduct which, although not conformed to established limits of care, causes no harm in fact.
Conversely, I think that where the purpose and effect of the law are to redress actual and measurable injury to private individuals that was reasonably foreseeable as a result of the publication, there is no necessary conflict with the values of freedom of speech. Just as an automobile negligently driven can cost a person his physical and mental well-being and the fruits of his labor, so can a printing press negligently set. While the First Amendment protects the press from the imposition of special liabilities upon it, "[t]o exempt a publisher, because of the nature of his calling, from an imposition generally exacted from other members of the community, would be to extend a protection not required by the constitutional *67 guarantee." Curtis Publishing Co. v. Butts, 388 U. S. 130, 160 (1967) (opinion of this writer). A business "is not immune from regulation because it is an agency of the press. The publisher of a newspaper has no special immunity from the application of general laws. He has no special privilege to invade the rights and liberties of others." Associated Press v. NLRB, 301 U. S. 103, 132-133 (1937). That the damage has been inflicted by words rather than other instrumentalities cannot insulate it from liability. States may legitimately be required to use finer regulatory tools where dealing with "speech," but they are not wholly disabled from exacting compensation for its measurable adverse consequences. If this is not so, it is difficult to understand why governments may, for example, proscribe "misleading" advertising practices or specify what is "true" in the dissemination of consumer credit advertisements.
Nor does this interest in compensating victims of harmful conduct somehow disappear when the damages inflicted are great. So long as the effect of the law of libel is simply to make publishers pay for the harm they cause, and the standard of care required is appropriately adjusted to take account of the special countervailing interests in an open exchange of ideas, the fact that this may involve the payment of substantial sums cannot plausibly be said to raise serious First Amendment problems. If a newspaper refused to pay its bills because to do so would put it out of business, would the First Amendment dictate that this be treated as a partial or complete defense? If an automobile carrying a newsman to the scene of a history-making event ran over a pedestrian, would the size of the verdict, if based upon generally applicable tort law principles, have to be assessed against the probability that it would deter broadcasters from news gathering before it could pass muster under the First Amendment?
*68 However, without foreclosing the possibility that other limiting principles may be surfaced by subsequent experience, I do think that since we are dealing, by hypothesis, with infliction of harm through the exercise of freedom of speech and the press to which the Constitution gives explicit protection, recoverable damages must be limited to those consequences of the publication which are reasonably foreseeable. The usual tort rule seems to be that once some foreseeable injury has been inflicted, the negligent defendant must compensate for all damages he proximately caused in fact, no matter how peculiar were the circumstances of the particular plaintiff involved. W. Prosser, The Law of Torts § 50 (3d ed. 1964). However, our cases establish, I think, that, unless he has knowledge to the contrary, a speaker is entitled to presume that he is addressing an audience that is not especially susceptible to distress at the specter of open, uninhibited, robust speech. Cohen v. California, ante, p. 15. See also Brandenburg v. Ohio, 395 U. S. 444 (1969); Butler v. Michigan, 352 U. S. 380 (1957). Thus, I think the speaker should be free from a duty to compensate for actual harm inflicted by his falsehoods where the defamation would not have caused such harm to a person of average sensibilities unless, of course, the speaker knew that his statements were made concerning an unusually sensitive person. In short, I think the First Amendment does protect generally against the possibility of self-censorship in order to avoid unwitting affronts to the frail and the queasy.
II
Of course, it does not follow that so long as libel law performs the same compensatory function as civil law generally it is necessarily legitimate in all its various applications. The presence of First Amendment values means that the State can be compelled to utilize finer, *69 more discriminating instruments of regulation where necessary to give more careful protection to these countervailing interests. New York Times, supra, and Curtis Publishing Co., supra, established that where the injured party is a "public figure" or a "public official," the interest in freedom of speech dictates that the States forgo their interest in compensating for actual harm, even upon a basis generally applicable to all members of society, unless the plaintiff can show that the injurious publication was false and was made "with `actual malice'that is, with knowledge that it was false or with reckless disregard of whether it was false or not." New York Times, supra, at 280. Tacitly recognizing that it would unduly sacrifice the operative legitimate state interests to extend this rule to all cases where the injured party is simply a private individual, the plurality opinion would nevertheless apply it where the publication concerned such a person's "involvement in an event of public or general concern." Ante, at 52. I would not overrule New York Times or Curtis Publishing Co. and I do agree, as indicated above, that making liability turn on simple falsity in the purely private libel area is not constitutionally permissible. But I would not construe the Federal Constitution to require that the States adhere to a standard other than that of reasonable care where the plaintiff is an ordinary citizen.
My principal concern with the plurality's view, of course, is that voiced by my Brother MARSHALL. However, even if this objection were not tenable, unlike the plurality, I do think there is a difference, relevant to the interests here involved, between the public and the private plaintiff, as our cases have defined these categories, and that maintaining a constitutional distinction between them is at least as likely to protect true First Amendment concerns as one that eradicates such a line and substitutes for it a distinction between matters we think are of true social significance and those we think are not.
*70 To begin, it does no violence, in my judgment, to the value of freedom of speech and press to impose a duty of reasonable care upon those who would exercise these freedoms. I do not think it can be gainsaid that the States have a substantial interest in encouraging speakers to carefully seek the truth before they communicate, as well as in compensating persons actually harmed by false descriptions of their personal behavior. Additionally, the burden of acting reasonably in taking action that may produce adverse consequences for others is one generally placed upon all in our society. Thus, history itself belies the argument that a speaker must somehow be freed of the ordinary constraints of acting with reasonable care in order to contribute to the public good while, for example, doctors, accountants, and architects have constantly performed within such bounds.
This does not mean that I do not agree with the rule of New York Times, supra, but only that I deem it inapplicable here. That rule was not, I think, born solely of a desire to free speech that would otherwise have been stifled by overly restrictive rules, but also rested upon a determination that the countervailing state interests, described above, were not fully applicable where the subject of the falsehood was a public official or a public figure. For me, it does seem quite clear that the public person has a greater likelihood of securing access to channels of communication sufficient to rebut falsehoods concerning him than do private individuals in this country who do not toil in the public spotlight. Similarly, our willingness to assume that public personalities are more impervious to criticism, and may be held to have run the risk of publicly circulated falsehoods concerning them, does not rest solely upon an empirical assertion of fact, but also upon a belief that, in our political system, the individual speaker is entitled to act upon such an assumption if our institutions are to be held *71 up, as they should be, to constant scrutiny. And, at least as to the "public official," it seems to be universally the case that he is entitled to an absolute immunity for what he may utter in response to the charges of others. Where such factors are present the need to provide monetary compensation for defamation appears a good deal more attenuated. Finally, in light of the plurality opinion's somewhat extravagant delineation of the public interest involved in the dissemination of information about nonpublic persons, it bears emphasizing that a primary rationale for extending the New York Times rule to public figures was the desire to reflect, in the constitutional balance, the fact that "in this country, the distinctions between governmental and private sectors are blurred," Curtis Publishing Co., supra, at 163 (opinion of Warren, C. J.), and to treat constitutional values as specially implicated where important, albeit nonofficial, policy and behavior were the subjects of discussion. At the very least, this tends to diminish the force of any contention that libelous depictions of nonpublic persons are often likely to involve matters of abiding public significance.
I cannot agree that the First Amendment gives special protection to the press from "[t]he very possibility of having to engage in litigation," ante, at 52 (opinion of BRENNAN, J.). Were this assertion tenable, I do not see why the States could ever enforce their libel laws. Cf. my Brother BLACK'S opinion, ante, at 57. Further, it would certainly cast very grave doubts upon the constitutionality of so-called "right-of-reply statutes" advocated by the plurality, ante, at 47 n. 15, and ultimately treat the application of any general law to a publisher or broadcaster as an important First Amendment issue. The notion that such an interest, in the context of a purely private libel, is a significant independent constitutional value is an unfortunate consequence of the plurality's *72 single-minded devotion to the task of preventing self-censorship, regardless of the purposes for which such restraint is induced or the evils its exercise tends to avoid.
It is, then, my judgment that the reasonable care standard adequately serves those First Amendment values that must inform the definition of actionable libel and that those special considerations that made even this standard an insufficiently precise technique when applied to plaintiffs who are "public officials" or "public figures" do not obtain where the litigant is a purely private individual.
III
There remains the problem of punitive damages.[3] No doubt my Brother MARSHALL is correct in asserting that the specter of being forced to pay out substantial punitive damage awards is likely to induce self-censorship. This would probably also be the case where the harm actually caused is likely to be great. But, as I indicated above, this fact in itself would not justify construing the First Amendment to impose an arbitrary limitation on the amount of actual damages recoverable. Thus, as my Brother MARSHALL would apparently agreesince he, too, proposes no limitation on actual damagesone cannot jump from the proposition that fear of substantial punitive damage awards may be an important factor in *73 inducing self-censorship directly to the result that punitive damages cannot be assessed in all private libel cases. A more particularized inquiry into the nature of the competing interests involved is necessary in order to ascertain whether awarding punitive damages must inevitably, in private libel cases, serve only interests that are incompatible with the First Amendment.
At a minimum, even in the purely private libel area, I think the First Amendment should be construed to limit the imposition of punitive damages to those situations where actual malice is proved. This is the typical standard employed in assessing anyone's liability for punitive damages where the underlying aim of the law is to compensate for harm actually caused, see, e. g., 3 L. Frumer et al., Personal Injury § 2.02 (1965); H. Oleck, Damages to Persons and Property § 30 (1955), and no conceivable state interest could justify imposing a harsher standard on the exercise of those freedoms that are given explicit protection by the First Amendment.
The question then arises whether further limitations on this general state power must be imposed in order to serve the particularized goals of the First Amendment. The most compelling rationale for providing punitive damages where actual malice is shown is that such damages assure that deterrent force is added to the jury's verdict. If the speaker's conduct was quite likely to produce substantial harm, but fortuitously did not, simple assessment of actual damages will not fully reflect the social interest in deterring that conduct generally. Further, even if the harm done was great the defendant may have unusually substantial resources that make the award of actual damages a trivial inconvenience of no actual deterrent value. And even where neither of these factors obtains, the State always retains an interest in punishing more severely conduct that, although it causes the same effect, is more morally blameworthy. For example, consider *74 the distinction between manslaughter and first-degree murder.
I find it impossible to say, at least without further judicial experience in this area, that the First Amendment interest in avoiding self-censorship will always outweigh the state interest in vindicating these policies. It seems that a legislative choice is permissible which, for example, seeks to induce, through a reasonable monetary assessment, repression of false material, published with actual malice, that was demonstrably harmful and reasonably thought capable of causing substantial harm, but, in fact, was not so fully injurious to the individual attacked. Similarly, the State surely has a legitimate interest in seeking to assure that its system of compensating victims of negligent behavior also operates upon all as an inducement to avoidance of such conduct. And, these are burdens that are placed on all members of society, thus permitting the press to escape them only if its interest is somehow different in this regard.
However, from the standpoint of the individual plaintiff such damage awards are windfalls. They are, in essence, private fines levied for purposes that may be wholly unrelated to the circumstances of the actual litigant. That fact alone is not, I think, enough to condemn them. The State may, as it often does, use the vehicle of a private lawsuit to serve broader public purposes. It is noteworthy that my Brother MARSHALL does not rest his objection to punitive damages upon these grounds. He fears, instead, the self-censorship that may flow from the unbridled discretion of juries to set the amount of such damages. I agree that where these amounts bear no relationship to the actual harm caused, they then serve essentially as springboards to jury assessment, without reference to the primary legitimating compensatory function of the system, of an infinitely wide range of penalties wholly unpredictable in amount at the time of the publication *75 and that this must be a substantial factor in inducing self-censorship. Further, I find it difficult to fathom why it may be necessary, in order to achieve its justifiable deterrence goals, for the States to permit punitive damages that bear no discernible relationship to the actual harm caused by the publication at issue. A rational determination of the injury a publication might potentially have inflicted should typically proceed from the harm done in fact. And where the compensatory scheme seeks to achieve deterrence as a subsidiary by-product, the desired deterrence, if not precisely measured by actual damages, should be informed by that touchstone if deterrence of falsehood is not to replace compensation for harm as the paramount goal. Finally, while our legal system does often mete out harsher punishment for more culpable acts, it typically begins with a gradation of offenses defined in terms of effects. Compare, for example, larceny with murder. It is not surprising, then, that most States apparently require that punitive damages in most private civil actions bear some reasonable relation to the actual damages awarded, Oleck, at § 275, Pennsylvania included, Weider v. Hoffman, 238 F. Supp. 437, 444-447 (MD Pa. 1965).
However, where the amount of punitive damages awarded bears a reasonable and purposeful relationship to the actual harm done, I cannot agree that the Constitution must be read to prohibit such an award. Indeed, as I understand it, my Brother MARSHALL'S objection to my position[4] is not that the interest in freedom of speech dictates eliminating such judgments, but that this result *76 is compelled by the need to avoid involving courts in an "ad hoc balancing" of "the content of the speech and the surrounding circumstances," post, at 86, 85, much like that undertaken today in Part VI of the plurality opinion, the same technique criticized in my dissent in Time, Inc. v. Pape, supra. I find this argument unpersuasive. First, I do not see why my proposed rule would necessarily require frequent judicial reweighing of the facts underlying each jury verdict. A carefully and properly instructed jury should ordinarily be able to arrive at damage awards that are self-validating. It is others, not I, who have placed upon the federal courts the general duty of reweighing jury verdicts regarding the degree of fault demonstrated in libel actions. Further, to the extent that supervision of jury verdicts would be required it would entail a different process from that undertaken where judges redetermine the degree of fault. The defendant's resources, the actual harm suffered by the plaintiff, and the publication's potential for actual harm are all susceptible of more or less objective measurement. And the overriding principle that deterrence is not to be made a substitute for compensation should serve as a useful mechanism for adjusting the equation. Finally, even if some marginal "ad hoc balancing" becomes necessary, I should think it the duty of this Court at least to attempt to implement such a process before pre-empting, for itself, all state power in this regard.[5]
*77 In sum, given the fact that it seems to reflect the majority rule, that most of our jurisprudence proceeds upon the premise that legislative purposes can be achieved by fitting the punishment to the crime, and since we deal here with a precise constitutional interest that may legitimately require the States to resort to more discriminating regulation within a more circumscribed area of permissible concern, I would hold unconstitutional, in a private libel case, jury authority to award punitive damages which is unconfined by the requirement that these awards bear a reasonable and purposeful relationship to the actual harm done. Conversely, where the jury authority has been exercised within such constraints, and the plaintiff has proved that the speaker acted out of express malice, given the present state of judicial experience, I think it would be an unwarranted intrusion into the legitimate legislative processes of the States and an impermissibly broad construction of the First Amendment to nullify that state action.
Because the Court of Appeals adjudicated this case upon principles wholly unlike those suggested here, I *78 would vacate the judgment below and remand the case for further proceedings consistent with the views expressed herein.
MR. JUSTICE MARSHALL, with whom MR. JUSTICE STEWART joins, dissenting.
Here, unlike the other cases involving the New York Times[1] doctrine, we are dealing with an individual who held no public office, who had not taken part in any public controversy, and who lived an obscure private life.[2] George Rosenbloom, before the events and reports of the events involved here, was just one of the millions of Americans who live their lives in obscurity.
The protection of the reputation of such anonymous persons "from unjustified invasion and wrongful hurt reflects no more than our basic concept of the essential dignity and worth of every human beinga concept at the root of any decent system of ordered liberty." Rosenblatt v. Baer, 383 U. S. 75, 92 (1966) (STEWART, J., concurring). But the concept of a citizenry informed by a free and unfettered press is also basic to our system of ordered liberty. Here these two essential and fundamental values conflict.
I
The plurality has attempted to resolve the conflict by creating a conditional constitutional privilege for defamation published in connection with an event that is found to be of "public or general concern." The condition for the privilege is that the defamation must not be published "with knowledge that it was false or with reckless *79 disregard of whether it was false or not." I believe that this approach offers inadequate protection for both of the basic values that are at stake.
In order for particular defamation to come within the privilege there must be a determination that the event was of legitimate public interest. That determination will have to be made by courts generally and, in the last analysis, by this Court in particular. Courts, including this one, are not anointed with any extraordinary prescience. But, assuming that under the rule announced by MR. JUSTICE BRENNAN for the plurality, courts are not simply to take a poll to determine whether a substantial portion of the population is interested or concerned in a subject, courts will be required to somehow pass on the legitimacy of interest in a particular event or subject; what information is relevant to self-government. See Whitney v. California, 274 U. S. 357, 375 (1927) (Brandeis, J., concurring). The danger such a doctrine portends for freedom of the press seems apparent.
The plurality's doctrine also threatens society's interest in protecting private individuals from being thrust into the public eye by the distorting light of defamation. This danger exists since all human events are arguably within the area of "public or general concern." My Brother BRENNAN does not try to provide guidelines or standards by which courts are to decide the scope of public concern. He does, however, indicate that areas exist that are not the proper focus of public concern, and cities Griswold v. Connecticut, 381 U. S. 479 (1965). But it is apparent that in an era of a dramatic threat of overpopulation and one in which previously accepted standards of conduct are widely heralded as outdated, even the intimate and personal concerns with which the Court dealt in that case cannot be said to be outside the area of "public or general concern."
*80 The threats and inadequacies of using the plurality's conditional privilege to resolve the conflict between the two basic values involved here have been illustrated by the experience courts have had in trying to deal with the right of privacy. See Cohen, A New Niche for the Fault Principle: A Forthcoming Newsworthiness Privilege in Libel Cases?, 18 U. C. L. A. L. Rev. 371, 379-381 (1970); Kalven, Privacy in Tort Law Were Warren and Brandeis Wrong?, 31 Law & Contempt. Prob. 326, 336 (1966). The authors of the most famous of all law review articles recommended that no protection be given to privacy interests when the publication dealt with a "matter which is of public or general interest." Warren & Brandeis, The Right to Privacy, 4 Harv. L. Rev. 193, 214 (1890). Yet cases dealing with this caveat raise serious questions whether it has substantially destroyed the right of privacy as Warren and Brandeis envisioned it.[3] For example, the publication of a picture of the body of plaintiff's daughter immediately after her death in an automobile accident was held to be protected. Kelley v. Post Publishing Co., 327 Mass. 275, 98 N. E. 2d 286 (1951). And the publication of the details of the somewhat peculiar behavior of a former child prodigy, who had a passion for obscurity, was found to involve a matter of public concern. Sidis v. F-R Pub. Corp., 113 F. 2d 806 (CA2 1940).
In New York Times the Court chose to balance the competing interests by seeming to announce a generally applicable rule. Here it is apparent that the general rule announced cannot have general applicability. The plurality's conditional privilege approach, when coupled *81 with constitutionalizing of the factfinding process,[4] see Part VI of MR. JUSTICE BRENNAN'S opinion, results in the adoption of an ad hoc balancing of the two interests involved. The Court is required to weigh the nuances of each particular circumstance on its scale of values regarding the relative importance of society's interest in protecting individuals from defamation against the importance of a free press. This scale may arguably be a more finely tuned instrument in a particular case. But whatever precision the ad hoc method supplies is achieved at a substantial cost in predictability and certainty. Moreover, such an approach will require this Court to engage in a constant and continuing supervision of defamation litigation throughout the country. See Time, Inc. v. Pape, 401 U. S. 279, 293 (1971) (HARLAN, J., dissenting); Curtis Publishing Co. v. Butts, 388 U. S. 130, 171 (1967) (opinion of BLACK, J.).
Undoubtedly, ad hoc balancing may be appropriate in some circumstances that involve First Amendment problems. See, e. g., Bates v. Little Rock, 361 U. S. 516 (1960); Tinker v. Des Moines Independent Community School Dist., 393 U. S. 503 (1969). But in view of the shortcomings of my Brother BRENNAN'S test, defamation of a private individual by the mass media is not one of the occasions for unfettered ad hoc balancing. A generally applicable resolution is available that promises to provide an adequate balance between the interest in protecting individuals from defamation and the equally basic interest in protecting freedom of the press.
II
As the plurality recognizes here and as was recognized as the basic premise of the New York Times principle, the threat that defamation law presents for the values *82 encompassed in the concept of freedom of the press is that of self-censorship.[5] Our notions of liberty require a free and vigorous press that presents what it believes to be information of interest or importance; not timorous, afraid of an error that leaves it open to liability for hundreds of thousands of dollars. The size of the potential judgment that may be rendered against the press must be the most significant factor in producing self-censorshipa judgment like the one rendered against Metromedia would be fatal to many smaller publishers.[6]
The judgments that may be entered in defamation cases are unlike those that may be entered in most litigation since the bulk of the award is given to punish the defendant or to compensate for presumed damages. Here the jury awarded Mr. Rosenbloom $725,000 in punitive damages.[7] This huge sum was given not to compensate him for any injury but to punish Metromedia. The concept of punitive or exemplary damages was first articulated in Huckle v. Money, 2 Wils. 205, 95 Eng. Rep. 768 (K. B. 1763)one of the general warrant cases. There Lord Camden found that the power to award such damages was inherent in the jury's exercise of uncontrolled discretion in the awarding of damages. See 1 T. Sedgwick, Damages §§ 347-350 (9th ed. 1912). Today these damages are rationalized as a way to punish the wrongdoer and to admonish others not to err. See Morris, Punitive Damages in Tort Cases, 44 Harv. L. Rev. 1172 (1931). Thus they serve the same function as criminal penalties and are in effect private fines. Unlike criminal penalties, however, punitive damages are not awarded within discernible limits but can be awarded *83 in almost any amount. Since there is not even an attempt to offset any palpable loss and since these damages are the direct product of the ancient theory of unlimited jury discretion, the only limit placed on the jury in awarding punitive damages is that the damages not be "excessive," and in some jurisdictions, that they bear some relationship to the amount of compensatory damages awarded.[8] See H. Oleck, Damages to Persons and Property § 275, pp. 557-560 (1955). The manner in which unlimited discretion may be exercised is plainly unpredictable. And fear of the extensive awards that may be given under the doctrine must necessarily produce the impingement on freedom of the press recognized in New York Times.
In addition to the huge awards that may be given under the label of punitive or exemplary damages, other doctrines in the law of defamation allow substantial damages without even an offer of evidence that there was actually injury. See Montgomery v. Dennison, 363 Pa. 255, 69 A. 2d 520 (1949); Restatement of Torts § 621 (1938). These doctrines create a legal presumption that substantial injuries "normally flow" from defamation. There is no requirement that there be even an offer of proof that there was in fact financial loss, physical or emotional suffering, or that the plaintiff's standing in the community was diminished. The effect is to give the jury essentially unlimited discretion and thus to give it much the same power it exercises under the labels of punitive or exemplary damages. The impingement upon free speech is the same no matter what label is attached.
*84 The unlimited discretion exercised by juries in awarding punitive and presumed damages compounds the problem of self-censorship that necessarily results from the awarding of huge judgments. This discretion allows juries to penalize heavily the unorthodox and the unpopular and exact little from others. Such free wheeling discretion presents obvious and basic threats to society's interest in freedom of the press. And the utility of the discretion in fostering society's interest in protecting individuals from defamation is at best vague and uncertain. These awards are not to compensate victims; they are only windfalls. Certainly, the large judgments that can be awarded admonish the particular defendant affected as well as other potential transgressors not to publish defamation. The degree of admonitionthe amount of the judgment in relation to the defamer's meansis not, however, tied to any concept of what is necessary to deter future conduct nor is there even any way to determine that the jury has considered the culpability of the conduct involved in the particular case. Thus the essence of the discretion is unpredictability and uncertainty.
The threats to society's interest in freedom of the press that are involved in punitive and presumed damages can largely be eliminated by restricting the award of damages to proved, actual injuries. The jury's wide-ranging discretion will largely be eliminated since the award will be based on essentially objective, discernible factors. And the self-censorship that results from the uncertainty created by the discretion as well as the self-censorship resulting from the fear of large judgments themselves would be reduced. At the same time, society's interest in protecting individuals from defamation will still be fostered. The victims of the defamation will be compensated for their real injuries. They will not be, however, assuaged far beyond their wounds. And, there *85 will be a substantial although imprecise and imperfect admonition to avoid future defamation by imposing the requirement that there be compensation for actual damages.
My Brother HARLAN argues that it is unnecessary to go so far. Although he recognizes the dangers involved in failing "to confine the amount of jury verdicts . . . within any ascertainable limits," MR. JUSTICE HARLAN suggests that on a finding of actual malice punitive damages may be awarded if they "bear a reasonable and purposeful relationship to the actual harm done." My Brother HARLAN envisions jurors being instructed[9] to consider the deterrent function of punitive damages and to try to gear the punitive damages awarded in some undetermined way to actual injury. Apparently, the jury under the supervision of the court would weigh the content of the speech and the surrounding circumstancesinter alia, the position of the plaintiff, the wealth of the defendant, and the nature of the instrument of publicationon the scale of their values and determine what amount is necessary in light of the various interests involved. Since there would be no objective standard by which to measure the jury's decision there would be no predetermined limit of jury discretion and all of the threats to freedom of the press involved in such discretion would remain. The chant of some new incantation will, of course, provide clear authority for a court to substitute its values for the jury's and remake the decision. If this is what my Brother *86 HARLAN envisions, he is merely moving the ad hoc balancing from the question of fault to the question of damages.
I believe that the appropriate resolution of the clash of societal values here is to restrict damages to actual losses. See Hill, The Bill of Rights and the Supervisory Power, 69 Col. L. Rev. 181, 191 n. 62 (1969). Of course, damages can be awarded for more than direct pecuniary loss but they must be related to some proved harm. See Wright, Defamation, Privacy, and the Public's Right to Know: A National Problem and a New Approach, 46 Tex. L. Rev. 630, 648 (1968). If awards are so limited in cases involving private individuals persons first brought to public attention by the defamation that is the subject of the lawsuitit will be unnecessary to rely, as both the plurality and to some extent MR. JUSTICE HARLAN do, on somewhat elusive concepts[10] of the degree of fault, and unnecessary, for constitutional purposes, to engage in ad hoc balancing of the competing interests involved.[11] States would be essentially free to continue the evolution of the common law of defamation and to articulate whatever fault standard best suits the State's need.[12]
The only constitutional caveat should be that absolute or strict liability, like uncontrolled damages and private *87 fines, cannot be used.[13] The effect of imposing liability without fault is to place "the printed, written or spoken word in the same class with the use of explosives or the keeping of dangerous animals." W. Prosser, The Law of Torts § 108, p. 792 (3d ed. 1964). Clearly, this is inconsistent with the concepts of freedom of the press.
Thus in this case I would reverse the judgment of the Court of Appeals for the Third Circuit and remand the case for a determination of whether Mr. Rosenbloom can show any actual loss.
NOTES
[1] See, e. g., Associated Press v. Walker, 388 U. S. 130 (1967) (retired Army general against a wire service); Curtis Publishing Co. v. Butts, 388 U. S. 130 (1967) (former football coach against publisher of magazine); Beckley Newspapers Corp. v. Hanks, 389 U. S. 81 (1967) (court clerk against newspaper); Greenbelt Publishing Assn. v. Bresler, 398 U. S. 6 (1970) (state representative and real estate developer against publisher of newspaper); Ocala Star-Banner Co. v. Damron, 401 U. S. 295 (1971) (defeated candidate for tax assessor against publisher of newspaper); Monitor Patriot Co. v. Roy, 401 U. S. 265 (1971) (candidate for United States Senate against publisher of newspaper); Time, Inc. v. Pape, 401 U. S. 279 (1971) (police official against publisher of magazine). However, Rosenblatt v. Baer, 383 U. S. 75 (1966), involved an action against a newspaper columnist by a former county recreation area supervisor; St. Amant v. Thompson, 390 U. S. 727 (1968), involved an action of a deputy sheriff against a defeated candidate for the United States Senate; and Linn v. Plant Guard Workers, 383 U. S. 53 (1966), involved an action by an official of an employer against a labor union.
Garrison v. Louisiana, 379 U. S. 64 (1964), held that the New York Times standard measured also the constitutional restriction upon state power to impose criminal sanctions for criticism of the official conduct of public officials. The Times standard of proof has also been required to support the dismissal of a public school teacher based on false statements made by the teacher in discussing issues of public importance. Pickering v. Board of Education, 391 U. S. 563 (1968). The same test was applied to suits for invasion of privacy based on false statements where, again, a matter of public interest was involved. Time, Inc. v. Hill, 385 U. S. 374 (1967). The opinion in that case expressly reserved the question presented here whether the test applied in a libel action brought by a private individual. Id., at 391.
[2] This term is from Warren & Brandeis, The Right to Privacy, 4 Harv. L. Rev. 193, 214 (1890). Our discussion of matters of "public or general interest" appears in Part IV, infra, of this opinion.
[3] Petitioner does not question that the First Amendment guarantees of freedom of speech and freedom of the press apply to respondent's newscasts.
[4] At trial, Captain Ferguson testified that his definition of obscenity was "anytime the private parts is showing of the female or the private parts is shown of males."
[5] Several more newsstand operators were arrested between October 1 and October 4.
[6] The record neither confirms nor refutes petitioner's contention that his arrest was fortuitous. Nor does the record reflect whether or not petitioner's magazines were the subject either of the original citizens' complaints or of the initial police purchases.
[7] The complaint named as defendants the publishers of two newspapers, a television station, the city of Philadelphia, and the district attorney, but not respondent WIP. The plaintiffs were petitioner, the partnership of himself and his wife which carried on the business, and the publisher of the nudist magazines that he distributed.
[8] The text of the final broadcast read as follows:
"U. S. District Judge John Lord told WIP News just before air-time that it may be another week before he will be able to render a decision as to whether he has jurisdiction in the case of two publishers and a distributor who wish to restrain the D. A.'s office, the police chief, a TV station and the Bulletin for either making alleged raids of their publications, considered smut and immoral literature by the defendants named, or publicizing that they are in that category. Judge Lord then will be in a position to rule on injunction proceedings asked by the publishers and distributor claiming the loss of business in their operations."
[9] The reference here, of course, is to common-law "malice," not to the constitutional standard of New York Times Co. v. Sullivan, supra. See n. 18, infra.
[10] Pa. Stat. Ann., Tit. 12, § 1584a (Supp. 1971) provides:
"(1) In an action for defamation, the plaintiff has the burden of proving, when the issue is properly raised:
"(a) The defamatory character of the communication;
"(b) Its publication by the defendant;
"(c) Its application to the plaintiff;
"(d) The recipient's understanding of its defamatory meaning;
"(e) The recipient's understanding of it as intended to be applied to the plaintiff;
"(f) Special harm resulting to the plaintiff from its publication;
"(g) Abuse of a conditionally privileged occasion.
"(2) In an action for defamation, the defendant has the burden of proving, when the issue is properly raised:
"(a) The truth of the defamatory communication;
"(b) The privileged character of the occasion on which it was published;
"(c) The character of the subject matter of defamatory comment as of public concern."
See Restatement of Torts § 613.
[11] For example, the public's interest in the provocative speech that was made during the tense episode on the campus of the University of Mississippi would certainly have been the same in Associated Press v. Walker, n. 1, supra, if the speaker had been an anonymous student and not a well-known retired Army general. Walker also illustrates another anomaly of focusing analysis on the public "figure" or public "official" status of the individual involved. General Walker's fame stemmed from events completely unconnected with the episode in Mississippi. It seems particularly unsatisfactory to determine the extent of First Amendment protection on the basis of factors completely unrelated to the newsworthy events being reported. See also Greenbelt Publishing Assn. v. Bresler, 398 U. S. 6 (1970).
[12] We are not to be understood as implying that no area of a person's activities falls outside the area of public or general interest. We expressly leave open the question of what constitutional standard of proof, if any, controls the enforcement of state libel laws for defamatory falsehoods published or broadcast by news media about a person's activities not within the area of public or general interest.
We also intimate no view on the extent of constitutional protection, if any, for purely commercial communications made in the course of business. See Valentine v. Chrestensen, 316 U. S. 52 (1942). Compare Breard v. Alexandria, 341 U. S. 622 (1951), with Martin v. Struthers, 319 U. S. 141 (1943). But see New York Times Co. v. Sullivan, 376 U. S., at 265-266; Linn v. Plant Guard Workers, 383 U. S. 53 (1966).
[13] Our Brother WHITE states in his opinion: "[T]he First Amendment gives . . . a privilege to report . . . the official actions of public servants in full detail, with no requirement that . . . the privacy of an individual involved in . . . the official action be spared from public view." Post, at 62. This seems very broad. It implies a privilege to report, for example, such confidential records as those of juvenile court proceedings.
[14] See United Medical Laboratories, Inc. v. Columbia Broadcasting System, Inc., 404 F. 2d 706 (CA9 1968), cert. denied, 394 U. S. 921 (1969); Time, Inc. v. McLaney, 406 F. 2d 565 (CA5), cert. denied, 395 U. S. 922 (1969); Bon Air Hotel, Inc. v. Time, Inc., 426 F. 2d 858, 861 n. 4, and cases cited therein (CA5 1970). See generally Cohen, A New Niche for the Fault Principle: A Forthcoming Newsworthiness Privilege in Libel Cases?, 18 U. C. L. A. L. Rev. 371 (1970); Kalven, The Reasonable Man and the First Amendment: Hill, Butts, and Walker, 1967 Sup. Ct. Rev. 267; Note, Public Official and Actual Malice Standards: The Evolution of New York Times Co. v. Sullivan, 56 Iowa L. Rev. 393, 398-400 (1970); Note, The Scope of First Amendment Protection for Good-Faith Defamatory Error, 75 Yale L. J. 642 (1966).
[15] Some States have adopted retraction statutes or right-of-reply statutes. See Donnelly, The Right of Reply: An Alternative to an Action for Libel, 34 Va. L. Rev. 867 (1948); Note, Vindication of the Reputation of a Public Official, 80 Harv. L. Rev. 1730 (1967). Cf. Red Lion Broadcasting Co. v. FCC, 395 U. S. 367 (1969).
One writer, in arguing that the First Amendment itself should be read to guarantee a right of access to the media not limited to a right to respond to defamatory falsehoods, has suggested several ways the law might encourage public discussion. Barron, Access to the PressA New First Amendment Right, 80 Harv. L. Rev. 1641, 1666-1678 (1967). It is important to recognize that the private individual often desires press exposure either for himself, his ideas, or his causes. Constitutional adjudication must take into account the individual's interest in access to the press as well as the individual's interest in preserving his reputation, even though libel actions by their nature encourage a narrow view of the individual's interest since they focus only on situations where the individual has been harmed by undesired press attention. A constitutional rule that deters the press from covering the ideas or activities of the private individual thus conceives the individual's interest too narrowly.
[16] This is not the less true because the area of public concern in the cases of candidates for public office and of elected public officials is broad. See Monitor Patriot Co. v. Roy, 401 U. S. 265 (1971).
[17] Our Brothers HARLAN and MARSHALL would not limit the application of the First Amendment to private libels involving issues of general or public interest. They would hold that the Amendment covers all private libels at least where state law permits the defense of truth. The Court has not yet had occasion to consider the impact of the First Amendment on the application of state libel laws to libels where no issue of general or public interest is involved. See n. 1, supra. However, Griswold v. Connecticut, 381 U. S. 479 (1965), recognized a constitutional right to privacy and at least one commentator has discussed the relation of that right to the First Amendment. Emerson, supra, at 544-562. Since all agree that this case involves an issue of public or general interest, we have no occasion to discuss that relationship. See n. 12, supra. We do not, however, share the doubts of our Brothers HARLAN and MARSHALL that courts would be unable to identify interests in privacy and dignity. The task may be difficult but not more so than other tasks in this field.
[18] At oral argument petitioner argued that "the little man can't show actual malice. How can George Rosenbloom show that there was actual malice in Metromedia? They never heard of him before." Tr. of Oral Arg., Dec. 8, 1970, p. 39. But ill will toward the plaintiff, or bad motives, are not elements of the New York Times standard. That standard requires only that the plaintiff prove knowing or reckless falsity. That burden, and no more, is the plaintiff's whether "public official," "public figure," or "little man." It may be that jury instructions that are couched only in terms of knowing or reckless falsity, and omit reference to "actual malice," would further a proper application of the New York Times standard to the evidence.
[19] The instructions authorized an award of punitive damages upon a finding that a falsehood "arose from a bad motive or . . . that it was published with reckless indifference to the truth . . . punitive damages are awarded as a deterrent from future conduct of the same sort." App. 333a. The summation of petitioner's counsel conceded that respondent harbored no ill-will toward petitioner, but, following the suggestion of the instructions that punitive damages are " `smart' money," App. 313a, argued that they should be assessed because "[respondent] must be careful the way they impart news information and you can punish them if they weren't because you could say that was malicious." Ibid. This was an obvious invitation based on the instructions to award punitive damages for carelessness. Thus the jury was allowed, and even encouraged, to find malice and award punitive damages merely on the basis of negligence and bad motive.
[1] Of course, for me, this case presents a Fourteenth, not a purely First, Amendment issue, for the question is one of the constitutionality of the applicable Pennsylvania libel laws. However, I have found it convenient, in the course of this opinion, occasionally to speak directly of the First Amendment as a shorthand phrase for identifying those constitutional values of freedom of expression guaranteed to individuals by the Due Process Clause of the Fourteenth Amendment.
[2] I would expressly reserve, for a case properly presenting it, the issue whether the New York Times rule should have any effect on "privacy" litigation. The problem is briefly touched upon in Time, Inc. v. Hill, 385 U. S. 374, 404-405 (1967) (HARLAN, J., concurring and dissenting).
[3] The conclusions I reach in Part III of this opinion are somewhat different from those I embraced four Terms ago in Curtis Publishing Co., supra, at 159-161. Where matters are in flux, however, it is more important to re-think past conclusions than to adhere to them without question and the problem under consideration remains in a state of evolution, as is attested to by all the opinions filed today. Reflection has convinced me that my earlier opinion painted with somewhat too broad a brush and that a more precise balancing of the conflicting interests involved is called for in this delicate area.
[4] Of course, I do not envision that, consistently with my views, the States could only exact some predetermined multiple of the actual damages found. I should think a jury could simply be instructed, along the lines set out in my opinion, on the legitimate uses of the punitive damage award and the necessity for relating any such judgment to the harm actually done.
[5] The plurality opinion states that the "real thrust" of my position is that it "will not `constitutionalize' the factfinding process." Ante, at 53. In fact, I have attempted to demonstrate throughout this opinion that I believe the positions of my Brother BRENNAN, BLACK, and MARSHALL all, in varying degrees, overstate the extent to which libel law is incompatible with the constitutional guarantee of freedom of expression, and have pointed out that I think my views have merit "even if [the objection noted in my Brother MARSHALL'S opinion] were not tenable." Supra, at 69. Moreover, the assertion that an inquiry into whether actual damages were suffered "will involve judges even more deeply in factfinding," ante, at 53, than ascertaining whether "the defendant in fact entertained serious doubts as to the truth of his publication," ante, at 56, or whether the publication involved "an event of public or general concern," ante, at 52, seems to me to carry its own refutation. The former focuses on measurable, objective fact; the latter upon subjective, personal belief. Finally, I cannot see why juries may not typically be entrusted responsibly to determine whether a publisher was negligent, a function they perform in judging the harmful conduct of most other members of society; or why it should be materially more difficult for judges to oversee such decisions where a speaker, rather than any other actor, is a defendant.
[1] New York Times Co. v. Sullivan, 376 U. S. 254 (1964).
[2] See, e. g., Associated Press v. Walker, 388 U. S. 130 (1967); Curtis Publishing Co. v. Butts, 388 U. S. 130 (1967); Beckley Newspapers Corp. v. Hanks, 389 U. S. 81 (1967); Greenbelt Publishing Assn. v. Bresler, 398 U. S. 6 (1970); Rosenblatt v. Baer, 383 U. S. 75 (1966).
[3] For cases in which the courts have protected the privacy of persons involved in dramatic public events see Mau v. Rio Grande Oil, Inc., 28 F. Supp. 845 (ND Cal. 1939), and Melvin v. Reid, 112 Cal. App. 285, 297 P. 91 (1931).
[4] See Time, Inc. v. Pape, 401 U. S. 279 (1971).
[5] New York Times Co. v. Sullivan, 376 U. S., at 279.
[6] The jury awarded Mr. Rosenbloom $25,000 in general damages and $725,000 in punitive damages. The District Court reduced the punitive damages to $250,000 on remittitur.
[7] See n. 6, supra.
[8] Most jurisdictions in this country recognize the concept of punitive or exemplary damages. Four StatesIllinois, Massachusetts, Nebraska, and Washingtonapparently do not recognize the doctrine. In Louisiana and Indiana the doctrine has limited applicability. See H. Oleck, Damages to Persons and Property § 269, p. 541 (1955).
[9] "[A] jury instruction is not abracadabra. It is not a magical incantation, the slightest deviation from which will break the spell. Only its poorer examples are formalistic codes recited by a trial judge to please appellate masters. At its best, it is simple, rugged communication from a trial judge to a jury of ordinary people, entitled to be appraised in terms of its net effect." Time, Inc. v. Hill, 385 U. S. 374, 418 (1967) (Fortas, J., dissenting).
[10] See n. 9, supra.
[11] Of course, reliance on limiting awards to compensation for actual loss will require some review of the facts of particular cases. But that review will be limited to essentially objectively determinable issues; the contents of the publication will not have to be considered.
[12] Leaving States free to impose liability when defamation is found to be the result of negligent conduct, should make it somewhat more likely that a private person will have a meaningful forum in which to vindicate his reputation. If the standard of care is higher, it would seem that publishers will be more likely to assert the defense of truth than simply contend that they did not breach the standard.
[13] Strict liability for defamation was first clearly established in Jones v. E. Hulton & Co., [1909] 2 K. B. 444, aff'd, [1910] A. C. 20. See Smith, Jones v. Hulton: Three Conflicting Judicial Views As to a Question of Defamation, 60 U. Pa. L. Rev. 365 and 461 (1912). The standard has been applied in many jurisdictions in this country. See, e. g., Upton v. Times-Democrat Publishing Co., 104 La. 141, 28 So. 970 (1900); Laudati v. Stea, 44 R. I. 303, 117 A. 422 (1922); Taylor v. Hearst, 107 Cal. 262, 40 P. 392 (1895). See also Restatement of Torts § 582, comment g (1938). Liability without fault has not been applied, however, in Pennsylvania. See Summit Hotel Co. v. National Broadcasting Co., 336 Pa. 182, 8 A. 2d 302 (1939), Pa. Stat. Ann., Tit. 12, § 1583 (1953).
| {
"pile_set_name": "FreeLaw"
} |
USCA1 Opinion
[NOT FOR PUBLICATION]
[NOT FOR PUBLICATION]
United States Court of Appeals
For the First Circuit
For the First Circuit
____________________
No. 96-1223
ADALBERTO LIO a/k/a ALBERTO LIO,
Plaintiff, Appellant,
v.
WALTER F. ROBINSON, JR., ET AL.,
Defendants, Appellees.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Robert E. Keeton, U.S. District Judge]
___________________
____________________
Before
Lynch, Circuit Judge,
_____________
Aldrich and Bownes, Senior Circuit Judges.
_____________________
____________________
Edgar L. Kelley for appellant.
_______________
Mary Jo Harris, Special Assistant Corporation Counsel, with whom
______________
Merita A. Hopkins, Corporation Counsel, and Kopelman and Paige, P.C.
__________________ ________________________
were on brief for appellees.
____________________
April 29, 1997
____________________
BOWNES, Senior Circuit Judge. Plaintiff-appellant
BOWNES, Senior Circuit Judge.
____________________
Adalberto Lio appeals from a jury finding of no liability in
his 42 U.S.C. 1983 action, Massachusetts Civil Rights
action, and Massachusetts tort claim against seven Boston
police officers and the City of Boston.1 The only issues on
appeal concern evidentiary rulings made by the district
court. We affirm the rulings.
I.
I.
THE EVIDENCE
THE EVIDENCE
____________
We rehearse so much of the evidence as is necessary
to understand the evidentiary rulings that are the subject of
this appeal. Our review of the evidence is made, of course,
in the light most favorable to the verdicts. Newell P.R.,
____________
Ltd. v. Rubbermaid, Inc., 20 F.3d 15, 18 (1st Cir. 1994).
_________________________
Plaintiff Lio had been a Boston police officer since June of
1979; his designation was patrolman. Starting in 1982, he
began exercising to build up his body. He used various gyms
in the Boston area. In the spring of 1991, he was using a
gym in Dedham, Massachusetts. In April of 1991, Sergeant-
Detective Leonard Marquardt (one of the defendants) was
informed by an officer of the Dedham Police Department that
Lio was selling drugs -- steroids -- at a gym in Dedham.
____________________
1. The original defendants included the Town of Dedham,
Massachusetts, and two of its police officers. Summary
judgments were granted in favor of these defendants. No
appeal has been taken from those judgments.
-2-
2
Marquardt contacted his supervisor, Superintendent Joseph
Saia (also a defendant), and a sting operation was set in
motion. There was to be a "buy-bust."
John Antoniou, who had been arrested previously by
Marquardt and Detective Walter F. Robinson, Jr. (another
defendant) for selling drugs, agreed to purchase a quantity
of steroids from Lio. Antoniou knew Lio from meeting him at
the gym. He was one of the persons from whom the Dedham
Police Department received information that Lio was dealing
in steroids. Antoniou was given $650 by Marquardt to make
the "buy."
On May 23, 1991, Marquardt was informed by the
Dedham Police Department that Antoniou had arranged with Lio
to make the "buy" at 11:30 p.m. that night at the White Hen
Pantry (a convenience store) on Hyde Park Avenue in Boston.
Marquardt informed Detectives Robinson and Kenneth Beers
(another defendant), who were on duty, to be available to
observe the "buy." Marquardt met with Antoniou in Dedham
prior to the "buy." He emphasized that the "buy" had to be
visible so it could be observed by the watching police
officers. Antoniou was told to signal that the "buy" was in
progress by running his fingers through his hair.
The "buy" was not made at the White Hen Pantry.
Lio, who was in police uniform, talked briefly to Antoniou
before entering and after leaving the store. Antoniou's car
-3-
3
followed Lio's car down Hyde Park Avenue. The observing
police officers kept their superiors apprised of the
situation by radio. The two proceeded to Austin Street and
parked about twenty feet from the intersection. The
observing officers, Detectives Beers and Robinson, were
following in Detective Beers' private car. Beers parked his
car so that he and Robinson could see both Antoniou's and
Lio's cars. They saw both men get out of their vehicles and
meet in the middle of the street. Lio thrust a bag onto
Antoniou's chest, which Antoniou threw into the passenger
side of his automobile, a white Corvette convertible with the
roof back. When the bag was subsequently examined by the
police, it was found to contain packages of steroids and
hypodermic needles.
After the "buy" had been made, Beers drove his car
to Austin Street, which was one-way, and parked it at an
angle across the street so as to block vehicles from going
forward. Beers then approached Lio. There is a difference
in the testimony as to what happened next. According to Lio,
Beers kicked and punched him. He pushed Beers away so that
he could get back into his car and leave. Beers claims that
Lio hit him hard in the midsection and knocked him down.
Beers claims that he put Lio under arrest for assaulting him.
Things then happened quickly. Lio got into his car,
a blue Toyota coupe, and began to back up at a high speed.
-4-
4
Beers hung onto the side of Lio's car until it stopped
suddenly and he was thrown off. Lio started forward straight
at Detective Robinson. Robinson jumped to the side and fired
at Lio. His shot blew out the front side window on the
driver's side of the car. Lio then stopped and put the car
in reverse. Both Beers and Robinson fired at the rear end of
Lio's car. Two bullet holes were found in the rear bumper of
the car. Lio managed to back his car into the intersection
of Austin and West Streets. He turned into West Street.
Superintendent Robert Faherty (another defendant),
night commander of the Boston Police Force, was in the area.
He heard a radio transmission by a police officer state
"Austin toward West." As he turned onto West Street he heard
gunshots and saw a small dark sports car approaching at a
high rate of speed. Faherty, thinking that there had been a
drive-by shooting, gave chase. He followed Lio onto Enneking
Parkway. Shortly thereafter Faherty heard a crash. Faherty
saw Lio get out of his car and run into a patch of woods.
In a short time, back-up police units began to
arrive at the scene. One of the first arrivals was Officer
Cornell Patterson (another defendant). He asked Faherty
where the suspect had gone and was told, "into the woods."
Patterson took Faherty's flashlight and began a search for
Lio. He found him, and Lio surrendered. Patterson took him
to Superintendent Faherty, who told Lio that he was going to
-5-
5
be charged with attempted murder. Faherty then gave Lio the
Miranda warnings. Lio was then taken to the area station
_______
house for booking. Superintendent Saia commanded
Sergeant Edward O'Donnell (the seventh police-officer
defendant) to conduct a "use of deadly force" investigation
into the shots fired at Lio and his car by Detectives
Robinson and Beers.
Lio was charged with assault with intent to murder,
assault and battery by means of a dangerous weapon (a car),
assault by means of a dangerous weapon (a car), driving to
endanger, speeding, leaving the scene of an accident, failure
to stop for a police officer, distribution of a Class E
controlled substance, unlawful possession of hypodermic
needles, and unlawful possession of syringes. In May 1994,
the District Attorney issued a nolle prosequi, dismissing the
_____ ________
charges against Lio. This lawsuit followed.
Plaintiff's complaint alleged violations of 42
U.S.C. 1983 (false arrest, excessive force, malicious
prosecution, and conspiracy to violate civil rights),
violations of the Massachusetts Civil Rights Act, Mass. Gen.
Laws ch. 12, 11I, and assault and battery, arising out of
an investigation which culminated in Lio's arrest on May 23,
1991. The plaintiff further alleged that the City of Boston
had a practice, custom or policy of allowing constitutional
violations, such as alleged in his complaint, to occur.
-6-
6
The district court decided prior to the start of
the trial that the case against the City of Boston should be
severed from that of the police officers and tried
immediately thereafter if any of the defendant police
officers were found liable. Because the jury did not find
any of the individual defendants liable, the case against the
City of Boston was dismissed.
II.
II.
THE ISSUES
THE ISSUES
__________
Appellant has raised three issues, which we state
as they are set forth at page one of his brief. We review
for abuse of discretion. See Blinzler v. Marriott Int'l,
___ ____________________________
Inc., 81 F.3d 1148, 1158 (1st Cir. 1996).
____
The first issue is stated as follows:
I. Whether the trial judge erred in
allowing Defendant's Motion In Limine To
Exclude Evidence of a Character or
Reputation Pursuant to Federal Rules of
Evidence 404(b), resulting in the
exclusion of evidence of racial animus,
to prove motive, opportunity, intent,
preparation, plan, knowledge, and
identity within Rule 404(b).
There was a hearing on defendants' motion in limine.
__ ______
Plaintiff wanted to prove through the deposition testimony of
Gregory Matthews, Jose Alfonso, Marilyn Hinton, and Brian
Latson -- all of whom were minority officers on the Boston
Police Force, and all of whom, except Alfonso, served under
defendant Marquardt -- that Marquardt harbored a racial
-7-
7
animus toward minorities. At the hearing the district judge
stated the question as he understood it: whether Marquardt,
acting in a supervisory capacity, did something that was
motivated by racial animus. Counsel for Lio, Mr. Kelley,
agreed that that was the question. The following colloquy
then ensued:
THE COURT: All right. Now, then it
seems to me that since that is the issue,
the existence of racial animus is not
itself an element of any claim and the
question becomes what evidence is
admissible to show that the officer did
something with racial animus. That's the
question. And that brings us directly,
then, to Rule 404, that says evidence of
a person's character that he has a racial
animus is not admissible for the purpose
of proving that action in conformity
therewith occurred on a particular
occasion. 404(a) is directly in point.
MR. KELLEY: It would be in point if
the purpose of the offer were restricted
to proving propensity or proclivity.
THE COURT: But what is the purpose
of the offer?
MR. KELLEY: The purposes -- one of
the defendants here, Superintendent Saia,
a long and experienced officer who was in
charge of the operations of these
particular defendants, knowing in advance
of -- sufficient to question the racial
bias and animus of given officers in a
given station, did nothing, took no
action, as a matter of fact in testimony,
endorsed their actions.
THE COURT: Well, you see, that
doesn't at all support an argument of
opinion or reputation in the community.
That would be an argument that would only
permit evidence that Saia himself knew
-8-
8
about this characteristic of the other
person, so that's what you have to offer.
You can't offer --
MR. KELLEY: That's what I'm saying
we will offer and we will prove.
THE COURT: Well, that's not -- all
right. Then show me the proffer.
Then followed an extensive colloquy (ten transcript
pages) between the court and plaintiff's counsel. The court
ruled that the deposition testimony of the four minority
police officers could not be used. It then stated:
Now, that's not going to stop you from
making a proffer during the course of
trial. Of course, if you want to
complain about my ruling on appeal,
you're going to have to do that. And
when I hear that proffer in more detail,
I'll consider any arguments that may be
made at that time just in case it may
persuade me to a different view.
But the view I hold at the present
time is that what you're aiming for here
is to show that Saia is liable personally
and that the only way I can determine
that that is correct is to determine that
Saia acted with racial animus and that
what you're proffering to me doesn't
cover some gaps between a particular
officer's personal view about his
experiences and, first, the inference
that that means that Marquardt has racial
animus and has that reputation, and,
secondly, that Saia knows that and,
third, that when Saia is making his
decisions he's not just making a bad
executive decision, but he's making it
with racial animus because of his own
racial animus. There are several missing
steps in the proffer of evidence.
No proffers were made during trial.
-9-
9
On November 23, 1995, the day after defendants'
motion in limine had been granted, plaintiff filed a "Proffer
__ ______
of Evidence" to which were attached extensive excerpts of the
deposition testimony of minority Boston Police Officers
Matthews, Alfonso, Hinton, and Latson. The purpose of the
proffer is stated as follows:
In respect of Marilyn Hinton her
testimony is replete with personal
experiences that prove conclusively that
the defendant, Leonard Marquardt had a
rampant racial animus which made her
service in Area E humiliating and
horrific as a black female police
officer. She extended his paradigmatic
racism as illustrative of the cynical
rule that police like him are "easier to
tolerate than to correct," as a pervasive
policy in Area E.
The gist of Gregory Matthews [sic]
testimony as excerpted is that he was the
object of direct racial slurs stated by
the defendant, Leonard Marquardt, that he
heard the defendant refer to minorities
and blacks a[sic] "chincs and spics" at
page 52, and "Leroy(s)" at page 72.
In the case of Brian Latson, his
testimony is probative on the issue that
the defendant, Leonard Marquardt, had a
propensity to usurp the functions of the
division of Internal Affairs. The
defendant, Leonard Marquardt, arrogated
to himself an excessive personal industry
in supervising minority officers.
In the case of Jose Alfonso his
testimony is probative on the issue of a
defense that the plaintiff invented such
an animus as a defense to the criminal
and administrative charges against him
resulting from the "buy bust" operation
generated by Area E personnel (all
-10-
10
defendants except Saia) for a spurious
execution in Dedham.
We have read the deposition testimony carefully.
We point out, first of all, that a portion of the testimony
of all the deponents is hearsay and for that reason alone
would not be admissible. Officer Alfonso obtained all his
information about Area E (the home base for Marquardt and
Lio) from Lio. Lio was Alfonso's training officer and they
were partners for a year and a half, assigned to Spanish
areas of Boston. Because of Lio's advice, Alfonso did not
work in Area E. He only knew about Marquardt from what Lio
told him. He did not know Superintendent Faherty at all.
Insofar as the proffer suggests that Alfonso had information
that the "buy-bust" sting operation was spurious and
motivated by Marquardt's racial animus, there is no such
testimony, either direct or implied, in his deposition. Nor
is there in any of the other depositions.
Officers Matthews and Hinton worked under
Marquardt, apparently at different times. Both described
Marquardt as a bigoted racist who treated minorities with
scorn and derision. According to Hinton, Marquardt was foul-
mouthed with minority women and verbally assaulted them.
Officer Brian Latson worked under Marquardt in Area
E. He testified that he never observed anything suggesting
that either Marquardt or Detective Robinson were targeting
minority officers. He testified further that he did not
-11-
11
think the racial climate at Area E was bad at all and he
enjoyed working there. Latson also testified under
questioning by Lio's counsel that Lio was upset with
Marquardt and "fearful" of him. Then followed testimony that
would be clearly inadmissible on relevancy and hearsay
grounds: Latson's commanding officer, Deputy Clayburn (an
African-American), called him into his office and told him
that he had heard that Latson was using steroids. Latson
denied it, and said that he had been a Christian Scientist
since he was twelve and never even took an aspirin. Latson
further said that he was willing to submit to whatever tests
that Clayburn wanted to give. It was Latson's opinion that
this inquiry was prompted by the fact that both he and Lio
were into body building and lifting weights. About the same
time, he was approached by a known drug dealer and a "street
source" for Latson, who told him that two detectives had been
inquiring about him. Latson testified that he thought
Marquardt was asking about him because of his close
relationship with Lio.
As we discern it, Lio's theory for the admission of
the deposition testimony is that it tended to prove that the
"buy-bust" sting operation was motivated by Marquardt's
racial animus against Lio. Even if we assume that Marquardt
had a strong racial animus against minority police officers,
of which the depositions of Hinton and Matthews are
-12-
12
probative, and that Superintendent Saia knew this or should
have known it, we fail to comprehend the relevancy of the
depositions. There was no direct, circumstantial, or
inferential evidence that Lio was "set up" as a result of
Marquardt's racial animus toward minority officers. The
sting operation originated with the Dedham Police Department.
That police department informed Marquardt that Lio had been
dealing in steroids. It was the Dedham Police who selected
John Antoniou to make the "buy." Marquardt had reliable
information than an officer under his command was dealing in
drugs. He got permission from his superior officer to
proceed with the "buy-bust" sting. There is nothing in the
deposition testimony to suggest that he would have proceeded
differently had the implicated officer been white instead of
Hispanic. We think the deposition testimony could have been
excluded on the grounds of relevancy alone.
The district court was surely correct in excluding
the deposition testimony on the grounds of Federal Rule of
Evidence 404(a):
Rule 404. Character Evidence Not
Rule 404. Character Evidence Not
Admissible To Prove Conduct; Exceptions;
Admissible To Prove Conduct; Exceptions;
Other Crimes
Other Crimes
(a) Character evidence generally.
(a) Character evidence generally.
Evidence of a person's character or a
trait of character is not admissible for
the purpose of proving action in
conformity therewith on a particular
occasion, except: . . .
Nor does it fall within the ambit of exception (b):
-13-
13
(b) Other crimes, wrongs, or acts.
(b) Other crimes, wrongs, or acts.
Evidence of other crimes, wrongs, or acts
is not admissible to prove the character
of a person in order to show action in
conformity therewith. It may, however,
be admissible for other purposes, such as
proof of motive, opportunity, intent,
preparation, plan, knowledge, identity,
or absence of mistake or accident,
provided that upon request by the
accused, the prosecution in a criminal
case shall provide reasonable notice in
advance of trial, or during trial if the
court excuses pretrial notice on good
cause shown, of the general nature of any
such evidence it intends to introduce at
trial.
Clearly, the purpose of plaintiff's proffer was "to
prove the character" of Marquardt "in order to show action in
conformity therewith." And since the proffer does not come
within any of the exceptions in the second sentence because
there is no evidence in the depositions showing any of the
other purposes, the district court correctly excluded the
deposition testimony.
Appellant argues that Gutierrez-Rodriguez v.
________________________
Cartagena, 882 F.2d 553 (1st Cir. 1989), is precedent for
_________
admitting the depositions into evidence. Gutierrez involved
_________
a 42 U.S.C. 1983 civil rights action brought against police
officers of the Commonwealth of Puerto Rico for the
unwarranted shooting of the plaintiff, rendering him a
paraplegic. In that case the district court allowed in
evidence under Rule 404(b) thirteen case files of the police
-14-
14
officer who shot the plaintiff. We affirmed the admission,
stating:
The complaint files were relevant to
prove the supervisory liability of
Cartagena and Alvarez. They were not
introduced to show that based upon Soto's
past conduct it was likely that he
participated in the Gutierrez shooting.
The evidence was not used to prove
conduct, period. As was repeatedly
stressed by the district court, the
evidence could only be used against
Cartagena and Alvarez to show gross
lapses in the supervision and discipline
of Soto.
Id. at 572. This is not precedent for admitting the
___
depositions in this case. Quite the contrary! The other
cases cited by appellant in support of admitting the
depositions are even more attenuated. Even if an argument
could be made that the statements provide proof of motive,
the evidence was extremely weak for the reason already given.
The sting was orchestrated by the Dedham Police.
The second issue as stated by appellant is:
II. Whether the trial judge erred in
denying Plaintiff-Appellant's Motion In
Limine to Permit The Introduction of John
Antoniou's Criminal Record after hearing
and as renewed during the course of the
trial.
This issue does not require extended discussion.
Antoniou was not a witness at the trial. Appellant alleges
that he fled the jurisdiction. His deposition was not taken.
Lio's attorney injected Antoniou into the case on his direct
examination of Marquardt:
-15-
15
Q: (By Mr. Kelley): Did you have
any other words with John
Antoniou at that meeting other
than what you've said here?
A: (By Marquardt): No.
Q: Did any of the other
participants in this discussion
have any words directly with
John Antoniou that you
overheard?
. . .
A: I don't remember any.
Q: Did John Antoniou say anything?
A: Yes.
Q: What did he say?
Ms. Harris: Objection. Hearsay, your
__________
Honor.
The Court: Overruled.
_________
A: He said that he could buy drugs
from (indicating) Adalberto
Lio.
Q: He said he could buy drugs?
A: Yes sir, he did.
Q: Did he then move on from that
and say, "I will attempt to buy
drugs from Adalberto Lio?"
A: That's what I thought he was there for.
. . .
Q: And Antoniou at Area E told you
that he was willing to try to
arrange a sale of steroids from
(indicating) Adalberto Lio, is
that correct?
A: Yes, sir.
The court instructed the jury, after the statements
of Antoniou had been admitted, as follows:
THE COURT: Now, I think I should
give the limiting instruction that
[statements of Antoniou are] not being
received to prove the truth of the
statements made, but it has to come in
because it's information that bears upon
any charge of probable cause or acting
without probable cause against various
people . . . even if some of the
information . . . is hearsay within
hearsay, it's still information that is
-16-
16
being passed along and is taken into
account in the whole array of information
that the officers who are defendants, if
they have that information, it's part of
the information they take into account in
determining whether action is
appropriate.
MR. KELLEY: I guess, then, your
Honor, what I would request the Court to
do is, as specifically as possible,
emphasize that this is not being received
for the purpose of the truth of any --
THE COURT: I'll do that.
Lio did not object to this instruction; to the
contrary, he acquiesced in it.
Finally, the record makes it clear that the police
officers who dealt with Antoniou, including Marquardt, knew
and acknowledged that he had a criminal record. Under all
the circumstances here, it was not error for the district
court to exclude the specifics of Antoniou's prior criminal
record.
The third and final issue raised by appellant is
stated:
III. Whether the trial Judge erred
in denying Plaintiff's Motion In Limine
to Permit the Introduction of
Massachusetts Superior Court "Nolle
Prosequi" and related papers under
Federal Rules of Evidence, Rules 201 and
803(8)(C) and in applying the so called
"Bad Acts" restriction of Rule 404(b) to
that evidence.
Some explanation is in order. The district court
allowed Lio to read to the jury the nolle prosequi docket
_____ ________
-17-
17
entries. The jury was then instructed that these entries
were terminations in favor of the plaintiff and satisfied one
element of the malicious prosecution claim.
The district court did not allow in evidence a two
and one half page statement by the Suffolk County District
Attorney giving the reasons for the nolle prosequi. This
_____ ________
statement was clearly hearsay; it was an out-of-court
statement offered for the truth of what was contained
therein. And as the court explained fully to Lio's counsel
at the pretrial hearing on the motions in limine, it did not
__ ______
fall within the hearsay exception of Federal Rule of Evidence
803(8)(C), which permits the introduction into evidence of
records, reports, statements, or data
compilations, in any form, of public
offices or agencies, setting forth,
. . . . in civil actions and proceedings
and against the Government in criminal
cases, factual findings resulting from an
investigation made pursuant to authority
granted by law, unless the sources of
information or other circumstances
indicate lack of trustworthiness.
The following colloquy took place:
THE COURT: Now, what is the factual
finding that you're proposing to offer
here?
MR. KELLEY: The finding that, as is
recited in the nolle prose itself,
evidence was compromised by police
officers, internal contradictions between
--
THE COURT: Wait a minute. Wait a
minute. Where is that finding? Read me
the language that you say constitutes --
-18-
18
MR. KELLEY: "Because of
deficiencies in the way Boston Police
officers controlled and handled the
informant as well as physical evidence in
this case" -- that's a factual
determination -- "there is," therefore,
"a substantial likelihood that the
Commonwealth cannot establish a prima
facie case . . . ."
THE COURT: All right. Now, I'm
trying to look for some finding there
that is related to an issue in this case.
Findings that are immaterial to this
case, of course, don't come into evidence
in this case. Findings that are
immaterial to this case, of course, don't
come into evidence in this case.
MR. KELLEY: Of course.
THE COURT: It's only findings that
are material to this case.
Now, there is not an identification
of what the deficiencies were, so I am
not able to tell whatever the person, the
official making this finding was
referring to, and unless I can determine
what the official was referring to, then
I cannot determine whether it's related
to an issue in this case or instead is
immaterial to an issue in this case.
This is even worse than receiving
reputation evidence or something like
that that's a generalized statement
that's not in point for this case.
So, you see the problem I'm having
is with the notion that there are, quote,
factual findings, unquote, here that are
material to the issues in this case. The
mere fact that there are factual findings
in the report doesn't make it admissible
in this case. It covers only one of the
aspects concerned with whether the
evidence is admissible in this case. It
has to be a factual finding that has
materiality to the issues in this case
and I am not able to tell from this form
-19-
19
of factual findings either (1) precisely
what the deficiencies are or (2) how they
affected or would affect the likelihood
of drawing an inference in this case on
some issue that has to be decided by the
factfinder in this case.
MR. KELLEY: Under subsection (C),
as I understand it, that's the purpose of
allowing a report on the part of an
official who is required to investigate
and report.
THE COURT: If the official were
required to investigate and make a report
on whether Saia acted with racial animus,
then that would be an issue that is
involved in this case, but that's not
what this finding is about.
MR. KELLEY: No, it isn't, your
Honor. It isn't offered for that.
THE COURT: So the finding has to be
about something that is an issue in this
case for it to be admissible in this
case. I don't receive evidence in this
case of any kind, witnesses, direct or
findings of an official, unless it's on a
matter that is material to this case and
that's what's missing here. There's no
basis on which I can determine that the
official here has made a finding on an
issue that will be for the jury to
consider in this case.
MR. KELLEY: The next paragraph,
your Honor: "Prior statements and sworn
testimony of certain police and civilian
witnesses necessary to proving the
Commonwealth's case are directly
contradictory in material aspects."
I submit, your Honor, that's the
province of the District Attorney.
THE COURT: Well, wait a minute.
No, it's the province of this jury. If I
determine that there is -- in receiving
evidence on admissibility determine that
-20-
20
there are contradictory statements, then
I tell this jury: "That's for you to
resolve, not for anybody else. Not for
me, certainly not for some official other
than an official of this court."
We affirm the court's exclusion of the District
Attorney's report for the reasons stated by the court in the
colloquy.
We have considered carefully appellees' motion for
sanctions. We deny it.
The judgment of the district court is affirmed.
affirmed.
________
Costs on appeal awarded to appellees.
Costs on appeal awarded to appellees.
____________________________________
-21-
21
| {
"pile_set_name": "FreeLaw"
} |
466 F.Supp.2d 456 (2006)
Thomas M. DAMIANO and Rita Damiano, Plaintiffs,
v.
CITY OF AMSTERDAM, New York; and Gregory J. Culick, Ariel Santiago, Owen Fuhs, and Dean Palmieri, Each Individually, and as an Agent and/or Employee and Police Officer of the City of Amsterdam, and the City of Amsterdam. Police Department, Defendants.
No. 5:04-CV-1012.
United States District Court, N.D. New York.
December 19, 2006.
*457 Tobin & Dempf, Albany, NY (Kevin A. Luibrand, of counsel), for Plaintiffs.
Pennock Breedlove & Noll, Clifton Park, NY (Tracy M. Larocque, Carrie McLoughlin Noll, of counsel), for Defendants.
MEMORANDUM-DECISION and ORDER
HURD, District Judge.
I. INTRODUCTION
Plaintiffs Thomas ("plaintiff' or "Damiano") and Rita Damiano (collectively *458 "plaintiffs") commenced this action against The City of Amsterdam, New York ("City" or "Amsterdam"), Officers Gregory Culick ("Officer Culick"), Owen Fuhs ("Officer Fuhs"), Ariel Santiago ("Officer Santiago"), and Dean Palmieri ("Officer Palmieri"). The plaintiffs bring the following causes of action: (1) an action under 42 U.S.C. § 1983 for violations of plaintiff's rights to due process of law, right to freedom from unlawful search and seizure, right to freedom from false arrest; right to freedom from unlawful imprisonment; and right to freedom from malicious prosecution; (2) municipal liability for unconstitutional custom, practice or policy (3) municipal liability for failure to train; (4) municipal liability for failure to supervise; (5) pendent state law claim for false arrest; (6) pendent state law claim for malicious abuse of process and malicious prosecution; and (7) pendent state law claim for loss of consortium.
Defendants moved for summary judgment. Plaintiffs opposed the motion. Oral argument was heard in Albany, New York on June 23, 2006, and decision was reserved.
II. FACTS
The following facts are undisputed unless otherwise noted.
In early May 2002, the Amsterdam Police Department received information that Alex Zayas ("Zayas") was selling cocaine in Amsterdam and the surrounding area. Detective Lieutenant Tom DiMezza (Lt.Di-Mezza) and Detective Michael Cole was assigned as the agent.
The investigation included a review of Zayas's subpoenaed cell phone records, an eavesdropping warrant, and physical surveillance of Zayas when information indicated he was participating in a narcotics transaction. Based on this information, Amsterdam police obtained arrest warrants for Zayas, Raul Riviera, Miguel Quinones, Mark Majewski, and Bradley Hill. In addition, the police obtained search warrants for each of their homes. Prior to June 30, 2002, the plaintiff was not a target of the investigation.
Early on the morning of June 30, 2002, Amsterdam Police executed the arrest and search warrants for Zayas and his home. Officers entered Zayas's home on a noknock warrant, arrested Zayas, and transported him to the police station. Police continued to search the house and obtained the cooperation of Zayas's housemate of ten years, Janice Ross ("Ross"). Ross directed police to locations in the home where she believed Zayas kept the drugs and drug money. While at the home, Officer Culick took a statement from Ross. She told him that she knew Zayas sold cocaine. She then stated that Zayas told her that the plaintiff purchased cocaine from him and that the plaintiff's telephone number appeared on his home telephone's caller-ID. Officer Culick then took photographs of the telephone's caller ID display and informed Lt. DiMezza that Ross's statement had implicated the plaintiff.
Simultaneous to the search of the house, Zayas was being questioned at the Amsterdam Police Department station by New York State Police Investigator Israel Torro ("Inv.Torro") and Officer Fuhs. The officers claim that Zayas made a statement admitting that he sold drugs to the plaintiff. Zayas has sworn in an affidavit that he made no such statement to the police. (Luibrand Aff. Ex. AA at 18-19.)
Inv. Torro and Officer Fuhs relayed to Lt. DiMezza that Zayas had named the plaintiff as one of the individuals to whom he sold cocaine. Lt. DiMezza determined that the plaintiff should be brought in for questioning. He then dispatched Officers *459 Santiago and Palmieri to the plaintiffs home. They were not told why the plaintiff was being sought for questioning.
When Officers Santiago and Palmieri arrived at the plaintiffs house, they told him that they needed his help with a matter and asked if he would be willing to go with them to the police station. Since he was preparing his home for an event later that day, the plaintiff initially rebuffed the officers' request. The officers persisted. They asked him "as a friend" to "help them out." (Luibrand Aff. Ex. R at 38.)
Plaintiff relented and agreed to travel with these defendants in an unmarked car to the station, which he got into himself and rode in the front seat. Officers Santiago and Palmieri brought the plaintiff into an interview room at the station and then left him and had no further part in the interrogation.
Plaintiff was interviewed by Inv. Torro, Officer Fuhs, Amsterdam Police Detective John DiCaprio ("DiCaprio"), and a fourth, unidentified officer. Additionally, Officer Culick intermittently participated in the interrogation. The officers confronted Damiano with the alleged statement of Zayas and the appearance of his phone number on Zayas's home phone. Plaintiff, who is a stone mason, explained that Zayas had inquired about having stone work done on his home and plaintiff had called with a price quote.
Damiano in his interview told the officers that he had no involvement with Zayas's drug business. (Luibrand Aff. Ex. R at 71, 109-110). He attempted to end the interview but when he said he wanted to leave Officer Fuhs told him that he was not free to go and that he was under arrest. However, the defendants claim that the plaintiff admitted in the interview to having purchased cocaine from Zayas. It was on this alleged admission that Inv. Torro, Officers Fuhs and Det. DiCaprio went to Officer Culick. Culick prepared a felony complaint charging plaintiff with Conspiracy in the Second Degree. He then consulted with District Attorney Judd Conboy ("D.A.") and Lt. DiMezza who, relying on Ross's statement, Zayas's alleged statement implicating plaintiff, and plaintiffs alleged confession, agreed that there was sufficient evidence to charge Damiano.
Plaintiff was then formally placed under arrest and arraigned. However, the charges were never brought before a Grand Jury and an indictment was never issued. After nearly two years, the charges were dismissed on April 29, 2004, for failure to prosecute.
The plaintiffs then brought this action.
III. DISCUSSION
A. Motion for Summary Judgment Standard
Summary judgment must be granted when the pleadings, depositions, answers to interrogatories, admissions and affidavits show that there is no genuine issue as to any material fact, and that the moving party is entitled to summary judgment as a matter of law. Fed. Civ. P. 56; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 2509-10, 91 L.Ed.2d 202 (1986). The moving party carries the initial burden of demonstrating an absence of a genuine issue of material fact. Fed. R. Civ. P 56; Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). Facts, inferences therefrom, and ambiguities must be viewed in the light most favorable to the non-movant. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986).
When the moving party has met the burden, the nonmoving party "must do *460 more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., 475 U.S. at 587, 106 S.Ct. at 1356. To withstand a summary judgment motion, sufficient evidence must exist upon which a reasonable jury could return a verdict for the non-movant. Liberty Lobby, Inc., 477 U.S. at 248-49, 106 S.Ct. at 2510; Matsushita Elec. Indus. Co., 475 U.S. at 587, 106 S.Ct. at 1356.
B. Due Process
Defendants have addressed both substantive and procedural due process. Plaintiff responded that his claim was for procedural due process, based upon his arrest without probable cause. He then went on to discuss his loss of liberty when he was arrested, in the context of a Fourth Amendment unreasonable seizure. However, plaintiff also notes in a footnote that arguably the facts in his case support a substantive due process claim. It is well settled that where the claim is that an arrest was made without probable cause, the Fourth Amendment, and not the due process clause, provides the basis for a constitutional violation. See Albright v. Oliver, 510 U.S. 266, 271, 114 S.Ct. 807, 811, 127 L.Ed.2d 114 (1994); Singer v. Fulton' County Sheriff, 63 F.3d 110, 115 (2d Cir.1995) (restating the principle set forth in Albright that "the Fourth Amendment provides the source for a § 1983 claim premised on a person's arrest").
Plaintiff's claim based upon his arrest without probable cause is analyzed below in accordance with Fourth Amendment jurisprudence. Accordingly, defendants are entitled to dismissal of the due process claims as a matter of law.
C. False Arrest
A false arrest claim brought under § 1983 shares the same elements as the state law claim. Weyant v. Okst, 101 F.3d 845, 853 (2d Cir.1996). Those elements are: (1) defendants intended to confine the plaintiff; (2) the plaintiff was conscious of the confinement; (3) the plaintiff did not consent to the confinement; (4) the confinement was not otherwise privileged. Broughton v. State, 37 N.Y.2d 451, 458, 373 N.Y.S.2d 87, 335 N.E.2d 310 (N.Y.Ct. App.1975).
Turning to the first element of a false arrest claim; the plaintiff must present evidence that the defendants confined him and, because this is a § 1983, action that the confinement constituted a seizure within the meaning of the Fourth Amendment. Posr v. Doherty, 944 F.2d 91, 96-97 (2d Cir.1991). There is no requirement that the- arrest be formal under either New York law or § 1983. Id. at 96. Rather, a plaintiff may show intent to confine by presenting evidence that "the defendant must have either: (1) confined or intended to confine the plaintiff; or (2) affirmatively procured or instigated the plaintiff's arrest." King v. Crossland Savings Bank, 111 F.3d 251, 256 (2d Cir.1997) (finding no proof of intent where private company did not provide any information to police about plaintiff nor did plaintiff produce evidence that defendant requested plaintiff's arrest). Such a confinement is a seizure within the meaning of the Fourth Amendment "if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave." United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497 (Stewart J., concurring).
Plaintiff must also present evidence that he was aware of the confinement. Under New York law, false arrest and false imprisonment are dignitary torts. Parvi v. City of Kingston, 41 N.Y.2d 553, 394 N.Y.S.2d 161, 362 N.E.2d 960 (N.Y.Ct.App. 1977). Therefore, the plaintiff is required *461 to show that he was aware of the confinement and was harmed by it. Id. Additionally, there can be no claim for false arrest where a plaintiff voluntarily agrees to the confinement. Hook v. State, 15 Misc.2d 672, 676, 181 N.Y.S.2d 621 (N.Y.Ct.Cl. 1958) (claim for false arrest dismissed where plaintiff who knew state trooper agreed to go with him to meet investigators to discuss property theft).
Finally, a claim of false arrest under New York State law or § 1983 can not go forward if the arrest is privileged. An arrest is privileged where probable cause for the arrest exists. Posr, 944 F.2d at 98. Probable cause exists "where law enforcement officials have knowledge or reasonably trustworthy information about facts and circumstances sufficient to warrant a person of reasonable caution to believe" that an individual committed the crime. Golino v. City of New Haven, 950 F.2d 864, 870 (2d Cir.1991).
In this case, there are three distinct claims of false arrest against the four police officer defendants. First, plaintiff claims that the actions of Officers Santiago and Palmieri, who were dispatched to his home with orders to ask him to come to the police station for questioning, constituted false arrest. His second claim is that Officer Fuhs's actions during the plaintiffs interrogation and participation in the decision to formally arrest him constituted a second false arrest. Finally, plaintiff claims that Officer Culick, who was his formal arresting officer, is also liable for false arrest. Each claim shall be analyzed in turn.
It must first be determined if the plaintiff has presented evidence that Officers Santiago and Palmieri intended to confine him or seized him. These defendants were sent to the plaintiffs home with merely the instruction that Lt. Di-Mezza wished to speak to plaintiff. They were given no indication of the reason why Lt. DiMezza wanted to speak with plaintiff and no advance information that there was even a possibility that plaintiff might be subject to arrest because of the questioning.
Damiano argues that constructive knowledge may be inferred because other officers were being dispatched throughout Amsterdam to execute arrest and search warrants in connection with the drug investigation. However, such an inference raises only a "metaphysical doubt" rather than a question of material fact. See Matsushita Elec. Indus. Co., 475 U.S. at 587, 106 S.Ct. at 1356. Plaintiff has presented no evidence that contradicts the facts presented by the defendants that their purpose was not to arrest him or confine him but merely to ask him to voluntarily go to the police station. Because there is no evidence that these defendants intended to confine plaintiff, Damiano may only satisfy the first element if he can raise a question of material fact that the defendants took affirmative steps to procure his arrest.
Plaintiff, however, is unable to present evidence that the officers "affirmatively procured or instigated the plaintiffs arrest." King, 111 F.3d at 256. There is nothing in the record to indicate that these officers had any involvement in plaintiffs interrogation or formal arrest. Rather, the only connection to plaintiffs arrest that has been established by the record is that these two defendants brought him to the police station where he was later arrested. The record also establishes that the defendants brought plaintiff to the station under circumstances where the plaintiff himself stated he did not feel that he was under arrest. There is no evidence that these defendants requested that plaintiff be arrested or that they passed on any information to the other officers that led to plaintiffs arrest. Therefore, plaintiff has *462 not presented evidence that raises a question of fact for a jury as to whether Officers Santiago and Palmieri intended to confine him.
However, even if the officers did intend to confine Damiano, he must also raise a question of material fact that he was aware 'of the confinement. Here, plaintiff stated that during the time he was with Officers Santiago and Palmieri at his home and when he rode with them to the police station he did not feel that he was under arrest. He also stated that he did not feel that his freedom had been restricted in any way. Therefore, plaintiff has also failed to, present evidence that he was aware of a confinement.
Finally, it may be considered whether the plaintiff's evidence is sufficient for a reasonable jury to find that he did not consent to the confinement. In the present case, there is no evidence that the officers used undue pressure to compel Damiano to go with them to the station. Damiano himself stated he felt no compulsion or fear at any point while he went with the officers. In fact, he initially told the officers he was too busy to go but they persuaded him by simply asking again for his help "as a friend" to them. (Luibrand Aff. Ex. R at 39.)
Plaintiff claims" that these words and the officers' failure to articulate the reason for his being summoned constituted deceit and trickery. He argues that this deceit and trickery nullifies the voluntariness of his decision to with the officers to the station. However, Damiano never asked the officers why he was wanted at the station and therefore, the officers never had a chance to present him with a deceitful answer. Id. Whether it was a sense of friendship, civic duty, or merely curiosity that ultimately prodded him to go, the plaintiff has presented no evidence that his decision to go with the officers was involuntary. Therefore, there is no triable question of material fact on the issue of whether defendants took plaintiff to the station without his consent.
Therefore, because the plaintiff has not presented evidence to create an issue of material fact for a jury that these defendants intended to confine him, that he was aware of the confinement, and that he did not consent to it, his false arrest claim, under either state law or § 1983, fails.
Summary judgment must be granted to defendants Officers Santiago and Palmieri.
Looking next to plaintiffs false arrest claim against Officer Fuhs, plaintiff has presented evidence which raises issues of material fact for a jury. Plaintiff's sworn deposition alleges that Officer Fuhs refused to terminate questioning upon plaintiff's request. In his sworn deposition he also states that Officer Fuhs told him that he could not leave the interrogation room because he was under arrest. (Luibrand Aff. Ex. R at 50). Additionally, the record indicates that Officer Fuhs passed on information to Officer Culick that directly led to plaintiffs formal arrest. Under these circumstances the plaintiff has raised questions of material fact as to the first three elements of the tort.
However, Officer Fuhs argues that there was probable cause for the arrest so that it was privileged and he can not be liable. See Posr, 944 F.2d at 98. Officer Fuhs argues that "the facts leading to the arrest are not in dispute" and, therefore, the question of whether probable cause exists is one of law for the court as opposed to a factual dispute appropriate for a jury. (Defs.' Mem. at 8.) Despite the defendant's characterization of the material facts, the plaintiff does raise questions of material fact that are appropriately to be answered by a jury.
*463 The police determined that probable cause existed to arrest plaintiff based on statements from Ross, Zayas, and the plaintiff himself. However, plaintiff in his sworn deposition and Zayas in a sworn affidavit deny that either made the statements to the police that implicated plaintiff in the drug-trafficking conspiracy. The summary judgment standard requires that evidence, including all credibility determinations, must be viewed in the light most favorable to the plaintiff. Matsushita, 475 U.S. at 587, 106 S.Ct. at 1356 (1986).
Therefore, the only undisputed evidence Officer Fuhs and Officer Culick had at the time of Damiano's arrest was Ross's statement and the appearance of the plaintiffs telephone number on Zayas's home phone.
This scant evidence can not lead to a decision as a matter of law that there were sufficient facts or circumstances for law enforcement officials of reasonable caution to believe that the plaintiff committed the alleged offense. See Golino, 950 F.2d at 870. Therefore, plaintiff has raised a triable issue of fact for a jury on the question of whether probable cause existed for the arrest.
The plaintiffs last claim for false arrest is against Officer Culick. Officer Culick was the officer who formally arrested the plaintiff. He does not challenge the plaintiff s claim on the first three elements. Rather, like Officer Fuhs, he argues the arrest was privileged because probable cause existed. However, for the foregoing reasons, the plaintiff has presented evidence that raises a triable question of fact for a jury on whether Officer Culick (as well as Fuhs) had probable cause to arrest the plaintiff.
Therefore, Officers Culick and Fuhs's motion for summary judgment on the state law and §. 1983 claims of false arrest must be denied.
D. Malicious Prosecution
Next the defendants seek summary judgment on the plaintiffs claim of malicious prosecution under § 1983. For a plaintiffs claim of malicious prosecution to survive a motion for summary judgment, he must present facts sufficient to show that: "(1) defendants initiated a prosecution against the him; (2) the prosecution was initiated without probable cause; (3) the proceeding was commenced with malice; and (4) the proceedings terminated in the plaintiffs favor." Ricciuti v. New York City Transit Auth., 124 F.3d 123, 130 (2d Cir.1997). In order to assert a claim of malicious prosecution under § 1983, plaintiff must also show that he suffered a "sufficient post-arraignment liberty restraint to implicate [his] Fourth Amendment rights." Rohman v. New York City. Transit Auth., 215 F.3d 208, 215 (2d Cir.2000).
To satisfy the first element, initiation, a plaintiff must show that the officers brought formal charges and caused him to be arraigned. Cook v. Sheldon, 41 F.3d 73, 79 (2d Cir.1994). The Second Circuit has held that when an officer passes on false information that is used by the law enforcement official who files the formal charge, that act may constitute initiation. Ricciuti, 124 F.3d at 130.
Plaintiff must also show that probable cause for the arrest which led to the prosecution was lacking. Id. "Where the question of whether an arresting officer had probable cause is predominantly factual in nature, as, where there is a dispute to the pertinent events, the existence vel non of probable cause is to be decided by the jury." Murphy v. Lynn, 118 F.3d 938, 947 (2d Cir.1997).
The third element is actual malice. The plaintiff is not required to "`prove that the defendant was motivated by spite or hatred *464 . . . [r]ather, it means that the defendant must have commenced the prior criminal proceeding due to a wrong or improper motive.'" Rounseville v. Zahl, 13 F.3d 625, 630 (2d Cir.1994) (quoting Nardelli v. Stamberg, 44 N.Y.2d 500, 502-03, 406 N.Y.S.2d 443, 377 N.E.2d 975 (N.Y.Ct. App.1978)). Actual malice is rarely established by direct evidence and therefore it may be shown through circumstantial evidence. Id. In New York, the lack of probable cause and malice are considered closely related elements and therefore the existence of malice may be inferred from a lack of probable cause. Id. at 631. Therefore, on a motion for summary judgment if there is a question of material fact as to probable cause, then there is also a question of material fact as to the existence of malice.
Regarding the fourth element, "[t]he requirement that a plaintiff show . . . a favorable termination is designed principally to ensure against inconsistent judgments, and to avoid parallel litigation as to questions of probable cause." Murphy, 118 F.3d at 948. The inquiry is thus focused on whether the termination of the proceedings indicates a plaintiffs innocence. Id.
Finally, in order for the plaintiff to bring a malicious prosecution claim under § 1983 he must show "a sufficient post-arraignment liberty restraint to implicate" his Fourth Amendment right to be free from unlawful seizures. Rohman, 215 F.3d at 215.
As with plaintiff's false arrest claim, because each of the defendant officers played distinct roles in this matter, the claims against each are analyzed in turn.
Looking first to Officers Santiago and Palmieri, the plaintiff must establish that a question of material fact exists as to whether these defendants initiated proceedings against him. Plaintiff does not present any evidence that either officer formally filed charges against him or constructively arrested plaintiff. See Cook, 41 F.3d at 79. Nor is there evidence that they passed on false information to their fellow officers calculated to result in his prosecution. See Ricciuti, 124 F.3d at 130. Because the plaintiff has not presented evidence that raises a question of fact on whether Officers Santiago and Palmieri initiated a prosecution against him, his claim of malicious prosecution against them cannot be sustained. Therefore, Officers Santiago and Palmieri's motion for summary judgment on this claim must be granted.
Officer Fuhs also argues that he did not initiate the proceedings against Damiano because he did not file the formal complaint and therefore summary judgment is warranted. However, Officer Fuhs was present at the questioning of both Zayas and Damiano. He told Lt. DiMezza and Officer Culick that Damiano had confessed and that Zayas had implicated the plaintiff as a co-conspirator. It was this information that became the basis upon which the decision to arrest and prosecute Damiano was made. Therefore, a reasonable jury could find that Officer Fuhs did initiate the prosecution of the plaintiff. See Ricciuti, 124 F.3d at 130.
Officer Fuhs is joined by Officer Culick, who did file the formal felony complaint, in arguing that plaintiffs claim against them must fail because he has not presented evidence that there was a lack of probable cause or that they acted with malice. As previously discussed; plaintiff, through his deposition and Zayas's affidavit, has presented evidence that the statements the defendants attribute to him and to Zayas, may not have in fact been made. Therefore, he raises a triable question of fact for a jury on the existence of probable cause. See Murphy, 118 F.3d at 947.
*465 Moreover, because a lack of probable cause may be proof of malice, the plaintiff's presentation of evidence that probable cause may not have existed also satisfies as a showing of evidence of malice. See Rounseville, 13 F.3d at 630.
Neither Officer Culick or Fuhs have argued that plaintiff cannot satisfy the fourth and fifth elements of his cause of action-favorable termination and a significant post-arrest deprivation of liberty. Accordingly, it is assumed for the purposes of this motion that triable questions of fact exist as to these two elements.
Therefore, Officers Fuhs and Culick's motion for summary judgment on the plaintiffs claim of malicious prosecution must be denied.
E. Qualified Immunity
Defendants argue that summary judgment should be granted because they are entitled to qualified immunity. A defendant is entitled to qualified immunity in any of three circumstances: (1) if the conduct attributed him is not prohibited under federal law; (2) where the conduct is prohibited, if the plaintiffs right not to be subjected to such conduct by the defendant was not clearly established at the time of the conduct; or (3) if the defendant's conduct was objectively legally reasonable in light of the legal rules that were clearly established at the time it was taken. X-Men Sec., Inc. v. Pataki, 196 F.3d 56, 65-66 (2d Cir.1999). Defendants assert the defense of qualified immunity on the grounds that their determination that probable cause for the arrest existed was objectively reasonable.
The question "of whether a defendant official's conduct was objectively reasonable . . . is a mixed question of law and fact." Kerman v. City of New York, 374 F.3d 93, 109 (2d Cir.2004) (citations omitted). While "a conclusion that the defendant official's conduct was objectively reasonable as a matter of law may be appropriate where there is no dispute as to the material historical facts, if there is a such a dispute, the factual questions must be resolved by the fact finder." Id. (citations omitted).
Here, there are disputes about material facts relating to whether Officers Culick and Fuhs had probable cause to arrest plaintiff. Defendants argue that the D.A.'s statement to Officer Culick is dispositive in showing that their decision to arrest plaintiff was based on probable cause and therefore was objectively reasonable. However, the D.A. only advised the defendants that arresting the plaintiff was appropriate after Officer Culick told him about the alleged confession of Damiano and the alleged statement of Zayas that implicated the plaintiff. It is therefore inappropriate to make a determination on whether qualified immunity applies in advance of a jury's determination of what the true facts are surrounding the arrest.
Therefore, the motion for `summary judgment on this ground must also be denied.
F. Municipal Liability
A municipality may be held liable under § 1983 only when a governmental policy or custom causes the constitutional violation at issue. Monell v. New York City Dep't of Social Serv., 436 U.S. 658, 694, 98 S.Ct. 2018, 2037-38, 56 L.Ed.2d 611 (1978); Wimmer v. Suffolk County Police Dep't, 176 F.3d 125, 137 (2d Cir.1999); Thomas v. Roach, 165 F.3d 137, 145 (2d Cir.1999). "A municipal policy may be inferred from informal acts or omissions of supervisory municipal officials. . . . However, a policy or custom may only be inferred if the acts or omissions of a municipality's *466 supervisory officials are serious enough to amount to `deliberate indifference' to the constitutional rights of a plaintiff." Poulsen v. City of North Tonawanda, 811 F.Supp. 884, 896 (W.D.N.Y.1993) (citing Villante v. Dep't of Corrections, 786 F.2d 516, 519 (2d Cir.1986)); see also Dwares v. City of New York, 985 F.2d 94, 100 (2d Cir.1993) ("The inference that such a policy existed may arise from `circumstantial proof, such as evidence that the municipality so failed to train its employees as to display deliberate indifference to the constitutional rights of those within its jurisdiction.' ") (quoting Ricciuti v. New York City Transit Auth., 941 F.2d 119, 123 (2d Cir.1991)).
Furthermore, "the simple recitation that there was a failure to train municipal employees does not suffice to allege that a municipal custom or policy caused the plaintiffs injury. A single incident alleged in a complaint, especially if it involved only actors below the policy-making level, generally will not suffice to raise an inference of the existence of a custom or policy." Dwares, 985 F.2d at 100.
Here, plaintiff has not presented evidence that creates a question of fact for a jury that there was more than the single incident of his arrest or that anyone at the policy-making level was involved in his arrest. Therefore, the plaintiff has failed to allege facts sufficient for his claims of municipal liability for failure. to train, supervise and unconstitutional custom or policy to survive this motion.
The City of Amsterdam's motion for summary judgment must be granted.
G. Pendent State Law Claims
Finally, defendants seek summary judgment as to plaintiffs' pendent state law claims. Defendants argue that the district court may decline to exercise supplemental jurisdiction over a state law claim if the district court has dismissed all the claims over which it has original jurisdiction. See Federman v. Empire Fire & Marine Ins. Co., 597 F.2d 798, 809 (2d Cir.1979).
Because the § 1983 causes of action against Officers Santiago and Palmieri over which the district court had original jurisdiction are dismissed, it is appropriate to exercise discretion and dismiss all the pendent state law claims against them as well. In any event, the state law claims against these defendants have no merit.
However, because the § 1983 claims against Officers Fuhs and Culick have not been dismissed, the interests of judicial economy make it appropriate to retain supplemental jurisdiction over the pendent state law claims against them.
Alternatively, Officers Fuhs and Culick argue that summary judgment of the state law claims of false arrest and malicious prosecution is warranted on the same substantive grounds, as the § 1983 claims. However, as previously discussed, the plaintiff has presented facts sufficient to survive a motion for summary judgment on those claims against Officers Fuhs and Culick. Therefore, summary judgement must be denied for the pendent state law claims for false arrest and malicious prosecution against Officers Fuhs and Culick.
IV. CONCLUSION
On the First cause of action, plaintiff has not raised a triable question fact as to whether his right to due process was violated and that part of the claim will be dismissed. Additionally, on the First cause of action, he fails to set forth allegations that support the inference that Officers Santiago and Palmieri falsely arrested or maliciously prosecuted him. Therefore, his First cause of action claims for unlawful seizure, false arrest, unlawful imprisonment and malicious prosecution are dismissed *467 as to these defendants. However, because he has raised triable questions of fact as to whether his arrest was procured without probable cause, his First cause of action claims for unlawful seizure, false arrest, unlawful imprisonment, and malicious prosecution against Officers Fuhs and Culick survive their motion for summary judgment. Defendants' claim of qualified immunity on the First cause of action, similarly, is predicated on probable cause and raises a triable question of fact not appropriately determined on summary judgment. Plaintiffs Second, Third, and Fourth cases of action against the City of Amsterdam for municipal liability are not supported by any reasonable inference arising from the facts presented and are dismissed. Because the federal claims against Officers Santiago and Palmieri are dismissed, supplemental jurisdiction is declined over the Fifth, Sixth, and Seventh New York state law causes of action against them. However, supplemental jurisdiction will be retained as to the Fifth, Sixth and Seventh causes of action against Officers Fuhs and Culick.
Accordingly, it is
ORDERED that
1. Defendants' motion for summary judgment is GRANTED in part and DENIED in part;
2. Plaintiffs' cause of action for violation of due process is DISMISSED;
3. The Second, Third, and Fourth causes of action against the city of Amsterdam are DISMISSED;
4. The First, Fifth, Sixth, and Seventh causes of action against the defendants Ariel Santiago and Joseph Palmieri are DISMISSED;
5. The First, Fifth, Sixth and Seventh causes of action remain for trial as to Defendants Gregory J. Culick and Owen Fuhs.
IT IS SO ORDERED.
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81 F.2d 914 (1936)
LEROY
v.
GOVERNMENT OF CANAL ZONE.
No. 7745.
Circuit Court of Appeals, Fifth Circuit.
February 19, 1936.
Richard G. Levy, of Ancon, Canal Zone, for appellant.
J. J. McGuigan, U. S. Atty., of Ancon, Canal Zone, and Rene A. Viosca, U. S. Atty., and Robert Weinstein, Asst. U. S. Atty., both of New Orleans, La., for appellee.
Before SIBLEY, HUTCHESON, and WALKER, Circuit Judges.
WALKER, Circuit Judge.
The appellant was separately tried and convicted under the same information which was described in the opinion rendered in the case of James Martin and Thomas Walters v. Government of the Canal Zone (C.C.A.) 81 F.(2d) 913. In the trial which resulted in the conviction which is now under review the court, over the objection of the appellant, admitted in evidence the record of the conviction of James Martin and Thomas Walters under the above-mentioned information. Where two or more persons have been jointly charged with the same criminal offense, but one of them is separately tried after the others have been convicted, the judgment of conviction on that charge against the latter is not admissible in evidence against the one of those persons who is separately and subsequently tried on such charge. The previous conviction of others charged with the same criminal offense is not proof of appellant's guilt of that offense. People v. Kief, 126 N.Y. 661, 27 N.E. 556; State v. Bowker, 26 Or. 309, 38 P. 124; Campbell v. State, 133 Ala. 158, 32 So. 635; 16 C.J. 670. The judgment is reversed.
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111 U.S. 488 (1884)
TEXAS & PACIFIC RAILWAY COMPANY
v.
MURPHY.
Supreme Court of United States.
Submitted April 3d, 1884.
Decided April 21st, 1884.
IN ERROR TO THE SUPREME COURT OF TEXAS.
Mr. W. Hallett Phillips and Mr. A.H. Garland, for defendant in error, moving.
Mr. W.D. Davidge for plaintiff in error, opposing.
MR. CHIEF JUSTICE WAITE delivered the opinion of the court.
The defendant in error moves to dismiss this writ on the ground that it is brought to review an order of the court below refusing a rehearing, and not the final judgment. With this motion he unites another to affirm under sec. 5, Rule 6. If these motions are denied he asks that the supersedeas may be vacated. The facts are these:
On the 29th of May, 1883, a judgment was entered by the Supreme Court of Texas affirming a judgment of the District Court of Harrison County. The following entry appears in the record under date of December 21st, 1883:
"Appeal from Harrison.
"The Texas Pacific Railroad Company |
v. > No. 422. Case 1111.
James Murphy. |
"Opinion of the court delivered by Mr. Justice Slayton. Mr. Chief Justice Willie not sitting in this cause.
"Motion of the appellant for a rehearing in this cause came on *489 to be heard, and the same having been considered by the court, it is ordered that the motion be overruled and the rehearing refused; that the appellant, the Texas Pacific Railway Company, pay all the costs of this motion."
On the 3d of January, 1884, the chief justice of the State indorsed his allowance on a petition presented to him for a writ of error from this court for a review of the record and proceedings in the suit, properly describing it, "in which a final judgment was rendered against the Texas and Pacific Railway Company on the 21st of December, A.D. 1883." The writ was issued on the 9th of January, describing the suit and the parties properly, but not giving the date of the judgment. The objection now made is that as the judgment entered on the 21st of December was only an order overruling a motion for a rehearing, which is not reviewable here, we have no jurisdiction.
In Brocket v. Brocket, 2 How. 238, it was decided that a petition for rehearing, presented in due season and entertained by the court, prevented the original judgment from taking effect as a final judgment, for the purposes of an appeal or writ of error, until the petition was disposed of. This record does not show in express terms when the motion for a rehearing was made, but it was entertained by the court and decided on its merits. The presumption is, therefore, in the absence of anything to the contrary, that it was filed in time to give the court control of the judgment which had been entered, and jurisdiction to enforce any order that might be made. This presumption has not been overcome.
The writ of error as issued is on its face for the review of the final judgment, not of the order refusing a rehearing. The judgment is sufficiently described for the purposes of identification. We are of opinion, therefore, that the judgment as entered on the 29th of May is properly before us for consideration. The motion to dismiss is overruled.
It was expressly ruled in Brocket v. Brocket, which has been followed in many cases since, that if a petition for rehearing is presented in season and entertained by the court, the time limited *490 for an appeal or writ of error does not begin to run until the petition is disposed of. Slaughter House Cases, 10 Wall. 273, 289; Memphis v. Brown, 94 U.S. 715, 717. The motion for rehearing in this case was not decided until December 21st, and the writ of error was sued out and served within sixty days thereafter. This was in time to secure the superedeas.
The motion to vacate is, therefore, overruled.
The question arising on the merits are not of a character to be disposed of on a motion to affirm.
That motion is also denied.
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 99-7532
LARRY DARNELL DEBERRY,
Petitioner - Appellant,
versus
RONALD J. ANGELONE, Director of the Virginia
Department of Corrections,
Respondent - Appellee.
Appeal from the United States District Court for the Eastern Dis-
trict of Virginia, at Norfolk. Jerome B. Friedman, District Judge.
(CA-98-1216-2)
Submitted: March 23, 2000 Decided: March 29, 2000
Before LUTTIG, WILLIAMS, and MICHAEL, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Larry Darnell DeBerry, Appellant Pro Se. Virginia Bidwell Theisen,
OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Larry Darnell DeBerry appeals the district court’s order de-
nying his motion filed under 28 U.S.C.A. § 2254 (West 1994 & Supp.
1999). DeBerry’s case was referred to a magistrate judge pursuant
to 28 U.S.C. § 636(b)(1)(B) (1994). The magistrate judge rec-
ommended that relief be denied and advised DeBerry that the failure
to file timely objections to this recommendation could waive
appellate review of a district court order based upon the recom-
mendation. Despite this warning, DeBerry failed to object to the
magistrate judge’s recommendation.
The timely filing of objections to a magistrate judge’s
recommendation is necessary to preserve appellate review of the
substance of that recommendation when the parties have been warned
that failure to object will waive appellate review. See Wright v.
Collins, 766 F.2d 841, 845-46 (4th Cir. 1985); see also Thomas v.
Arn, 474 U.S. 140 (1985). Appellant has waived appellate review by
failing to file objections after receiving proper notice. We
accordingly deny a certificate of appealability and dismiss the
appeal. We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
DISMISSED
2
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959 F.2d 240
NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.THE GOOD SHIP VIOLET, et al.; James O'Leary, Sr.,Plaintiffs-Appellants,v.LIGHTHOUSE MARINA AND RIVERBEND DEVELOPMENT, Defendant-Appellee.
No. 90-16385.
United States Court of Appeals, Ninth Circuit.
Submitted April 8, 1992.*Decided April 10, 1992.
Before HUG, O'SCANNLAIN and TROTT, Circuit Judges.
1
MEMORANDUM**
2
James O'Leary, Sr. appeals pro se the district court's summary judgment in his civil rights claim based on 42 U.S.C. § 1985(3). We dismiss this appeal for lack of jurisdiction.
3
O'Leary's complaint alleged that the defendant violated his civil rights under 42 U.S.C. § 1985(3). The complaint also contained a reference to 28 U.S.C. § 1333, which establishes jurisdiction in the district court in actions involving admiralty law. Upon defendant's motion for summary judgment, the district court found that O'Leary failed to establish the existence of a conspiracy and that defendant's conduct was motivated by racial animus. Accordingly, the district court granted defendant's motion on O'Leary's section 1985(3) claim.
4
With respect to the remainder of O'Leary's complaint, the district court was uncertain whether O'Leary was raising a claim based on admiralty law. To the extent that O'Leary raised a claim based on admiralty law, the district court dismissed it because O'Leary failed to provide a short and plain statement of his claim pursuant to Fed.R.Civ.P. 8(a). The district court, however, granted O'Leary leave to amend his complaint to assert a claim in admiralty. Therefore, we do not have jurisdiction to hear this appeal under 28 U.S.C. § 1291 because the district court did not issue a final appealable order. See Hoohuli v. Ariyoshi, 741 F.2d 1169, 1171 n. 1 (9th Cir.1984).1
5
DISMISSED.
*
The panel unanimously finds this case suitable for decision without oral argument. Fed.R.App.P. 34(a); 9th Cir.R. 34-4
**
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3
1
One day after the district court filed its order, the court clerk entered a "Judgment" on August 28, 1990 stating that O'Leary's case was dismissed and that defendant's motion for summary judgment as to the section 1985 claim was granted. The document made no mention of the district court's order granting O'Leary leave to amend his complaint. Therefore, because the district court gave no indication that it intended to dismiss O'Leary's action, we conclude that the "Judgment" was not a final appealable order
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24 F.3d 238
Flemingv.Dantoni*
NO. 93-03778
United States Court of Appeals,Fifth Circuit.
May 18, 1994
1
Appeal From: E.D.La.
2
AFFIRMED.
*
Fed.R.App.P. 34(a); 5th Cir.R. 34.2
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COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Annunziata and Senior Judge Cole
Argued at Richmond, Virginia
EMILY REGINA BENTLEY
MEMORANDUM OPINION * BY
v. Record No. 1569-97-2 JUDGE JOSEPH E. BAKER
MAY 5, 1998
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF HALIFAX COUNTY
William L. Wellons, Judge
J. William Watson, Jr. (Watson & Nelson,
P.C., on brief), for appellant.
Richard B. Campbell, Assistant Attorney
General (Richard Cullen, Attorney General;
John K. Byrum, Jr., Assistant Attorney
General, on brief), for appellee.
Emily Regina Bentley (appellant) appeals from her bench
trial conviction by the Circuit Court of Halifax County (trial
court) for embezzlement. She contends that the evidence is
insufficient to prove perishable merchandise she took from her
employer was valued at $200 or more and that the trial court
erred when it considered the retail value of the merchandise
taken rather than the wholesale price of perishable goods.
Viewing the evidence in the light most favorable to the
Commonwealth, granting to it all reasonable inferences fairly
deducible therefrom, the record discloses that in August 1996,
appellant was working as a deli manager at the Fresh & Friendly
food store in South Boston. Without the knowledge of store
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
manager Gary Jones, appellant simultaneously operated her own
bakery in nearby Brookneal.
In August 1996, Fresh & Friendly had an established policy
for the handling of out-of-date bakery goods. Each item was
marked with a sale date and was kept on the shelves for sale
through that date. On the morning following expiration of the
sale date, the items were removed from the sales floor and placed
in the back of the store for donation to the Patrick Henry Boys
Home. The store donated only out-of-date items to the Boys Home,
and if the Boys Home staff did not retrieve the donated items
within a few days, the store discarded them.
Between August 12 and 19, 1996, by the method described
below, appellant removed a quantity of baked goods from Fresh &
Friendly. With the aid of Julia Gravitt, who was an employee of
appellant's Brookneal store, and Albert Seamster, appellant
filled a shopping cart with bread and pastry products from the
store floor and allowed Gravitt and Seamster to remove them from
the store without payment or authorization. On two occasions,
Seamster and Gravitt took two carts of goods, one that appellant
filled with items from the floor and another which had already
been filled with in-date items. On at least one occasion, police
saw appellant take the goods to her Brookneal bakery.
On Monday, August 12, Pamela Moore, the produce manager,
noticed in the back of the store a grocery cart filled to the top
with baked goods. She examined ten to twelve items in the cart
- 2 -
and determined they were "in date"--dated August 12. Later that
morning, Seamster entered the store and helped appellant fill a
second cart with in-date items from the sales tables. Seamster
and Gravitt then removed the two full carts from the store. They
left behind a box of out-of-date items being saved for the Boys
Home.
On August 14, Moore again found a cart containing goods
dated for that day in the back of the store. Seamster and
Gravitt again came to the store and, with appellant's help,
filled a second cart with baked goods from the floor in the same
way as before. One of the carts was "heaping full." Again,
Seamster and Gravitt took the goods and left without paying.
On August 15 and 16, appellant repeated this process with
the aid of Seamster and Gravitt, but filled only one cart on each
of those dates. On August 16, the cart they filled was "heaping
over with . . . stuff." Similar events occurred on August 17.
When Fresh & Friendly employees observed appellant, Gravitt
and Seamster removing the goods in the described manner, they
initially thought Gravitt and Seamster were from the Boys Home.
They reported the suspicious events to store manager Jones, whose
suspicions were heightened on August 19, when he personally
observed a cart at the rear of the store filled two-thirds full
with current-date items. Jones inventoried the items in the cart
and found their sales prices totaled $142. Later that morning,
Seamster and a woman arrived at the store, picked up the cart,
- 3 -
loaded its contents into a gray van, drove off without paying for
the products, and met at an apartment complex where they
transferred the goods into appellant's car. Appellant then drove
with the woman to appellant's Brookneal bakery store where they
unloaded the items. At trial, Jones identified the items as
those he had inventoried at the rear of Fresh & Friendly on the
morning of August 19.
Jones testified on cross-examination that, of the items in
the cart on August 19, about half of them were actually made in
the store and were priced with a "built in profit margin." If
the items were not sold by the end of the day on their sale date,
they could only be thrown away or given away, and their only
"value" at that point "was a loss for the store." The store
"[kept] a record" of "what they pulled [from the shelves] and
what was going to be thrown away."
Code § 18.2-111 describes acts that constitute embezzlement
and declares such actors to be guilty of larceny.
A person who takes personal property from the
possession of another without the owner's
consent and with intent to deprive him of
possession permanently is guilty of common
law larceny. A person entrusted with
possession of another's personalty who
converts such property to his own use or
benefit is guilty of the statutory offense of
embezzlement.
Smith v. Commonwealth, 222 Va. 646, 649, 283 S.E.2d 209, 210
(1981) (citation omitted). Proof was adduced that on several
days during a period of one week, August 12 to 19, 1996,
- 4 -
appellant and her agents placed current-date bread products owned
by Fresh & Friendly in a cart and, without paying for them or
obtaining permission, removed the products from Fresh & Friendly
and loaded them into a van. On at least one occasion, the
products were transferred to appellant's separately owned and
operated bakery. When these events occurred, appellant was
employed by Fresh & Friendly as a deli manager. Therefore, the
evidence proved that appellant was guilty of embezzlement,
punishable as larceny.
I. Value Equal to or Greater than $200
Appellant argues that the goods were not shown to have any
value or, in the alternative, were not proved to have a value of
at least $200 so as to constitute grand larceny.
The record shows that a store manager discovered the method
used by appellant to embezzle the products and on August 19
inventoried the products that had been loaded in a cart placed at
the rear of the store. At trial, he gave the products' value as
1
$142. Shortly thereafter, two of appellant's agents removed the
products from the store, and appellant and one of those agents
subsequently transported them to appellant's store. There was
evidence that on five other occasions between August 12 and
August 19, similar, currently dated merchandise had been removed
in equal or greater quantities. We hold that sufficient evidence
1
A lower sum of $103 may have been claimed in a companion
case; however, the evidence in this case proved a value of $142.
- 5 -
was presented from which the trier of fact could infer that the
like goods taken on separate days during the one-week period
were, at a minimum, of like value, totaling a sum in excess of
$200 so as to sufficiently prove the taking was felonious, in
violation of Code §§ 18.2-95 and 18.2-111.
II. Retail or Wholesale
Appellant asserts in the alternative that the value of
an embezzled product must be based upon its wholesale cost to
Fresh & Friendly rather than the retail selling price. We
disagree. The Commonwealth adduced evidence of the price for
which the products were offered for sale and for which a customer
may have purchased them. The value of property is measured as of
the time of the theft, and the original purchase price may be
admitted as evidence of current value. See Parker v.
Commonwealth, 254 Va. 118, 121, 489 S.E.2d 482, 483 (1997).
Moreover, the opinion testimony of the owner of a stolen item
generally is competent and admissible on the issue of the value
of that property, see id., and uncontradicted evidence that
merchandise was displayed in a retail establishment for regular
sale at a marked price can serve as sufficient circumstantial
evidence of fair market value. See Boone v. Stacey, 597 F. Supp.
114, 117 (E.D. Va. 1984) (shoplifting offense). Although the
items appellant embezzled were perishable, the evidence proved
that the sale dates of the items had not passed when the items
were taken, making the retail sales price proper evidence of
- 6 -
value.
For the reasons stated, the judgment of the trial court is
affirmed.
Affirmed.
- 7 -
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Order entered November 19, 2018
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-18-00075-CR
WINTER KAY ARTHUR, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the County Court at Law No. 2
Kaufman County, Texas
Trial Court Cause No. 16-30605-CC2-M
ORDER
The reporter’s record was filed April 17, 2018. On October 29, 2018, an amended
reporter’s record was filed along with a letter from court reporter Sherry Hooper. In the letter,
Ms. Hooper states she filed the amended reporter’s record because there were “problems with the
conversion program.”
We STRIKE the April 17, 2018 reporter’s record.
/s/ CRAIG STODDART
JUSTICE
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425 F.Supp. 747 (1977)
UNITED STATES of America
v.
Gary BOATWRIGHT.
Crim. No. 76-73.
United States District Court, E. D. Pennsylvania.
January 21, 1977.
*748 Kenneth Dixon, Asst. U.S. Atty., Philadelphia, Pa., for plaintiff.
Dennis H. Eisman, Philadelphia, Pa., for defendant.
MEMORANDUM
FOGEL, District Judge.
Gary Boatwright was indicted for bank robbery and conspiracy, based upon his alleged participation in a robbery of the branch of the Central Penn National Bank located at Malvern and Lancaster Avenues, Philadelphia, Pennsylvania, on January 16, 1976. Along with his co-defendants, Franklin James Carey and Mack Clark, Jr., Boatwright was charged with four counts of bank robbery, 18 U.S.C. §§ 2113(a), (b), (d), and one count of conspiracy, 18 U.S.C. § 371. Boatwright and one of the co-defendants, Clark, were tried together before a jury, which found each of them guilty on all five counts; Carey, the other co-defendant, who had previously pleaded guilty to all five counts, appeared as a witness for the prosecution against them.
Boatwright filed no pretrial motions, prior to the commencement of his trial on June 23, 1976; nor did he file any post-trial motions after the verdict was taken on July 2, 1976, even though we granted an extension of time until July 19, 1976, for filing post-trial motions. Sentencing was scheduled for October 8, 1976; we ordered the Probation Department to conduct a pre-sentence investigation and to prepare a pre-sentence report in advance of that date. After a review of the report, which was made available to counsel for defendant, and of the matters elicited at that hearing, we sentenced Boatwright, under the provisions of the Youth Corrections Act, 18 U.S.C. §§ 5010(b), 5017(c). No motion for reduction of sentence has been filed. However, Boatwright did file a Notice of Appeal, on October 18, 1976; that appeal is now pending before the United States Court of Appeals for the Third Circuit. Because no post-trial motions were filed with us, no prior opinion has issued in this case. Accordingly, at this juncture, for the benefit of the Court of Appeals, we will review certain rulings which we made from the bench during the course of the trial, rulings that in whole or in part may serve as a basis for the appeal.
*749 I. Summary of Bench Rulings
With nothing concrete before us as to the basis for the appeal, we will review five bench rulings which are the only ones which can conceivably be the grounds for Mr. Boatwright's appeal; for the reasons to be outlined, three of them, which apply solely to Clark, not only lack merit, but involve matters which Boatwright has no standing to raise; the other two claims which can be made on Boatwright's behalf also are lacking in merit. The rulings are as follows: (1) permission to the government on re-direct examination of Franklin Carey to elicit testimony over objection of defendant Clark's attorney, that Carey had no record of prior arrests; (2) the grant of the government's request that defendant Clark be required to put on a wig, Government's Exhibit G-1, for purposes of identification by a bank teller, over objections voiced by both defense counsel; (3) our denial of defendant Boatwright's Motion for Judgment of Acquittal, submitted pursuant to F.R. Crim.P. 29(a) at the close of the government's case-in-chief; (4) our refusal to permit defendant Clark to call two alibi witnesses, for failure to provide the government with the notice of alibi required by F.R.Crim.P. 12.1; and (5) our refusal to give the jury an instruction concerning expert witnesses, which counsel for defendant Boatwright had submitted.
We emphasize, again, that neither defendant sought post-trial relief, with respect to any of the enumerated bench rulings, nor with respect to any other matter. However, in the event that any or all of these rulings may form the basis for the appeal, we believe it to be useful to state the reasons for our decision as to each issue.
II. Discussion of Rulings (1), (3), (4) and (5)
(1) Lack of prior arrests. During re-direct examination of Franklin Carey, the government's principal witness, counsel for the government attempted to elicit testimony with respect to Carey's lack of prior arrests. Although counsel for defendant Clark objected, we overruled the objection and permitted the testimony, on the basis that counsel for Clark and counsel for Boatwright had both engaged in "the most vigorous attempt to bring the character and credibility into question." (NT 3:5) Carey, an original co-defendant who had pleaded guilty to the indictment, had, during the course of a lengthy direct examination, identified both Clark and Boatwright as participants in the bank robbery, and had testified extensively as to their involvement in the planning and execution of the robbery. During cross-examination, both defense counsel assailed Carey's character and credibility at great length (see, NT 2:63-126). Carey was cross-examined as to his own mental stability, his emotional problems, his behavior during a brief stint in the Army, and his motive for participating in the bank robbery; he was questioned as to the substance of his plea bargain with the government, as well as to his motive for cooperating with the government, by serving as a prosecution witness. In addition, questions by defense counsel suggested that Carey had some involvement with drugs, including possibly illegal drug involvement (NT 2:86), and that Carey had prior experience in robbery, generally, and possibly bank robbery in particular (NT 2:90-91).
In light of such broad and far-ranging attacks upon Carey's character and credibility, we again reaffirm our prior ruling, in upholding the admission of Carey's testimony as to the lack of prior arrests; such testimony was, as we stated at the time, "the most appropriate redirect examination [we] have ever heard." That testimony was clearly admissible; the scope of redirect examination is within the sound discretion of the trial court. See U.S. v. Hodges, 480 F.2d 229, 233 (10th Cir. 1973); and Chapman v. U.S., 346 F.2d 383 (9th Cir. 1965), cert. denied, 382 U.S. 909, 86 S.Ct. 249, 15 L.Ed.2d 161 (1965).
(3) Motion for Judgment of Acquittal. At the close of the government's case, counsel for defendant Boatwright made his Motion for Judgment of Acquittal, pursuant to F.R.Crim.P. 29(a); we denied the motion then; again, it should be noted *750 that this motion was not renewed after the guilty verdict was returned. A motion for judgment of acquittal raises the question of the sufficiency of all of the evidence to permit the jury to find the defendant guilty beyond a reasonable doubt; F.R.Crim.P. 29(a) permits entry of the judgment of acquittal only if the evidence is insufficient to sustain a conviction. See, U.S. v. Morris, 308 F.Supp. 1348, 1351 (E.D.Pa.1970). In disposing of such a motion, we must view the evidence in a light most favorable to the government; it is not for the trial judge to assess the credibility of witnesses, nor to weigh the evidence, nor to draw inferences of fact from the evidence. U.S. v. Gross, 375 F.Supp. 971, 973 (D.C.N.J. 1974), aff'd, 511 F.2d 910 (3d Cir. 1975), cert. denied 423 U.S. 924, 96 S.Ct. 266, 46 L.Ed.2d 249; and U.S. v. Morris, supra. See also, U.S. v. Allard, 240 F.2d 840 (3d Cir. 1957), cert. denied 353 U.S. 939, 77 S.Ct. 814, 1 L.Ed.2d 761.
With these standards in mind, we reaffirm the basis for that ruling, on the ground that the trial record clearly called for denial of the motion; the testimony of Carey, and of the numerous other government witnesses, justified submission of the case to the jury. Defense Counsel's vigorous attack on the credibility of those witnesses, raised questions which were to be weighed and evaluated solely by the jury in arriving at its verdict.
(4) Exclusion of alibi testimony. One of the defendants, Clark, attempted to offer the testimony of two alibi witnesses; the government objected, on the basis of the defendant's failure to comply with the notice of alibi provisions set forth in F.R. Crim.P. 12.1; we sustained that objection. We reaffirm the propriety of that ruling.
Initially, we seriously question the standing of Boatwright to complain about the ruling since the putative alibi testimony would have been on defendant Clark's behalf; we cannot see how it bears on Boatwright's conviction. Any claim by Boatwright of a denial of his right to a fair trial, or of due process, based upon exclusion of certain testimony offered by his co-defendant, Clark on his own behalf only testimony which has never been alleged to be relevant to Boatwright's guilt or innocence cannot seriously be entertained. Indeed, it is significant that Boatwright and his counsel expressed their disinterest by their absence when we conducted the hearing out of the jury's presence before ruling on the alibi issue; they voluntarily withdrew during the conduct of that part of the proceeding. (N.T. 5:91)
Moreover, under the notice of alibi provisions contained in the Federal Rules of Criminal Procedure, a defendant must, upon written demand of the government attorney, serve a written notice of his intention to offer a defense of alibi; the defendant's notice must be served within ten days, absent court direction to the contrary, and must include, inter alia, "the names and addresses of the witnesses upon whom he intends to rely to establish such alibi." F.R.Crim.P. 12.1(a). Subsection (b) of the same Rule places the defendant under a continuing duty to disclose, and Subsection (d) sets forth the sanctions which the trial court may impose for failure to comply:
(d) Failure to comply. Upon the failure of either party to comply with the requirements of this rule, the court may exclude the testimony of any undisclosed witness offered by such party as to the defendant's absence from or presence at, the scene of the alleged offense. This rule shall not limit the right of the defendant to testify in his own behalf.
The trial court is also authorized, pursuant to Subsection (e) of the Rule, to grant an exception to any of the requirements of the preceding subdivisions of the Rule, "for good cause shown."
Although the trial had commenced on June 23, 1976, it was not until June 28, 1976, that the government, and the Court, first learned that defendant Clark proposed to offer the testimony of two alleged alibi witnesses, one Alexander Davis and one Stafford Easterling; indeed, it was not until that date that defendant Clark even *751 informed his own counsel of the existence of these two putative alibi witnesses (NT 5:91; 5:66). Our inquiry at the time disclosed that the government, on April 12, 1976, had served the defendant with the appropriate written demand contemplated by F.R.Crim.P. 12.1, but that neither defendant Clark nor his counsel had given the government any responsive notice of an intention to offer an alibi defense; our inquiry also disclosed that Clark's counsel had in fact made an appropriate inquiry of his client, concerning the existence of alibi witnesses, but that Clark had failed to alert his counsel to the existence of such witnesses. We offered defendant Clark an opportunity to take the stand, for the limited purpose of giving testimony in connection with our ruling on the admissibility of alibi testimony at this late date.
Clark willingly took the stand, and, after appropriate explanation of his Fifth Amendment rights, was questioned extensively by the Court, on this subject only (NT 5:93-111); this entire proceeding, of course, took place out of the presence of the jury. Clark's testimony revealed the following: (1) as to the proposed witness Davis, Clark had been aware of the existence of this witness since the time of Clark's arrest; but had never even asked Davis to serve as an alibi witness, until the weekend of June 26, 1976; (2) as to the proposed witness Easterling, Clark had known of the existence of this witness since the time of the bank robbery, yet had not requested that he serve as an alibi witness, until June 25, 1976; (3) Clark's counsel had, indeed, made an appropriate inquiry as to the existence of alibi witnesses; (4) Clark apparently felt that he did not want to involve the two witnesses, yet he did not even inform his counsel that there were two possible witnesses whom Clark preferred not to call; (5) Clark had been released on bail in early May, 1976; (6) Clark had had numerous contacts with the two proposed witnesses, and he knew their whereabouts; and (7) Clark had failed to mention these witnesses to his counsel until June 28, 1976, (at which time Clark's counsel promptly brought the matter to the attention of the government attorney and the Court).
Upon the basis of all the foregoing facts, we sustained the government's objection, and declined to permit the alibi witnesses to testify. We stated at the time that, while we would not automatically rigidly enforce the ten-day provision of F.R. Crim.P. 12.1(a), under all of the circumstances before us, exclusion of the testimony was the proper course. (NT 5:109-110). Having now reviewed the trial record, we remain firm in our conviction that defendant Clark did not show sufficient "good cause" to warrant our granting an exception to the provisions of Rule 12.1, and we feel that application of the sanction of exclusion, as authorized by Subsection (d) of the Rule, was appropriate. Cf., U.S. v. Smith, 173 U.S.App.D.C. 314, 524 F.2d 1288 (1975). Hence, even under the most attenuated theory, Boatwright (who has never claimed that the testimony to be given by Clark's two putative alibi witnesses would in any way be relevant to Boatwright's own guilt or innocence), if permitted to stand in Clark's shoes would be barred by the same factors that led to our ruling against Clark in the midst of the actual trial of the matter, the time when Clark first raised the issue.
(5) Refusal to charge on expert testimony. Defendant Boatwright submitted numerous points for charge, among which was a requested instruction concerning the weight to be given to expert testimony. Counsel for the government objected to defendant's proposed point for charge on that score, and we sustained the objection. While Boatwright's counsel argued that one of the prosecution witnesses had testified to being a firearms "expert", it was clear from the record that the government had made no effort to qualify that witness as an expert, and that the government did not in fact contend that the witness was an expert. Confronted with this situation, we declined to charge the jury as requested by defendant Boatwright (NT 6:39-41). However, we stated at the time that the defendant would be permitted to submit a revised *752 point for charge on the subject, if he so chose, and that any such revised point would receive our consideration. No revised point was submitted on this issue, nor, when we permitted all counsel to review the complete charge prior to our delivering it to the jury, was any objection raised as to the absence of such a point for charge (NT 7:3). Accordingly, we now reaffirm our prior ruling, that defendant's Point 6, of his Proposed Points for Charge, was properly denied by us.
III. Discussion of Our Ruling that the Co-defendant, Clark, Put on a Wig for Identification Purposes.
During the presentation of its case-in-chief, the government called Sheila Person as a witness; she was identified as a teller at the Central Penn National Bank, during the time of the alleged robbery, and she was called for the purpose, inter alia, of identifying the co-defendant, Clark, as one of the bank robbers. She testified that one of the robbers had been wearing a wig, similar to Exhibit # G-1, and dark sunglasses; she then identified the co-defendant, Clark, as that individual, stating: "I believe it's him. If he had on the wig I could make a definite statement that he was. I mean, I'm quite sure that it was him." (NT 3:141-142). At that point, counsel for the government requested that the Court instruct Clark to put the wig on, and defense counsel objected; more specifically, counsel for defendant Boatwright requested, that any such identification be accomplished by our having "five men of equal description to Mr. Clark stand up with five wigs and five pairs of sunglasses and have her pick out the right man." (NT 3:145) After discussion at side bar, we informed counsel that, pursuant to the decisions in U.S. v. Gaines, 450 F.2d 186 (3d Cir. 1971), cert. denied, 405 U.S. 927, 92 S.Ct. 978, 30 L.Ed.2d 801 (1972), and U.S. v. Getz, 381 F.Supp. 43 (E.D.Pa.1974), aff'd without opinion, 510 F.2d 971 (3d Cir. 1975), cert. denied, 421 U.S. 950, 95 S.Ct. 1684, 44 L.Ed.2d 105 (1975), we would permit the government to have Clark don the wig for purposes of identification; however, and purely as a matter of discretion, since we had no obligation in this connection, we stated to both defense counsel that, if they wanted to cross-examine the witness by means of a "line-up" of five similar men, the following day, we would also permit such cross-examination. (NT 3:143-144).
Defendant Clark then placed the wig on his head, and the witness identified him as the person she saw in the bank on the day of the robbery; when asked if she had any doubt about the identification, she responded in the negative. (NT 3:145-148). Subsequently, defense counsel made no attempt to arrange the type of "line-up" which had been discussed at side bar. The record also reveals that Clark was again asked to put on the wig, for purposes of identification by another bank teller, Sheila Grant; she had tentatively identified him, no objection was raised to the request that he put on the wig this second time, and, upon viewing the defendant Clark with the wig on, this second witness testified that he "looks like" the bank robber whom she had seen at the time of the robbery. (NT 4:43-44).
Initially, we question defendant Boatwright's standing to challenge our ruling that Clark should put on the wig, and would reject that contention on the same basis we reject his standing to raise the issue of our refusal to permit Clark to put on his alleged alibi witnesses. Even if we were to consider his claim, he would stand in Clark's shoes and we are satisfied that the instruction to Clark, to put on the wig, was proper under the controlling decision in this Circuit.
U.S. v. Gaines, supra, presented the issue to the Court of Appeals for this Circuit, of the propriety of a trial judge permitting the government to place a scarf over part of a defendant's face, for purposes of in-court identification by a bank teller witness. The witness had testified that, during the robbery, a man wearing a scarf about a portion of his face appeared next to the counter at which she was working; she had tentatively identified the defendant as that man, but had stated that a positive identification was difficult because he was partly masked at *753 the time of the robbery. The government asked that he be masked in the fashion testified to; the trial court granted the request. The witness then positively identified the defendant as the robber she had seen at the bank. In upholding the identification, the Court stated that "identifications of this type" neither violate a defendant's Fifth Amendment privilege, nor his due process rights. The continuing vitality of the Gaines rule is evidenced by its recent citation with approval in U.S. v. Getz, supra, in which the Court stated, in dictum, that: "even assuming that the government did require defendants to dress in clothing which was worn during the bank robbery, this would have been permissible in order to facilitate identification." Id., at 45.
Upon review of the record before us, we remain convinced that the instant case fits squarely into the Gaines mold; accordingly, again we reaffirm our ruling on that score. We hold that neither Clark nor Boatwright could have been prejudiced by the admission of the testimony elicited through the use of perfectly proper and approved procedures.
IV. Conclusion.
Throughout this trial, counsel for Boatwright, an experienced practitioner in criminal defense matters in this Court, meticulously raised those issues and points which could be raised in his client's defense. Notwithstanding his zealous and skillful representation, the jury concluded that Boatwright was guilty. Even in the absence of post-trial motions, from our review of the record, we are satisfied that Boatwright received a fair trial and that the verdict was amply supported by the evidence.
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Case: 11-50719 Document: 00511832944 Page: 1 Date Filed: 04/24/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
April 24, 2012
No. 11-50719
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
ALEJANDRO FRANCISCO LOPEZ-VASQUEZ, also known as Francisco Lopez-
Vasquez, also known as Francisco Alejandro Lopez-Vasquez,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:11-CR-319-1
Before DAVIS, DeMOSS, and HAYNES, Circuit Judges.
PER CURIAM:*
Alejandro Francisco Lopez-Vasquez appeals the 46-month within-
guidelines sentence imposed following his conviction for illegal reentry after
deportation. Lopez-Vasquez challenges only the substantive reasonableness of
his sentence, arguing that his sentence is greater than necessary to accomplish
the sentencing objectives of 18 U.S.C. § 3553(a). He challenges the application
of U.S.S.G. § 2L1.2 in calculating his guidelines range because he asserts that
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
Case: 11-50719 Document: 00511832944 Page: 2 Date Filed: 04/24/2012
No. 11-50719
the guideline is not empirically based and double counts his prior conviction. He
also contends that the district court failed to account for his personal
circumstances and the circumstances of this offense. He further argues that the
recommended advisory range was excessive because it failed to consider the
disparity between defendants who, like him, cannot avail themselves of a “fast
track” program and defendants in other districts who can avail themselves of
such a program.
Although Lopez-Vasquez filed a sentencing memorandum arguing for a
downward variance, he failed to object after the imposition of his sentence.
Lopez-Vasquez concedes that he failed to object to his sentence after it was
imposed and that this court’s review is limited to plain error. Nevertheless, he
seeks to preserve for further review his contention that an objection after the
imposition of sentence is not required for abuse-of-discretion review. Because
Lopez-Vasquez did not object to the reasonableness of his sentence after it was
imposed, review is arguably for plain error. See United States v. Peltier, 505
F.3d 389, 391-92 (5th Cir. 2007); but see United States v. Flanagan, 87 F.3d 121,
124 (5th Cir. 1996). This court need not determine whether plain error review
is appropriate because Lopez-Vasquez’s arguments fail even under the abuse-of-
discretion standard of review. See United States v. Rodriguez, 523 F.3d 519, 525
(5th Cir. 2008).
The substantive reasonableness of a sentence is reviewed under an
abuse-of-discretion standard. Gall v. United States, 552 U.S. 38, 51 (2007).
Because Lopez-Vasquez’s sentence was within his advisory guidelines range, his
sentence is presumptively reasonable. See United States v. Cooks, 589 F.3d 173,
186 (5th Cir. 2009). He contends that the presumption of reasonableness should
not apply because U.S.S.G. § 2L1.2 is not empirically based but concedes that his
challenge is foreclosed by this court’s precedent. See United States v.
Mondragon-Santiago, 564 F.3d 357, 366-67 (5th Cir. 2009).
2
Case: 11-50719 Document: 00511832944 Page: 3 Date Filed: 04/24/2012
No. 11-50719
Lopez-Vasquez’s argument that the seriousness of his offense is overstated
because U.S.S.G. § 2L1.2 lacks an empirical basis and double counts criminal
history has been consistently rejected. See United States v. Rodriguez, 660 F.3d
231, 232-33 (5th Cir. 2011); United States v. Duarte, 569 F.3d 528, 529-30 (5th
Cir. 2009). Further, as he acknowledges, Lopez-Vasquez’s argument that he
deserved a lesser sentence based upon the disparity in fast track early
disposition programs is foreclosed by United States v. Gomez-Herrera, 523 F.3d
554, 562-63 & n.4 (5th Cir. 2008).
Lopez-Vasquez also contends that his guidelines range failed to account
for his personal history and circumstances. The district court listened to Lopez-
Vasquez’s arguments for a lesser sentence but found that a sentence at the
bottom of his guidelines range was appropriate. Lopez-Vasquez has not shown
sufficient reason for this court to disturb the presumption of reasonableness
applicable to his sentence. See Cooks, 589 F.3d at 186.
Accordingly, the judgment of the district court is AFFIRMED.
3
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101 So.2d 833 (1958)
W.H. WIGGINS, Appellant,
v.
STATE of Florida, Appellee.
No. A-147.
District Court of Appeal of Florida. First District.
March 18, 1958.
William E. Harris, Panama City, for appellant.
George R. Georgieff, Asst. Atty. Gen., for appellee-movant.
STURGIS, Chief Judge.
The record in this cause reflects that at the close of the state's evidence in chief, the appellant, defendant below, being on trial for a criminal offense, moved the court to direct a verdict of acquittal on the ground that the state failed to prove a necessary element of the crime, which element was stated in the motion. The trial court denied the motion and defendant then presented evidence in his behalf. Defendant did not renew the motion for a directed *834 verdict of not guilty at the close of all of the evidence.
The state seeks to dismiss the appeal on the ground that Section 918.08, Florida Statutes, F.S.A. requires the defendant to renew, at the close of all the evidence, his motion for a directed verdict of not guilty if he is to preserve, for the purposes of an appeal, a claim of error based on the refusal of the trial court to grant a similar motion made at the conclusion of the state's evidence in chief.
Section 918.08 Florida Statutes, F.S.A. provides:
"(1) If, at the close of the evidence for the state or at the close of all the evidence in the cause, the court is of the opinion that the evidence is insufficient to warrant a conviction, it may and, on the motion of the prosecuting attorney or the defendant, shall, direct the jury to acquit the defendant.
"(2) A motion for directed verdict is not waived by subsequent introduction of evidence on behalf of defendant, but after introduction of evidence by defendant, the motion for directed verdict must be renewed at the close of all the evidence. Such motion must fully set forth the grounds upon which it is based."
The statute is so ineptly phrased that its object is confused. We are, however, called upon to construe it so as to reconcile the apparent inconsistencies and give meaning and effect to the language employed as a whole, if such be possible. In doing this, it is necessary to reconcile the provision whereby a motion for a verdict of not guilty (evidently referring to such motion made at the close of the state's evidence in chief) "is not waived by subsequent introduction of evidence on behalf of defendant," with the further provision that "after introduction of evidence by defendant, the motion for directed verdict must be renewed at the close of all the evidence."
Prior to the statute, such motion in a criminal case would lie only at the conclusion of all of the evidence and the granting thereof rested entirely within the discretion of the trial judge, hence it was that error could not be predicated for failure or refusal so to do. McCray v. State, 45 Fla. 80, 34 So. 5.
The statute modifies the common law and governs in the absence of a conflicting rule of court. Finding none, and giving effect to the proposition that the motion when made at the close of the evidence for the state in the middle of the trial is not waived by introduction of evidence on behalf of defendant, we hold that failure to renew such motion at the close of all the evidence does not preclude the movant from assigning on appeal a claim of error addressed to the denial of the motion so made at the close of the state's evidence in chief.
Motion denied.
WIGGINTON and CARROLL, JJ., concur.
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548 F.Supp. 25 (1982)
Emma Dene JARNIGAN
v.
TEAMSTERS LOCAL 519 and Office of Professional Employees International Union Local No. 144.
Civ. No. 3-82-238.
United States District Court, E. D. Tennessee, N. D.
July 12, 1982.
*26 W. P. Boone Dougherty, Knoxville, Tenn., for plaintiff.
Robert H. Watson, Jr., Knoxville, Tenn., Cecil D. Branstetter, Jr., Nashville, Tenn., for defendants.
MEMORANDUM
ROBERT L. TAYLOR, District Judge.
This is an action by an employee union member for alleged breach of a collective bargaining agreement by her employer, Teamsters Local Union No. 519 (Local 519), and for the alleged breach of the duty of fair representation by her union, the Office and Professional Employees International Union, Local No. 144 (Local 144). Jurisdiction is invoked pursuant to 29 U.S.C. § 185. Following a non-jury trial, the Court makes the following findings of fact and conclusions of law.
Plaintiff was employed by Local 519 as an insurance clerk and secretary from November 27, 1976 until she was laid off on September 11, 1981. At that time, Local 519 employed only one other office employee, Patricia Witzel, who worked as secretary and bookkeeper. The other full time employees of Local 519 in September, 1981 were George Moir, president; Robert C. Barnes, Jr., secretary-treasurer; and Jimmy Metts, business agent.
Because of declining membership and the corresponding decline in dues, Local 519 suffered economic problems in 1981. In January, 1980, when Moir became president of Local 519, there were approximately 2,600 members in the Local. In January, 1981, 2,009 dues were received. In August, 1981, 1,944 dues were received. In May, 1982, the membership sank to 1,700. The Trustees Reports for 1981 show that Local 519 had negative cash flows in January, April, May and July. In August, 1981, in response to these pressures, Moir laid off Teddy L. Porter, a business agent. His lay off saved Local 519 $4,365.69 per month. On September 4, 1981, Moir notified plaintiff that she was being laid off effective September 11, 1981 and that she would be called back in the event of an "upturn in business." Her lay off saved the Local $2,305.65 per month. Even with these reductions in staff, Local 519 had negative cash flows in January and February, 1982.
After her lay off, plaintiff learned from Pat Witzel that Moir and Barnes were doing some of her work. On September 30, 1981, plaintiff filed a grievance with Local 144 charging that management was doing her work. Ms. Sandra Davis, president of Local 144, advised plaintiff that she should contact her employer prior to filing the grievance to ensure that all of the technical steps of the grievance process were completed. This was done and the same grievance was resubmitted on October 6, 1981. Plaintiff's grievance, which was submitted in her own handwriting, claimed that it was improper for management to be doing her work. Pursuant to the grievance process, Davis wrote Local 519 on October 1, 1981 notifying the employer that a grievance was filed pursuant to the contract. On October 9, 1981, Davis met with Moir and Barnes. She also talked with Pat Witzel, also a member of Local 144, concerning plaintiff's lay off from Local 519. On November 12, 1981, Davis wrote Local 519 demanding a reply to the earlier step in the grievance process. In a letter dated November 17, 1981, Moir notified Davis that the grievance was denied.
On November 25, 1981, the grievance committee of Local 144 met to discuss plaintiff's grievance. At this meeting, the grievance committee heard the plaintiff's position on the grievance and, at plaintiff's request, took no action. On November 30, 1981, three of the four members of the grievance committee met with Moir and Barnes. After the meeting, the grievance committee held a separate meeting and it was unanimously determined not to proceed with the grievance to arbitration. Notice of this decision was sent to plaintiff and Local 519 on December 2, 1981. Plaintiff filed this action on April 9, 1982.
Defendants argue that plaintiff's complaint was not filed within the applicable statute of limitations. Defendants, relying *27 on Justice Stewart's concurring opinion in United Parcel Service v. Mitchell, 451 U.S. 56, 101 S.Ct. 1559, 67 L.Ed.2d 732 (1981), urge the Court to adopt the six-month limitations period of § 10(b) of the National Labor Relations Act, 29 U.S.C. § 160(b). The majority in Mitchell held that an employee's action against his employer for discharge in violation of a collective bargaining agreement and actions for unfair representation by an employee against his union are to be governed by state statutes of limitations applicable to actions to vacate an arbitration award. Defendants correctly point out that Tennessee has no statute of limitations for actions to vacate arbitration awards. Plaintiff contends that Tennessee's six-year statute of limitations for breach of contract actions is the appropriate statute of limitations. Tenn.Code Ann. § 28-3-109(a)(3). The Court in Mitchell expressly rejected the use of state statutes of limitations for breach of contract.
The Sixth Circuit has recently addressed this question under Michigan law. In Badon v. General Motors Corp., 679 F.2d 93 (6th Cir. 1982), the Court adopted the six-month limitations period of § 10(b) since Michigan has no statute of limitations for actions to vacate arbitration awards. Following this reasoning, we adopt the § 10(b) limitation period since Tennessee has no appropriate statute of limitations. Having adopted the six-month statute of limitations, we are of the opinion that plaintiff's action is not time-barred. Plaintiff was placed on lay-off status effective September 11, 1981. She filed her grievance on September 30, 1981. On November 17, 1981, her employer notified the Union that her grievance was denied. Plaintiff instituted this action on April 9, 1982. Although more than six months elapsed between plaintiff's lay off and the filing of her complaint, the statute of limitations is tolled from the time the grievance was filed until it was rejected. Smart v. Ellis Trucking Co., Inc., 580 F.2d 215, 219 (6th Cir. 1978), cert. denied, 440 U.S. 958, 99 S.Ct. 1497, 59 L.Ed.2d 770 (1979). The action was, therefore, timely filed.
We now consider the merits of the case. Plaintiff seeks to hold Local 519 liable for a breach of the collective bargaining agreement on the theory that her lay off for economic reasons was a subterfuge. She contends that Moir actually discharged her without cause, which would be a violation of Article IX, Section 2 of the collective bargaining agreement. Plaintiff failed to carry her burden of proof on this issue. As noted above, Local 519 had economic problems in 1981 and continues to have economic problems. The lay offs of Porter and plaintiff have partially alleviated these problems. Mr. George Ross Clapp, former president of Local 519, testified that there were lay offs for economic reasons in the 1950's and in 1967 or 1968. Plaintiff was advised that she will be called back to work when business improves, and no proof was introduced to show that she will not. It is undisputed that no one has been hired since plaintiff's lay off to do her work. That Local 519 has replaced an automobile and increased the salaries of its remaining employees does not show that plaintiff was laid off for any reason other than that given by Local 519. We find that plaintiff was laid off for economic reasons. It is undisputed that plaintiff was given one week's notice of the lay off as required by Article IX, Section 1 of the collective bargaining agreement. We, therefore, conclude that Local 519 has not breached the collective bargaining agreement.
The issue as to the liability of Local 144 is to be determined according to the standard set forth in Vaca v. Sipes, 386 U.S. 171, 190, 87 S.Ct. 903, 916, 17 L.Ed.2d 842 (1966):
A breach of the statutory duty of fair representation occurs only when a union's conduct toward a member of the collective bargaining unit is arbitrary, discriminatory or in bad faith.
We conclude that Local 144 did not breach its duty of fair representation. Davis and the grievance committee processed plaintiff's grievance according to the grievance procedure and, after investigation, found that the grievance did not merit going *28 through arbitration. There was no evidence that Davis or any grievance committee member was personally hostile to plaintiff or that any officer of Local 144 acted at any time other than in good faith. No individual employee has an absolute right to have his or her grievance arbitrated. Id. at 195, 87 S.Ct. at 919.
Although it was not an issue in this case, plaintiff's counsel called some witnesses in an attempt to show that the officers of Local 519 were doing plaintiff's work. Counsel argued that for the officers to do plaintiff's work would be a violation of the collective bargaining agreement. Counsel based this contention on an alleged custom or practice existing when the collective bargaining agreement was negotiated. It was necessary for counsel to rely on a custom or practice since the collective bargaining agreement does not delineate the duties of management and management's employees. We mention this issue only to state that the witnesses did not support counsel's contention. We particularly note that Mr. Clapp, former president of Local 519, testified that officers and business agents of the Local have always done some of the work of the Local 144 employees. Therefore, even if we were to accept counsel's additional theory of liability as to Local 519, we would be constrained to hold there was no breach of the collective bargaining agreement.
For the reasons stated, it is ORDERED that judgment enter in favor of defendants Local 519 and Local 144. It is further ORDERED that this case be, and the same hereby is, dismissed.
Order Accordingly.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 18-1026
__________
JEROME WASHINGTON,
Appellant
v.
GEORGE ONDREJKA; MICHAEL WENEROWICZ; JOHN WETZEL; J. WILLIAMS,
Correctional Officer 1; F. WEBSTER, Correctional Officer 1; B CARLSON,
Correctional Officer 1; B. BOYD, Correctional Officer 1; R GIBBS, Correctional Officer
1; J. TAYLOR, Correctional Officer 1
____________________________________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil Action No. 2:14-cv-05540)
District Judge: Honorable Eduardo C. Robreno
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
April 12, 2019
Before: MCKEE, COWEN and ROTH, Circuit Judges
(Opinion filed: August 13, 2020)
___________
OPINION *
___________
PER CURIAM
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
Pro se appellant Jerome Washington appeals from the judgment of the United
States District Court for the Eastern District of Pennsylvania granting summary judgment
in favor of the defendants. For the following reasons, we will affirm the judgment of the
District Court.
In September 2014, Washington, an inmate confined at the State Correctional
Institution at Camp Hill (“SCI-Camp Hill”), filed this pro se civil rights action pursuant
to 42 U.S.C. § 1983; he was later permitted to amend the complaint. Washington alleged
that defendants violated his First, Fifth, Eighth, and Fourteenth Amendment rights, when,
on March 17, 2013 (while he was housed in the Restricted Housing Unit), he was
assaulted by officers of the Correctional Emergency Response Team (“CERT”) unit.
Washington alleged that he was sprayed with mace, was almost drowned, had his face
slammed into a metal desk, was punched in the genitals, was held in a restraint chair for
five hours, and was denied medical treatment.
In January 2017, following discovery, defendants moved for summary judgment.
By order entered November 30, 2017, the District Court granted the defendants’ motion
for summary judgment. After viewing a video of the use of force provided by the
defendants, the District Court found that Washington’s “version of the [events] [was] ‘so
utterly discredited by the record that no reasonable jury could have believed him.’” Dkt #
100, at 2 (citing Scott v. Harris, 550 U.S. 372, 380–81 (2007)). Additionally, the District
Court concluded that Washington’s claim regarding the restraint chair was insufficient to
state an Eighth Amendment claim; that Defendants Wetzel, Wenerowicz, and Ondrejka
2
had no personal involvement; and that Washington’s Fourteenth Amendment claim
lacked merit as he did not allege any atypical or significant hardship during his time in
the Restricted Housing Unit. Washington subsequently filed two motions for
reconsideration and a motion for the appointment of counsel. After the District Court
denied the first motion for reconsideration, Washington filed a notice of appeal. 1
Washington has filed three motions for appointment of counsel in this Court, one of
which was previously denied. He also presents a motion for an emergency phone
conference and a motion for an order compelling discovery.
We have jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary review of
orders granting motions for summary judgment. Giles v. Kearney, 571 F.3d 318, 322 (3d
Cir. 2009). Summary judgment is appropriately entered only when 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. In making this determination, “[t]he evidence of the non-movant
is to be believed, and all justifiable inferences are to be drawn in his favor.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). However, in a case such as this one,
where there is a video recording of the incidents in question, we need not adopt the non-
movant’s version of the facts if the recording “blatantly contradict[s]” the non-movant’s
version “so that no reasonable jury could believe it.” Scott, 550 U.S. at 380. We may
1
The District Court later denied the other motion for reconsideration and the counsel
motion, but Washington did not file an amended, see Fed. R. App. P. 4(a)(4)(B)(ii);
Witasick v. Minn. Mut. Life Ins. Co., 803 F.3d 184, 191 (3d Cir. 2015), or additional
notice of appeal, so those orders are not before us.
3
affirm on any basis supported by the record. Murray v. Bledsoe, 650 F.3d 246, 247 (3d
Cir. 2011) (per curiam).
We agree with the District Court that the defendants were entitled to summary
judgment on Washington’s excessive use of force claim regarding the alleged assault.
The record reveals that the altercation Washington complains of was a planned cell
extraction; that is, a planned use of force to remove Washington from his cell due to his
uncooperative behavior. The videotape provided by the defendants, which shows the
extraction, refutes Washington’s assertion that the CERT defendants’ use of force was
applied “maliciously and sadistically to cause harm.” Hudson v. McMillian, 503 U.S. 1,
7 (1992) (holding that, to determine whether the force used by a prison official amounts
to a constitutional violation, “the core judicial inquiry is . . . whether force was applied in
a good-faith effort to maintain or restore discipline, or maliciously and sadistically to
cause harm”). As noted by the District Court, Washington conceded that he was suicidal
and disorderly, warranting the extraction. 2 In light of Washington’s behavior and his
attempts to resist extraction from his cell, 3 the force used by the CERT officers was
2
In his deposition, Washington admitted that he blocked the wicket in his cell so that
officers were prevented from providing him food, see dkt # 92, at 87 (PDF page number);
he was banging and kicking the door to his cell, see id.; and he intentionally flooded his
cell, which resulted in approximately 5–6 inches of water at the bottom of his cell, see id.
at 88–89.
3
In his deposition, Washington concedes that he fought against the CERT officers,
including throwing items at the shields carried by the officers and attempting to run away
from the shields. See dkt # 92, at 90. It appears that Washington believed that the
shields were electric and would kill him, which explains his desire to resist. See id.
4
proportional to the need for the use of force. Additionally, the record does not contain
evidence of serious injuries as a result of the extraction, and the officers reasonably
believed that Washington posed on ongoing threat. Finally, the defendants have detailed
the efforts taken to temper the severity of the response, including pre-extraction warnings
provided to the CERT officers in order to prevent asphyxia. On this record, Washington
cannot show that the officers’ use of force was excessive, and accordingly, summary
judgment was properly entered in favor of the defendants. See Brooks v. Kyler, 204 F.3d
102, 106 (3d Cir. 2000) (stating that, in evaluating whether an officer used excessive
force, courts should look to several factors including the need for force, the relationship
between the need and amount of forced used, the extent of injuries inflicted, the extent of
the threat to the safety of staff and inmates, and any efforts to temper the severity of the
forceful response) (citing Whitley v. Albers, 475 U.S. 312, 321 (1986)).
We also agree with the District Court that defendants were entitled to summary
judgment on Washington’s claims regarding the use of the restraint chair. As we noted in
Young v. Martin, the Supreme Court’s decision in Hope v. Pelzer, 536 U.S. 730, 738
(2002), instructs us to analyze an Eighth Amendment claim based on the use of a restraint
chair under the excessive use of force test. 801 F.3d 172, 180 (3d Cir. 2015). 4 In Hope,
the Supreme Court held that (1) where the inmate had “already been subdued,
4
Though the District Court analyzed this claim under Fuentes v. Wagner, 206 F.3d 335
(3d Cir. 2000), which analyzed a restraint chair claim under a conditions of confinement
analysis, we conclude, as discussed above, that the District Court’s grant of summary
judgment was nevertheless proper under the standard set out in Hope.
5
handcuffed, [and] placed in leg irons,” and (2) there was a “clear lack of an emergency
situation” such that “[a]ny safety concerns had long since abated,” then (3) subjecting the
inmate to “substantial risk of physical harm” and “unnecessary pain” serves no
penological justification. 536 U.S. at 738.
The record contains no evidence that the defendants acted maliciously or
sadistically in subjecting Washington to the restraint chair. As noted above, Washington
was actively combative during the extraction and resisted being restrained by the CERT
officers. Immediately after Washington was removed from his cell, he was transferred to
the shower, however, Washington refused to place his face in the water and to comply
with the officer’s instructions. Given Washington’s continued uncooperative behavior
throughout the extraction and subsequent shower (though the officers had already placed
his arms and legs in restraints), he was not yet subdued and cooperative when placed in
the restraint chair. Additionally, as noted above, Washington conceded that he was
suicidal and disorderly, and thus we cannot conclude that there was a “clear lack of an
emergency situation” which gave rise to the use of the restraint chair. Hope, 536 U.S. at
738. Because the event portrayed in the videotape showed a continuing episode and
Washington remained uncooperative throughout the officers’ use of force, we cannot
conclude that the force used subjected Washington to a substantial risk of physical harm
and unnecessary pain that served no penological justification. See id. at 737–38. The
video confirms that a nursed assessed Washington’s condition, while he was in the
restraint chair, and indicated that there were no visible injuries except for swollen eyes.
6
Finally, Washington was restrained in the restraint chair for a total of five hours, within
the eight-hour maximum permitted by prison regulations, and far less time than where
this Court has found a constitutional violation. See, e.g., Young, 801 F.3d at 181–82
(ruling that the use of a restraint chair violated the constitution when a prisoner was kept
in a restraint chair for 14 hours). Accordingly, on the facts of this case, the District
Court’s grant of summary judgment on this claim was proper.
To the extent that Washington’s Fourteenth Amendment claim is based on his
placement in the Restricted Housing Unit, we agree with the District Court that the
defendants were entitled to summary judgment since Washington did not allege any
atypical or significant hardship. See Sandin v. Conner, 515 U.S. 472, 486 (1995); Smith
v. Mensinger, 293 F.3d 641, 654 (3d Cir. 2002) (holding that seven months’ disciplinary
confinement “does not, on its own, violate a protected liberty interest as defined in
Sandin”). Additionally, the District Court correctly concluded that, though Washington
claimed that defendants violated his First and Fifth Amendment rights, he failed to allege
any facts that could support either a First or Fifth Amendment violation, and therefore
summary judgment was properly granted in favor of the defendants. Finally, the District
Court properly granted summary judgment in favor of Defendants Wetzel, Wenerowicz,
and Ondrejka on all claims. Washington’s claims against these defendants are not based
on personal involvement, as required to establish liability in a § 1983 claim; they are
based solely on the operation of respondeat superior. See Rode v. Dellarciprete, 845 F.2d
1195, 1207–08 (3d Cir. 1988).
7
For the foregoing reasons, we will affirm the judgment of the District Court. 5
Washington’s motions for appointment of counsel, his motion for an emergency phone
conference, and his motion for an order compelling discovery are denied.
5
To the extent that Washington seeks to challenge the District Court’s order denying his
first motion for reconsideration, we conclude that the District Court did not abuse its
discretion in denying Washington’s motion. Washington did not set forth grounds for
reconsideration, such as an intervening change in controlling law, new evidence, or a
need to correct a clear error of fact or law or prevent manifest injustice. See Lazaridis v.
Wehmer, 591 F.3d 666, 669 (3d Cir. 2010).
8
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09-1841-ag
Landazury v. Holder
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUM M ARY ORDER
FILED AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1. WHEN CITING A SUM M ARY ORDER IN A DOCUM ENT FILED WITH THIS COURT, A PARTY
M UST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
“SUM M ARY ORDER”). A PARTY CITING A SUM M ARY ORDER M UST SERVE A COPY OF IT ON ANY PARTY
NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New
York, on the 19 th day of July, two thousand and ten.
PRESENT:
PIERRE N. LEVAL,
BARRINGTON D. PARKER,
PETER W. HALL,
Circuit Judges.
__________________________________________
LUIS RIVAS LANDAZURY,
Petitioner,
v. Docket No. 09-1841-ag
ERIC H. HOLDER, JR., United States Attorney General,
Respondent.
__________________________________________
FOR PETITIONER: MARY ELIZABETH DELLI-PIZZI, Babylon Village, N.Y.
FOR RESPONDENT: LAURA HALLIDAY HICKEIN , Trial Attorney (Tony West, Assistant
Attorney General, Douglas E. Ginsberg, Assistant Director), Office
of Immigration Litigation, Civil Division, United States
Department of Justice, Washington, D.C.
1
UPON DUE CONSIDERATION, of this petition for review of a Board of Immigration
Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND DECREED that the
petition for review is DENIED.
Petitioner Luis Rivas Landazury, a native and citizen of Colombia, seeks review of a
February 11, 2009 order of the BIA affirming the October 30, 2008 decision of Immigration
Judge (“IJ”) Roger Sagerman, finding Landazury ineligible for cancellation of removal or
adjustment of status based on his conviction for an aggravated felony narcotics trafficking
offense, and ordering him removed from the United States. See In re Luis Rivas Landazury, No.
A028 749 602 (B.I.A. Feb. 11, 2009), aff’g No. A028 749 602 (Immig. Ct. Napanoch, NY, Oct.
30, 2008). We assume the parties’ familiarity with the underlying facts and procedural history of
the case.
This Court has jurisdiction over final orders of removal pursuant to 8 U.S.C. §
1252(a)(1), as amended by § 106 of the REAL ID Act of 2005, Pub. L. No. 109-13, 119 Stat. 231
(2005), which confers exclusive jurisdiction on the Courts of Appeals to review final orders of
removal. We generally do not, however, have jurisdiction to review final orders of removal for
aliens removable by reason of having committed a controlled substance violation or an
aggravated felony offense. See 8 U.S.C. § 1252(a)(2)(C). “As a rule, federal courts lack
jurisdiction to review final agency orders of removal based on an alien’s conviction for certain
crimes, including aggravated felonies,” Vargas-Sarmiento v. U.S. Dep’t of Justice, 448 F.3d 159,
164 (2d Cir. 2006) (citing 8 U.S.C. § 1252(a)(2)(C)), or based on an alien’s conviction for certain
“controlled substance violation[s],” Arostegui v. Holder, No. 09-1236-ag, 2010 WL 724319, *1
(2d Cir. Mar. 3, 2010) (summary order) (citing 8 U.S.C. § 1252(a)(2)(C)). Courts of Appeals
2
nevertheless retain jurisdiction to review an order of removal insofar as the petition for review
order raises “constitutional claims or questions of law,” 8 U.S.C. § 1252(a)(2)(D), which we
review de novo. See Pierre v. Holder, 588 F.3d 767, 772 (2d Cir. 2009). We review the BIA’s
factual findings under the substantial evidence standard, treating them as “conclusive unless any
reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. §
1252(b)(4)(B); see also Zaman v. Mukasey, 514 F.3d 233, 238 (2d Cir. 2008). “[W]here, as here,
the BIA affirms but does not expressly adopt the IJ’s decision, the BIA’s decision alone is ‘the
basis for judicial review.’” Almeida v. Holder, 588 F.3d 778, 783 (2d Cir. 2009) (quoting
Garcia-Padron v. Holder, 558 F.3d 196, 199 (2d Cir. 2009)).
In May 2006, Landazury was convicted in the Supreme Court of New York, Queens
County, pursuant to his guilty plea for, inter alia, attempted criminal possession of a controlled
substance in the fifth degree in violation of New York Penal Law (“NYPL”) § 220.06(1)1 (“2006
drug conviction”). The following month he was sentenced to five years probation for this
offense. In October 2007, Landazury was arrested for, inter alia, aggravated driving while
intoxicated in violation of New York Vehicle & Traffic Law § 1192(2-A). He was convicted in
February 2008 pursuant to his guilty plea for this offense (“2008 DWI conviction”). Later that
month, Landazury was sentenced for his 2008 DWI conviction and received a fine. Because his
2008 DWI conviction was a violation of his probationary sentence on this 2006 drug conviction,
Landazury was also resentenced to one year of imprisonment for that prior conviction.
1
NYPL § 220.06(1) provides: “[a] person is guilty of criminal possession of a controlled
substance in the fifth degree when he knowingly and unlawfully possesses . . . a controlled
substance with intent to sell it.”
3
In June 2008, the Department of Homeland Security served Landazury with a notice to
appear charging that he was removable pursuant to 8 U.S.C. § 1227(a)(2)(B)(i), because after he
was admitted to this country he was convicted of a controlled substance violation, and pursuant
to 8 U.S.C. §§ 1227(a)(2)(A)(iii) and 1101(a)(43)(B), because after he was admitted he was
convicted of an aggravated felony drug trafficking crime.
Landazury “concede[s] . . . that he was convicted of a crime relating to a controlled
substance, and as such, is removable under 8 U.S.C. § 1227(a)(2)(B)(I).” Appellant’s Br. 13.
He argues, however, that his 2006 drug conviction does not constitute an aggravated felony drug
trafficking offense and that, as a result, the BIA’s conclusion that he is ineligible for cancellation
of removal is erroneous. See 8 U.S.C. § 1229b(a)(3) (The Attorney General may cancel removal
“if the alien . . . has not been convicted of any aggravated felony”). While conceding that a
conviction under NYPL § 220.06(1) is an aggravated felony drug trafficking offense, Landazury
instead asserts that as a matter of fact the evidence in the record did not establish that he was
convicted of violating subsection (1) of this section, which provides that an element of the
offense is the intent to sell a controlled substance. See NYPL § 220.06(1). Put another way,
Landazury argues that he was convicted for possession of a controlled substance, not for
possession with intent to sell. That argument is without merit. The documents of conviction in
the record include the Certificate of Disposition, Landazury’s rap sheet, and his testimony before
the IJ admitting that he pled to the element of intent to sell in order to receive probation. This
evidence demonstrates that Landazury was convicted of violating subsection (1) of NYPL §
220.06. See Savchuck v. Mukasey, 518 F.3d 119, 123 (2d Cir. 2008) (holding that evidence of
alien’s conviction was sufficient where record included Certificate of Disposition, rap sheet, and
4
sentence and order of commitment “coupled with the fact that [petitioner] admitted to the
convictions in his testimony . . ..”). The BIA thus correctly determined that Landazury failed to
establish eligibility for relief. See 8 U.S.C. § 1229b(a)(3); id. § 1229a(c)(4)(A)(i) (“An alien
applying for relief . . . has the burden of proof to establish that the alien . . . satisfies the
applicable eligibility requirements”); 8 C.F.R. § 1240.8(d) (“If the evidence indicates that one or
more of the grounds for mandatory denial of the application for relief may apply, the alien shall
have the burden of proving by a preponderance of the evidence that such grounds do not apply.”).
We have considered all of Landazury’s other arguments and find them to be without
merit. For the foregoing reasons, the petition for review is DENIED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
5
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381 F.Supp.2d 405 (2005)
Raymond A. SEVER, Plaintiff
v.
William J. HENDERSON, Postmaster General, et al., Defendants.
No. CIV.A. 3:CV-00-1271.
United States District Court, M.D. Pennsylvania.
August 10, 2005.
*406 *407 *408 Raymond A. Sever, Forest City, PA, pro se.
Matthew Edward Haggerty, Office of the U.S. Attorney, Scranton, PA, for defendants.
MEMORANDUM
VANASKIE, Chief Judge.
This case arises in the wake of the termination of Plaintiff's employment by the United States Postal Service after several co-workers claimed that he had threatened a supervisor and observed Plaintiff mimicking the action of firing a handgun at his supervisor. At issue on motions for summary judgment filed by pro se Plaintiff Raymond Sever and the Defendants is whether there is sufficient evidence to warrant a trial on Plaintiff's disability discrimination claim brought under the Rehabilitation Act, 29 U.S.C. § 791 et seq. Defendants' motion will be granted and judgment will be entered in their favor for three reasons: first, Plaintiff has failed to present any evidence that his alleged mental disorder, which purportedly caused him to engage in the threatening conduct (for which he was successfully prosecuted under 18 U.S.C. § 115), substantially limited any major life activity at the time that he was fired; second, Plaintiff has not shown that Defendants Robert Spaulding and Jeff Ruth knew or had reason to know that Plaintiff was substantially limited in a major life activity at the time they determined that Plaintiff should be fired for his threatening conduct; and third, an employer does not violate the Rehabilitation Act by firing an employee for conduct that threatens the life of co-workers, even if that conduct was the product of a mental disorder.
BACKGROUND
Mr. Sever began working for the United States Postal Service on May 31, 1980. (Defs' Statement of Material Facts ("SMF") ¶ 2.)[1] On March 14, 1994, he received a warning letter from Honesdale *409 Postmaster Robert Spaulding for the failure to follow instructions on four separate occasions and for the willful delay of accountable mail. The specific charges in the letter were as follows:
Charge 1 You are charged with failure to follow instructions. On 1/24/94 a discussion was given to you about close out time and the deposit was to be dispatched every night. Again, on 02/16/94 Ed DeGroat hah [sic] a second discussion about the deposit not going out. On 02/25/94 registered mail was not dispatched. [sic] as instructed. On 03/07/94 and again on 03/08.94 [sic] the last truck was held up because the deposit was not ready for 5:50 dispatch time.
Charge 2 You are charged with willfull [sic] delay of accountable mail. On 02/25/94 three (3) registered articles were not sent on the last dispatch truck. Your statement was quoted as saying that two PTF clerks refused to sign the register bag. However you were instructed on 02/16/94 that all deposits and registers be sent every night.
(Defs' Ex. 15, Dkt. Entry 82.) After discussing the specific incidents underlying both charges, the letter further provided:
It is hoped that this official letter of warning will serve to impress upon you the seriousness of your actions and that future discipline will not be necessary. If you are having difficulties which I may not be aware of or if you need additional assistance or instructions for improving your performance, please call me, or you may consult with your other supervisor, and we will assist you where possible. However, I must warn you that future deficiencies will [r]esult in more severe disciplinary action being taken against you. Such action may include suspensions, reduction in grade and/or pay, or removal from the Postal Service.
(Id.)
Approximately one hour after Mr. Sever received the warning letter, he discussed the matter with a fellow employee, David Rollison. (Defs' Ex. 15, p. 3.) According to Defendants, Mr. Sever told Mr. Rollison that he would buy a gun and come back to the post office if he were ever dismissed from the Postal Service. (Id.) Mr. Sever contends that he never made such a statement. (Sever Aff. ¶ 8, Dkt. Entry 88.)
On March 15, 1994, Mr. Sever formed his fingers into the shape of a gun on several occasions and pointed his finger towards Mr. Spaulding and/or SPO, Ed DeGroat. (Defs' Ex. 15, p. 3.) He also made a noise as if firing a gun. (Id.) Mr. Sever contends that he only made two "finger points" and that he never said "pow." (Sever Aff. ¶¶ 6-7, Dkt. Entry 88.)
On March 15, 1994, Mr. Spaulding placed Mr. Sever on "off-duty without pay status" because of Mr. Sever's threatening gestures. (Defs' Ex. 15, p. 2.) On March 24, 1994, Mr. Sever and his attorney attended a labor management meeting with Mr. Spaulding and Jonathan Lister, a labor relations specialist manager. (Sever Aff. ¶ 2, Dkt. Entry 88; Spaulding Dep. at 16-17, Dkt. Entry 81.) At the meeting, Mr. Sever and his attorney informed Mr. Spaulding and Mr. Lister of Plaintiff's treating psychiatrist's "initial findings of Post-Traumatic Stress symptoms." (Sever Aff. ¶ 3, Dkt. Entry 88.) Mr. Sever's attorney requested that no adverse decision be made until his treating physician could further evaluate "his medical or psychological status or his condition." (Spaulding Dep. at 19.)[2] Mr. Sever then *410 made a written request to Mr. Lister to hold his position open until his doctor could complete his evaluation. (Sever Aff. ¶ 4, Dkt. Entry 88.) He further offered to make his doctor's findings and reports available to postal management at the earliest possible date. (Id. ¶ 5.) The record does not state when, if ever, Defendants received the medical reports.
On March 31, 1994, the Grand Jury for this District returned an indictment against Mr. Sever, charging him with violating 18 U.S.C. § 115, Influencing, Impeding or Retaliating Against a Federal Official by Threatening. The indictment was premised upon the accusation that Sever had mimicked the action of pointing a gun at a supervisor and pulling the trigger.[3]
By letter dated April 4, 1994, Sever was fired. The termination letter stated:
You are hereby notified you will be removed from the U.S. Postal Service on May 13, 1994. The reasons for this action are as follows:
Charge 1: On March 14, 1994 ... you were issued a Letter of Warning by the Officer in Charge. Approximately one hour later, you discussed this Letter of Warning with fellow employee, D. Rollison. You told him if you were ever dismissed from the Postal Service you would go out and buy a gun and come back to the post office. On the morning of March 15, 1994, you were observed on several instances forming your fingers into the shape of a gun, aiming at Officer-in-Charge, Robert Spaulding and/or SPO, Ed DeGroat, and making a noise as if firing a gun. As a result of your actions, you were placed in emergency off-duty status. Prior to leaving the facility, you indicated to SPO DeGroat that this was the first time in your life you thought you could hurt someone.
(Defs' Ex. 15, p. 3, Dkt. Entry 82.) The letter was signed by Defendants Spaulding and Jeff Ruth, the Manager of Operations for the Post Office.
Mr. Spaulding testified at his deposition that it was solely his decision to terminate Mr. Sever. (Spaulding Dep. at 98, Defs' Ex. 17, Dkt. Entry 82.) He further testified that he was not aware that Plaintiff labored under any mental disability at the time he decided to terminate Mr. Sever. (Id. at 98-99.) Mr. Ruth testified that "there was nothing that would lead [him] to believe that ... [Mr.] Sever had any type of handicap, mentally [or] physically...." (Ruth Dep. at 58, Dkt. Entry 81.) Mr. Ruth further testified that he did not take any employment action against Mr. Sever because of a mental disability. (Id. at 75.)
After Defendants terminated Mr. Sever, he filed a formal complaint with the EEOC *411 alleging, not disability discrimination, but gender discrimination. (Defs' SMF ¶ 12.) An Administrative Judge granted an Agency request for recommended findings and conclusions of law without a hearing. (Id. ¶ 13.) The Postal Service adopted the administrative judge's findings and conclusions of law and issued its final agency decision. (Id. ¶ 14.) Mr. Sever appealed the final agency decision to the EEOC Office of Federal Operations ("OFO"). (Id. ¶ 15.) The OFO affirmed the Postal Service's final decision. (Id. ¶ 16.) Mr. Sever requested reconsideration of the OFO decision, which was denied. (Id. ¶ 17.) The OFO advised Mr. Sever of his right to file a civil action. (Id.) On July 17, 2000, Mr. Sever commenced this action under the Rehabilitation Act. (Id. ¶ 18.)
On March 20, 2001, Defendants moved for summary judgment, arguing that Mr. Sever failed to exhaust his administrative remedies as to his disability discrimination claim. By Memorandum Opinion dated April 22, 2002, Defendants' motion for summary judgment was denied because an affidavit from Plaintiff's treating psychiatrist, Guido Boriosi, M.D., sufficed to raise a genuine dispute of fact material to the application of the doctrine of equitable tolling. Specifically, there was a question as to whether Plaintiff's mental health disorder impaired his ability to timely pursue an administrative claim of disability discrimination.
Following a telephone conference on May 24, 2002, this Court issued an order providing for a ninety day period of discovery limited to (1) whether Mr. Sever was disabled under the Rehabilitation Act; and (2) whether Defendants knew about the alleged disability. By Order dated September 13, 2002, litigation in this matter was stayed while Plaintiff considered whether to continue to pursue the action. At Plaintiff's request, the stay was lifted on February 6, 2003, and the discovery period on the questions of disability and Defendants' knowledge thereof was re-opened for a period of 90 days. After several extensions of the discovery period and resolution of discovery disputes, Mr. Sever and Defendants filed motions for summary judgment.
In moving for summary judgment and opposing the defense motion, Plaintiff has relied extensively on two affidavits signed by Dr. Boriosi, the first dated May 25, 2001 and submitted in opposition to Defendants' first summary judgment motion, and the second dated May 13, 2004. Dr. Boriosi's first affidavit indicates that he initially observed symptoms of post-traumatic stress disorder. (Boriosi Aff. of 5/25/01 at 4.) Dr. Boriosi opined that the written warning charging Sever with intentionally delaying the U.S. mail was particularly stressful for Mr. Sever because the charge had criminal implications. (Id. at 3.) Dr. Boriosi further opined that the stress caused Mr. Sever to react spontaneously by pointing his finger in what postal officials "allegedly" viewed as a threat. (Id.)
Dr. Boriosi stated that his continuing observations of Sever resulted in a diagnosis of obsessive compulsive disorder ("OCD"). (Id. at 4.) It is unclear when Dr. Boriosi arrived at this conclusion. According to Dr. Boriosi, OCD causes an individual to have intrusive thoughts of a frightening or disturbing nature which in turn may cause the person to do things repeatedly. Dr. Boriosi related how the OCD impacted Mr. Sever as of the time of his affidavits (2001 and 2004). He did not, however, express an opinion as to Sever's condition in March and April of 1994, and how that condition affected performance of major life activities.
Dr. Boriosi did opine that Mr. Sever's OCD had affected and continues to affect *412 his ability to sleep and concentrate. (Boriosi Aff. of May 13, 2004 at 1.) Dr. Boriosi further stated that Mr. Sever "at one time, did have repeated, intruding and involuntary images of violence," but he stressed that "those thoughts or images are, in my professional opinion, not something he would have acted upon." (Boriosi Aff. of May 25, 2001 at 6.) According to Dr. Boriosi, Mr. Sever's OCD also affects his ability to learn and complete routine tasks. (Boriosi Aff. of May 13, 2004 at 2.) Dr. Boriosi found that Mr. Sever was preoccupied with details, rules, order, and organization at the expense of flexibility and efficiency. (Boriosi Aff. of May 25, 2001 at 6.) Dr. Boriosi further stated that Mr. Sever's OCD "can be reasonably controlled through medication and talk therapy, but is expected to be a life long condition." (Boriosi Aff. of May 13, 2004 at 2.) At one point, Mr. Sever was taking medication and undergoing talk therapy, which allowed his condition to improve "significantly." (Boriosi Aff. of May 25, 2001 at 8.) The record does not state when and how long Mr. Sever was taking medication and undergoing therapy. Dr. Boriosi notes, however, that Mr. Sever has sought treatment less frequently due to financial concerns. (Id.)
As for accommodation to allow resumption of employment, Dr. Boriosi's 2004 affidavit states:
[Mr. Sever] would function best in a position that he has already mastered. He has demonstrated [an] ability as a window-distribution clerk for 14 years. His problem surfaced over the handling of registered mail in a manner inconsistent with postal regulations. [Mr. Sever] simply needs an accommodation in which new directives or procedures are given in writing to protect him from the adverse circumstances arising from the potential loss of such mail as a result of those procedures. Compared to the average person, [Mr. Sever] can do his job with the accommodation of having clearly defined duties, standards and responsibilities. Minor deviations are not expected to pose a problem since they have never posed a problem for [Mr. Sever] in the past. This accommodation would also keep [Mr. Sever] from overreacting to the stimulus that caused him to point his finger.
(Boriosi Aff. of May 13, 2004 at 2-3.)
Defendants have not submitted any psychiatric evidence on the summary judgment record. Instead, they maintain that Dr. Boriosi's opinions do not suffice to create a genuine dispute of material fact on the questions of whether Plaintiff suffered from a mental impairment that substantially limited a major life activity at the time he was fired and whether Defendants knew or had reason to know that he was substantially limited in a major life activity at that time.
DISCUSSION
Summary judgment should be granted when "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 a judgment as a matter of law." FED. R. CIV. P. 56(c). A fact is "material" if proof of its existence or non-existence might affect the outcome of the suit under applicable law. See Anderson v. Liberty Lobby Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). "Facts that could alter the outcome are material facts." Charlton v. Paramus Bd. of Educ., 25 F.3d 194, 197 (3d Cir.), cert. denied, 513 U.S. 1022, 115 S.Ct. 590, 130 L.Ed.2d 503 (1994). "[S]ummary judgment will not lie if the dispute about a material fact is `genuine,' that is, if the evidence is such that a reasonable jury could return a verdict *413 for the nonmoving party." Anderson, 477 U.S. at 248, 106 S.Ct. 2505.
Initially, the moving party must show the absence of a genuine issue concerning any material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). All doubts as to the existence of a genuine issue of material fact must be resolved against the moving party, and the entire record must be examined in the light most favorable to the nonmoving party. See Continental Ins. Co. v. Bodie, 682 F.2d 436, 438 (3d Cir.1982). Once the moving party has satisfied its burden, the nonmoving party, "must present affirmative evidence in order to defeat a properly supported motion for summary judgment." Anderson, 477 U.S. at 257, 106 S.Ct. 2505. Mere conclusory allegations or denials taken from the pleadings are insufficient to withstand a motion for summary judgment once the moving party has presented evidentiary materials. See Schoch v. First Fidelity Bancorporation, 912 F.2d 654, 657 (3d Cir.1990). Rule 56 requires the entry of summary judgment if there was adequate time for discovery and a party "fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322, 106 S.Ct. 2548.
The elements of a claim under § 504(a) of the Rehabilitation Act are very similar to the elements of a claim under Title I of the Americans with Disabilities Act, 42 U.S.C. § 12111. See Mengine v. Runyon, 114 F.3d 415, 420 n. 4 (3d Cir.1997).[4] To establish a prima facie case of discrimination under the Rehabilitation Act, a plaintiff must show: (1) that the plaintiff has a disability; (2) that the plaintiff is otherwise qualified to perform the essential functions of the job, with or without reasonable accommodations by the employer; and (3) that the plaintiff was nonetheless terminated or otherwise prevented from performing the job. See Donahue v. Consol. Rail Corp., 224 F.3d 226, 229 (3d Cir.2000); Mengine, 114 F.3d at 418; Shiring v. Runyon, 90 F.3d 827, 831 (3d Cir.1996). The plaintiff must also make a prima facie showing that a reasonable accommodation is possible. See Shiring, 90 F.3d 827 at 831. If the plaintiff is able to establish a prima facie case, the defendant then bears the burden of proving, as an affirmative defense, that the accommodations requested by the plaintiff are unreasonable, or would cause an undue hardship on the employer. See id.
Under the Rehabilitation Act, a "disability" is defined as: "(i) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (ii) a record of such an impairment; or (iii) being regarded as having such an impairment." Wilson v. Pa. State Police Dep't, No. Civ. A. 94-CV-6547, 2004 WL 875573, at *2 (E.D.Pa. Mar.19, 2004) (citing Sutton v. United Air Lines, 527 U.S. 471, 478, 119 S.Ct. 2139, 144 L.Ed.2d 450 (1999)). In the present case, Mr. Sever contends that he was disabled under the first prong of the disability definition because his obsessive compulsive disorder substantially limited him in the major life activities of sleeping, concentrating, learning, and performing routine tasks. Mr. Sever further seems to argue that he was regarded as disabled under the third prong of the disability definition because he informed Defendants that his physician *414 made initial findings of post-traumatic stress symptoms.
To determine whether the plaintiff is disabled under the first prong of the disability definition, a court must conduct a three-step inquiry. First, the court must determine whether the plaintiff's condition is a physical or mental impairment. Second, the court must identify a life activity affected by the impairment and determine whether it constitutes a "major life activity." Finally, the court must determine whether the plaintiff's impairment had a substantial limit on the identified major life activity. See Bragdon v. Abbott, 524 U.S. 624, 631, 118 S.Ct. 2196, 141 L.Ed.2d 540 (1998). These determinations are to be made as of the time the adverse employment action was taken. See EEOC v. Stowe-Pharr Mills, Inc., 216 F.3d 373, 379 (4th Cir.2000) ("the date of an adverse employment decision is the relevant date for determining whether a plaintiff is a `qualified individual with a disability'"); Griffith v. Wal-Mart Stores, Inc., 135 F.3d 376, 380 (6th Cir.1998), cert. denied, 526 U.S. 1144, 119 S.Ct. 2018, 143 L.Ed.2d 1030 (1999).
The regulations define mental impairment as "[a]ny mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities." 29 C.F.R. § 1630.2(h)(2). The term "major life activities" refers to "functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working." 29 C.F.R. § 1630.2(i). Thus, "major life activities" refers to activities that are of central importance to daily life. See Toyota Motor Mfg., Kentucky, Inc. v. Williams, 534 U.S. 184, 197, 122 S.Ct. 681, 151 L.Ed.2d 615 (2002).
An impairment "substantially limits" a major life activity if the individual is
[u]nable to perform a major life activity that the average person in the general population can perform; or [is] significantly restricted as to the condition, manner, or duration under which an individual can perform a particular major life activity as compared to the condition, manner, or duration under which the average person in the general population can perform that same major life activity.
29 C.F.R. § 1630.2(j); accord Toyota Motor Mfg., 534 U.S. at 195-96, 122 S.Ct. 681. In determining whether an individual is substantially limited in a major life activity, the regulations instruct that the following factors should be considered: "(1) [t]he nature and severity of the impairment; (2)[t]he duration or expected duration of the impairment; and (3)[t]he permanent or long term impact, or the expected permanent or long term impact of or resulting from the impairment." 29 C.F.R. § 1630.2(j)(2). Thus, "[i]t is insufficient for individuals attempting to prove disability status under this test to merely submit evidence of a medical diagnosis of an impairment." Toyota Motor Mfg., 534 U.S. at 198, 122 S.Ct. 681. Instead, a claimant must "prove a disability by offering evidence that the extent of the limitation [caused by their impairment] in terms of their own experience ... is substantial." Id.
A court must also assess the limitation of a major life activity in light of any corrective measures the plaintiff uses to mitigate the impairment. See Sutton v. United Air Lines, Inc., 527 U.S. 471, 488, 119 S.Ct. 2139, 144 L.Ed.2d 450 (1999); Fiscus v. Wal-Mart Stores, Inc., 385 F.3d 378, 385 (3d Cir.2004). An issue arises as to whether a plaintiff is substantially limited in a major life activity if the plaintiff fails to avail himself of mitigating measures. *415 Although the Third Circuit has not addressed the issue, some courts will only consider the mitigation that the plaintiff has actually undertaken in determining whether the plaintiff is substantially limited in a major life activity. See, e.g., Nawrot v. CPC Int'l, 277 F.3d 896, 904 (7th Cir.2002) (stating courts do not have a license to "meander in `would, could, or should-have' land" and will "consider only the measures actually taken and consequences that actually follow"); Finical v. Collections Unlimited, Inc., 65 F.Supp.2d 1032, 1037-38 (D.Ariz.1999) (refusing to speculate on whether Plaintiff would be disabled if Plaintiff used a hearing aid); Haworth v. Procter & Gamble Mfg. Co., No. Civ. A. 97-2149-EEO, 1998 WL 231062, at *6 (D.Kan. Apr.30, 1998) (declining to take into account effects of medications Plaintiff does not take regularly for financial/insurance coverage reasons); see also Capizzi v. County of Placer, 135 F.Supp.2d 1105, 1112-13 (E.D.Cal.2001) (holding that Plaintiff's failure to avail himself of corrective measures reduces Plaintiff's damages award but does not defeat the Plaintiff's disability discrimination claim). Other courts have held that a plaintiff's failure to avail themselves of mitigating measures defeats a disability discrimination claim. See, e.g., Johnson v. Maynard, No. 01 Civ. 7393(AKH), 2003 WL 548754, at *4 (S.D.N.Y. Feb.25, 2003) (finding that Plaintiff failed to establish that she was substantially limited in a major life activity because she failed to take available medicine that she knew would allow her to function normally); Hooper v. Saint Rose Parish, 205 F.Supp.2d 926, 929 (N.D.Ill.2002) (finding Plaintiff failed to establish that she was disabled because she had an opportunity to mitigate her symptoms and inexplicably did not do so); Tangires v. Johns Hopkins Hosp., 79 F.Supp.2d 587, 596 (D.Md.), aff'd, 230 F.3d 1354, 2000 WL 1350647 (4th Cir.2000) (finding that Plaintiff's asthma did not substantially limit any major life activities because Plaintiff refused to comply with her doctor's recommendations to take steroids).
In the present case, Plaintiff seems to argue that he is substantially limited in the major life activities of sleeping, concentrating, learning, and completing routine tasks as a result of his OCD. He relies on Dr. Boriosi's affidavits as the factual premise for this assertion. The shortcoming of this approach is that Dr. Boriosi does not opine as to Mr. Sever's condition at the time of the challenged employment action. Dr. Boriosi initially did not diagnose OCD. He opined that Mr. Sever was suffering from post traumatic stress symptoms induced by the disciplinary reprimands issued in March of 1994. There is no evidence that Plaintiff was substantially limited in any major life activity at that time.
Furthermore, Dr. Boriosi did not attribute Mr. Sever's disciplinary problems to learning difficulties or inability to concentrate. Instead, Dr. Boriosi stated that Sever's obsessive-compulsive personality caused him to resist management's perceived failure to enforce postal regulations on handling registered mail. It was Mr. Sever's purported refusal to allow the rules to be bent that resulted in the initial disciplinary action. (Boriosi Aff. of May 25, 2001 at 7.) Thus, Dr. Boriosi declares that "when faced with disciplinary action amid strict financial accountability his obsessive-compulsive personality (a good trait) elevated to the level of the disorder...." (Id.) Dr. Boriosi concluded that "the pressure associated with [Sever's] situation at the postal service caused his condition and it subsequently gained strength to seriously interfere with his normal life functioning." (Id. at 8.) Notably, the accommodation suggested by Dr. Boriosi new *416 directives or procedures on mail handling be given to Plaintiff in writing to protect him from the adverse circumstances arising from the potential loss of such mail does not suggest any substantial limitation in any major life activity.
Plaintiff's own evidence, therefore, compels the conclusion that Plaintiff was not substantially limited in some major life activity at the time he was fired. Plaintiff, of course, must establish that his "disability existed at the time of the discriminatory act." Kocsis v. Multi-Care Mgmt., Inc., 97 F.3d 876, 884 n. 13 (6th Cir.1996); accord, Nowak v. St. Rita High School, 142 F.3d 999, 1003 (7th Cir.1998). "The court must examine how the physical impairment affected the major life activity at the time of the allegedly discriminatory act because the plaintiff must establish that his disability existed at the time of the discriminatory act." Reid v. Runyon, No. 6:98-CV-129, 2000 WL 271732, at *3 (E.D.Ky. Feb.29, 2000), aff'd, 34 Fed.Appx. 469 (6th Cir. May 2, 2002) (Table). Dr. Boriosi's affidavits do not address the question of Plaintiff's functioning at the time he was fired. Instead, they concern the impact of Plaintiff's OCD after he was discharged and convicted under 18 U.S.C. § 115. The fact that a debilitating condition becomes disabling after the alleged discriminatory act is not sufficient. See Rebarchek v. Farmers Cooperative Elevator and Mercantile Ass'n, 60 F.Supp.2d 1145, 1151 (D.Kan.1999); Rondon v. Wal-Mart, Inc., No. C-97-0369 MMC, 1998 WL 730843, at *4 (N.D.Cal. Oct.8, 1998).
At the summary judgment stage, the plaintiff has the obligation of presenting some evidence of a condition that substantially impaired a major life activity at the time of his discharge. In this case, Mr. Sever has presented no such evidence. On this ground alone, Defendants are entitled to summary judgment.[5]
Even if there were evidence of a condition that substantially impaired a major *417 life activity in March and April of 1994, Plaintiff must nonetheless offer evidence that Defendants had knowledge of the disability at that time. See Kocsis, 97 F.3d at 884 ("[T]he defendant cannot discriminate `because of' a disability if it has no knowledge of the disability."). As explained in Hedberg v. Indiana Bell Telephone Co., Inc., 47 F.3d 928, 932 (7th Cir.1995):
[A]n employer cannot be liable under the ADA for firing an employee when it indisputably had no knowledge of the disability. At the most basic level, it is intuitively clear when viewing the ADA's language in a straightforward manner that an employer cannot fire an employee "because of" a disability unless it knows of the disability. If it does not know of the disability, the employer is firing the employee "because of" some other reason.
Accord Morisky v. Broward County, 80 F.3d 445, 448-49 (11th Cir.1996); Long v. Thomson Industries, Inc., No. Civ. A. 99-CV-1693, 2000 WL 1586078, at *7 (E.D.Pa. Oct.24, 2000) ("To establish disability discrimination, ... courts have uniformly required proof that the employer acted with an awareness of the disability itself to satisfy the causation requirement.").
Similarly, where, as here, a plaintiff claims that the employer failed to provide a reasonable accommodation, the plaintiff must show that the employer was aware of the employee's disability. See Bombard v. Fort Wayne Newspapers, Inc., 92 F.3d 560, 563 (7th Cir.1996). "In other words, the employer must know of both the disability and the employee's desire for accommodations for that disability." Taylor v. Phoenixville School District, 184 F.3d 296, 313 (3d Cir.1999). The plaintiff may rely upon either actual or constructive knowledge of the alleged disability. Long, 2000 WL 1586078, at *7.
In this case, the parties were directed to engage in discovery on the question of whether Defendants had the requisite knowledge of Mr. Sever's alleged disability in order to support a disability discrimination claim. Mr. Spaulding, Plaintiff's supervisor who made the decision to terminate his employment, testified that he was not aware that plaintiff had a mental disability at the time he took the employment actions in question. (Spaulding Dep. at 98-99). Mr. Ruth, Spaulding's supervisor, testified that he concurred with the decision to terminate Plaintiff's employment and had no awareness that Plaintiff had a "mental disability." (Ruth Dep. at 74-75.)[6]
Mr. Sever points out that on March 24, 1994, about ten days before the termination letter, he and his attorney informed Mr. Spaulding of "Dr. Boriosi's initial findings of Post-Traumatic Stress symptoms." (Sever Aff. at ¶ 3.) Sever also points out that, by handwritten letter dated March 26, 1994 addressed to Jonathon Lister, a Postal Service labor relations specialist manager who accompanied Mr. Spaulding to the March 24, 1994 meeting, Mr. Sever requested that any decision that may adversely affect his employment be deferred until his doctor could provide "a more complete prognosis of [his] condition."
*418 The fact that plaintiff conveyed a health care professional's initial findings of post-traumatic stress disorder does not support an inference that Defendants were aware of a disability. Although post traumatic stress disorder may constitute a mental impairment for purposes of the anti-discrimination law, it does not follow that the impairment is disabling. Furthermore, simply informing an employer of a particular condition is not tantamount to providing the employer with knowledge that the employee is substantially limited in some major life activity. "Vague or conclusory statements revealing an unspecified incapacity are not sufficient to put an employer on notice of its obligations under the ADA." Morisky, 80 F.3d at 448.
In this case, it is evident that Mr. Sever was seeking to explain that his threatening conduct was a by product of post traumatic stress disorder. Proving a causal relationship between his threatening conduct and an alleged mental condition would not, however, support an inference that he was substantially limited in any major life activity. Nor would awareness of a preliminary diagnosis of a mental condition as a causative factor for threatening conduct support an inference of knowledge by the employer that the employee was substantially limited in some major life activity.
This case stands in stark contrast to the facts presented in Taylor v. Phoenixville School District, 184 F.3d 296 (3d Cir.1999). In Taylor, a secretary for a school principal sued the Phoenixville School District for the failure to accommodate her disability resulting from bipolar disorder. In determining whether the school district had sufficient notice of her disability, the court noted that Ms. Taylor began to act strangely at work. After work, she hid herself in a train station and disguised herself by covering her head with a scarf because she believed that someone was after her. Ms. Taylor's behavior caused the school principal and administrative assistant for personnel to contact Ms. Taylor's son. After being contacted by the school, Ms. Taylor's son drove her to a psychiatric hospital. During the car ride, she began having paranoid delusions. Ms. Taylor was admitted as a patient in the psychiatric hospital and remained in the hospital for approximately one month. During Ms. Taylor's leave of absence, the son contacted the school principal and informed her that Ms. Taylor had bipolar disorder and would require accommodations when she returned to work. He provided the principal with information he received from Ms. Taylor's doctors, including her diagnosis, treatment, and medications. The hospital also sent a letter to the school district that provided the name and phone number of one of Ms. Taylor's physicians to answer any questions the school district may have. The principal contacted one of Ms. Taylor's physicians. Based on this evidence, the Third Circuit found that the "school district had more than enough information to put it on notice that [Ms.] Taylor might have a disability...." Id. at 314. The court further noted that it was not essential that the principal or the plaintiff know the specific name of Ms. Taylor's condition. See id.
In this case, by way of contrast, there is only Mr. Sever's threatening conduct immediately following employment discipline. Plaintiff has presented no evidence of a pattern of bizarre behavior that could cause a reasonable person to suspect that Plaintiff was suffering from some condition that was substantially restricting his functioning in a major life activity. No hospitalization preceded the threatening conduct. Nor does Mr. Sever's disclosure of a preliminary finding of post traumatic stress symptoms suffice to show that Mr. *419 Sever may have been substantially limited in some major life activity. An impairment having a causal relationship to employment-terminating conduct does not necessarily have a substantial impact on a major life activity.
As noted above, it is incumbent upon the employee to "show that the employer knew of [the] employee's substantial physical or mental limitation" resulting from the diagnosed impairment. Taylor v. Principal Financial Group, Inc., 93 F.3d 155, 163 (5th Cir.1996). In Taylor, the court confronted the question of whether the employee had adduced sufficient evidence of the employer's knowledge of limitations caused by bipolar disorder so as to preclude summary judgment in favor of the employer. The record showed that Mr. Taylor met with his employer to discuss his annual review. During the meeting, the employer expressed displeasure with Mr. Taylor's work. Mr. Taylor then informed the employer that he had bipolar disorder and that he wanted the employer's doctors to find out more about the disorder. After being informed of the disorder, the employer asked Mr. Taylor if he was alright. Mr. Taylor responded, "Yeah. I guess." At some point in the meeting, Mr. Taylor asked for a reduction in his work objectives and a lessening of pressure. Mr. Taylor did not inform the employer that he was unable to do his job because of his illness.
In moving for summary judgment, the employer argued that Mr. Taylor failed to inform anyone of his physical or mental limitations arising from his bipolar disorder. The employer further argued that it is not the illness the employer must accommodate, but rather any limitations or restrictions caused by the illness. The Fifth Circuit agreed with the employer, explaining:
For purposes of proving ADA discrimination, it is important to distinguish between an employer's knowledge of an employee's disability versus an employer's knowledge of any limitations experienced by the employee as a result of that disability. This distinction is important because the ADA requires employers to reasonably accommodate limitations, not disabilities. "The determination of whether an individual has a disability is not necessarily based on the name or diagnosis of the impairment the person has, but rather on the effect of that impairment on the life of the individual." 29 C.F.R.1630.2(j), App. (1995); 42 U.S.C. § 12112(a)(5)(A) ("[T]he term `discriminate' includes ... not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability....") (emphasis added); 29 C.F.R. 1630.9, App. (1995) ("Employers are obligated to make reasonable accommodations only to the physical or mental limitations resulting from the disability that is known to the employer.") (emphasis added).
Id. at 164. See also Mihalko v. Potter, Civ. A. No. 00-2076, 2003 WL 23319594, at *10-11 (W.D.Pa. Dec.12, 2003) (finding that Plaintiff failed to establish that the employer knew that Plaintiff was actually disabled because the employer did not know of any substantial limitations that resulted from Plaintiff's depression).
As in Taylor, Sever has failed to produce any evidence that the employer had knowledge of any limitations in concentrating, learning, and completing routine activities at the time of his discharge. The record does not state whether Dr. Boriosi's "initial observations of post traumatic stress symptoms" involved Mr. Sever's substantial limitations in concentrating, learning, and completing *420 routine activities. The record also does not show whether Mr. Sever provided Defendants with medical reports discussing his substantial limitations prior to issuance of the termination letter in 1994. As the Fifth Circuit held in Taylor, I find it is insufficient to merely inform the employer of a mental impairment without advising the employer of the substantial limitations the impairment has on major life activities for which the employee seeks accommodation. Because Mr. Sever failed to establish that Defendants knew of any substantial limitations he had in any major life activities, Mr. Sever has failed to establish as a matter of law that Defendants knew that he was disabled at the time of the adverse employment action.
Even if Plaintiff had established a genuine dispute of fact material to the questions of disability and the employer's knowledge thereof at the time of the adverse employment action, Defendants would still be entitled to summary judgment. Plaintiff must show that he was "otherwise qualified" to maintain his employment with the Postal Service. Donahue, 224 F.3d at 229. An employer may establish "qualification standards" that require that an employee not pose a direct threat to the safety of other persons in the workplace. See 42 U.S.C. § 12113(b). The conduct that prompted Mr. Sever's discharge was so threatening as to support a criminal conviction under 18 U.S.C. § 115, which makes it unlawful to threaten to assault or murder a United States official with the intent to impede, intimidate or interfere with that official's performance of official duties or with intent to retaliate against that official. Clearly, an employer could conclude that engaging in such egregious conduct would disqualify the employee from continued employment.
"Although the ADA prevents an employer from discharging an employee based on his disability, it does not prevent an employer from discharging an employee for misconduct, even if that misconduct is related to his disability." Fullman v. Henderson, 146 F.Supp.2d 688, 699 (E.D.Pa.2001), aff'd, 29 Fed.Appx. 100 (3d Cir.2002)(Table). Thus, for example, in Jones v. American Postal Workers Union, 192 F.3d 417, 429 (4th Cir.1999), the court held that an employer could not be held liable under the ADA for terminating an employee suffering from schizophrenia and post traumatic stress syndrome after the employee had threatened a co-worker, stating that "[t]he law is well settled that the ADA is not violated when an employer discharges an individual based upon the employee's misconduct, even if the misconduct is related to a disability." Similarly, in Hamilton v. Southwestern Bell Telephone Co., 136 F.3d 1047, 1052-53 (5th Cir.1998), the court held that an employee could not maintain an ADA claim on the grounds that post traumatic stress disorder caused outbursts at work directed at fellow employees, explaining that "the ADA does not insulate emotional or violent outbursts blamed on an impairment." Thus, the fact that Mr. Sever asked for the understanding of his employer after his outrageous behavior, suggesting that his conduct may have been attributable to post traumatic stress disorder, does not save this action from dismissal.
CONCLUSION
For the reasons set forth above, Defendants' motion for summary judgment will be granted and Plaintiff's motion for summary judgment will be denied. An appropriate order follows.
ORDER
NOW, THIS 10th DAY OF AUGUST, 2005, for the reasons set forth in the foregoing *421 Memorandum, IT IS HEREBY ORDERED THAT:
1. Defendants' motion for summary judgment (Dkt. Entry 80) is GRANTED.
2. Plaintiff's motion for summary judgment (Dkt. Entry 81) is DENIED.
3. The Clerk of Court is directed to enter judgment in favor of Defendants and to mark this matter CLOSED.
NOTES
[1] Citation to the moving party's statement of material facts signifies that the parties agree to that particular fact.
[2] During Mr. Spaulding's deposition, the following exchange occurred:
Q. Wasn't it relayed that Ray Sever was seeing a psychologist?
A. I believe it was.
Q. And isn't it true that Ray Sever or someone on his behalf stated that he found the situation concerning registered mail handling at the Honesdale Post Office ... particularly stressful?
A. I don't remember that.
Q. Didn't Ray Sever or someone on his behalf state that his treating psychiatrist had observed symptoms of post-traumatic stress disorder?
A. I don't remember that either.
Q. Isn't it true that Raymond Sever requested that no adverse decision be made until his treating psychiatrist could further evaluate him, that is further assess his medical or psychological status or his condition?
A. I believe your attorney requested that....
(Spaulding Dep. at 18-19, Dkt. Entry 81.)
[3] On June 21, 1994, Mr. Sever was convicted of violating 18 U.S.C. § 115. (Defs' SMF ¶ 10.) He was sentenced by the Honorable Edwin M. Kosik of this Court on February 13, 1995. (Defs' Br. in Supp. of Mot. for Summ. J. at 1-2.) His appeal to the Third Circuit was unsuccessful.
[4] Section 504(d) of the Rehabilitation Act, 29 U.S.C. § 794(d) provides that "[t]he standards used to determine whether this section has been violated in a complaint alleging employment discrimination under this section shall be the standards applied under title I of the Americans with Disabilities Act of 1990."
[5] Plaintiff also seems to argue that he was "regarded as" disabled due to Dr. Boriosi's initial findings of post traumatic stress symptoms. To establish that the plaintiff was "regarded as" disabled, the plaintiff must show that the plaintiff has:
(1) a physical or mental impairment that does not substantially limit major life activities but is treated by a covered entity as constituting such limitation;
(2) a physical or mental impairment that substantially limits major life activities only as a result of the attitudes of others toward such impairment; or
(3) none of the impairments defined [by the regulations] ... but is treated by a covered entity as having a substantially limiting impairment.
29 C.F.R. § 1630.2(I)(1)-(3). "[T]he mere fact that an employer is aware of an employee's impairment is insufficient to demonstrate either that the employer regarded the employee as disabled or that that perception caused the adverse employment action." Kelly v. Drexel Univ., 94 F.3d 102, 109 (3d Cir.1996). Instead, the plaintiff must show that the employer believed that a major life activity was substantially limited by the plaintiff's impairment.
As discussed above, Mr. Sever "shar[ed] Dr. Boriosi's initial findings of Post-Traumatic Stress symptoms" with Mr. Spaulding and Mr. Lister at the meeting on March 24. Mr. Sever's attorney requested that no adverse decision be made until his treating physician could further evaluate his "medical or psychological status or his condition." (Spaulding Dep. at 19.) The record fails to disclose whether Dr. Boriosi's initial findings of Post Traumatic Stress symptoms suggested that Mr. Sever was substantially limited in any major life activity. The record also fails to show that Defendants regarded Dr. Boriosi's initial findings as indicating that Plaintiff was substantially limited in some major life activity. Under Kelly, the mere fact that Defendants were aware that a mental health care professional found Plaintiff to be exhibiting symptoms of post traumatic stress disorder is insufficient to show that he was regarded as disabled.
[6] Plaintiff submitted a "Terminal Leave Worksheet" stating that the "date of separation" was May 28, 2002. (Ex. I, Dkt. Entry 93.) Plaintiff fails to provide any background information as to this worksheet. Plaintiff seems to argue that he was not actually terminated until May 28, 2002, and as a result, Defendants were aware of Dr. Boriosi's affidavit containing his medical findings at the time of his firing. (Pl's Br. in Opp'n to Defs' Mot. for Summ. J. at 9-10.) This argument is unavailing. The record indisputably shows that he was fired in 1994, and there is absolutely no evidence that he worked for the Postal Service after that date.
| {
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In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 17-806V
Filed: June 18, 2018
UNPUBLISHED
WILLIAM FULLER,
Special Processing Unit (SPU); Joint
Petitioner, Stipulation on Damages; Influenza
v. (Flu) Vaccine; Shoulder Injury
Related to Vaccine Administration
SECRETARY OF HEALTH AND (SIRVA)
HUMAN SERVICES,
Respondent.
Leah VaSahnja Durant, Law Offices of Leah V. Durant, PLLC, Washington, DC, for
petitioner.
Ann Donohue Martin, U.S. Department of Justice, Washington, DC, for respondent.
DECISION ON JOINT STIPULATION 1
Dorsey, Chief Special Master:
On June 15, 2017, petitioner filed a petition for compensation under the National
Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq., 2 (the “Vaccine
Act”). Petitioner alleges that he suffered a shoulder injury related to vaccine
administration (“SIRVA”) in his left shoulder as a result of his October 2, 2015 influenza
vaccination. Petition at 1; Stipulation, filed June 18, 2018, at ¶ 4. Petitioner further
alleges that he experienced residual effects of his injury for more than six months and
that there has been no prior award or settlement of a civil action for damages on his
behalf as a result of his condition. Petition at 4; Stipulation at ¶¶ 4-5. “Respondent
denies that the influenza vaccine caused petitioner to suffer SIRVA, or any other injury.”
Stipulation at ¶ 6.
1 Because this unpublished decision contains a reasoned explanation for the action in this case, the
undersigned intends to post it on the United States Court of Federal Claims' website, in accordance with
the E-Government Act of 2002. 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of
Electronic Government Services). In accordance with Vaccine Rule 18(b), petitioner has 14 days to
identify and move to redact medical or other information, the disclosure of which would constitute an
unwarranted invasion of privacy. If, upon review, the undersigned agrees that the identified material fits
within this definition, the undersigned will redact such material from public access.
2National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for
ease of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. §
300aa (2012).
Nevertheless, on June 18, 2018, the parties filed the attached joint stipulation,
stating that a decision should be entered awarding compensation. The undersigned
finds the stipulation reasonable and adopts it as the decision of the Court in awarding
damages, on the terms set forth therein.
Pursuant to the terms stated in the attached Stipulation, the undersigned
awards the following compensation:
A lump sum of $70,485.45 in the form of a check payable to petitioner.
Stipulation at ¶ 8. This amount represents compensation for all items of
damages that would be available under 42 U.S.C. § 300aa-15(a). Id.
The undersigned approves the requested amount for petitioner’s compensation.
In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of
the court is directed to enter judgment in accordance with this decision. 3
IT IS SO ORDERED.
s/Nora Beth Dorsey
Nora Beth Dorsey
Chief Special Master
3 Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by the parties’ joint filing of notice
renouncing the right to seek review.
2
IN THE UNITED STATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS
____________________________________
)
WILLIAM FULLER, )
)
Petitioner, )
) No. 17-806V
v. ) Chief Special Master Dorsey
) ECF
SECRETARY OF HEALTH AND )
HUMAN SERVICES, )
)
Respondent. )
____________________________________)
STIPULATION
The parties hereby stipulate to the following matters:
1. Petitioner filed a petition for vaccine compensation under the National Vaccine Injury
Compensation Program, 42 U.S.C. §§ 300aa-10 to -34 (the “Vaccine Program”). The petition
seeks compensation for injuries allegedly related to petitioner’s receipt of the influenza vaccine,
which vaccine is contained in the Vaccine Injury Table (the “Table”), 42 C.F.R. § 100.3(a).
2. Petitioner received his influenza immunization on October 2, 2015.
3. The vaccine was administered within the United States.
4. Petitioner alleges that he suffered a Shoulder Injury Related to Vaccine
Administration (“SIRVA”) in his left shoulder as a result of the influenza vaccine. Petitioner
further alleges that he experienced the residual effects of his left shoulder injury for more than
six months.
5. Petitioner represents that there has been no prior award or settlement of a civil action
for damages on his behalf as a result of his condition.
6. Respondent denies that the influenza vaccine caused petitioner to suffer SIRVA,
or any other injury.
7. Maintaining their above-stated positions, the parties nevertheless now agree that the
issues between them shall be settled and that a decision should be entered awarding the
compensation described in paragraph 8 of this Stipulation.
8. As soon as practicable after an entry of judgment reflecting a decision consistent with
the terms of this Stipulation, and after petitioner has filed an election to receive compensation
pursuant to 42 U.S.C. § 300aa-21(a)(1), the Secretary of Health and Human Services will issue a
lump sum payment of $70,485.45 in the form of a check payable to petitioner. This amount
represents compensation for all damages that would be available under 42 U.S.C. § 300aa-15(a).
9. As soon as practicable after the entry of judgment on entitlement in this case, and after
petitioner has filed both a proper and timely election to receive compensation pursuant to
42 U.S.C. § 300aa-21(a)(1), and an application, the parties will submit to further proceedings
before the special master to award reasonable attorneys’ fees and costs incurred in proceeding
upon this petition.
10. Petitioner and his attorney represent that compensation to be provided pursuant to
this Stipulation is not for any items or services for which the Program is not primarily liable
under 42 U.S.C. § 300aa-15(g), to the extent that payment has been made or can reasonably be
expected to be made under any State compensation programs, insurance policies, Federal or
State health benefits programs (other than Title XIX of the Social Security Act (42 U.S.C. §
1396 et seq.)), or by entities that provide health services on a pre-paid basis.
11. Payment made pursuant to paragraph 8 and any amounts awarded pursuant to
paragraph 9 of this Stipulation will be made in accordance with 42 U.S.C. § 300aa-15(i), subject
to the availability of sufficient statutory funds.
2
12. The parties and their attorneys further agree and stipulate that, except for any award
for attorneys’ fees, litigation costs, and past unreimbursable expenses, the money provided
pursuant to this Stipulation will be used solely for the benefit of petitioner as contemplated by a
strict construction of 42 U.S.C. §§ 300aa-15(a) and (d), and subject to the conditions of
42 U.S.C. §§ 300aa-15(g) and (h).
13. In return for the payments described in paragraphs 8 and 9, petitioner, in his
individual capacity and on behalf of his heirs, executors, administrators, successors or assigns,
does forever irrevocably and unconditionally release, acquit and discharge the United States and
the Secretary of Health and Human Services from any and all actions or causes of action
(including agreements, judgments, claims, damages, loss of services, expenses and all demands
of whatever kind or nature) that have been brought, could have been brought, or could be timely
brought in the Court of Federal Claims, under the National Vaccine Injury Compensation
Program, 42 U.S.C. § 300aa-10 et seq., on account of, or in any way growing out of, any and all
known or unknown, suspected or unsuspected personal injuries to or death of petitioner resulting
from, or alleged to have resulted from, the influenza vaccination administered on October 2,
2015, as alleged by petitioner in a petition for vaccine compensation filed on or about June 15,
2017, in the United States Court of Federal Claims as petition No. 17-806V.
14. If petitioner should die prior to entry of judgment, this agreement shall be voidable
upon proper notice to the Court on behalf of either or both of the parties.
15. If the special master fails to issue a decision in complete conformity with the terms
of this Stipulation or if the Court of Federal Claims fails to enter judgment in conformity with a
decision that is in complete conformity with the terms of this Stipulation, then the parties’
settlement and this Stipulation shall be voidable at the sole discretion of either party.
3
16. This Stipulation expresses a full and complete negotiated settlement of liability and
damages claimed under the National Childhood Vaccine Injury Act of 1986, as amended, except
as otherwise noted in paragraph 9 above. There is absolutely no agreement on the part of the
parties hereto to make any payment or to do any act or thing other than is herein expressly stated
and clearly agreed to. The parties further agree and understand that the award described in this
Stipulation may reflect a compromise of the parties’ respective positions as to liability and/or
amount of damages, and further, that a change in the nature of the injury or condition or in the
items of compensation sought, is not grounds to modify or revise this agreement.
17. This Stipulation shall not be construed as an admission by the United States or the
Secretary of Health and Human Services that the influenza vaccine caused petitioner’s alleged
SIRVA, or any other injury.
18. All rights and obligations of petitioner hereunder shall apply equally to petitioner’s
heirs, executors, administrators, successors, and/or assigns.
END OF STIPULATION
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cv5-697.dd.talamantez
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-95-00697-CV
NO. 03-95-00698-CV
Texas Department of Public Safety, Appellant
v.
Albert Talamantez, Appellee
FROM THE COUNTY COURT OF SAN SABA COUNTY
NOS. 5270 & 5271, HONORABLE HARLEN BARKER, JUDGE PRESIDING
PER CURIAM
The Texas Department of Public Safety appeals by writ of error the expunction of
records pertaining to Albert Talamantez's arrest for unlawfully carrying a weapon. We will
reverse the judgments and dismiss the causes because the county court had no jurisdiction over
the cause.
To prevail on appeal by writ of error, a party to a suit who did not participate at
trial must file the petition for writ of error within six months after the judgment was rendered and
show an error apparent from the face of the record. Tex. R. App. P. 45; General Elec. Co. v.
Falcon Ridge Apartments, 811 S.W.2d 942, 943 (Tex. 1991).
Talamantez filed his motions for expunction on May 18, 1995 in San Saba County
Court. The court granted the motions that same day ordering the DPS to take action to expunge
all record of the arrest. The DPS filed its petition for writ of error in the trial court on November
6, 1995, within six months from rendition of the judgment. The DPS raises two points of error
against the court's procedure in setting the hearing and giving notice and challenges the trial
court's jurisdiction by a third point.
The transcripts in each of the cases consolidated on appeal show that the DPS had
no notice of a properly set expunction hearing. The statute governing expunctions requires that
the court set a hearing on the expunction no sooner than thirty days from the filing of the petition
and give reasonable notice to the relevant agencies by certified mail, return receipt requested.
Tex. Code Crim. Proc. Ann. art. 55.02, § 2 (West Supp. 1996). No notice of the petition or a
hearing appears in the transcripts, even though the county-court clerk certified that the transcripts
complied with the DPS's request that the transcripts include the entire contents of the case files.
The transcripts affirmatively show that the county court granted the motion immediately without
waiting thirty days before holding a hearing. The transcripts show no waiver of the waiting
period. The county court's noncompliance with the statute prohibited the DPS from participating
at a hearing following the statutorily mandated waiting period. See Rodriguez v. T.M.B., 812
S.W.2d 449, 450 (Tex. App.--San Antonio 1991, no writ) (five-day interval between filing of
petition and expunction order not reasonable notice of hearing as matter of law). We sustain
points one and two.
The appellate record affirmatively shows an error even more critical than the failure
to wait the statutorily required thirty days before holding the hearing: the county court had no
jurisdiction over the proceeding. The statute explicitly authorizes the filing of petitions for
expunction only in district courts. Tex. Code Crim. Proc. Ann. art. 55.02, § 1(a) (West Supp.
1996). While expunction petitions may be filed in county courts-at-law that have jurisdiction
coextensive with district courts (see Gonzalez v. Rubalcaba, 667 S.W.2d 609, 611 (Tex. App.--El
Paso 1984, no writ)), no such latitude is accorded constitutional county courts. The county
court's judgment is void. We sustain point three.
We reverse the void judgments and dismiss the causes. Our judgments do not
affect Talamantez's right to petition for expunction of his records in the proper court following
proper procedures.
Before Justices Powers, Jones and B. A. Smith
Reversed and Dismissed on Both Causes
Filed: June 12, 1996
Do Not Publish
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333 So.2d 642 (1976)
STATE of Louisiana
v.
Freddie MORGAN.
No. 57587.
Supreme Court of Louisiana.
June 4, 1976.
Frank E. Beeson, III, New Orleans, for defendant-appellant.
William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Connick, Dist. Atty., Louise, Korns, Asst. Dist. Atty., for plaintiff-appellee.
PER CURIAM.
Defendant Freddie Morgan was charged with armed robbery of the coowner-cashier of a small grocery store in New Orleans. R.S. 14:64. As he left the store he was pursued by the other co-owner who shot him with an M-1 rifle. He was tried by jury, found guilty, and sentenced to serve twenty years at hard labor.
*643 He appeals this conviction and sentence on the basis of five assignments of error.[1]
In assignment of error number one, defendant argues that the trial court should have allowed him to ask the robbery victim if she were insured for the stolen money. In assignment of error number five, defendant complains that when the trial judge sustained, without futher comment, an objection made by the prosecutor to the defense attorney's "leading his witness now through this entire line of questioning" defendant was prejudiced by the inferential acquiescence of the court in the prosecutor's reference to an entire line of questions when the ruling actually should have referred only to the last-posed question. In assignment of error number six the defendant contends that he should have been allowed to state whether he felt he had been shot on purpose. Rabun argues in his seventh assignment of error that, when the trial judge required the defendant to put on a particular shirt at the trial, defendant's privilege against self-incrimination was violated. In assignment number eight defendant complains that his motion for a new trial should have been granted because the verdict was contrary to the law and the evidence.
We have studied these alleged errors, as well as the record and transcript presented in connection with them, and we find no merit in any of these asserted errors. With respect to assignment of error number seven, we note for the purpose of accuracy that the basis of the objection was merely that the shirt was "filthy," not that the state's action violated defendant's fifth amendment privilege, and also that the defendant had admitted before he put on the shirt that it belonged to him. With respect to the fifth amendment and nonverbal acts, see Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966); State v. Wilson, 329 So.2d 680 (La. 1976). Furthermore, we find no errors which are discoverable by a mere inspection of the pleadings and proceedings. C.Cr.P. art. 920.
Accordingly, defendant Morgan's conviction and sentence are affirmed.
NOTES
[1] Although three other assignments were perfected, they were not argued either in brief or orally but were merely submitted for the Court's consideration. We deem these assignments abandoned. State v. Domingue, 298 So.2d 723 (La.1974).
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325 B.R. 824 (2005)
In re BRIDGE INFORMATION SYSTEMS, INC., et. al., Reorganized Debtors,
Scott A. Peltz, Plan Administrator, Movant.
No. 01-41593-293.
United States Bankruptcy Court, E.D. Missouri, Eastern Division.
May 23, 2005.
*825 *826 Benjamin S. Kaminetzky, Thomas A. Tormey, David, Polk & Wardwell, New York, NY.
David B. Goroff, Bruce W. Doughty, Geoffrey S. Goodman, Derek L. Wright, Foley & Lardner, Chicago, IL.
Steven N. Cousins, David L. Going, Susan K. Olsen, Armstrong Teasdale, LLP, St. Louis, MO.
Paul B. Lackey, Lack Hershman, Dallas, TX.
John J. Hall, Lewis, Rice et al., St. Louis, MO.
*827 MEMORANDUM OPINION
DAVID P. MCDONALD, Bankruptcy Judge.
This case is before the Court on the motion of the Plan Administrator for Bridge's estate (the "Plan Administrator") to compromise his claims with Welsh Carson under Bankr. R. 9019. There is no dispute that the proposed compromise is in the best interest of Bridge's estate. The only question is whether the proposed settlement binds non-parties to the proposed agreement, Highland Capital Management and its related entities (collectively "Highland"), who have asserted state law claims against Welsh Carson. The Court finds that because Bridge was the entity that was directly injured by Welsh Carson's alleged wrongdoing contained in the state law claims, those claims belong to Bridge's estate. Accordingly, the Court will grant Plan Administrator's Rule 9019 motion to compromise his claims with Welsh Carson.
JURISDICTION AND VENUE
This Court has jurisdiction over the parties and subject matter of this proceeding under 28 U.S.C. §§ 1334, 151, and 157 and Local Rule 9.01(B) of the United States District Court for the Eastern District of Missouri. This is a core proceeding under 28 U.S.C. § 157(b)(2)(A), which the Court may hear and determine. Venue is proper in this District under 28 U.S.C. § 1409(a).
FACTUAL AND PROCEDURAL BACKGROUND
After reviewing the record in the light most favor to Highland and accepting all of Highland's factual allegations as true, the Court finds that following facts.[1] Highland was a member of a lender group that provided pre-petition credit to Bridge. Highland possesses a $65,000,000.00 unsecured claim against Bridge's estate.
The Welsh Carson Partners are a related group of limited partnerships (collectively "Welsh Carson"). Welsh Carson purchased a controlling interest in Bridge in 1995 and then caused Bridge to acquire Savvis in April, 1999. Welsh Carson caused Bridge to transfer 56% of Bridge's interest in Savvis to the individual Welsh Carson partnerships in two separate transactions that occurred in September, 1999 and February, 2000.
Bridge defaulted on the loan covenant with the lender group in September, 2000. At that point, a number of the general partners of the individual Welsh Carson partnerships (collectively the "General Partners"), who were also the officers and directors of Bridge, attempted to renegotiate Bridge's debt with the lender group in an effort to stave off the necessity of seeking relief under Chapter 11. The General Partners represented to Highland that they had identified a purchaser for Bridge's assets. The General Partners additionally stated to Highland that the potential buyer demanded that the members of the lender group accept a payment of 17 cents on each dollar of debt. The General Partners further told Highland that if it refused to consent to this proposal, they would cause Bridge to file a petition for relief under Chapter 11 and Highland would receive nothing.
Highland initially consented to the General Partners' offer to sell Bridge's assets and accept a payout of 17 cents per dollar of debt. The General Partners, however, were not able to secure a purchaser for *828 Bridge's assets. Highland then commenced an involuntary proceeding in this Court against Bridge on February 1, 2001. Bridge responded by filing a voluntary petition for relief on February 15, 2001. The Court then dismissed Highland's involuntary petition as moot on March 28, 2001.
Welsh Carson caused Bridge to transfer $20,000,000.00 in cash to Savvis in two different separate transactions in January, 2001 (collectively the "Pre-Petition Transfers") even though Savvis owed Bridge $30,000,000.00 at the time of the two transfers. The Pre-Petition Transfers occurred during the interim between the date the General Partners represented to Highland that they had found a buyer for Bridge's assets and Highland filing the involuntary petition against Bridge. Additionally, Welsh Carson caused Bridge to make the Pre-Petition Transfers to Savvis at a time when Welsh Carson and the General Partners controlled both companies.
Highland commenced an action against Welsh Carson, the General Partners and Savvis in Texas State Court on August 28, 2002 (the "State Court Action"). The basis of Highland's State Court Action was that Welsh Carson and the General Partners misrepresented to Highland that they had a buyer for Bridge. Highland contended that Welsh Carson knew that there was no potential buyer for Bridge when it made the representation and that if Highland had known that fact, it would have filed an involuntary petition before Welsh Carson could have caused Bridge to make the Pre-Petition Transfers.
Highland asserted eight counts in the State Court Action. Counts I and II were fraudulent misrepresentation and negligent misrepresentation claims. Count III was a tortious interference claim. Counts IV an V were conspiracy to commit tortious interference and fraud claims. Counts VI and VII were aiding and abetting fraud and tortious interference counts. For simplicity, the Court will refer to Counts I through VII as the "Tort Claims". Count VIII contained a veil piercing claim, asserting that Bridge was simply the alto ego of Welsh Carson and the General Partners. The Court will refer to Count VIII as the "Veil Piercing Claim".
Savvis, with the consent of Welsh Carson and the General Partners, removed the State Court Action to the United States District Court for the Northern District of Texas (the "Texas District Court"). Savvis further requested that the Texas District Court transfer venue to this Court because the claims in the State Court Action belonged to Bridge's estate. Highland responded to the motion to transfer venue by filing a motion to remand the State Court Action back to Texas State Court. The Texas District Court granted Savvis' motion to transfer venue to this Court and denied Highland's motion on June 25, 2003.
While the parties' respective motions were pending in the Texas District Court, Welsh Carson and the General Partners filed a declaratory judgment action in this Court on May 8, 2003 (the "Declaratory Judgment Action"). The Declaratory Judgment Action sought a declaration that because the injury Highland complained of in the State Court Action was simply derivative of Bridge's direct injury, the causes of action contained in the State Court Action belonged only to Plan Administrator. Welsh Carson and the General Partners also requested that this Court enjoin Highland from prosecuting the State Court Action.
After the Texas District Court transferred the State Court Action here, Highland filed a motion to dismiss, abstain or transfer the State Court Action back to *829 the Texas District Court. The Court denied Highland's motion on September 24, 2003.
The parties then agreed to consolidate the State Court Action and the Declaratory Judgment Action into one single adversary proceeding (the "Consolidated Adversary"). The Court also realigned the parties in the Consolidated Adversary. Specifically, Highland and Plan Administrator were designated as the plaintiffs and Welsh Carson and the General Partners were designated as the defendants. Additionally, Highland's complaint in the State Court Action became the complaint in the Consolidated Adversary.
There are several matters pending between Plan Administrator and Welsh Carson, including the claims in the Consolidated Adversary and Plan Administrator's $40,000,000.00 preference action against Welsh Carson. Plan Administrator has filed a motion pursuant to Bankr.R. 9019 to compromise all the claims between him and Welsh Carson, including the causes of action contained in the Consolidated Adversary.
No party has objected to the substance of Plan Administrator's proposed settlement with Welsh Carson. Highland, however, has objected to Plan Administrator's motion to compromise to the extent that it attempts to compromise Highland's causes of action contained in the Consolidated Adversary. For the reasons discussed below, the Court will grant Plan Administrator's motion to compromise all of the claims against Welsh Carson, including the claims Highland attempts to assert in the Consolidated Adversary.
DISCUSSION
A. Introduction
A court should approve a debtor-in-possession's motion to compromise a dispute under Bankr.R. 9019 if the compromise is in the best interest of the estate. In re Trism, Inc., 282 B.R. 662, 668 (8th Cir. BAP 2002).
Here, there is no dispute that Plan Administrator's proposed compromise with Welsh Carson is in the best interest of Bridge's estate. The unsecured creditors' committee filed a response to Plan Administrator's Rule 9019 motion in support of the proposed compromise. Also, Plan Administrator submitted his own affidavit in support of his motion, which outlines his experience in litigating large preference claims and his opinion that the proposed settlement was in the best interest of Bridge's estate. Given this record, the Court finds that Plan Administrator has established that the proposed settlement is in the best interest of Bridge's estate.
Highland is the only entity that has objected to Plan Administrator's proposed settlement with Welsh Carson. Highland does not contend that proposed settlement is not in the best interest of Bridge's estate. Rather, Highland only disputes whether the proposed settlement can dispose of the Tort Claims and the Veil Piercing Claim because Highland argues that those claims belong to it rather than Bridge's estate. Because Bridge, not Highland, was the entity that was directly injured by Welsh Carson's alleged malfeasance with respect to both the Tort Claims and the Veil Piercing Claim, all of the claims in the Consolidated Adversary belong to Bridge's estate.
B. Procedural Issues.
Highland posits both procedural and substantive arguments as to why the Court should not grant Plan Administrator's Rule 9019 motion. Highland advances two procedural arguments. First, Highland contends that the court should adjudicate Plan Administrator's request to include the claims contained in the Consolidated Adversary by way of summary judgment. Highland additionally argues *830 that because some of the Highland entities have not filed proofs of claim against Bridge's estate, this Court does not have the authority to determine those entities' rights with respect to the claims in the Consolidated Adversary. The Court rejects both these arguments.
Bankruptcy courts have plenary power to determine the extent of the debtor's estate. 28 U.S.C. §§ 157(b) & 1334(a); In re Continental Airlines, 138 B.R. 442, 445 (D.Del.1992). Thus, bankruptcy courts have the authority to determine what causes of action belong to the debtor's estate and prevent all other entities, including entities that have not filed proof of claims, from prosecuting those causes of action when ruling on a debtor-in-possession's motion to compromise claims under Rule 9019. Sobchack v. Am. Nat'l. Bank & Trust Co. (In re Ionosphere Clubs, Inc.), 17 F.3d 600, 607 (2d Cir.1994).
Her, the entire basis for Plan Administrator's claim that the proposed compromise with Welsh Carson should include the claims in the Consolidated Adversary is that those claims are property of Bridge's estate under 11 U.S.C. § 541(a). Accordingly, this Court has the statutory power to adjudicate Plan Administrator's proposed settlement with Welsh Carson and prohibit all of the Highland entities from prosecuting those claims under Bankr.R. 9019.[2]Id.
C. Substantive Issues.
1. Missouri law applies in determining whether the Tort Claims and Veil Piercing Claim are property of Bridge's estate under 11 U.S.C. § 541(a).
The substantive issue in dispute here is whether the Tort Claims and the Veil Piercing Claim belong to Bridge's estate under 11 U.S.C. § 541(a). Applicable state law determines what causes of action belong to the debtor's estate under 11 U.S.C. § 541(a). Mixon v. Anderson (In re Ozark Restaurant Equip. Co.), 816 F.2d 1222, 1225 (8th Cir.1987). Because the Court will examine applicable state law in analyzing the substantive issue in dispute, the Court will apply Missouri's conflict of law principles to determine which state's law should apply in analyzing the substantive issue. In re Payless Cashways, 203 F.3d 1081, 1084 (8th Cir.2000) (holding that when applying state substantive law, a federal court should utilize the forum state's conflict of law principles).
Missouri has adopted the most significant relationship test embodied in Restatement (Second) of Conflicts of Law § 145 in analyzing conflict of law issues involving tort claims. Kennedy v. Dixon, 439 S.W.2d 173, 184 (Mo. banc 1969); Goede v. Aerojet Gen. Corp., 143 S.W.3d 14, 24-25 (Mo.Ct.App.2004). Highland and Plan Administrator agree that Missouri has the most significant relationship to the Tort Claims. Accordingly, the Court will apply Missouri law in determining whether the Tort Claims are property of Bridge's estate under 11 U.S.C. § 541(a).
With respect to the Veil Piercing Claim, Missouri courts generally apply the internal affairs doctrine with respect to disputes involving the administration or governance of a corporation. Yates v. Bridge Trading Co., 844 S.W.2d 56, 61 (Mo.Ct.App.1992). A request to pierce a corporation's veil necessarily involves an analysis of how the controlling shareholders *831 administered and governed the corporation. See Dassault Falcon Jet Corp. v. Oberflex, Inc., 909 F.Supp. 345, 349 (M.D.N.C.1995). Accordingly, under the internal affairs doctrine, the applicable law in an adjudicating a veil piercing claim is the state law under which the corporation exists. DeWitt v. Hutchins 309 F.Supp.2d 743, 751 (M.D.N.C.2004); Realmark Investment Co. v. Am. Fin. Corp., 171 B.R. 692, 694 (N.D.Ga.1994). Therefore, because Bridge is a Missouri corporation, Missouri law will apply to the Veil Piercing Claim.
2. The Tort Claims belong to Bridge's Estate.
Only a trustee has standing to assert pre-petition claims that are property of the debtor's estate under 11 U.S.C. § 541(a)(1). Mixon v. Anderson (In re Ozark Restaurant Equip. Co.), 816 F.2d 1222, 1225 (8th Cir.1987). As discussed above, applicable state law determines whether the cause of action belongs to the debtor's estate. Id. And as noted in the preceding discussion, the applicable state law the Court should apply with respect to the Tort Claims is Missouri. Accordingly, if only Bridge could have asserted the Tort Claims against Welsh Carson on date of petition under Missouri law, those claims are property of Bridge's estate that only Plan Administrator has standing to assert.
Highland relies heavily on the Fifth Circuit's opinion in In re Educators Group Health Trust, 25 F.3d 1281 (5th Cir.1994) in arguing that because Welsh Carson made the misrepresentation at issue to it directly, it has standing to assert the Tort Claims. The opinion in Educators Trust, however, supports Plan Administrator's position that the Tort Claims belong to Bridge's estate so that only he has standing to assert them.
The bankruptcy court and the district court in Educators Trust applied the exact test that Highland urges this Court should apply here. Specifically, the lower courts held that the proper inquiry was to examine whether the alleged misconduct was directed at the debtor corporation or the creditor in determining which party had standing to assert the claims arising from the misconduct. Id. The Fifth Circuit rejected that test and held that the proper inquiry under Texas law focuses on the relationship between the injury and the debtor corporation. Id. at 1284-85. If the debtor corporation suffered the direct injury from the alleged wrongful conduct, then it necessarily follows that a creditor's injuries are only derivative of the debtor's injury and the cause of action belongs to the debtor's estate. Id. at 1285.
Missouri courts would utilize the same test employed by the Fifth Circuit in Educators Trust. It is well settled under Missouri law that a corporation is the only party that may recover for its direct injuries. Goldstein v. Studley, 452 S.W.2d 75, 78 (Mo.1970); Centerre Bank of Kansas City v. Angle, 976 S.W.2d 608, 613 (Mo.Ct.App.1998); 21 West, Inc. v. Meadowgreen Trails, Inc., 913 S.W.2d 858, 871 (Mo.Ct.App.1996); Peterson v. Kennedy, 791 S.W.2d 459, 464 (Mo.Ct.App.1990); Schick v. Riemer, 263 S.W.2d 51, 54 (Mo.Ct.App.1953). Accordingly, the focus of whether the cause of action belongs to the corporation should center on relationship between the alleged injury and the corporation.[3]21 West, 913 S.W.2d at 871; Peterson, 791 S.W.2d at 463-64. Thus, Missouri law provides that if the corporation *832 sustains the direct harm from the alleged wrongdoing, then claims stemming from that wrongdoing belong to the corporation only. Id.
For example, in Peterson, the minority shareholders of a corporation brought a breach of fiduciary duty claim against a director of the corporation. Id. at 463. The essence of the minority shareholder's complaint was that the director caused the corporation to make a transfer that diminished the value of the corporation. Id. at 462-63. The court held that only the corporation had standing to assert the breach of fiduciary cause of action because the corporation was the party that was directly injured by the controlling shareholder's misconduct, even though the controlling shareholders may have breached a duty to the minority shareholders. Id. at 464. Therefore, Missouri courts follow the same test as utilized by the Fifth Circuit in Educators Trust; if the corporation suffers the direct injury that results from the malfeasance, then only it has standing to assert claims arising out of the malfeasance.
Here, even after accepting all of the allegations in the Consolidated Adversary as true and viewing those allegations in the light most favorable to Highland, Bridge was the party that was directly injured by Welsh Carson's wrongdoing. Highland maintains that it has standing to assert the Tort Claims because Welsh Carson made the alleged misrepresentations directly to it concerning the existence of potential purchasers of Bridge's assets. But the injury stemming from that misrepresentation was inflicted upon Bridge in that Highland would have prevented Welsh Carson from causing Bridge to make the Pre-Petition Transfers, which caused direct financial harm to Bridge. Accordingly, although Welsh Carson directed the misrepresentations at Highland, Bridge was the direct recipient of the harm stemming from the misrepresentations.
Highland also contends that it has standing to assert the Tort Claims because it is a creditor, not shareholder, of Bridge. It is true that the reported cases in Missouri involve individual shareholders attempting to bring a direct action on their own behalf when the corporation has suffered the direct injury. But the fact that the reported cases involve suits by shareholders and not creditors does not negate the fact that under Missouri law, only a corporation, not its shareholders nor creditors, may maintain an action for the corporation's direct injury.
Missouri courts have recognized that the rationale underlying the rule that only a corporation may bring a cause of action for its direct financial injury is to protect the interest of all potential claimants of the corporation's assets, including voluntary creditors. Centerre Bank of Kansas City, N.A., 976 S.W.2d at 613; Peterson, 791 S.W.2d at 464. Thus, the rule that a corporation only has standing to assert a claim for its direct injury prohibits any other party, either a stockholder or a creditor, from asserting that claim. This rule is particularly apropos when, as is the case here; the corporation is insolvent so that the creditors become the residual claimants to the corporation's unencumbered assets. Sobchack v. Am. Nat'l Bank & Trust Co. (In re Ionosphere Clubs, Inc.), 17 F.3d 600, 606 (2d Cir.1994); Prod. Resources Group, LLC v. NCT Group, Inc., 863 A.2d 772, 792 (Del.Ch.2004).
Highland additionally maintains that the Supreme Court's holding in Caplin v. Marine Midland Grace Trust Co., 406 U.S. 416, 92 S.Ct. 1678, 32 L.Ed.2d 195 (1972) dictates that only it as a third-party creditor has the right to assert the Tort Claims against Welsh Carson. But Caplin merely *833 stands for the proposition that a trustee only has the statutory right to assert claims on behalf of the debtor's estate and may not assert claims on behalf of creditors, even if those claims are common to a large class of creditors. Id. at 429-30, 92 S.Ct. 1678. The Supreme Court in Caplin did not address the issue central to the analysis here, when does a cause of action belong to the debtor's estate. Accordingly, Caplin is not relevant to whether the Tort Claims belong to Highland or Bridge's estate.
In conclusion, the injury stemming from Welsh Carson's malfeasance as alleged in the Consolidated Adversary was directly inflicted upon Bridge. Thus, although Welsh Carson directed the misrepresentations at Highland, only Bridge had standing under Missouri law to assert the Tort Claims on the petition date. Thus, the Tort Claims are property of Bridge's estate under 11 U.S.C. § 541(a) that only Plan Administrator has standing to assert on behalf of Bridge's estate.
3. The Veil Piercing Claim belongs to Bridge's Estate.
Highland maintains that under binding Eighth Circuit precedent, only it can assert the Veil Piercing Claim. Highland's reading of the case law, however, is overly broad.
It is true that the Eight Circuit has held that generally only a third-party creditor may assert a veil piercing cause of action. Mixon v. Anderson (In re Ozark Restaurant Equip.), 816 F.2d 1222, 1225-26 (8th Cir.1987). The rationale undergirding the Eighth Circuit's opinion is that because a court may generally only pierce the corporation's veil upon a showing by a third-party that it was injured by the corporate principals' abuse of the corporate form, only that third-party has standing to bring a veil piercing claim. Id. at 1225.
The Eighth Circuit noted Mixon, however, that applicable state law determines whether the creditor or the trustee has standing to bring the veil piercing claim. Id. at 1226 n. 7. In fact, the Eighth Circuit's based its holding in Mixon on its finding that only the third-party creditor had standing to bring the veil piercing claim under the specific facts of that case under Arkansas law. Id. at 1225-26. Thus, the specific holding in Mixon does not apply if applicable state law would allow the corporation only to bring a veil piercing action to recover for its direct injuries. Id. at 1226 n. 7 (noting that the outcome of the case could have been different if another state's substantive law applied).
As the Second Circuit has noted, Mixon then does not stand for the broad proposition that only a creditor may bring a veil piercing claim in all circumstances. Kalb, Voorhis & Co. v. Am. Fin. Corp., 8 F.3d 130, 134 (2d Cir.1993). Rather, the proper analysis must focus upon whether the veil piercing claim belonged to the corporation on the petition date under applicable state law so that it became property of the corporation's estate under 11 U.S.C. § 541(a). Id.; Mixon, 816 F.2d at 1226. Therefore, the Court must examine Missouri law here to determine whether the Veil Piercing Claim belonged to Bridge on the petition date so that it became part of Bridge's estate under 11 U.S.C. § 541(a).
As this Court has previously noted, the general rule under Missouri law is that a court should only pierce the corporation's veil upon a showing by a third-party that it has been injured by an abuse of the corporate form. Mann v. Michael Indus., Inc. (In re Inland Shoe Mfg. Co.), 90 B.R. 981, 985-86 (Bankr.E.D.Mo.1988) (citing Osler v. Joplin Life Ins., Co., 164 S.W.2d 295, 298 (Mo.1942)). Thus, the *834 general rule in Missouri is that only a third-party creditor has standing to assert a veil piercing claim. Mar-Kay Plastics, Inc. v. Reid Plastics, Inc. (In re Mar-Kay Plastics, Inc.), 234 B.R. 473, 481-82 (Bankr.W.D.Mo.1999); Inland Shoe, 90 B.R. at 986.
There are exceptions, however, to this general rule. Relevant to the instant case, the Bankruptcy Court for the Western District of Missouri has held that Missouri courts would allow a corporation to bring a veil piercing claim when the claim is linked to specific assets or transactions. Block v. Warehouse Consultants, Inc. (In re Am. Serv., Inc.), 173 B.R. 650, 653 (Bankr.W.D.Mo.1994). The Block Court specifically held that under Missouri law, any alter ego action that attempts to hold the controlling shareholders liable for a specific transaction rather than the corporation's debts generally belongs to the corporation and not third-party creditors. Id. The Court agrees with the Block Court's analysis and holds that the Veil Piercing Claim is property of Bridge's estate for two reasons.[4]
First, the Block Court's holding is premised in part on the fact that a fraudulent transfer between two alter ego corporations is voidable by the transferor corporation under Missouri law. Id. (citing S. Side Nat'l Bank v. Winfield Fin. Serv., 783 S.W.2d 140, 145 (Mo.Ct.App.1989)). Here, Highland's complaint is that Welsh Carson caused Bridge to make the Pre-Petition Transfers to Savvis for insufficient consideration at a time when Welsh Carson controlled both corporations. Thus, the right to recover the Pre-Petition Transfers under Missouri law belongs to Bridge and is property of Bridge's estate.
An additional reason the Veil Piercing Claim is property of Bridge's estate under Missouri law is because allowing Highland to assert that claim would circumvent the well established rule that only a corporation has standing to assert claims for its direct injuries. Although Highland labeled its cause of action as a veil piercing claim in Count VIII of the Consolidated Adversary, Highland is seeking damages stemming from the Pre-Petition Transfers in that cause of action. And Bridge, not Highland, was directly injured by the Pre-Petition Transfers. Therefore, regardless of the label Highland attached to its causes of action against Welsh Carson, the fact remains that Welsh Carson's alleged wrongdoing inflicted harm directly upon Bridge. Thus, only Bridge has the right under Missouri law to assert those claims. See S.I. Acquisition, Inc v. Eastway Delivery Serv., Inc. (In re S.I. Acquisition, Inc.), 817 F.2d 1142, 1153 (5th Cir.1987).
In conclusion, the Veil Piercing Claim relates specifically to the allegation that Welsh Carson caused Bridge to make the Pre-Petition Transfers to Savvis without adequate consideration when Welsh Carson controlled both corporations. Also, Bridge suffered the direct injury stemming from the Pre-Petition Transfers. *835 Therefore, the Veil Piercing Claim is property of Bridge's estate under 11 U.S.C. § 541(a). Accordingly, only Plan Administrator has standing to assert the claim on behalf of Bridge's estate.
4. Only Plan Administrator may prosecute the causes of action in the Consolidated Adversary under 11 U.S.C. § 544(b).
Plan Administration also contends that the Consolidate Adversary is in essence a fraudulent conveyance action that only he can prosecute. Only a trustee has the statutory authority to assert a fraudulent conveyance cause of action under the Code. 11 U.S.C. § 544(b); In re PWS Holding Corp., 303 F.3d 308, 314 (3d Cir.2002). Thus, if a creditor's putative state law cause of action challenges the propriety of a pre-petition transfer because the debtor failed to receive adequate consideration, that cause of action belongs to the debtor's estate. Nat'l. Am. Ins. Co. v. Ruppert Landscaping Co., 187 F.3d 439, 441 (4th Cir.1999); In re MortgageAmerica Corp., 714 F.2d 1266, 1275 (5th Cir.1983).
Because the purpose underlying 11 U.S.C. § 544(b) is to protect the trustee's ability to adequately administer the debtor's estate, the state law cause of action and the fraudulent conveyance cause of action need not have identical elements. Ruppert Landscaping, 187 F.3d at 441. Rather, as long as the putative state law cause of action has the same focus as a fraudulent conveyance action under 11 U.S.C. § 548(b), only the trustee has standing to bring the claim. Id.; Litchfield Co. v. Anchor Bank (In re Litchfield Co.), 135 B.R. 797, 804 (W.D.N.C.1992).
The essential element of a fraudulent conveyance cause of action under 11 U.S.C. § 548(b) is that the debtor failed to receive reasonably equivalent value in exchange for the pre-petition transfer in dispute. Pummill v. Greensfelder, Hemker & Gale (In re Richards Conover Steel, Co.), 267 B.R. 602, 607 (8th Cir. BAP 2001). The gravamen of Highland's complaint is that Welsh Carson made false misrepresentations to Highland to stave off an involuntary petition so that Welsh Carson could cause Bridge to remit the Pre-Petition Transfers to Savvis without adequate consideration. Thus, the alleged injury in the Consolidated Adversary is identical to the focus of a fraudulent conveyance cause of action under 11 U.S.C. § 548(b).
Highland counters by arguing that because the causes of action in the Consolidated Adverse are state common law claims, only a creditor may assert those claims. Highland's argument, however, misses the point. As illustrated above, even if the creditor nominally avers state law claims, if those claims are similar in focus to a fraudulent conveyance cause of action, only a trustee has standing to bring those claims regardless of how those claims are plead. Ruppert, 187 F.3d at 442. Accordingly, because the causes of action in the Consolidated Adversary have the same focus as a fraudulent conveyance cause of action under 11 § 548(b), only Plan Administrator has standing to bring those claims.
CONCLUSION
Missouri law applies in determining if the Tort Claims and the Veil Piercing Claim are property of Bridge's estate under 11 U.S.C. § 541(a). Missouri law provides that any claim that stems from a direct injury to the corporation belongs to the corporation only. The claims contained in the Consolidated Adversary all flow from the Pre-Petition Transfers, which directly damaged Bridge. Thus, although the alleged wrongful conduct was directed at Highland, both the Tort Claims and the Veil Piercing Claim are property *836 of Bridge's estate under 11 U.S.C. § 541(a) that only Plan Administrator may prosecute.
Additionally, the claims in the Consolidated Adversary have the same focus as a fraudulent conveyance action under 11 U.S.C. § 548(b). Thus, although Highland nominally avers state law claims in the Consolidated Adversary, only Plan Administrator has the statutory right to assert those claims under 11 U.S.C. § 544(b). Accordingly, Plan Administrator's compromise with Welsh Carson under Bankr.R. 9019 includes all of the claims against Welsh Carson asserted in the Consolidated Adversary, including the claims nominally asserted by Highland.
An Order consistent with this Memorandum Opinion will be entered this date.
NOTES
[1] Because Plan Administrator requests that the Court dismiss the Consolidated Adversary with respect to Highland because Highland lacks standing to assert those claims, the Court has accepted all of Highland's factual allegations in the Consolidated Adversary as true and will review the record in the light most favorable to Highland. Gardner v. First Am. Title Ins. Co., 294 F.3d 991, 993 (8th Cir.2002).
[2] As noted above, however, because Plan Administrator's motion asserts that Highland lacks standing to assert both the Tort Claims and the Veil Piercing Claim, the Court has accepted all of Highland's factual allegations as true and reviewed the record in the light most favorable to Highland.
[3] The Court also notes that Welsh Carson's alleged malfeasance cannot be imputed to its principal, Bridge, under Missouri's version of the adverse interest rule. See Lumbermens Mut. Cas. Co. v. Thornton, 92 S.W.3d 259, 270 (Mo.Ct.App.2002).
[4] The Court notes that the vast majority of courts that have addressed this issue have found that a corporation itself may maintain a veil piercing action to recover for its direct injuries. See e.g. St. Paul Fire & Marine Ins. Co. v. PepsiCo, Inc., 884 F.2d 688, 703-04 (2d Cir.1989); Koch Refining v. Farmers Union Cent. Exch., Inc. (In re Koch Refining), 831 F.2d 1339, 1344-45 (7th Cir.1987); In re S.I. Acquisition, Inc., 817 F.2d 1142, 1152 (5th Cir.1987); CBS, Inc. v. Folks (In re Folks), 211 B.R. 378, 387-88 (9th Cir. BAP 1997); Tsai v. Buildings by Jamie, Inc. (In re Buildings by Jamie, Inc.), 230 B.R. 36, 43-44 (Bankr.D.N.J.1998); In re Davey Roofing, Inc., 167 B.R. 604, 608 (Bankr.C.D.Cal.1994). There is, however, opposite authority. See Spartan Tube & Steel, Inc. v. Himmelspach (In re RCS Engineered Prod. Co.), 102 F.3d 223, 226-27 (6th Cir.1996) (holding that Michigan law does not allow a corporation to assert a veil piercing claim under any circumstances).
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28 Mich. App. 654 (1970)
185 N.W.2d 189
IN THE MATTER OF LAFFERTY
Docket Nos. 8952-8956.
Michigan Court of Appeals.
Decided December 9, 1970.
Henrietta E. Rosenthal, for the judge of Recorder's Court of Detroit.
Lafferty, Reosti, Jabara, Papakhian, James, Strickgold & Smith and Goodman, Eden, Robb, Millender, Goodman & Bedrosian (Gage, Burgess & Knox, of counsel), for defendants on appeal.
Amicus curiae: Metropolitan Detroit Branch, American Civil Liberties Union, by James K. Robinson.
*655 Before: V.J. BRENNAN, P.J., and LEVIN and PETERSON,[*] JJ.
PER CURIAM.
The exercise by a trial judge of his summary power to punish for contempt of court committed in his presence is subject to review on appeal. See In re Scott (1955), 342 Mich 614, 616; In re Burns (1969), 19 Mich App 525; People v. Ravitz (1970), 26 Mich App 263. It would not serve a constructive purpose to attempt to summarize the record. Suffice it to say that we have read and reread the transcript of the proceedings and have concluded that the convictions and sentences should be and hereby are set aside and reversed.
NOTES
[*] Circuit judge, sitting on the Court of Appeals by assignment.
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Fl LE
IN CLERKS OFFICE
llJIAEME COURT, STATE OF WASHINGTON
DATE JUN 1 2 2014
J?&~:;.a:o
Ck~~
~onal~~~~
CHI/iF TICEf Supreme Court Clark
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
ROBERT CAMPBELL,
Petitioner, NO. 88772-1
v.
ENBANC
STATE OF WASHINGTON
EMPLOYMENT SECURITY
DEPARTMENT, Filed JUN 1 2 2014
Respondent.
STEPHENS, J.-Robert Campbell quit his job as a school teacher in
anticipation of accompanying his wife to Finland on her Fulbright grant. Campbell
applied for unemployment benefits for the months between his resignation in June
2010 and his family's planned departure in February 2011. His request was denied
because the Department of Employment Security (Department) determined that
Campbell did not qualify for benefits as claimed under RCW 50.20.050(2)(b)(iii), 1
also known as the "quit to follow" provision. This provision requires the
1
RCW 50.20.050 was amended twice in 2009. Unless otherwise specified, all
references herein pertain to the version amended by Laws of 2009, chapter 493, section 3.
Per RCW 1.12.025, both amendments of RCW 50.20.050 are to be given effect where, as
here, the amendments do not conflict.
Campbell (Robert) v. State Dep 't ofEmpl. Sec., 88772-1
unemployment claimant to stay in his or her position for "as long as reasonable"
before quitting to relocate for a spouse or domestic partner. RCW
50.20.050(2)(b)(iii). On appeal, the superior court reversed, but the Court of
Appeals reinstated the agency action. We affirm the Court of Appeals and hold
that Campbell's resignation from his job seven months before the planned
relocation was not reasonable as contemplated by the statute.
FACTS AND PROCEDURAL HISTORY
Campbell was employed by the University Place School District (District)
from August 2004 until June 2010. At the time his job ended, Campbell was
teaching Spanish. In late 2009 or early 2010, his wife (also a school teacher)
applied for a competitive Fulbright grant. Campbell notified his superiors of his
wife's application. In April 2010, Campbell's wife was awarded a grant to fund
superiors for a six-month leave of absence beginning in January 2011 so that he
and the couple's three-year-old daughter could also make the move abroad.
Administrative Record (AR) at 14. His request was denied because the District
believed it would be difficult to replace Campbell for a temporary appointment.
Campbell then requested a leave of absence for the entire 2010-2011 school year.
The District again denied his request.
Campbell resigned from the District at the close of the 2009-2010 school
year in June. He believed professionalism required him to resign prior to the start
of the new school year, rather than mid-year. He applied for unemployment
-2-
Campbell (Robert) v. State Dep 't ofEmpl. Sec., 88772-1
benefits, relying on RCW 50.20.050(2)(b)(iii) as the basis for his request. That
provision allows a person to collect unemployment if forced to quit a job in order
to relocate for a spouse's or domestic partner's employment, so long as the
claimant works as long as reasonably possible in the job he or she is leaving.
The Department denied Campbell's claim, reasoning that his wife was not
relocating for a job but to further her schooling through the Fulbright grant.
Campbell requested an administrative hearing, and the administrative law judge
(ALJ) denied his claim for the same reasons identified by the Department.
Campbell appealed to the Department's commissioner. The commissioner adopted
the ALJ' s ruling, including the reasoning regarding the nature of the Fulbright
grant. But the commissioner additionally determined that Campbell had quit his
job prematurely and thus failed to satisfy the second prong of RCW
Campbell petitioned for review of the agency decision, and the Thurston
County Superior Court, acting in an appellate capacity, overturned the agency
decision. The Department appealed, and the Court of Appeals reversed. The
Court of Appeals did not address the Department's determination that a Fulbright
grant does not qualify as employment, but it affirmed the agency action on the
ground that Campbell did not work in his teaching job as long as reasonably
possible before the move to Finland. Campbell v. Emp 't Sec. Dep 't, 174 Wn. App.
210, 215, 297 P.3d 757 (2013). We granted Campbell's petition for review.
Campbellv. Emp'tSec. Dep't, 178 Wn.2d 1018,311 P.3d27 (2013).
-3-
Campbell (Robert) v. State Dep 't ofEmpl. Sec., 88772-1
ANALYSIS
Our limited review of an agency decision is governed by the Administrative
Procedure Act (APA), chapter 34.05 RCW. Verizon Nw., Inc. v. Emp 't Sec. Dep 't,
164 Wn.2d 909, 915, 194 P.3d 255 (2008). We sit in the same position as the
superior court and apply the APA standards directly to the administrative record.
Id. Thus, the decision we review is that of the agency, not of the ALJ or the
superior court. Id. Unless we determine that a statute or agency rule is
constitutionally infirm or otherwise invalid, our APA review of an agency
determination is limited to deciding if the decision is based on an error of law, the
order is not supported by substantial evidence, or the order is arbitrary and
capricious. See RCW 34.05.570(3)(a)-(i). We review for substantial evidence in
light of the whole record. RCW 34.05.570(3)(e). "Substantial evidence" is
and correctness'" of the agency action. Port of Seattle v. Pollution Control
Hearings Bd., 151 Wn.2d 568, 588, 90 P.3d 659 (2004) (internal quotation marks
omitted) (quoting King County v. Cent. Puget Sound Growth Mgmt. Hr 'gs Bd., 142
Wn.2d 543, 553, 14 P.3d 133 (2000)). The party challenging the agency action
carries the burden to show the decision was in error. RCW 34.05.570(l)(a).
An individual seeking to collect unemployment benefits must demonstrate
he left work voluntarily and with good cause. See RCW 50.20.050(2)(a). For
separations occurring on or after September 6, 2009, the legislature has set forth an
exhaustive list of reasons that qualify as good cause to leave work. Id. One of
-4-
Campbell (Robert) v. State Dep 't ofEmpl. Sec., 88772-1
these reasons is the "quit to follow" provision of RCW 50.20.050(2)(b )(iii). The
parties agree this is the provision under which Campbell is claiming good cause.
The relevant statutes read as follows:
(2) With respect to separations that occur on or after September 6,
2009:
(a) An individual shall be disqualified from benefits beginning with
the first day of the calendar week in which he or she has left work
voluntarily without good cause and thereafter for seven calendar weeks and
until he or she has obtained bona fide work in employment covered by this
title and earned wages in that employment equal to seven times his or her
weeldy benefit amount. Good cause reasons to leave work are limited to
reasons listed in (b) of this subsection.
RCW 50.20.050 (emphasis added). 2 The "quit to follow" provision is found in
subsection (b):
(b) An individual has good cause and is not disqualified from
benefits under (a) of this subsection only under the following
circumstances:
(iii) The claimant: (A) Left work to relocate for the employment of a
spouse or domestic partner that is outside the existing labor market area;
and (B) remained employed as long as was reasonable prior to the move.
RCW 50.20.050(2).
We are bound to g1ve unemployment compensation statutes a liberal
construction. RCW 50.01.010; Daily Herald Co. v. Emp't Sec. Dep't, 91 Wn.2d
559, 565, 588 P.2d 1157 (1979). The "quit to follow" provision is an important
2
In Spain v. Employment Security Department, 164 Wn.2d 252, 260, 185 P.3d
1188 (2008), we held that the statutory list of "good cause" reasons for voluntarily
separating from employment in RCW 50.20.050(2)(b) was not exhaustive. Our holding
in Spain does not apply to the amendments to RCW 50.20.050 contained in Laws of
2009, chapter 493, section 3.
-5-
Campbell (Robert) v. State Dep 't of Empl. Sec., 88772-1
part of our unemployment compensation scheme. It promotes family cohesion by
erasing the choice between maintaining a second income and maintaining a family
by joining a spouse or domestic partner in a new labor market. See Br. of Amicus
Curiae Wash. Emp't Lawyers' Ass'n (Br. of WELA) at 8-12. Such a provision is
especially important in this modem era of a mobile workforce and dual-earner
families. Understanding these considerations, we review the record in this case.
On this record we conclude the Department did not err in denying Campbell
benefits.
Campbell's decision to quit at the close of the 2009-2010 school year cannot
satisfy the requirement that he remain employed as long as reasonable prior to the
move. Whether a claimant had good cause to quit his or her job is a mixed
question of law and fact. Terry v. Emp 't Sec. Dep 't, 82 Wn. App. 745, 748, 919
P.2d 111 (1996). \Vc Tcview the agency's factual fluuillg:s fur :sub:sianiial cviucncc.
!d. The process of applying the law to the facts is a question of law subject to de
novo review. Tapper v. Emp't Sec. Dep't, 122 Wn.2d 397, 858 P.2d 494 (1993).
Campbell does not challenge the factual findings here, and thus we accept
them as verities in our de novo review. Campbell quit at the end of June 2010,
though his wife's Fulbright grant did not begin until February 2011. Campbell
argues that his decision was the ethical, professional, and courteous path because it
saved the District from the hardship of filling his position mid-year. Pet'r' s Suppl.
Br. at 4. Such a calculation, Campbell contends, should be factored into the
reasonableness determination. Id.
-6-
Campbell (Robert) v. State Dep 't of Empl. Sec., 88772-1
In some employment settings, separating prior to beginning a commitment
or contract may be preferable to resigning in the middle of such a commitment or
contract. The WELA amicus brief argues that "reasonableness" is "contextualized
within the facts of each case." Br. ofWELA at 14. To the extent this suggests that
"reasonableness" is a subjective determination, we reject this assertion. But to the
extent that a reasonableness inquiry asks whether a person's actions were
objectively reasonable under a particular set of facts, the Court of Appeals may be
criticized for taking an inflexible view of the statute's requirements; that court
suggested that the reasonableness of the decision to quit may not involve
consideration of what is ethical or professional. See Campbell, 174 Wn. App. at
217. Nothing in the plain language of the statute limits the consideration of what is
objectively reasonable so strictly.
1\.TI""'o.""""-r'lt.+h.-..1 ...................... ................... ~- ...........!.._.,..... ...,..,..._ ..........~ .: ..... 1--.. .......... -....:t "'-- 1---- --~ _________ ' - 1 • • 1
.t ~v.uv~.uv.tv"" a .lvV J.vVV .ll.lf:, vVUH 1" VVUHU ~V llVllVl all agteaH.iY :S Util.il:SlUU UUlti:S:S
it is clearly erroneous. Here, the record reveals the District's valid concern was not
simply having to replace Campbell for part of a school year but also finding a
replacement for a limited time. Administrative Record at 49 (internal
communication from District's director of human resources explaining that "[t]he
time of year and his endorsed area of teaching would have created a major
hardship on the district in trying to fill his role during such a limited absence").
There is no evidence it was the District's preference that Campbell quit at the close
of the 2009-2010 school year. Indeed, the District had already denied Campbell's
request for a year-long leave of absence, indicating that the hardship the District
-7-
Campbell (Robert) v. State Dep 't ofEmpl. Sec., 88772-1
perceived arose not from filling Campbell's position mid-year, but from holding
the position for him. Moreover, Campbell's decision to resign in June 2010 left
the District less than two months to find a replacement for the upcoming school
year. While it may be debatable whether it was reasonable of the District to deny
Campbell a leave of absence in the first place, that question is not before us. There
is no evidentiary support on this record for Campbell's contention that it was
reasonable for him, as a matter of professional courtesy, to separate from
employment seven months before the move to Finland. 3 Consequently, the
agency's decision to deny Campbell unemployment benefits was not clearly
erroneous.
CONCLUSION
This case is controlled by the well-settled standards governing review of an
required him to quit his job seven months before his family left the state, when the
facts are viewed objectively the Department did not err in concluding Campbell
did not work as long as reasonably possible. He therefore failed to satisfy the
requirements of the "quit to follow" provision under RCW 50.20.050(2)(b)(iii). 4
3
1t is also worth noting that had Campbell resigned at the close of 2010 in
preparation for the February 2011 move, he would not have been eligible to seek
unemployment. By his own admission, he did not plan to look for work while in Finland,
as required by RCW 50.20.010(1)(c) (explaining that a claimant must be able to,
available for, and actively seeking work to qualify for benefits). See Pet'r's Suppl. Br.
at 5.
4
Consequently, we do not reach the question of whether the Fulbright grant at
issue here qualified as employment.
-8-
Campbell (Robert) v. State Dep 't ofEmpl. Sec., 88772-1
WE CONCUR:
·~~,cy.
c3
-9-
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J-A24002-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
L.J. CONSTRUCTION & : IN THE SUPERIOR COURT OF
RENOVATIONS CORP. : PENNSYLVANIA
:
:
v. :
:
:
JANE BJORNSEN AND RONALD :
BJORNSEN, HUSBAND AND WIFE : No. 823 EDA 2019
:
Appellants :
Appeal from the Judgment Entered April 23, 2019
In the Court of Common Pleas of Monroe County Civil Division at No(s):
No. 2025 Civil 2015
BEFORE: BENDER, P.J.E., DUBOW, J., and COLINS, J.*
MEMORANDUM BY BENDER, P.J.E.: FILED FEBRUARY 12, 2020
Appellants, Jane Bjornsen and Ronald Bjornsen, appeal from the
judgment entered on April 23, 2019 in favor of Appellee, L.J. Construction &
Renovations Corp., and against Appellants, after a non-jury trial on Appellee’s
breach of contract action.1 After careful review, we affirm.
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 Appellants purport to appeal from the January 22, 2019 decree entered in
favor of Appellee; however, an appeal properly lies from the entry of judgment
following the trial court’s disposition of post-trial motions. See Fanning v.
Davne, 795 A.2d 388 (Pa. Super. 2002); Shonberger v. Oswell, 530 A.2d
112 (Pa. Super. 1987) (“judgment” entered after trial, but before filing and
disposition of post-trial motions, was premature and void). Although
Appellants’ notice of appeal was filed prematurely in the instant matter, final
judgment was entered on April 23, 2019. A final judgment entered during the
pendency of an appeal is sufficient to perfect appellate jurisdiction. Drum v.
Shaul Equipment and Supply Co., 787 A.2d 1050 (Pa. Super. 2001). Thus,
J-A24002-19
This case was initiated by Appellee’s filing of a complaint on March 19,
2015. Appellee’s breach of contract claim stems from a contract entered into
by the parties for the reconstruction/renovation of Appellants’ home.
Appellants dispute the amount owed to Appellee, claim that they are entitled
to certain credits under the contract, and brought a counter-claim for breach
of contract against Appellee.
The following relevant findings of fact were set forth by the trial court in
its Pa.R.A.P. 1925(a) opinion:
1. [Appellee] is L.J. Construction and Renovations Corp. with a
business address located in Monroe County, Pennsylvania.
2. [Appellants] are Jane and Ronald Bjornsen of 199 North
Shore Drive, Indian Mountain Lakes, Albrightsville, Carbon
County, Pennsylvania.
3. [Appellee’s] principal is Lukasz Zielinski.
…
5. The parties stipulated and agreed to allow into evidence the
documents that were admitted to in the Answer and
contained in the Complaint.
6. [Mr.] Zielinski has been the owner and supervisor of
[Appellee] since 2004.
7. [Appellee] entered into a contract with [Appellants] in …
May [of] 2012, for reconstruction/renovations at
[Appellants’] home located at 199 North Shore Drive.
(Note: The date of May 20, 2011 in the contract was a
typographical error.)
8. [Appellants] … suffered a fire at their residence prior to May
[of] 2012.
____________________________________________
Appellants’ notice of appeal relates forward to April 23, 2019. See Pa.R.A.P.
905(a)(5). We have adjusted the caption accordingly.
-2-
J-A24002-19
9. [Appellants’] insurance covered $137,000 in loss to the
structure and $100,000 for loss of personal property.
10. The matter was overseen by a private insurance adjuster[,
Joe Roselli (“Mr. Roselli”),] who got a plan for reconstruction
approved by [Appellants’] insurance company.
11. [Mr. Roselli] referred [Appellants] to [Appellee] and[,]
ultimately[,] the parties agreed to a contract for the
reconstruction/renovation of [Appellants’] residence.
12. [Appellants] rented a house nearby while the work was
being completed, at a cost of $1[,]150.00 per month plus
utilities.
13. The contract called for the reconstruction of a 1400 sq. ft.
ranch home on the existing foundation for a price of
$183,100.00.
14. The contract was signed by the parties on May 20, 2012.
15. [Appellee] had some preliminary work to do before a
building permit could be issued, including completion of
plans and a survey.
16. [Appellee] ultimately obtained a demolition permit and a
conditional building permit on August 30, 2012.
17. The issuance of the building permit was conditioned upon
the parties[’] obtaining an engineering report to determine
whether the existing foundation was structurally stable.
18. James Wilson of Wilson Engineering Associates, LLC[,] was
engaged to inspect the foundation and he determined the
foundation was not safe to be re-used.
19. The parties disagree as to whether or not they amended
their contract to cover the need to remove and replace the
existing foundation.
20. Nonetheless, [Appellee] removed the remains of the
structure and the foundation, and had a new foundation
installed at a cost of $27,500.00.
21. A final building permit was issued in April [of] 2013[,]
following demolition and completion of the new foundation.
-3-
J-A24002-19
22. [Appellee] initially submitted the cost of the new foundation
to [Appellants’] insurance adjuster for payment, but it was
denied as not being covered by [Appellants’] insurance
policy.
23. The parties have a dispute over the construction that
occurred.
24. [Appellee] claims it was not paid for work performed and
that all work was completed satisfactorily.
25. [Appellants] claim they were charged for work [that was]
not part of the contract, that work performed was
incomplete or unsatisfactory, and [they seek] resulting
damages.
26. [Appellee] claims [that] any unsatisfactory items are
covered by the company’s one-year warranty[,] and [that]
it would have corrected any deficiencies[,] provided
notification was given and that [Appellants] had paid in full
under the contract. Mr. Zielinski testified he received no
notification from [Appellants] within the warranty period
and that [Appellee] was not paid in full under the contract.
27. [Appellee] claims[,] in addition to the contract price of
$183,100.00, that the foundation work cost $27,500.00,
and all other upgrades cost $21,942.00[,] for a total price
of $232,542.00.
28. [Appellee] alleges [Appellants] only paid $143,100.00,
leaving a balance of $89,442.00 that remains due and owing
on the total contract.
29. [Appellants] dispute responsibility for the foundation work
and the total of all upgrades. They also allege that they are
entitled to certain credits. [Appellants] claim they are
owed:
- $14,960.00 for extra rent due to delays;
- $52,753.52 for work not completed by [Appellee];
- $7,393.00 for out-of-pocket expenses and repairs;
- $51,000.00+ for flooring/sheetrock/landscaping.
-4-
J-A24002-19
30. Following completion of construction, the parties had a final
walk-through[,] at which time [Appellants] told Mr. Zielinski
of their concerns.
31. The parties could not come to an agreement to resolve all
of their issues.
Trial Court Opinion (“TCO”), 1/22/19, at 1-5 (unnecessary capitalization
omitted).
A non-jury trial was held on October 29, 2018. After hearing testimony
from both parties,2 the trial court entered a decree on January 22, 2019, in
favor of Appellee and against Appellants in the amount of $13,156.36.3 On
January 31, 2019, Appellants filed a motion for post-trial relief, which was
denied by the trial court on February 5, 2019. Appellants filed a timely notice
of appeal on March 1, 2019, followed by a timely, court-ordered Pa.R.A.P.
1925(b) concise statement of errors complained of on appeal.
Appellants raise the following issues, which we address out-of-order, for
ease of disposition:
A. Whether the trial court erred, as a matter of law, and abused
its discretion in determining that the building permit was
conditioned on the parties[’] obtaining an engineering report
____________________________________________
2 In addition to the testimony of Mrs. Bjornsen, several tradesmen testified
for Appellants as to the condition of the work performed at the residence by
Appellee and as to the cost to complete the work requested by Appellants.
Mr. Zielinski testified on behalf of Appellee. See N.T. Trial, 10/29/18; TCO at
5.
3 The amount awarded by the trial court reflects the subtotal of $232,542.00,
owed to Appellee for the original contract price ($183,100.00), the cost of the
new foundation ($27,500.00), and the cost of additional upgrades
($21,942.00), less $143,100.00 paid to Appellee by Appellants and
$76,285.64 total credits due to Appellants. See TCO at 22-23.
-5-
J-A24002-19
regarding the foundation, since no building permit was
introduced into evidence?
B. Whether the trial court erred and abused its discretion in
finding and determining that [] Appellants were liable for
$27,500.00, the cost of construction of a new foundation for
the home contracted by … Appellee, since [] Appellants did not
agree to this cost and the private adjuster had no authority,
apparent or real, to agree on their behalf to such an expense
[?]
C. Whether the trial court erred and abused its discretion in
awarding damages to [] Appellee for the construction of the
foundation in the amount of $27,500.00, based upon a theory
of unjust enrichment, when no claim for unjust enrichment was
pled by [] Appellee[?]
D. Whether the trial court erred and abused its discretion in failing
to award [] Appellants the costs associated with the installation
of the new hot water heater in the amount of $8,405.89 to
replace the hot water heater installed by [] Appellee[?]
E. Whether the trial court erred and abused its discretion in failing
to give proper credits for contract work not done or improperly
performed[?]
F. Whether the trial court erred and abused its discretion in failing
to award [] Appellants rent they were forced to pay when []
Appellee failed to complete construction of their home in a
reasonable period of time[?]
Appellants’ Brief at 4-5.
Preliminarily, we note that Appellants’ first issue regarding the trial
court’s finding of a conditional building permit is waived due to Appellants’
failure to develop their argument. See Pa.R.A.P. 2119(b). After reciting the
relevant trial court’s findings of fact, Appellants broadly claim that “[t]hese
findings of facts … were not supported by competent evidence and, therefore,
should not have been considered by the trial court in reaching its decision….”
Appellant’s Brief at 15 (unnecessary capitalization omitted). Appellants
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provide no further discussion and fail to cite to any legal authority whatsoever
in support of their argument. “The Rules of Appellate Procedure state
unequivocally that each question an appellant raises is to be supported by
discussion and analysis of pertinent authority.” Estate of Haiko v.
McGinely, 799 A.2d 155, 161 (Pa. Super. 2002) (citing, inter alia, Pa.R.A.P.
2119(b)). “Without a reasoned discussion of the law … our ability to provide
appellate review is hampered. It is not this Court’s function or duty to become
an advocate for [Appellants].” Id. (internal citations and quotation marks
omitted).
Appellants also assert that the trial court should have awarded them the
sum of $8,405.05 for the cost of replacing the hot water heater installed by
Appellee. Appellants’ Brief at 30. Again, they fail to include any legal analysis
and/or citations to legal authority in support of their argument. Instead,
Appellants solely endeavor to dispute the trial court’s findings of fact, pointing
to contradictory and self-serving testimony. Id. at 31-32. They are
essentially asking this Court to re-weigh the evidence and substitute our
judgment for that of the fact-finder, which we cannot and will not do. See
Commonwealth v. Rodriguez, 141 A.3d 523, 525 (Pa. Super. 2016).
Accordingly, we deem this issue to be waived. See Pa.R.A.P. 2119(b).
Next, Appellants admit in their brief that their assertion regarding the
trial court’s failure to give credit for certain contract work allegedly not done
or improperly performed is waived, because they were unable to establish the
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monetary amount of damage at trial. Appellants’ Brief at 32. Thus, we need
not address the merits of this issue.
Appellants further contend that the trial court abused its discretion in
failing to award them $14,690.00 in excess rent, which “they were forced to
pay when [] Appellee failed to complete construction of their home in a
reasonable period of time.” Id. at 33. However, the trial court found that
Appellants failed to offer any evidence in support of their claim. TCO at 20.
First, there were no timeframes or completion dates in the parties’
contract. There was no time of the essence clause in the parties’
contract. [Appellants] claim they told [Appellee] the construction
had to be finished within one year as their insurance company
would only pay their rent for that long. However, there was no
agreement to this by [Appellee] and nothing noted in the contract.
[Appellee] admitted to delays due to obtaining permits, dates [its
crew] could not travel on association roads, and time to inspect
and replace the foundation. However, these were delays
attributable to third parties and not to [Appellee]. Since there was
no completion date called for in the contract, and no other
agreement of the parties, there can be no damages for rent due
to delay.
Id. at 20-21.
The only legal citation Appellants provide in support of their claim is to
the following general rule: “When no time for performance of a contract is
specified, the law will imply that it is to be performed within a reasonable time
considering the nature of the business.” Appellants’ Brief at 33 (citing Field
v. Golden Triangle Broadcasting, Inc., 305 A.2d 689, 694 (Pa. 1973);
Orlowski v. Moore, 181 A.2d 692, 693 (Pa. Super. 1962)). Appellants fail
to provide any further legal analysis. They simply refer to self-serving
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testimony from two witnesses at trial and conclude that, “[g]iven the
testimony of both of these individuals, a reasonable period of time to construct
the home would have been one year.” Id. at 37. Again, Appellants fail to
appreciate that this Court cannot re-weigh evidence and substitute its
judgment for that of the fact-finder. See Rodriguez, supra. Additionally,
Appellants fail to provide any legal analysis or cite to any legal authority to
support their assertion that one year would have been a reasonable period of
time to construct the home in the instant matter. Thus, we are constrained
to deem this issue waived. See Pa.R.A.P. 2119(b). Moreover, even if
Appellants had properly preserved this issue, we would conclude that the trial
court’s finding is well-supported by the record, and we would discern no abuse
of discretion.
Before we address the merits of Appellants’ remaining two claims, we
note our standard and scope of review in an appeal from a non-jury verdict:
Our appellate role in cases arising from non-jury trial verdicts is
to determine whether the findings of the trial court are supported
by competent evidence and whether the trial court committed
error in any application of the law. The findings of fact of the trial
judge must be given the same weight and effect on appeal as the
verdict of a jury. We consider the evidence in a light most
favorable to the verdict winner. We will reverse the trial court
only if its findings of fact are not supported by competent evidence
in the record or if its findings are premised on an error of law.
J.J. DeLuca Co., Inc. v. Toll Naval Associates, 56 A.3d 402, 410 (Pa.
Super. 2012) (quoting Rissi v. Cappella, 918 A.2d 131, 136 (Pa. Super.
2007)). Moreover, “[w]e will respect a trial court’s findings with regard to the
credibility and weight of the evidence unless the appellant can show that the
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court’s determination was manifestly erroneous, arbitrary and capricious or
flagrantly contrary to the evidence.” Id. (quoting Ecksel v. Orleans Const.
Co., 519 A.2d 1021, 1028 (Pa. Super. 1987)).
Instantly, Appellants aver that the trial court abused its discretion in
determining that they were liable for the cost of construction of a new
foundation for their home. Appellants assert that they did not agree to this
cost and that Mr. Roselli, the adjuster, had no authority to agree on their
behalf to such an expense. Appellants’ Brief at 4, 15. In support of their
argument, Appellants state that “no agency relationship existed between
[them] and Mr. Roselli based upon which Mr. Roselli could agree on behalf of
[] Appellants that the foundation could be constructed for a price of
$27,500.00….” Id. at 27-28. Appellants suggest that “Mr. Roselli was simply
the agent of [] Appellants to deal with their insurance company as a private
adjuster[,]” and that “it is … clear that … there was no apparent authority that
Mr. Roselli could act for them with regard to the construction of the home or
the foundation.” Id. at 27. Additionally, they argue that the trial court’s
finding of implied consent on the part of Appellants to the construction of the
new foundation is “totally contradicted by the testimony of Mrs. Bjornsen….”
Id. at 28. The record clearly belies Appellants’ claims.
“It is a general rule of law that the principal in a principal/agent
relationship is only ‘bound by, and liable for, the acts which his agent does
with or within the actual or apparent authority from the principal, and within
the scope of the agent’s employment….’” Turner Hydraulics, Inc. v.
- 10 -
J-A24002-19
Susquehanna Const. Corp., 606 A.2d 532, 534 (Pa. Super. 1992) (quoting
3 Am.Jr.2d, Agency § 261).
“The basic elements of agency are the manifestation by the
principal that the agent shall act for him, the agent’s acceptance
of the undertaking and the understanding of the parties that the
principal is to be in control of the undertaking.” Lapio v.
Robbins, 729 A.2d 1229, 1234 (Pa. Super. 1999) (citation
omitted). The creation of an agency relationship requires no
special formalities. Lincoln Avenue Indus. Park v. Norley, …
677 A.2d 1219, 1222 ([Pa. Super.] 1996). The existence of an
agency relationship is a question of fact. Volunteer Fire Co. v.
Hilltop Oil Co., … 602 A.2d 1348, 1351 ([Pa. Super.] 1992). The
party asserting the existence of an agency relationship bears the
burden of proving it by a fair preponderance of the evidence. Id.
“In establishing agency, one need not furnish direct proof of
specific authority, provided it can be inferred from the facts that
at least an implied intention to create the relationship of principal
and agent existed.” Commonwealth v. Maker, 716 A.2d 619,
623 (Pa. Super. 1998)…. However, we do not assume agency by
a mere showing that one person does an act for another. Ferry
v. Fisher, 709 A2d 399, 405 n.5 (Pa. Super. 1998).
Walton v. Johnson, 66 A.3d 782, 787 (Pa. Super. 2013) (quoting B&L
Asphalt Industries, Inc. v. Fusco, 753 A.2d 264, 269 (Pa. Super. 2000)).
It is well-established that:
An agency relationship may be created by any of the following:
(1) express authority, (2) implied authority, (3) apparent
authority, and/or (4) authority by estoppel. Express authority
exists where the principal deliberately and specifically grants
authority to the agent as to certain matters. See Bolus v. United
Penn Bank, … 525 A.2d 1215 ([Pa. Super.] 1987). Implied
authority exists in situations where the agent’s actions are
“proper, usual[,] and necessary” to carry out express agency.
See Passarelli v. Shields, … 156 A.2d 343 ([Pa. Super.] 1959).
Apparent agency exists where the principal, by word or conduct,
causes people with whom the alleged agent deals to believe that
the principal has granted the agent authority to act. See Turner
Hydraulics v. Susquehanna Construction Co., … 606 A.2d 532
([Pa. Super.] 1992). Authority by estoppel occurs when the
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J-A24002-19
principal fails to take reasonable steps to disavow the third party
of their belief that the purported agent was authorized to act on
behalf of the principal. See Turnway Corp. v. Soffer, … 336
A.2d 871 ([Pa.] 1975).
Id. at 786.
Here, the trial court opined:
[The cost of the foundation] was not part of the original
contract. All parties agreed that the original contract
contemplated that the new structure would be built on the existing
foundation after demolition of the burned-out remains of
[Appellants’] house. The original contract included the demolition
work. Mr. Zielinski testified that before the building permits would
be issued by the township, the parties were required to have the
foundation inspected as part of the permitted demolition work.
This was required as part of the demolition permit and conditional
building permit issued by the township on August 30, 2012. An
outside engineer hired by [Appellee], Wilson Engineering, issued
a report and determined that the foundation was in poor condition
and had to be removed and replaced. Mr. Zielinski prepared an
estimate for the additional work and submitted it to the insurance
adjuster, but the work was denied as it was not covered by
[Appellants’] insurance policy. Mr. Zielinski’s estimate for the
work totaled $27,500.00. A copy of the estimate, dated
September 13, 2012, is contained in [Appellee’s] Complaint as
Exhibit “D”. [Appellee] then went ahead with the demolition work
and clean-up at the property.
[Appellee] proceeded with the new foundation work in April
[of] 2013[,] after all permits were issued by the township and the
demolition work had been completed. Ms. Bjornsen testified that
she and her husband refused to pay for the reconstruction of the
foundation because they never agreed for the work to be done. It
is undisputed that the work had to be done in order for the house
to be re-built. There are no allegations that [Appellee] caused an
event that required the removal of the foundation. There are no
allegations the cost of the foundation was included in the original
contract. There is no evidence that [Appellants] ever objected to
[Appellee’s] demolishing and re-building the foundation, or that
they objected to the quality of the work. In fact, the house was
not permitted to be re-built by the township unless the foundation
was replaced.
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J-A24002-19
Mr. Zielinski provided credible evidence that [Appellants’]
agent, [Mr.] Roselli[,] … agreed with [Mr.] Zielinski as to the terms
of the additional work for the foundation contained in [Appellee’s]
Complaint at Exhibit “D”. Ms. Bjornsen testified she met Mr.
Roselli through her daughter and believed he was the insurance
adjuster. Ms. Bjornsen’s memory and understanding of events
was not convincing. Mr. Zielinski’s testimony as to the
relationship of Mr. Roselli to [Appellants] is much more plausible.
That relationship was described as Mr. Roselli being an agent for
[Appellants]. He was a public adjuster retained by [Appellants] to
see them through the insurance process. He had the authority,
even if just apparent authority, to act on behalf of [Appellants].[4]
As such, an agreement to undertake the extra work for the
foundation for a cost of $27,500.00 was reached between the
parties, either through [Appellee] and [Appellants’] agent, or by
the express or implied consent of [Appellants]. The entire project
could not have proceeded without the installation of a new
foundation. The township would not have permitted it. It is
believable that Mr. Zielinski proposed the estimated work to
[Appellants’] agent, Mr. Roselli, and that he was authorized to
proceed on those terms. It was also believable that [Appellants]
gave implied consent to the work[,] as they knew the foundation
had to be re-constructed and they never objected.[5] [Appellants]
are responsible for the additional cost of the foundation in the
amount of $27,500.
TCO at 12-14 (emphasis added; citations to record and footnote omitted).
____________________________________________
4 Mr. Zielinski testified that he dealt with Mr. Roselli, not Appellants, regarding
the construction contract. “I never dealt with [Appellants]. I dealt with Mr.
Roselli. He was their representative… [f]or the construction contract. He was
always present with them.” N.T. Trial at 89. In fact, Mr. Zielinski stated that
he was initially approached by Mr. Roselli regarding the construction contract,
and that it was through his connection with Mr. Roselli that he was introduced
to Appellants. Id. at 49.
5 Mr. Zielinski indicated that throughout the demolition, the process of
obtaining pre-construction approval from the township, the construction of the
new foundation, and the construction of the house, Appellants never voiced
any concerns to him. N.T. Trial at 53, 59. He further stated that he never
heard any complaints from Appellants until the filing of their counterclaim in
this matter. Id. at 67.
- 13 -
J-A24002-19
We determine that the trial court’s finding of Mr. Roselli’s apparent
authority to act on behalf of Appellants, as well as its finding of Appellants’
implied consent to the construction of the new foundation, to be well-
supported by the record. We discern no error of law or abuse of discretion by
the trial court. Moreover, we emphasize that the trial court found Mr.
Zielinski’s testimony regarding the relationship between Mr. Roselli and
Appellants to be more credible than that of Ms. Bjornsen. To the extent that
Appellants question the trial court’s credibility findings, we note that “[t]he
weight of the evidence is exclusively for the finder of fact, who is free to
believe all, none, or some of the evidence and to determine the credibility of
the witnesses.” Commonwealth v. Talbert, 129 A.3d 536, 545 (Pa. Super.
2015) (internal quotation marks and citation omitted). “Resolving
contradictory testimony and questions of credibility are matters for the finder
of fact.” Commonwealth v. Hopkins, 747 A.2d 910, 917 (Pa. Super. 2000).
It is well-settled that we cannot substitute our judgment for that of the trier
of fact. Talbert, 129 A.3d at 545.
Finally, Appellants contend that the trial court erred and abused its
discretion in awarding damages to Appellee for the cost of the foundation
based upon a theory of unjust enrichment. To the contrary, the trial court
expressly stated in its opinion that it did not take into consideration the benefit
of a new foundation received by Appellants in determining that Appellants are
- 14 -
J-A24002-19
responsible for the cost of the foundation.6 Thus, Appellants’ claim is wholly
without merit.
Accordingly, we affirm the April 23, 2019 judgment in the amount of
$13,156.36, entered in favor of Appellee and against Appellants.
Judgment affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/12/20
____________________________________________
6 The trial court noted at the end of its decision regarding Appellants’ liability
for the new foundation: “Although there was no claim for unjust enrichment,
[Appellants] clearly received the benefit of a new foundation which was
necessary for the home to be re-built. We do not make this decision based
upon the inequities involved, but note it for the record.” TCO at 14 n.1
(emphasis added).
- 15 -
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4916
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
ROBERT A. GARMON,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Robert J. Conrad,
Jr., Chief District Judge. (3:09-cr-00164-RJC-1)
Submitted: September 19, 2011 Decided: October 12, 2011
Before NIEMEYER, SHEDD, and AGEE, Circuit Judges.
Reversed and remanded by unpublished per curiam opinion.
Claire J. Rauscher, Executive Director, Emily Marroquin, Ross H.
Richardson, Assistant Federal Defenders, Charlotte, North
Carolina, for Appellant. Anne M. Tompkins, United States
Attorney, Amy E. Ray, Assistant United States Attorney,
Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Robert A. Garmon pled guilty to being in possession of
a firearm after “having been previously convicted of, [sic] one
or more crimes punishable by imprisonment for a term exceeding
one year,” in violation of 18 U.S.C. § 922(g)(1) (2006). Garmon
pled guilty without the benefit of a plea agreement. However,
prior to the district court’s acceptance of his guilty plea,
Garmon filed what the district court construed as a motion to
dismiss the indictment. Garmon argued that, under Carachuri v.
Rosendo v. Holder, 130 S. Ct. 2577 (2010), none of his prior
convictions were “punishable” by a term of imprisonment
exceeding one year based on his prior record level. It is
undisputed that all of Garmon’s prior offenses were North
Carolina convictions and were class H felonies. For the first
two offenses, conspiracy to commit breaking and entering and
larceny and possession of a stolen automobile, his prior record
level was I. For his third offense, attempted larceny, his
prior record level was II. Garmon was not sentenced in the
aggravated range. Therefore, Garmon faced a maximum sentence of
six months for the first two offenses and eight months for the
third offense. N.C. Gen. Stat. § 15A-1340.17(c), (d) (2009).
The district court denied Garmon’s motion to dismiss,
but agreed to the parties’ stipulation that Garmon’s guilty plea
was subject to the condition that he could appeal any decision
2
made regarding his predicate offenses. The district court then
accepted Garmon’s conditional guilty plea, and sentenced him to
twenty-one months in prison. Garmon appealed. We reverse his
conviction and remand for further proceedings.
On appeal, Garmon argues that although he has three
prior North Carolina convictions, for none of them could he have
received a sentence exceeding one year of imprisonment.
Therefore, he contends, the district court erred in denying his
motion to dismiss the indictment. In reviewing the denial of a
motion to dismiss an indictment, we review the district court’s
factual findings for clear error and its legal conclusions de
novo. United States v. Woolfolk, 399 F.3d 590, 594 (4th Cir.
2005).
Under 18 U.S.C. § 922(g), it is unlawful for one
previously convicted of a felony to “possess in or affecting
commerce, any firearm or ammunition.” The provision defines a
felony as a conviction “in any court of, [sic] a crime
punishable by imprisonment for a term exceeding one year.” 18
U.S.C. § 922(g). At the time the district court denied Garmon's
motion to dismiss, his argument that he had no prior felony
convictions in the district court was foreclosed by our decision
in United States v. Harp, 406 F.3d 242, 246-47 (4th Cir. 2005).
Subsequently, however, this court has overruled Harp in our en
3
banc decision in United States v. Simmons, 649 F.3d 237 (4th Cir.
2011).
In view of our holding in Simmons, we agree with
Garmon that his three prior state convictions, for which he
faced a maximum of either six months (first two convictions) or
eight months (third conviction), are not felonies as defined in
§ 922(g). Accordingly, we reverse the district court’s judgment
and remand the case to the district court for proceedings
consistent with this opinion.* In light of our disposition, we
deny Garmon’s motion to vacate and remand as moot. We dispense
with oral argument because the facts and legal contentions are
adequately presented in the materials before the court and
argument would not aid in the decisional process. The clerk is
directed to issue the mandate forthwith.
REVERSED AND REMANDED
*
We of course do not fault the Government or the district
court for relying upon unambiguous circuit authority at the time
of Garmon's conviction.
4
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715 F.2d 561
UNITED STATES of America, Plaintiff-Appellee,v.Charles Thomas PURCELL, Defendant-Appellant.
No. 82-3113Non-Argument Calendar.
United States Court of Appeals,Eleventh Circuit.
Sept. 22, 1983.
Allen R. Smith, Winter Haven, Fla., for defendant-appellant.
Curtis Fallgatter, Asst. U.S. Atty., Jacksonville, Fla., for plaintiff-appellee.
Appeal from the United States District Court for the Middle District of Florida.
Before HILL, JOHNSON and HENDERSON, Circuit Judges.
JAMES C. HILL, Circuit Judge:
1
In March, 1979 defendant-appellant Charles Thomas Purcell was tried and convicted on a three count indictment. Count I charged Purcell with conspiracy to import marijuana, in violation of 21 U.S.C. § 963. Count II charged defendant with conspiracy to possess marijuana with intent to distribute, in violation of 21 U.S.C. § 843(b).
2
Prior to trial, the government filed an information, pursuant to the enhanced sentence provision in 21 U.S.C. § 851, advising of a 1971 drug-related conviction. Defendant filed an objection to the information but withdrew the objection prior to sentencing. At the defendant's May 17, 1979 sentencing hearing, defense counsel indicated to the court his awareness that the government sought enhancement of sentencing based upon the prior conviction. The court proceeded to sentence the defendant on Count I to imprisonment for a term of ten years, and informed the defendant "that this penalty has been enhanced by the prior conviction." The court also sentenced Purcell to a ten year prison term on Count II, but did not specify at the sentencing hearing that the penalty was enhanced by the prior conviction. The written judgment and commitment order, however, recited defendant's convictions for the two conspiracies and stated immediately following: "See 21 U.S.C. § 851(d)(1) and the enhancement information in 78-173-Cr-J-C."
3
After Purcell's convictions were affirmed on direct appeal in United States v. Pool, 660 F.2d 547 (5th Cir.1981), he filed a motion for correction and reduction of sentence under Fed.R.Crim.P. 35. Defendant alleged that the May 17, 1979 sentencing did not comply with the procedural requirements of 21 U.S.C. § 851(b), nor specify that the sentence entered on Count II had been enhanced by a prior conviction. The district court held a resentencing hearing on September 22, 1982 and again imposed a ten-year sentence for Counts I and II, this time carefully following the requirements of 21 U.S.C. § 851(b).
4
Appellant contends on appeal that the district court erred in resentencing him on Count II to a ten-year sentence under the enhancement provisions of 21 U.S.C. § 851. He claims that the trial court's initial sentence on Count II was illegal because the court failed to specify that the sentence was being enhanced by a prior conviction. According to defendant, the failure to specify that the original sentence was enhanced means that the original sentence could only be for the five year maximum, unenhanced statutory term. Purcell argues that the district court's imposition of a ten-year term in response to his motion for correction and reduction of sentence amounts to an illegal sentence in violation of the double jeopardy clause and the rule that a sentence in excess of the period of time prescribed by law is void only for the excess.1
5
After a careful review of the record, we find that the trial judge's original intent was to sentence Purcell to an enhanced prison term of ten years for Count II, not an unenhanced excessive term under the normal sentencing statute. In determining the terms of a sentence, it is the intent of the sentencing judge which controls, and that intent is to be determined by reference to the entire record. Scott v. United States, 434 F.2d 11, 20 (5th Cir.1970); United States v. Kindrick, 576 F.2d 675, 677 (5th Cir.1978). Appellant contends that the court's May 17, 1979 oral pronouncement of sentence on Count II was clear and unambiguous and shows that the ten-year sentence was not based on the enhancement statute. He maintains that if there is a conflict between the oral pronouncement and the written judgment, the terms of the oral pronouncement control. We find, however, that the original oral pronouncement is ambiguous as to the basis for the ten-year term given in Count II. When there is an ambiguity in the oral sentencing, as opposed to a conflict between the oral pronouncement and the written judgment, it is proper to look to the written judgment to ascertain the court's intention. Scott v. United States, 434 F.2d at 20.
6
As noted, the written judgment and commitment order stated Purcell's convictions on Counts I and II and cited to the enhancement provision of 21 U.S.C. § 851 and the enhancement information filed by the government. Both the written and oral pronouncement of sentence imposed ten-year sentences as to each of Counts I and II. The maximum unenhanced penalty for Counts I or II is five years imprisonment and a fine of $15,000 or both, for each count. As a second offender, Purcell was subject to a maximum prison term of ten years and a fine of not more than $30,000. The transcript of the May, 1979 sentencing hearing establishes that Purcell was aware that the government sought enhancement of his sentence based upon the prior conviction.2 A fair reading of the written judgment and the record of the sentencing hearing reveals that the basis for the court's ten-year sentences on Count I and Count II was the enhancement sentencing provisions. We therefore hold that the district court originally intended that the sentence entered on Count II be enhanced to ten years because of the defendant's prior conviction.
7
Given the original intent of the court to impose a ten-year enhanced sentence, the court's resentencing of Purcell to ensure compliance with the procedures of section 851(b) did not constitute the imposition of an increased sentence in violation of defendant's constitutional rights.3 Resentencing is disallowed only when it could possibly serve as an opportunity to punish the defendant's exercise of his right to appeal. United States v. Hodges, 628 F.2d 350, 353 (5th Cir.1980). When the sentencing court discovers that a sentence imposed by it did not conform to the applicable penalty statute, it has the duty to correct the sentence even though serving of the first sentence has begun. United States v. Allen, 588 F.2d 183, 185 (5th Cir.1979); Llerena v. United States, 508 F.2d 78, 81 (5th Cir.1975).4
8
In an abundance of caution, the district court resentenced Purcell to the same enhanced ten-year term because it was concerned about a possible defect in the court's original sentencing procedure. Any illegality in the first sentencing was a result of the court's alleged failure to follow the procedure in 21 U.S.C. § 851, not because the defendant was ineligible for the enhanced ten-year term. The Supreme Court has rejected the "doctrine that a prisoner, whose guilt is established, by a regular verdict, is to escape punishment altogether, because the court committed an error in passing the sentence." Bozza v. United States, 330 U.S. 160, 166, 67 S.Ct. 645, 648, 91 L.Ed. 818 (1947), quoting In re Bonner, 151 U.S. 242, 261, 14 S.Ct. 323, 327, 38 L.Ed. 149 (1894). "The Constitution does not require that sentencing should be a game in which a wrong move by the judge means immunity for the prisoner." Bozza, 330 U.S. at 166-67, 67 S.Ct. at 648-49. Purcell's corrected sentence, as well as the initial sentence, was a valid punishment for a second offender convicted of conspiring to possess marijuana with intent to distribute. Where the procedural requirements of section 851(b) have not been met, the proper remedy is to resentence the defendant to an enhanced penalty in accordance with the statutory requirements, not reduce the enhancement portion of the sentence. United States v. Cevallos, 538 F.2d 1122, 1228 (5th Cir.1976); United States v. Garcia, 526 F.2d 958, 961 (5th Cir.1976). Accord United States v. Garrett, 565 F.2d 1065, 1071 (9th Cir.1977), cert. denied, 435 U.S. 974, 98 S.Ct. 1620, 56 L.Ed.2d 67 (1978).
9
We therefore hold that the district court did not err in resentencing Purcell to the same enhanced ten-year term. Accordingly, we
10
AFFIRM.
1
Purcell does not challenge the enhancement procedure followed by the district court during the September, 1982 resentencing. Instead, appellant argues that, irrespective of whether the resentencing procedure was proper under 21 U.S.C. § 851, the court could not lawfully impose the ten-year enhanced sentence
2
Neither the enhancement information, nor any comments by the prosecutor at the sentencing hearing, suggests that the government only sought an enhanced penalty on Count I and not on Count II
3
The government contends that the original sentencing hearing complied with the procedures outlined in 21 U.S.C. § 851(b), thus the resentencing to which defendant takes umbrage was unnecessary. Because we find that the trial court's resentencing of defendant to the same term imposed in the original sentence was lawful, we need not decide if the first sentencing fully complied with the procedural requirements in section 851(b)
4
We note that this is not a case where the trial judge sought to increase an earlier sentence to conform to the judge's original unannounced intention. See e.g., Chandler v. United States, 468 F.2d 834 (5th Cir.1972); United States v. Sacco, 367 F.2d 368 (2d Cir.1966). In the instant case, the resentencing corrected alleged irregularities in the first proceeding but did not result in any upward modification of defendant's sentence. Purcell's second sentence was no greater than his original sentence; it was exactly the same
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324 F.3d 501
UNITED STATES of America, Plaintiff-Appellee,v.William G. CURTIS and Jamell L. Rouson, Defendants-Appellants.
No. 01-2523.
No. 01-2962.
United States Court of Appeals, Seventh Circuit.
Argued September 13, 2002.
Decided March 31, 2003.
Andrew B. Baker, Jr. (argued), Office of U.S. Atty., Hammond, IN, for Plaintiff-Appellee.
John Maksimovich (argued), Highland, IN, for Defendant-Appellant.
Before POSNER, DIANE P. WOOD, and EVANS, Circuit Judges.
DIANE P. WOOD, Circuit Judge.
1
Jamell Rouson and William Curtis were convicted on various counts related to their participation in a major drug conspiracy in Gary, Indiana, in the course of which two people were murdered. They now appeal from their convictions, claiming among other things that the evidence is insufficient to support the verdict and that it is impermissible for the government to rely on a single drug trafficking offense to support convictions under 18 U.S.C. § 924(j)(1) on two separate counts (one for each victim). Finding no error, we affirm.
2
* The facts in this case are typical of modern crack cocaine conspiracies. The central figure was Tajuan ("Ty") Allen, who ran an elaborate crack distribution operation. Set against a backdrop of violent street gang turf wars and drug profit feuds, Allen's cohorts left behind them a trail of wounded and murdered friends and enemies, as they supplied huge quantities of crack to addicts in the Gary area before the police finally shut them down.
3
Although neither Rouson nor Curtis lived in the 22nd Avenue section of Gary, they both ran with the 22nd Avenue Boys, a neighborhood street gang affiliated with the Vice Lords. They were able to sell drugs on gang turf because of their relationship with Allen. Rouson, whom Allen met through a mutual friend, was described by Allen at trial as his "guy"—someone he could trust. And in fact Allen did trust Rouson to look after things at his crack houses while Allen was away taking care of other business. Curtis and Allen have known each other since grade school. Curtis operated as a dealer at Allen's various crack houses. Some testimony suggested that Curtis was told to stay away from Allen's drug operations for a time, but Allen admitted that he allowed Curtis to sell out of his house on at least one occasion after that order, because Rouson told him that Curtis had fallen on hard times and needed help getting back on his feet.
4
For their part in the crack cocaine distribution conspiracy, Rouson and Curtis were charged with conspiracy to possess with intent to distribute in excess of fifty grams of crack cocaine in violation of 21 U.S.C. § 846; employment of a minor in the distribution of crack cocaine in violation of 21 U.S.C. § 861(a)(1); two counts of the use of a firearm to commit murder in furtherance of a drug conspiracy for two separate killings in violation of 18 U.S.C. § 924(c) and (j); two counts of possession with intent to distribute more than five grams of crack cocaine (Curtis was only charged with one of the possession counts) in violation of 21 U.S.C. § 841; and carrying a firearm during and in relation to a drug trafficking crime in violation of 18 U.S.C. § 924(c).
5
After a jury trial, Rouson and Curtis were both convicted on all charges stemming from their participation in the Allen crack cocaine conspiracy. The primary witnesses against them at trial were fellow conspirators-turned-government-informants (including Allen himself) who provided detailed testimony about the conspiracy's members and its operations. The testimony portrayed Rouson and Curtis as gang members and crack dealers whose affiliation with Allen enabled them to sell crack out of the different houses that he operated in the 22nd Avenue neighborhood. Although Allen described the conspiracy as a floating operation that shifted locations frequently to avoid police detection, the nuts-and-bolts of the business were fairly straightforward. Allen fronted, sold or lent crack to the individuals who sold out of his various crack houses. The drugs were cut and bagged by Allen and his co-conspirators on-site or at the "chill house" where Allen stored weapons and drugs, sold dealer quantities of drugs, and where members of the conspiracy went to "chill." Allen relied on the presence of multiple sellers to attract customers to his crack houses, and the sellers in turn served customers on a rotating basis. Occasionally, Allen even allowed individuals to sell from his houses drugs that they purchased from other dealers, all for the apparent purpose of better meeting the demands of the Gary market.
6
In addition to the drug charges, Rouson and Curtis were each charged with two homicides allegedly committed in furtherance of the conspiracy. The first count stemmed from the murder of Omar King, who was killed in a drive-by shooting as part of a back-and-forth exchange between rival gang members over drug turf. The jury heard testimony from Allen about Rouson's alleged confession to his role in the King homicide. That confession inculpated Curtis as well. According to Allen, Rouson said that he and Curtis went on "a mission" to Marshalltown, a rival gang neighborhood, to take care of someone who was "slipping out there in Marshalltown." Allen understood this to mean that Rouson and Curtis "had killed somebody out there."
7
The jury also heard about the King killing from co-conspirator Donnell Hanyard, who pleaded guilty to the conspiracy charge and testified for the government. Hanyard testified that he pieced together the story behind King's murder based on two conversations that he had with Rouson over the course of a week. In the first conversation, Rouson told Hanyard to "watch out for Marshalltown, because beef on for life." Rouson refused to elaborate, and later that evening Hanyard's mother's home was riddled with gunfire by a "Marshalltown car," presumably in retaliation for the King killing. A week later, Rouson asked Hanyard how he planned to retaliate against Marshalltown for shooting his mother's house up, and it was during this conversation that Rouson told Hanyard that he had shot at a Marshalltown drug dealer while riding in a car driven by Curtis.
8
The second § 924(j) charge concerned the murder of Donterrell Hamilton. Rouson shot and killed Hamilton at Allen's direction after an incident in which Hamilton was suspected of stealing drugs from Curtis while the three sold crack together at one of Allen's crack houses. Allen testified that after Hamilton denied stealing Curtis's drugs, Allen suggested that Hamilton accompany Rouson and himself on a "mission" to the Delaney neighborhood. With Allen driving, Rouson and Hamilton rode out to a remote location where Allen told Hamilton that it was his "death day." Rouson then placed Allen's gun to the back of Hamilton's head, ordered him out of the car, and shot Hamilton ten times in the side, back and stomach; Hamilton died from his gunshot wounds. Rouson and Allen then hid the gun and returned to Allen's crack house to tell the others that they had killed Hamilton. When Curtis expressed disbelief, Rouson, Hanyard and Curtis drove out to see Hamilton's body.
9
At the close of the government's case, Rouson and Curtis each moved for judgments of acquittal, which the district court denied. Their motions were renewed and denied again after the jury returned its verdict. The court sentenced Rouson to concurrent life sentences for the drug conspiracy, the possession with intent to distribute, and the employment of a minor in the conspiracy charges. He also received two life sentences and a sixty month sentence, all running consecutively, for his role in the two killings and for the possession of a semi-automatic weapon in relation to drug trafficking. Curtis was sentenced to life imprisonment on the conspiracy charge and two 480-month sentences for involving a minor in the drug conspiracy and possession with intent to distribute, all running concurrently. He also received two life sentences plus sixty years (again running consecutively) for the King and Hamilton murders and for carrying a semi-automatic weapon during the drug trafficking offense.
II
A. Sufficiency of the Evidence
10
Both Curtis and Rouson challenge the sufficiency of the evidence in a number of respects. Curtis argues that the evidence was insufficient to support either the conspiracy charge or the charge relating to the Hamilton murder. Both Curtis and Rouson also claim that the evidence does not support their convictions for King's murder. Their task is a daunting one, as the standard of review that this court applies is necessarily rigorous. Our threshold inquiry is whether "after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (emphasis in original). We will overturn a conviction based on insufficient evidence only if the record is devoid of evidence from which a reasonable jury could find guilt beyond a reasonable doubt. United States v. Menting, 166 F.3d 923, 928 (7th Cir. 1999).
11
To convict Curtis of participation in the crack distribution conspiracy, the government first had to establish the existence of the conspiracy. United States v. Pagan, 196 F.3d 884, 889 (7th Cir.1999). Proving the existence of a conspiracy under 21 U.S.C. § 846 requires proof of an agreement "to commit a crime other than the crime that consists of the sale itself." United States v. Lechuga, 994 F.2d 346, 347 (7th Cir.1993) (en banc). This is not as difficult as it might sound, as the government need not prove an explicit agreement or an overt act. It must merely prove an understanding—explicit or implict—among co-conspirators to work together to commit the offense. United States v. Sanchez, 251 F.3d 598, 602 (7th Cir.2001); see also United States v. Shabani, 513 U.S. 10, 115 S.Ct. 382, 130 L.Ed.2d 225 (1994) (21 U.S.C. § 846 does not contain an overt act requirement). While a mere buyer-seller relationship will not support a conspiracy charge, United States v. Clay, 37 F.3d 338, 341 (7th Cir.1994), evidence showing a shared interest in continued sales over time is enough to permit the jury to draw the inference that a conspiracy exists. Id.
12
Once a conspiracy to deal crack cocaine is established, the government must prove (a) that Curtis knew of the conspiracy and (b) that he chose to associate "with the criminal scheme" to establish his role as a co-conspirator. United States v. Jackson, 974 F.2d 57, 59 (7th Cir.1992). Curtis's participation can be proven entirely through circumstantial evidence so long as the government establishes beyond a reasonable doubt "an inference that the defendants agreed among themselves to distribute drugs." Pagan, 196 F.3d at 889 (emphasis in original) (quotation marks omitted).
13
Curtis offers two reasons why he was not a co-conspirator: first, he argues that the individual relationship that he and Allen enjoyed did not have the earmarks of a cooperative venture, and second, that the crack sellers as a group were competitors, not collaborators. At most, according to Curtis, there was a buyer-seller relationship between himself and Allen. As evidence of this, he notes that Allen refused to front drugs for him, even though Allen regularly fronted drugs for other sellers; instead, Allen required Curtis to pay up front or to provide collateral to secure the drugs. This demonstrates a lack of mutual trust and interlocking interests between the two. In fact, Curtis concludes, the fact that allegations of missing drugs were often leveled when Curtis was present shows that he was actually an outsider or "pariah" to the conspiracy.
14
Even if the evidence indicates that Curtis occupied a spot on the conspiracy's fringes rather than at its center, that he purchased his drugs from Allen rather than receiving them on credit, and that he was told to stay away from Allen's crack houses for a period of time, this means only that Curtis may have played a less significant role in the conspiracy than certain others. Those facts do not compel a jury finding that he was not a member of the conspiracy. See Thornton, 197 F.3d at 254 ("one need not be at the heart of a conspiracy to be part of its web"). As various co-conspirators testified at trial, Curtis sold drugs from Allen's crack houses on numerous occasions before he was told to stay away sometime in late 1997 because of tension between Curtis and other co-conspirators. Moreover, Curtis's exile from the conspiracy was short-lived. On May 26, 1997, he was back again dealing out of Allen's Jefferson Street crack house.
15
Finally, the jury had before it ample evidence that might have supported Curtis's theory that the individuals who sold drugs out of Allen's crack houses were competitors and not collaborators. The problem is, the jury did not adopt that characterization of the relationships. There was enough evidence in this record to support its conclusion and to establish that Curtis and the others shared an interest in the success of Allen's crack houses. See e.g., Menting, 166 F.3d at 929 (noting that an alternative interpretation of the evidence "at the very most ... suggest[s] that another rational jury might have" decided the case differently).
16
The failure of Curtis's effort to avoid liability for the Hamilton murder is tied to the fate of his conspiracy argument. Since we have found that the evidence was sufficient to establish Curtis's membership in Allen's crack distribution conspiracy, it follows that Curtis is criminally liable for the reasonably foreseeable acts committed by his co-conspirators in furtherance of that conspiracy. Pinkerton v. United States, 328 U.S. 640, 647-48, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946); United States v. Doyle, 121 F.3d 1078, 1091 (7th Cir.1997). One of those acts was Rouson's brutal killing of Hamilton. Curtis claims that he should not be liable for this act of his co-conspirator because there was insufficient evidence to show that Rouson shot Hamilton in furtherance of the conspiracy. Curtis would have this court believe that Hamilton was shot solely because Allen had to cover the loss when Curtis's drugs disappeared, which, he claims, was too remote from the conspiracy to trigger Pinkerton liability. The government reasons that Allen ordered Hamilton killed to keep members of the drug conspiracy in line and to set an example that in-fighting and drug stealing among coconspirators would not be tolerated. Evidence supporting both theories was presented at trial, and once again, the jury was entitled to choose the version urged by the prosecutors.
17
Moreover, in light of the testimony showing that the conspirators in this case frequently resorted to violence to achieve their goals, Curtis's argument that the killing was not reasonably foreseeable is wholly without merit. Our conclusions thus far also mean that we have no need to address Curtis's argument that there was insufficient evidence to prove that he violated or aided and abetted someone else's violation of 18 U.S.C. § 924(j)(1). His liability as a co-conspirator is a form of principal liability, and there is thus no need to resort to aiding and abetting.
18
Both Rouson and Curtis challenge the sufficiency of the government's evidence linking them to the murder of Omar King. They criticize the government's case as consisting solely of Rouson's uncorroborated admissions, as told to the jury by co-conspirators Allen and Hanyard. While they are correct that an uncorroborated party admission is insufficient to support a criminal conviction, Wong Sun v. United States, 371 U.S. 471, 488-89, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); Opper v. United States, 348 U.S. 84, 90, 75 S.Ct. 158, 99 L.Ed. 101 (1954), they are wrong that the admissions here were uncorroborated. Corroborating evidence is required in cases of party admissions not to establish the admission itself, but rather to ensure its reliability. United States v. Grizales, 859 F.2d 442, 445 (7th Cir.1988) (quoting United States v. Bukowski, 435 F.2d 1094, 1106 (7th Cir.1970), cert. denied, 401 U.S. 911, 91 S.Ct. 874, 27 L.Ed.2d 809 (1971)). As then-Circuit Judge Stevens reasoned, evidence of the corpus delicti is sufficient under Wong Sun to corroborate a party confession. United States v. Fleming, 504 F.2d 1045, 1048 (7th Cir.1974); see also United States v. Baltrunas, 957 F.2d 491, 494 (7th Cir.1992) (evidence that bank robbery occurred sufficiently corroborates defendant's confession).
19
Rouson's various admissions were corroborated first and foremost by evidence of King's bullet-riddled body. In addition, the jury had before it testimony that a red car was seen driving away after King was shot, testimony that Rouson and Curtis rented a small red car from a drug addict, and ballistic evidence relating to the probable murder weapon(s). Furthermore, the testimony of co-conspirators Allen and Hanyard recalling Rouson's various admissions concerning the role that he and Curtis played in the King murder was admissible hearsay against both Rouson as a party admission, FED. R. EVID. 801(d)(2)(A), and against co-conspirator Curtis, because the statements were "made during and in furtherance of the conspiracy." Wong Sun, 371 U.S. at 491, 83 S.Ct. 407. See also FED. R. EVID. 801(d)(2)(E); Jackson, 974 F.2d at 58-59 ("[O]ut-of-court statements of co-conspirators may be used ... in conjunction with other evidence, [to] establish a defendant's participation in the conspiracy.").
20
This adds up to ample corroborating evidence to support the jury's verdict. We may not reweigh the evidence on appeal, and we thus reject these challenges to the convictions.
21
B. Use of a Single Drug Trafficking Offense to Support Two Section 924(j)(1) Convictions
22
Both Curtis and Rouson were convicted for two violations of 18 U.S.C. § 924(j), which makes it an offense to kill a person in the course of a crime prohibited by 18 U.S.C. § 924(c) (drug crimes, and crimes of violence); each was convicted on one count for the killing of King, and on another for the killing of Hamilton. The predicate drug offense for each of these counts, however, was the same. Curtis and Rouson argue that "[t]he use of several guns in connection with a single drug offense amounts to only a single violation of § 924(j) even though more than one death occurs as a result." In their view, multiple § 924(j) convictions based on a single § 924(c) violation committed in the course of one drug trafficking offense violate the double jeopardy clause. In essence, they are asking us to extend the logic of United States v. Cappas, 29 F.3d 1187, 1190 (7th Cir.1994), where we joined seven other courts of appeals and held that the use of several guns in the course of a single drug trafficking offense cannot support multiple § 924(c) convictions for the use of a firearm in relation to a drug trafficking crime.
23
The present case, however, is significantly different. We begin with the language of § 924(j):
24
A person who, in the course of a violation of subsection (c), causes the death of a person through the use of a firearm, shall —
25
(1) if the killing is a murder (as defined in section 1111), be punished by death or by imprisonment for any term of years or for life.
26
The statute incorporates by reference a violation of § 924(c), which is a sentence enhancement provision that applies to crimes involving the use of a firearm "during and in relation to any crime of violence or drug trafficking crime (including a crime of violence or drug trafficking crime that provides for an enhanced punishment if committed by the use of a deadly or dangerous weapon or device)." 18 U.S.C. § 924(c)(1)(A). According to Curtis and Rouson, because § 924(j) requires a violation of § 924(c), it is "reasonable to conclude that Congress ... intended to enhance the punishment of a defendant who through violation of § 924(c) additionally commits murder." This may well have been Congress's general intent, but it is a substantial leap to infer further that Congress did not intend in § 924(j) to punish each murder separately. At a minimum, there is nothing in the language of the statute just quoted that expressly requires the prosecutor to prove a separate drug trafficking offense in violation of § 924(c)(1)(A) for each charged violation of § 924(j).
27
A close reading of Cappas shows that such a result is not compelled by that case either. In Cappas, this court held that a defendant "cannot be convicted twice under § 924(c) for using two guns in connection with the same drug trafficking or violent offense," but if the jury finds "that a defendant used one gun in connection with a narcotics distribution count, and another gun in connection with a general conspiracy (of which that distribution was a part), he may be convicted on two § 924(c) charges." 29 F.3d at 1190. In other words, where two separate predicate offenses exist, there is no problem with imposing two enhancements under § 924(c). Cappas and similarly decided cases from other circuits address an entirely different problem than the one we face here. In that line of cases, the courts focused on the imposition of multiple § 924(c)(1) convictions for each gun attributable to a defendant, even if the gun was "carried or `used' in the same place and at the same time as other targeted guns." United States v. Anderson, 59 F.3d 1323, 1328-29 (D.C.Cir.1995) (en banc); see also United States v. Lindsay, 985 F.2d 666, 674-75 (2d Cir.), cert. denied, 510 U.S. 832, 114 S.Ct. 103, 126 L.Ed.2d 70 (1993). Our problem has to do with the elements of a § 924(j) case, and whether the fact that a single element of one § 924(j) count also plays a part in a separate conviction (for § 924(j), or for that matter for a conviction under any other statute) amounts to a violation of the Double Jeopardy Clause.
28
Application of basic double jeopardy analysis under the familiar test of Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932), shows that the answer must be no. By now it is axiomatic that to pass the Blockburger hurdle the two offenses each must require proof of an element that the other does not. United States v. Dixon, 509 U.S. 688, 696, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993); United States v. Asher, 96 F.3d 270, 273 (7th Cir.1996). Here, each § 924(j) conviction required proof of a different element: in one instance, the prosecution had to prove that the conspirators murdered King, and in the other, it had to prove that they murdered Hamilton.
29
Finally, it is worth noting that the result for which Curtis and Rouson are arguing would lead to the conclusion that in a drug conspiracy like this one, all but the first killing committed in the course of the conspiracy would not be covered by this statute (although they would obviously be subject to a state prosecution for each murder, and proof of other federal substantive predicate offenses would also be possible). We will not presume that Congress intended such an outcome without far more explicit statutory language.
30
Finding no double jeopardy violation, we do not consider appellants' argument that it was plain error to impose two life sentences under § 924(j)(1).
III
31
For the foregoing reasons, the judgment of the district court is AFFIRMED.
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22 F.3d 1091
Amoco Oil Co. Inc.v.Germinaro
NO. 92-9187
United States Court of Appeals,Second Circuit.
Mar 16, 1994
1
Appeal From: E.D.N.Y.
2
AFFIRMED.
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514 So.2d 922 (1987)
Esther O. BLUMBERG, et al.
v.
TOUCHE ROSS & CO., etc.
85-1049.
Supreme Court of Alabama.
September 18, 1987.
*923 C.R. Lewis of Lewis & Brackin, and G.M. Harrison of Merrill & Harrison, Dothan, for appellants.
Lee H. Zell and Susan Salonimer of Berkowitz, Lefkovits, Isom & Kushner, Birmingham, for appellee.
HOUSTON, Justice.
"Thoughts much too deep for tears subdue the court When I assumpsit bring, and god-like waive the tort."[1]
Was the plaintiff's action time barred; To answer this, we must determine whether the plaintiffs could proceed in assumpsit against an accounting firm, Touche Ross & Co., that the plaintiffs employed to examine the balance sheet of Blumberg & Sons, a retail department store, operated by the plaintiffs as a partnership, or whether the alleged wrong was tortious only. The suit was filed more than one year,[2] but less than six years, after Touche Ross allegedly failed to disclose a material overstatement of accounts receivable, which should have been discovered by Touche Ross had it conducted its examination in accordance with generally accepted auditing standards. We hold that the plaintiffs can proceed in assumpsit, and that the action, therefore, was not time barred.
The agreement between the plaintiffs and Touche Ross is embodied in a June 3, 1974, letter from Touche Ross to the plaintiffs. The letter, in pertinent part, provided:
"We are pleased to serve as independent accountants for Blumberg and Sons (A Partnership).
". . . .
"The purpose of our engagement is to examine the Company's balance sheet as of June 1, 1974, and evaluate the fairness of presentation of the balance sheet in conformity with generally accepted accounting principles applied on a basis consistent with that of the preceding period.
"Our examination will be conducted in accordance with generally accepted auditing standards which will include a review of the system of internal control and tests of transactions to the extent we believe necessary. Accordingly, it will not include a detailed audit of transactions to the extent which would be required if intended to disclose defalcations or other irregularities, although their discovery may result.
*924 "We direct your attention to the fact that management has the responsibility for the proper recording of transactions in the books of account, for the safeguarding of assets, and for the substantial accuracy of the financial statements. Such statements are the representations of management.
"The objective of our examination is the expression of an unqualified opinion on the Company's balance sheet, dependent on the facts and circumstances at the date of our opinion. If our opinion will be other than unqualified, the reasons therefor will be fully disclosed."
The plaintiffs accepted these terms by signing and returning a copy of this letter. On July 9, 1974, Touche Ross sent the plaintiffs the following letter:
"We have examined the balance sheet of Blumberg and Sons (a partnership) as of June 1, 1974. Our examination was made in accordance with generally accepted auditing standards, and accordingly included such tests of the accounting records and such other auditing procedures as we considered necessary in the circumstances.
"In our opinion, the aforementioned balance sheet presents fairly the financial position of Blumberg and Sons (a partnership) at June 1, 1974, in accordance with generally accepted accounting principles applied on a basis consistent with that of the preceding year."
On February 15, 1980, plaintiffs filed suit in the Circuit Court of Houston County, alleging that the balance sheet report done by Touche Ross failed to disclose a material overstatement of accounts receivable that should have been detected by Touche Ross if it had conducted its "examination in accordance with generally accepted auditing standards" and alleging that as a result of this "breach of contract" plaintiffs sustained damages. Touche Ross filed a motion to dismiss, or in the alternative, for a change of venue because plaintiffs had characterized the action as being in contract only, and venue was not proper in Houston County because none of the individual defendants, who were dismissed as defendants, or partners of Touche Ross resided in Houston County. Section 6-3-2(a)(2), Alabama Code 1975. The parties stipulated for the case to be transferred to Jefferson County for a non-jury trial, and the trial court entered an order transferring the case. Touche Ross filed its answer, and the parties conducted discovery for the next several years. Touche Ross filed a motion for summary judgment, which asserted that the plaintiffs' claim sounded in tort, not in contract, and was barred by the one-year statute of limitations. This motion was granted. Plaintiffs appealed.
The parties do not argue the "law of the case" doctrine, and the case will not be decided on that doctrine, though it might have been applicable. Under the doctrine of the "law of the case," whatever is once established between the same parties in the same case continues to be the law of that case, whether or not correct on general principles, so long as the facts on which the decision was predicated continue to be the facts of the case. Alford v. Summerlin, 423 So.2d 482 (Fla.Dist.Ct. App.1982). If the cause of action was in tort, Touche Ross's motion for a change of venue was without merit. Under the doctrine of the law of the case, it could be argued that Touche Ross should be precluded from contending that the cause of action was in tort, after it had received the benefit and advantage of claiming that it was in contract, so long as the facts upon which the original decision was made continued to be the facts of the case. Once a party receives the advantage of an action being a contract action, it must suffer the disadvantage of it being a contract action under the doctrine of the law of the case. See Ferrier v. City of White Plains, 262 A.D. 94, 28 N.Y.S.2d 218 (1941), appeal denied, 262 A.D. 962, 30 N.Y.S.2d 399 (1941); Glenwood Hospital, Inc. v. Louisiana Hosp. Service, Inc., 419 So.2d 1269 (La.App.1982); Day v. Campbell-Grosjean Roofing & Sheet Metal Corp., 260 La. 325, 256 So.2d 105 (1971); Mann v. R. Simpson & Co., 286 N.Y. 450, 36 N.E.2d 658 (1941), which involved a stipulation, as did the case *925 at issue; and Cote v. Boise, 111 Vt. 343, 16 A.2d 175 (1940).
If an accountant enters into an express agreement to perform his duties in accordance with generally accepted standards of his profession and does not, may the injured contracting party sue for breach of contract? That is the issue before us.
Because we have found no Alabama cases discussing a client's remedies for negligent performance of an accounting services contract, we have examined secondary sources and the cases of other jurisdictions.
Our examination of treatises, law review articles, and other secondary sources dealing specifically with the liability of accountants to their clients reveals near universal agreement with the proposition that such liability may arise in either tort or contract for the negligent performance of an accounting service. See Restatement (Second) of Torts § 552 comment g (1977); Annot., Accountant's Malpractice Liability to Client, 92 A.L.R.3d 396, 404-05 (1979); D. Causey, Duties & Liabilities of Public Accountants 61-65 (1979); R. Gormely, The Law of Accountants & Auditors ¶ 5.01[1], at pp. 5-1 through 5-5 (1981); Hawkins, Professional Negligence Liability of Public Accountants, 12 Van.L.Rev. 797, 797-98, 800 (1959). The language used in most of these authorities is quite broad, and the implication is that there is little controversy in the law on this point. See, e.g., R. Gormely, supra; Hawkins, supra, at 800. But see D. Causey, supra, at 62 (noting disagreements in the courts as to the proper cause of action, but arguing that the plaintiff probably should be given the benefit of the most advantageous remedy).
Although these authorities often do not discuss in great detail the reasons for the availability of both remedies, there appears to be a general recognition that the tort duty to exercise reasonable professional care can overlap in some degree with a contractual obligation to do the same. Consequently, these authorities take the view that the plaintiff may often avail himself of either remedy in cases of defective performance.
The law of several jurisdictions is summarized in Annot., Accountant's Malpractice Liability to Client, 92 A.L.R.3d 396, 403-05 (1979); and Annot., Application of Statute of Limitations to Damage Actions Against Public Accountants for Negligence in Performance of Professional Services, 26 A.L.R.3d 1438 (1969).
In City of East Grand Forks v. Steele, 121 Minn. 296, 141 N.W. 181 (1913), the court held that a complaint stated a cause of action for breach of contract, and not in tort, where it alleged that accountants employed to perform an audit negligently failed to discover an employee's defalcations.
In Dantzler Lumber & Export Co. v. Columbia Casualty Co., 115 Fla. 541, 156 So. 116 (1934), the court recognized that the client's cause of action could be based on either breach of contract or tort.
In the following cases the cause of action was held to be in tort and not for breach of contract: Sato v. Van Denburgh, 123 Ariz. 225, 599 P.2d 181 (1979); Brueck v. Krings, 230 Kan. 466, 638 P.2d 904 (1982).
Touche Ross cites Carr v. Lipshie, 8 A.D.2d 330, 187 N.Y.S.2d 564 (1959), aff'd, 9 N.Y.2d 983, 218 N.Y.S.2d 62, 176 N.E.2d 512 (1961), as a case substantially similar to the case at issue; and, it is. Carr claimed that the accounting firm it employed to do an audit failed to discover allegedly false bookkeeping entries. The defendant argued that the action was barred by the statute of limitations for negligence actions, while Carr characterized the defendant's conduct as a breach of contract. Touche Ross cites Adler & Topal, P.C. v. Exclusive Envelope Corp., 84 A.D.2d 365, 446 N.Y.S.2d 337 (1982), as proof of Carr's continued vitality. We find precedent from New York persuasive in a case of this nature; however, the reasoning in Carr has been repudiated by the New York Court of Appeals, and Adler & Topal has been expressly disavowed.
New York's highest court began to show its dissatisfaction with the "tortious remedy only" rule in certain contractual contexts *926 in Paver & Wildfoerster v. Catholic High School Ass'n, 38 N.Y.2d 669, 382 N.Y.S.2d 22, 345 N.E.2d 565 (1976). In that case, Chief Judge Breitel confronted the issue of whether an arbitration proceeding against a firm of architects was barred by the applicable statute of limitations. In New York, arbitration proceedings are subject to a limitations statute that bars an arbitration claim if that claim would also be barred in a court of law. The claim at issue purported to assert an action in contract against the architects for their failure to exercise due care in the design and supervision of the construction of a school building. The architects argued that such a claim, though formally stated in contract, was "in essence" tortious, under authorities analogous to Carr, supra, and that it consequently was barred by the tort statute of limitations.
Chief Judge Breitel rejected this reasoning and held that the contract statute of limitations would apply in the arbitration proceeding, rather than the tort statute. One ground for his holding was that the Carr rule, a largely technical decision advanced for the guidance of law courts, should not be extended to the inherently more flexible forum of arbitration. Retaining flexibility in arbitration, however, was not Chief Judge Breitel's only concern:
"To be sure, it has been said that the law in this State, in applying the Statute of Limitations, will look to the `reality' or the `essence' of the action and not its form.... Thus, when the wrong complained of, although arising from a breach of a contractual obligation, essentially consists of a failure to use due care in the performance of that obligation, it has been held that the `negligence' or `malpractice', and not the `contract', Statute of Limitations applies....
"Significantly, many of these cases were decided in the context of causes of action to recover damages for direct or underlying personal injury.... In personal injury cases, it has been said with verbal plausibility that since the `gravamen' of the action is the misconduct of the defendant, the action sounds `essentially' in tort. On the other hand, however, when the action is one for damages to property or pecuniary interests only, where there is a contractual agreement between the parties, the general tendency has been to allow the plaintiff to elect to sue in contract or tort, as he sees fit..."
Paver & Wildfoerster, 38 N.Y.2d, at 674-75, 382 N.Y.S.2d, at 24-25, 345 N.E.2d, at 568.
Hence, Chief Judge Breitel introduced as an additional rationale in support of his holding the idea that there is a distinction between personal injury actions and those actions involving pecuniary or property damage, at least where there is a contractual relationship between the parties, citing what is now W. Keeton, D. Dobbs, R. Keeton & D. Owen, Prosser & Keeton on Torts § 92, at 666-67 (5th ed. 1984), as authority.
The Paver holding has not been restricted to arbitration. In Sears, Roebuck & Co. v. Enco Assoc., 43 N.Y.2d 389, 401 N.Y.S. 2d 767, 372 N.E.2d 555 (1977), the rule of Paver was extended to actions at law so that "when damage to property or pecuniary interests is involved, the [contract] statute [of limitations] governs regardless of how the theory of liability is described, as long as the asserted liability `had its genesis in the contractual relationship of the parties.'" Baratta v. Kozlowski, 94 A.D.2d 454, 461, 464 N.Y.S.2d 803, 808 (1983) (quoting Sears, Roebuck, supra).[3]
Moreover, in a recent memorandum opinion, the Court of Appeals has also made it clear that the Sears, Roebuck and Paver rationale applies to accountant malpractice. In Video Corp. of America v. Frederick Flatto Assoc., Inc., 58 N.Y.2d 1026, 462 N.Y.S.2d 439, 448 N.E.2d 1350 (1983), the Court of Appeals restated its rule under Sears, Roebuck and Paver and expressly adopted the dissenting opinion of a judge *927 from the lower court who had argued that the rule of Paver applied broadly to all actions having their genesis in contract where the damages claimed arose from injury to pecuniary or property interests. The Court of Appeals also took the opportunity to expressly disavow two other cases, neither of which was before it, cases which had restrictively applied the Paver rule. Among them was Adler & Topal, P.C. v. Exclusive Envelope Corp., supra, which had held, on the basis of Carr, supra, that Sears, Roebuck did not apply to accountant malpractice actions. As Video Corp. demonstrates, Carr has been repudiated; and we are certain that New York would now allow a contract action against an accountant for the accountant's failure to exercise due care.
Although we need not adopt the precise rule of New York to resolve this case, we find persuasive the decision of this preeminent financial jurisdiction to view accountant liability as arising in either tort or contract.
Touche Ross contracted with the plaintiffs and expressly promised to use generally accepted accounting principles and generally accepted auditing standards. The offer and the acceptance were in writing. In Alabama, one who contracts with another and expressly promises to use due care is undoubtedly liable in both tort and contract when his negligence results in injury to the other party. He is liable in contract for breaching an express promise to use care. He is liable in tort for violating the duty imposed by law on all people not to injure others by negligent conduct. The injured party has the choice of remedies when a contract contains an express promise to use due care. Eidson v. Johns-Ridout's Chapels, Inc., 508 So.2d 697, 701 (Ala.1987); Comment, Contractual Recovery for Negligent Injury, 29 Ala.L.Rev. 517, 524-25 (1978).[4]
Plaintiffs' action for breach of contract was not time barred, and the trial court erred in granting summary judgment in favor of Touche Ross.
REVERSED AND REMANDED.
MADDOX, JONES, SHORES and STEAGALL, JJ., concur.
TORBERT, C.J., concurs in result.
BEATTY and ADAMS, JJ., dissent.
ALMON, J., not sitting.
NOTES
[1] Adolphus, The Circuiteers, an Eclogue, 1 L.Q. Rev. 232 (1885).
[2] Alabama Code 1975, § 6-2-39, the one-year tort statute of limitations, was repealed effective January 9, 1985. See Act 85-39, Ala. Acts 1984-85. Those actions governed by that one-year statute were transferred by Act 85-39 to Code 1975, § 6-2-38, the two-year statute.
[3] Baratta presents a good summary of the development of New York law on these points. In addition, there is a law review note discussing these developments. See Farrell, 1983 Survey of New York LawCivil Practice, 35 Syracuse L.Rev. 60-64 (1984).
[4] Because this case involves a contract in which the promise to exercise due care is an express term, we do not reach the question of whether an implied term to exercise due care would also give rise to an action in contract. But see, e.g., Garig v. East End Memorial Hosp., 279 Ala. 118, 182 So.2d 852 (1966) (implied contractual duty) to exercise due care will not be imposed by law).
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208 B.R. 756 (1997)
In re Michael A. GALLO, Jr., Debtor.
SANFORD INSTITUTION FOR SAVINGS, Plaintiff,
v.
Michael A. GALLO, Defendant.
Bankruptcy No. 96-20690, Adversary No. 96-2220.
United States Bankruptcy Court, D. Maine.
May 21, 1997.
*757 Thomas C. Bradley, Petruccelli & Martin, Portland, ME, for plaintiff.
James F. Molleur, Woodman & Edmands, Biddeford, ME, for defendant.
MEMORANDUM OF DECISION
JAMES A. GOODMAN, Chief Judge.
This matter is before the Court on Sanford Institution for Savings's ("SIS") complaint to determine dischargeability of a debt pursuant to 11 U.S.C. § 523(a)(2)(A).[1] For the reasons stated below, this Court finds the debt to be dischargeable.
I. FINDINGS OF FACT
In December 1989, Michael Gallo ("Debtor") requested a loan from SIS in the form of a standby letter of credit in favor of Peoples Heritage Bank. The letter of credit, in the amount of $250,000.00, was to support financing by Peoples Heritage Bank so that Debtor could develop a hotel in Ogunquit, Maine ("Ogunquit property"). Debtor, a real estate developer, had been a customer of SIS since the 1970s and over the years had entered into many loan agreements with SIS, including a $150,000.00 unsecured line of credit. Rodney Normand, President of SIS, handled much, if not all, of Debtor's business with SIS and was the officer who assisted Debtor with the letter of credit.
Normand brought Debtor's request to SIS's Board of Directors which approved the issuance of the letter of credit. However, because the amount was so large, the Board required as security a second mortgage on Debtor's home in Sanford ("Sanford property"), jointly with his wife, in addition to the second mortgage it would receive on the *758 Ogunquit property.[2] Normand testified that when he told Debtor that his loan was approved by the Board he also told Debtor that the second mortgage on his home would be required. Debtor testified that he was never informed of the requirement of a second mortgage on his home and he did not read the loan documents before he signed them.
In July 1989, five months prior to the letter of credit transaction, Debtor had transferred his interest in the Sanford property to his wife, Gail Gallo, as part of a settlement agreement pursuant to a divorce judgment. Debtor testified that SIS knew about his divorce and knew that Debtor was no longer living on the Sanford property when he requested the letter of credit. He also testified that he did not inform SIS that he had in fact transferred the Sanford property to his wife. Normand testified that no one at SIS knew Debtor was divorced or knew that he no longer had an interest in the Sanford property despite the fact that Debtor had some social interaction with Normand and members of the Board of Directors during the time of his separation and divorce from his wife.
Approximately four days after Debtor first requested SIS to issue the letter of credit, Normand presented the loan documents to Debtor for signature. It is unclear from the evidence exactly when, where, and in whose presence the documents were signed. What is clear is that Debtor signed his name to the documents, which included a second mortgage on the Sanford property; Debtor signed Gail Gallo's name to the documents without her knowledge or consent;[3] and Normand signed as a witness to both signatures even though he did not actually witness Gail Gallo's signature.
SIS delivered the letter of credit to Peoples Heritage Bank. SIS did not at any time search the registry of deeds to determine if Debtor had an ownership interest in the Sanford property, which he did not, or if there were liens or encumbrances on the property which would affect the value of its security. Normand testified that it was standard practice for SIS to conduct title searches on the property of its borrowers to determine the value of its security for loans but because Debtor was a good customer and always paid back borrowed funds, SIS had confidence in Debtor as an honest and trustworthy customer and did not see a need to check the title on his property.
On July 18, 1991, Peoples Heritage Bank made a final presentment of draft for the full amount of the letter of credit. On July 24, 1991, SIS issued payment to Peoples Heritage Bank in the amount of $250,000.00. On October 14, 1993, SIS obtained a default judgment in the York County Superior Court against Debtor in the amount of $301,594.22, which included $250,000.00 in principal, $43,798.22 in interest, $6,675.00 in attorneys' fees, and $1,121.00 in costs. This judgment has never been satisfied by Debtor and SIS now seeks to have the amount owed determined nondischargeable.
II. CONCLUSIONS OF LAW
SIS argues two bases under which the Court should determine that the judgment debt is nondischargeable. First, Debtor transferred the Sanford property to his wife without SIS's knowledge or consent, contrary to a provision in the first mortgage requiring Debtor to obtain SIS's consent before transferring his interest in the property to a third party. Second, Debtor signed Gail Gallo's name to all of the loan documents without her knowledge and consent leaving SIS without a security interest in the Sanford property. The Court finds that Debtor's transfer of his interest in the Sanford property to his wife was not fraudulent despite the provision in the first mortgage. Normand testified that SIS had never invoked that provision when one spouse transferred ownership to the other spouse in the context of a divorce agreement. The Court *759 finds that the consent provision was not intended to preclude this type of transfer and, therefore, the transfer was not fraudulent.[4] As discussed below, the only remaining issue is whether SIS justifiably relied on the signed loan documents when it issued the standby letter of credit to Peoples Heritage Bank.
Under § 523(a)(2)(A), a creditor must show that the debtor knowingly made a false statement with the intent to deceive the creditor and upon which the creditor relied to his detriment. Commerce Bank & Trust Co. v. Burgess (In re Burgess), 955 F.2d 134, 140 (1st Cir.1992); Bombardier Capital, Inc. v. Baietti (In re Baietti), 189 B.R. 549, 553 (Bankr.D.Me.1995). The level of reliance required is justifiable reliance. Field v. Mans, ___ U.S. ___, ___, 116 S.Ct. 437, 444, 133 L.Ed.2d 351 (1995). The burden of proof is upon the creditor to prove the elements of the discharge exception by a preponderance of the evidence. Grogan v. Garner, 498 U.S. 279, 291, 111 S.Ct. 654, 661, 112 L.Ed.2d 755 (1991).
An examination of the evidence shows that there is no dispute that Debtor knowingly made a false representation to SIS. Debtor fraudulently signed his wife's name to the loan documents causing SIS to believe that Gail Gallo knew about the mortgage and consented to it. SIS clearly suffered damages because it had to pay on the letter of credit and has been unsuccessful in obtaining reimbursement from Debtor. Therefore, the only issue is whether SIS justifiably relied on the signed loan documents even though it did not investigate title to the Sanford property.[5]
In Field v. Mans, the Supreme Court determined that "`[j]ustification is a matter of the qualities and characteristics of the particular plaintiff, and the circumstances of the particular case, rather than of the application of a community standard of conduct to all cases.'" Field, ___ U.S. at ___, 116 S.Ct. at 444 (quoting Restatement (Second) of Torts § 545A, Comment b (1976)). The Supreme Court further stated that "a person is `required to use his senses, and cannot recover if he blindly relies upon a misrepresentation the falsity of which would be patent to him if he had utilized his opportunity to make a cursory examination or investigation.'" Id. (quoting Restatement (Second) Torts § 541, Comment a). "`[I]t is only where, under the circumstances, the facts should be apparent to one of his knowledge and intelligence from a cursory glance . . . that he is required to make an investigation of his own.'" Field, ___ U.S. at ___, 116 S.Ct. at 444 (quoting W. Prosser, Law of Torts, § 108 at 718 (4th ed.1971)). "`[T]he matter seems to turn upon an individual standard of the plaintiff's own capacity and the knowledge which he has, or which may fairly be charged against him from the facts within his observation in the light of his individual case.'" Id. (quoting Prosser, § 108 at 717).
The plaintiff here is a lending institution which, at the time of the letter of credit transaction with Debtor, had a practice of searching title records to verify the validity and value, two important elements of reliance, of its security for loans. SIS is a sophisticated plaintiff and, under the standards set forth in Field v. Mans, it had an obligation to conduct the most cursory of investigations, i.e., a title search. By failing to follow its own practice, SIS assumed the risk that its security would be worthless. Moreover, SIS should not have blindly relied on Gail Gallo's signature. Without a witness, SIS had no basis for believing that Gail Gallo in fact signed her name to the documents and, again, assumed the risk that she was not an informed party to the transaction.
The Court does not condone Debtor's conduct. However, under the law and the facts of this case, the Court is compelled to find that SIS could not have justifiably relied on *760 the loan documents as a representation that Debtor had an ownership interest in the Sanford property and that his wife was informed of and consented to the second mortgage on her home. The judgment debt owed to SIS is dischargeable. The foregoing represents findings of facts and conclusions of law pursuant to Fed. R. Bankr.P. 7052. An appropriate order shall enter.
NOTES
[1] Section 523(a)(2)(A) provides:
A discharge under section 727 . . . does not discharge an individual debtor from any debt . . . for money, property, services, or an extension, renewal, or refinancing of credit, to the extent obtained by . . . false pretenses, a false representation, or actual fraud.
11 U.S.C. § 523(a)(2)(A).
[2] SIS already had a first mortgage on the Sanford property and Peoples Heritage Bank had the first mortgage on the Ogunquit property.
[3] Debtor also testified that SIS had required his wife's signature on prior loan documents, he always signed her name without her knowledge or consent, and SIS was aware of this practice. Normand denied any knowledge of Debtor's forgeries.
[4] Even if SIS had previously enforced that provision of the mortgage in the divorce context, the Court believes that such a transfer would not be in contravention of the terms of the mortgage.
[5] Although the parties are in disagreement over whether Debtor knew the transaction required a second mortgage on the Sanford property, it is irrelevant for purposes of this decision. Whether SIS justifiably relied on the signed loan documents is dependent upon whether or not SIS had an obligation to investigate title to the property.
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794 F.2d 686
*Briehlerv.City of Miami
85-5952
United States Court of Appeals,Eleventh Circuit.
6/18/86
1
S.D.Fla.
AFFIRMED
2
---------------
* Fed.R.App.P. 34(a); 11th Cir.R. 23.
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NOTE: This order is nonprecedential.
` United States Court of AppeaIs
for the FederaI Circuit
STOREWALL, LLC,
Plaintiff-Appellant,
V.
UNITED STATES,
`Defen,dom,t-Appellee,
2010-1193
Appeal from the United States Court of Internationa1
Trade in case no. 05-CV-0462, Judge Le0 M. Gordon.
ON MOTION
ORDER
The United States moves for a 5-day extension of
tirne, until August 4, 2010, to file its initial brief,
Upon consideration thereof
IT ls ORDERED THAT:
The motion is granted N0 further extensions should
be anticipated
STOREWALL V. US
2
FOR THE COURT
ms 2 2979 131 Jan H0rba1y
Date J an Horba1y
cc: R. Kevin Wil1ia1ns, Esq.
Edward F. Kenny, Esq.
s21
Clerk
U.S. COUR`Fi1',I?§i’)PEI-\LS FDR
THE FEDERAL C|RCUlT
AuG 02 2010
1ANHonsm.v
ocean
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260 Wis.2d 24 (2003)
2003 WI 21
658 N.W.2d 442
Eric M. SCHMITZ, Plaintiff-Appellant-Petitioner,
v.
FIRSTAR BANK MILWAUKEE, Defendant-Respondent,[]
PUTNAM MUTUAL FUNDS CORPORATION, Putnam Investments, Northern Trust Company, Fortis Investors, Inc., and Putnam Fiduciary Trust Company, Defendants.
No. 01-2139.
Supreme Court of Wisconsin.
Oral argument January 16, 2003.
Decided March 25, 2003.
*26 For the plaintiff-appellant-petitioner there were briefs by Joseph G. Doherty and Doherty Law Offices, S.C., West Bend, and oral argument by Joseph G. Doherty.
For the defendant-respondent there was a brief by Gary P. Lantzy and Kohner, Mann & Kailas, S.C., Milwaukee, and oral argument by Gary P. Lantzy.
¶ 1. SHIRLEY S. ABRAHAMSON, CHIEF JUSTICE.
*27 This is a review of a published decision of the court of appeals, Schmitz v. Firstar Bank Milwaukee, 2002 WI App 123, 254 Wis. 2d 732, 647 N.W.2d 379, affirming the judgment of the Circuit Court for Ozaukee County, Walter J. Swietlik, Judge. The circuit court granted summary judgment to one of the defendants, Firstar Bank Milwaukee, dismissing Eric M. Schmitz's claims against Firstar Bank.[1] The court of appeals affirmed the judgment of the circuit court. We reverse the decision of the court of appeals.
¶ 2. Eric M. Schmitz, the plaintiff-payee, sued Firstar Bank Milwaukee for negligence and conversion for depositing two checks (in the amounts of $58,599.19 and $6,173.21), issued by Putnam Investments and payable to his order, into the account of Georgetown Financial Corporation. The first check, in the larger amount, did not have the plaintiff-payee's endorsement. The second check, in the smaller amount, had an endorsement bearing the plaintiff-payee's name that the plaintiff-payee alleges is a forged signature. Each check had "for deposit only" and Georgetown Financial stamped on the back. The plaintiff-payee claimed monetary damages equal to the face value of the two Putnam checks.
¶ 3. The plaintiff-payee moved for partial summary judgment against Firstar Bank with respect to the larger check. The plaintiff-payee argued that because Georgetown Financial did not have authority to endorse the check, Firstar Bank was liable as a matter of *28 law for making payment on this check, which was presented by Georgetown Financial without his actual or purported signature.
¶ 4. Firstar Bank then moved for summary judgment as to both checks, contending that two limited powers of attorney executed by the plaintiff-payee gave Georgetown Financial authority to endorse and receive payment on the two Putnam checks at issue in this case.
¶ 5. The circuit court granted Firstar Bank's motion for summary judgment. The circuit court held that the two limited powers of attorney authorized Georgetown Financial to endorse and deposit the two checks, thereby rendering unnecessary any consideration of the reasonableness of Firstar Bank's conduct. The court of appeals affirmed the judgment of the circuit court granting summary judgment to Firstar Bank.
[1-3]
¶ 6. We review a circuit court order granting summary judgment by applying the same methodology as that used by the circuit court.[2] Summary judgment will be entered when a court is satisfied that the pleadings, depositions, answers to interrogatories, admissions, and affidavits show that no genuine issues of material fact exist and the moving party is entitled to judgment as a matter of law.[3] Thus, an appellate court will reverse a summary judgment if the record reveals that material facts are in dispute or if the circuit court misapplied the law.[4]
*29 ¶ 7. The ultimate issue in this case is whether Firstar Bank is liable to the plaintiff-payee for conversion for depositing the two checks, one without the plaintiff-payee's endorsement and one with a forged endorsement of the plaintiff-payee, into Georgetown Financial's account. The only issue properly before this court, however, is whether the two limited powers of attorney authorize Georgetown Financial to endorse the two Putnam checks on behalf of the plaintiff-payee.
¶ 8. We hold that the limited powers of attorney in the present case did not authorize Georgetown Financial to endorse the two Putnam checks made payable to the order of the plaintiff-payee. Accordingly, the court of appeals' decision affirming summary judgment in favor of Firstar Bank is reversed. The cause is remanded to the circuit court for further proceedings on whether Firstar Bank is liable for the value of either or both checks in light of our conclusion that Georgetown Financial did not have the authority to endorse the checks on behalf of the plaintiff-payee.
I
¶ 9. The following facts are derived from the complaint and other documents in the record. Georgetown Financial was a Wisconsin company that provided investment, insurance, and financial services. James O'Hearn was the sole owner and chief executive officer of Georgetown Financial and the plaintiff-payee was one of his clients.
¶ 10. In 1992, the plaintiff-payee executed two "Limited Power of Attorney" forms with Georgetown Financial. Both forms contained typewritten, boilerplate text and included a blank space for the client to insert his or her name, a blank space for the client to *30 identify a "company name," a series of blank lines in which the client could list "policy names and numbers," and lines for the client's signature, the date, and a witness's signature.
¶ 11. The first limited power of attorney was signed by the plaintiff-payee on July 10, 1992.[5] The typewritten boilerplate text provided Georgetown Financial with the authority to "accomplish the surrender" of certain life insurance policies "identified below" and "negotiations of their cash values." It further provided that "Power of Attorney also applies to stocks, bonds and other securities."[6] "American Funds" was written in by hand under "company name" and four different account names and numbers were similarly written in by hand on the lines under "policy name and *31 number." Three of the accounts have been identified as securities accounts; the fourth was an insurance policy.
¶ 12. The second limited power of attorney was signed in August 1992. The typewritten text of the form was identical to the first, except that the last line was expanded to read, "Power of Attorney also applies to stocks, bonds, CD's, annuities, savings accounts, and other securities." "The American Funds" was typed in on the line under "company name," and only the number "57263159," identifying one document, was typed in under "policy name and number." This number was identical to a number written next to one of the securities accounts on the July limited power of attorney. None of the accounts listed on either of the powers of attorney was identified as a Putnam Investment account.
¶ 13. In July 1994, O'Hearn's securities license was revoked by the State of Wisconsin. The plaintiff-payee was not aware that O'Hearn had lost his license, and the plaintiff-payee continued as a client of Georgetown Financial.
¶ 14. In May 1995, Georgetown Financial opened an investment account for the plaintiff-payee with Putnam Investments. The account application was for an individual account and the plaintiff-payee was identified as the owner of the account. The mailing address listed on the application was "Eric M. Schmitz c/o Georgetown Financial Corp., 10134 N. Port Washington Rd., Mequon, WI, 53092." The application also stated that the registered investment advisor for the account was "C Lynn O'Hearn" of the investment firm "Ogilvie & Taylor." Telephone redemptions were authorized allowing Putnam to act upon instructions received from the plaintiff-payee or "any person claiming to act as [his] representative" who could provide specific information.
*32 ¶ 15. Mutual funds were sold from the Putnam account by telephone redemption in July 1996 and March 1998. On each occasion, Putnam issued a check and mailed it to the plaintiff-payee, in care of Georgetown Financial, as designated in the account application. The first check, dated July 12, 1996, was in the amount of $58,599.19. It was issued as follows:
Pay to the order of:
Eric M. Schmitz
c/o Georgetown Financial
10134 North Port Washington Road
Mequon, Wisconsin 53092
The second check, dated March 5, 1998, was in the amount of $6,173.21. It was issued in an identical manner.
¶ 16. O'Hearn presented both checks to Firstar Bank for deposit into a Georgetown Financial account. The larger check, presented on July 19, 1996, did not include an endorsement by or on behalf of the plaintiff-payee. The smaller check included an endorsement bearing the name of the plaintiff-payee that was alleged in the complaint to be a forged signature. Both checks were stamped with a Georgetown Financial deposit stamp and marked "for deposit only."
¶ 17. Firstar Bank deposited the face value of both checks into a Georgetown Financial account. At the time, Firstar Bank was unaware of the existence of either of the limited powers of attorney and admits that it did not rely on the limited powers of attorney when it deposited the two Putnam checks into the Georgetown Financial account.
¶ 18. The plaintiff-payee never received the funds deposited into the Georgetown Financial account. *33 O'Hearn has been convicted of criminal fraud, and Georgetown Financial has ceased to operate.
II
¶ 19. The question presented by this case is whether Georgetown Financial had authority to endorse and deposit the two Putnam checks to its own account. The answer to this question turns on an interpretation of the two limited powers of attorney.
¶ 20. According to the plaintiff-payee, the circuit court and court of appeals misconstrued the language of the two limited powers of attorney when they failed to read the last sentence relating to investments narrowly, limited by the particular grant of authority regarding insurance policies in the first sentence. Moreover, asserts the plaintiff-payee, even if the powers of attorney did grant Georgetown Financial authority to endorse the two Putnam checks, the limited powers of attorney ceased to operate as a matter of law when O'Hearn, the chief executive officer of Georgetown Financial, lost his securities license and began to act against the plaintiff-payee's interest.
¶ 21. Firstar Bank responds that the circuit court and court of appeals properly construed the limited powers of attorney. It argues that the final sentence of the limited powers of attorney, providing that power of attorney "also applies" to securities and other investments, expressly granted Georgetown Financial broad authority to act on the plaintiff-payee's behalf with respect to the plaintiff-payee's financial affairs and included the power to do everything necessary to buy and sell any security or investment as fully as if done by the plaintiff-payee himself. Firstar Bank asserts that *34 Georgetown Financial was thus authorized to endorse the two Putnam checks at issue in this case on behalf of the plaintiff-payee.
[4, 5]
¶ 22. Agency agreements are generally subject to the same rules of interpretation as other contracts.[7] Like the interpretation of a contract, the interpretation of a power of attorney ordinarily presents a question of law that this court determines independently of the circuit court and court of appeals but with the benefit of their analyses.[8]
¶ 23. Both the circuit court and the court of appeals construed the limited powers of attorney at issue in the present case to grant authority to Georgetown Financial to endorse the two Putnam checks. According to the court of appeals, the limited powers of attorney authorized Georgetown Financial to liquidate specific life insurance policies, but the final sentence in each power of attorney granted power of attorney over the plaintiff-payee's other investments and accounts without any limitations on scope.
¶ 24. We conclude that the expansive interpretation given the limited powers of attorney by the circuit court and court of appeals is not supported by the language of the documents. Rather, the language and structure of the limited powers of attorney support a narrow construction of the authority granted to Georgetown *35 Financial. A narrow construction would not include the authority to endorse and deposit the two Putnam checks.
¶ 25. With the exception of the single final sentence in each power of attorney applying Georgetown Financial's power of attorney to a variety of types of financial accounts or investments in addition to insurance policies, every other aspect of each limited power of attorney is narrowly crafted. The documents are styled "limited" powers of attorney. The identical first sentence of each power of attorneythe line providing the greatest detailauthorizes Georgetown Financial to act in regard to life insurance policies "identified below." The printed text of both powers of attorney is followed by space for inserting the company name and the policy name and number.
¶ 26. Thus, in order to read the final sentence of the limited powers of attorney broadly enough to encompass any other investments and accounts of the plaintiff-payee, the final sentence has to be wrestled free from its context. Indeed, that is precisely what the circuit court and court of appeals did. The court of appeals explained: "[T]he limited powers of attorney in this case went on to separately grant Georgetown Financial the power of attorney with respect to `stocks, bonds, CD's, annuities, savings accounts, and other securities.' This additional grant of authority was not limited in scope."[9]
*36 ¶ 27. The more natural reading of the two limited powers of attorney is to keep the final sentence within the narrow confines of the rest of the document.[10] That is, in context, the final sentence serves to modify the first sentence, explaining simply that the listed items "identified below" may also include securities and other financial accounts in addition to insurance policies. Only the insurance policies and investments listed in the limited powers of attorney are therefore covered by the document.
[6]
¶ 28. Our reading of the limited powers of attorney is supported by several factors. First, the very title of the documents, "Limited Power of Attorney," points to a narrow reading of the powers granted. Second, the general rule of interpretation is that powers of attorney are to be strictly construed and interpreted to grant only those powers that are clearly delineated or specified.[11] The limited powers of attorney in the present case do not explicitly authorize Georgetown Financial to endorse checks payable to the plaintiff-payee arising from a Putnam investment account.
*37 ¶ 29. Third, the limited power of attorney form requires that the life insurance policies to be included within the grant of authority be listed in the document. The requirement that the insurance policies be listed extends to requiring that the other investments included in the final sentence be listed. Indeed the plaintiff-payee listed not only life insurance policies but specific securities. Requiring a listing of insurance policies and investments indicates that Georgetown Financial has authority only over assets listed on the powers of attorney. It simply does not make sense to say that a document that requires a list of individual policy names and numbers and then applies the power of attorney to other investments grants broad authority over all investment accounts, whether listed or not.
[7]
¶ 30. In short, the clear implication is that both of these limited powers of attorney grant Georgetown Financial authority over only those insurance policies and other investments (stocks, bonds, CDs, annuities, savings accounts, and other securities) specifically listed on the limited powers of attorney. Since neither limited power of attorney in the record lists a Putnam account, it is equally clear that Georgetown Financial did not have the authority to endorse either of the checks at issue in this case on behalf of the plaintiff-payee.[12]
*38 III
[8]
¶ 31. Having determined that Georgetown Financial did not have the authority to endorse the two Putnam checks, the remaining issue in this case is whether Firstar Bank is liable to the plaintiff-payee for the value of the two Putnam checks it deposited into a Georgetown Financial account, one without the plaintiff-payee's endorsement and the other with a forged endorsement of the plaintiff-payee. We do not reach a decision on Firstar Bank's liability here, however, as the parties have not adequately briefed and argued the issues.
[9]
¶ 32. The plaintiff-payee's underlying claims against Firstar Bank in the present action are for conversion and negligence. Conversion is committed when a person takes the property of another, without the consent of the owner, in such a way that it seriously interferes with the right of the owner to control the property.[13]
*39 ¶ 33. The plaintiff-payee's brief in this court asserted that Firstar Bank was never a holder or owner of the larger Putnam check but merely a transferee, and as a transferee, it has no greater rights to the check than Georgetown Financial.[14] Firstar Bank did not brief the conversion issue in this court. Firstar Bank addressed only the issue of whether the limited powers of attorney authorized Georgetown Financial to endorse the Putnam checks.
¶ 34. Firstar Bank did argue before the circuit court, however, in its response in opposition to the plaintiff's motion for summary judgment, that if the plaintiff-payee prevailed on his argument that George-town Financial did not have the authority under the limited powers of attorney to endorse the checks in the present case, the question whether Firstar acted in good faith or in accordance with reasonable commercial standards under Wis. Stat. § 403.419(3) (1993-94) was a question of fact that would need to be tried. Wisconsin Stat. § 403.419(3) (1993-94) provides that a depositary bank will not be liable for conversion of a negotiable instrument if it has acted "in good faith and in accordance with the reasonable commercial standards" applicable to the respective business, here banking.[15]
*40 ¶ 35. While it appears clear that accepting a check when the payee's endorsement is missing is not in accordance with the reasonable commercial standards of banking and that the acceptance by a depositary bank of such a check for deposit is commercially unreasonable as a matter of law,[16] there is far less case law addressing who constitutes the payee when a check is made out to an individual in the care of an investment company.[17] Accordingly, we remand the issue of liability on the larger Putnam check to the circuit court for further proceedings.
¶ 36. A determination of liability on the smaller Putnam check is similarly inappropriate for summary judgment given the posture of the case. In short, *41 neither party briefed or argued whether it was appropriate to grant summary judgment on this claim if Georgetown was determined not to have authority to endorse and deposit the Putnam checks.
¶ 37. The plaintiff-payee has not moved for summary judgment on the $6,173.21 check (with the forged signature), asserting that a trial is required because liability depends on whether Firstar Bank was negligent, a question of fact. Firstar Bank moved for summary judgment on the claim regarding the smaller check but argued only that Georgetown Financial had authority under the powers of attorney to endorse and deposit the check. Firstar Bank offers no defense to support the conclusion that it was not liable for making payment on the smaller check once it has been determined that Georgetown Financial did not have authority to endorse the Putnam checks. "To make a prima facie case for summary judgment, a moving defendant must show a defense which would defeat the plaintiff-payee. If the defendant does not make out a prima facie case for summary judgment we need go no further."[18]
¶ 38. We therefore remand the issue of Firstar Bank's liability on the smaller check to the circuit court as well.
IV
¶ 39. For the foregoing reasons, we hold that the language of the limited powers of attorney, properly construed, did not grant Georgetown Financial the authority to endorse the two checks at issue in this case. The circuit court's decision granting summary judgment to Firstar Bank is therefore reversed. The cause is *42 remanded to the circuit court for further proceedings consistent with this opinion.
By the Court.The decision of the court of appeals is reversed and the cause is remanded.
¶ 40. WILLIAM A. BABLITCH and JON P. WILCOX, JJ., did not participate.
NOTES
[] Motion for reconsideration denied 7-1-03.
[1] The plaintiff-payee's complaint names other entities as defendants, but only Firstar Bank is involved in the present review.
[2] Grams v. Boss, 97 Wis. 2d 332, 338-39, 294 N.W.2d 473 (1980).
[3] Wis. Stat. § 802.08(2) (1999-2000).
[4] Jankee v. Clark County, 2000 WI 64, ¶ 48, 235 Wis. 2d 700, 612 N.W.2d 297.
[5] The limited power of attorney was also signed by Katreena Schmitz, who is apparently the wife of the plaintiff-payee.
[6] The full text of the July 1992 limited power of attorney is as follows:
I, Eric M. Schmitz, as owner of the life insurance policies identified below, do hereby designate Georgetown Financial Corporation as my attorney to act in my name, place and stead to do everything that is required, as fully as if done by me personally, to register and obtain acknowledgement of the Assignment of Life Insurance Policy form(s), and accomplish the surrender of the life insurance polic(ies) identified below and negotiation of their cash values, and including any other requested information. Answers to questions may be provided by telephone or fax [number omitted here]. Power of Attorney also applies to stocks, bonds and other securities.
Company Name Policy Name and Number
____________ ____________________
____________________
____________________
[7] Restatement (Second) of Agency § 32, at 114 (1958). See, e.g., Estate of Smith v. United States, 979 F.Supp. 279, 282 (D. Vt. 1997); Burlington No. & Santa Fe Ry. Co. v. Burlington Res. Oil & Gas Co., 590 N.W.2d 433, 437, 439 (N.D. 1999).
[8] RTE Corp. v. Maryland Cas. Co., 74 Wis. 2d 614, 621, 247 N.W.2d 171 (1976).
[9] Schmitz v. Firstar Bank Milwaukee, 2002 WI App 123, ¶ 16, 254 Wis. 2d 732, 647 N.W.2d 379 (emphasis added).
[10] See, e.g., Fort Dearborn Life Ins. Co. v. Holcomb, 736 N.E.2d 578, 589 (Ill. App. 2000) ("No matter how the power is characterized, a `catchall' provision will not operate to expand powers expressly limited in other portions of the same instrument.").
[11] Praefke v. Am. Enter. Life Ins. Co., 2002 WI App 235, ¶ 9, 257 Wis. 2d 637, 655 N.W.2d 456; First Nat'l Bank of Omro v. Winnebago County Agr. & Horticultural Ass'n, 141 Wis. 476, 480, 124 N.W.2d 656 (1910); see also Texas Soil Recycling, Inc. v. Intercargo Ins. Co., 273 F.3d 644, 651 (5th Cir. 2001) (applying Texas law); O'Neal v. United States, 258 F.3d 1265, 1275 (11th Cir. 2001) (applying Alabama law).
[12] Firstar Bank suggested at oral argument that an additional power of attorney was likely signed giving Georgetown Financial authority over the Putnam accounts, even though it was not discovered and is not in the record. Firstar Bank asserted that discovery was complicated in this case because of the federal government's investigation of O'Hearn on criminal fraud charges. Firstar Bank pointed to the Putnam account application as evidence that the plaintiff-payee had an ongoing relationship with Georgetown Financial and argued that the plaintiff-payee would have given Georgetown Financial authority, in the same manner as he previously did with the discovered powers of attorney, over the Putnam account.
Firstar Bank's suggestion does nothing to bolster its position in this case. First, to imply that another power of attorney might exist specifically listing the Putnam account supports the plaintiff-payee's claim that the limited powers of attorney currently in the record only extend to those accounts explicitly identified on the power of attorney. Second, a motion for summary judgment will not be granted on the basis of pure conjecture.
[13] Prod. Credit Ass'n v. Nowatzski, 90 Wis. 2d 344, 353, 280 N.W.2d 118 (1979).
[14] See Wis. Stat. §§ 403.201, 403.202, 403.301 (1993-94).
[15] The plaintiff-payee's amended complaint asserted a claim for conversion under Wis. Stat. § 403.420 (1996-97). Firstar Bank responded in its memorandum response in opposition to the plaintiff's motion for summary judgment before the circuit court that the plaintiff-payee's claim for conversion with regard to the larger check is actually governed by Wis. Stat. § 403.419(3) (1993-94). Section 403.419(3) stated the law on conversion of negotiable instruments applicable in Wisconsin in July 1996. Effective August 1, 1996, Wisconsin adopted revised Article III of the Uniform Commercial Code and the law on conversion of negotiable instruments was renumbered § 403.420. Thus, it appears that the first, larger check would be governed by § 403.419(3) (1993-94) while the second, smaller check is governed by § 403.420 (1996-97).
Wisconsin Stat. § 403.419(3) (1993-94) reads:
(3) Subject to the provisions of chs. 401 to 411 concerning restrictive endorsements a representative, including a depositary or collecting bank, who has in good faith and in accordance with the reasonable commercial standards applicable to the business of such representative dealt with an instrument or its proceeds on behalf of one who was not the true owner is not liable in conversion or otherwise to the true owner beyond the amount of any proceeds remaining in his or her hands.
[16] See, e.g., Mid-Atl. Tennis Courts, Inc. v. Citizens Bank & Trust Co. of Maryland, 658 F. Supp. 140, 142-43 (D. Md. 1987); Great Am. Ins. Co. v. Am. State Bank, 385 N.W.2d 460, 463 (N.D. 1986); see also 6A Ronald A. Anderson, Uniform Commercial Code § 3-419:72, at 95 (1998); William D. Hawkland & Lary Lawrence, 4 Uniform Commercial Code Series § 3-419:5, at Art. 3-912-16 (1999).
[17] But see Geraldo v. First Dominican Mut. Life Ins. Co., 2002 WL 31002770, ¶ 41 (Ohio App. 2002) (unpublished opinion).
[18] Kraemer Bros. v. U.S. Fire Ins. Co., 89 Wis. 2d 555, 566-67, 278 N.W.2d 857 (1979).
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In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-13-00122-CR
CARLOS GARZA, JR., APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 320th District Court
Potter County, Texas
Trial Court No. 65731-D, Honorable Don R. Emerson, Presiding
April 9, 2014
MEMORANDUM OPINION
Before CAMPBELL and HANCOCK and PIRTLE, JJ.
Appellant, Carlos Garza, Jr., appeals from the trial court’s judgment finding him
guilty of aggravated assault with a deadly weapon1 and imposing an enhanced
sentence of twenty-five years’ imprisonment. On appeal, he challenges the sufficiency
of the evidence to support his conviction. We will affirm.
1
See TEX. PENAL CODE ANN. § 22.02(a)(2) (West 2011).
Factual and Procedural History
Cousins, Andrew and Orlando Garza, were visiting their grandmother Elizabeth
on the night of July 24, 2012. Accompanying the cousins were their wives and
Andrew’s infant daughter. The group left the house that night to get ice cream for the
family and returned with some ice cream for Elizabeth. While they had been gone,
appellant, who is the cousins’ uncle and Elizabeth’s eldest son, had returned to the
home that he shared with his mother. He had been drinking at a friend’s house.
After Andrew came inside the house to deliver the ice cream to his grandmother,
he overheard appellant talking to Elizabeth from the kitchen and using profane terms to
refer to Andrew and Orlando. We learn later that he was calling Elizabeth bad names
as well. Andrew resisted the urge to confront his uncle about the ill treatment of
Elizabeth and his foul language, went into another room, and, shortly thereafter,
decided to leave. His decision may have come at the urging of Elizabeth, but it was, at
a minimum, with her support; though not at all in a hostile spirit toward her grandsons,
Elizabeth did think it was best if Andrew and Orlando left, at least for a brief period,
while things calmed down around the house. It was appellant’s birthday, and he had
been drinking enough that most of the family noticed and considered him intoxicated.
Elizabeth also explained that appellant was upset because no one had called him on his
birthday. Considering the sour and seemingly volatile climate at the house at the time,
the cousins and their families would do better to let things settle down.
Andrew went outside to join the rest of the family and prepare to leave. Elizabeth
followed him outside and declined his invitation to leave with them. Andrew gathered up
his daughter and loaded her into the car. He then went back inside the house briefly to
2
ask his uncle what was wrong; his inquiry was ignored and Andrew went back outside.
As the group was preparing to part ways, appellant came out on to the front porch.
There is some conflict as to whether appellant had the weapons he would later employ
with him when he first came out to the porch or whether he went back inside to get
them. Either way, appellant had two weapons at the ready: a knife and a
hatchet/hammer-type implement.
From the porch, appellant accused the family of talking about him and expressed
his displeasure with such behavior. Andrew once again tried to coax his uncle into
revealing what was wrong and why he was so angry. He and the rest of the family
assured him that they were not talking about him, and Andrew tried to convince
appellant to calm down. But Andrew’s attempts did little to calm appellant. Appellant
began to issue threats against Orlando, who, it seems, had been quietly finishing his ice
cream as tensions began to escalate. Andrew testified that appellant threatened to hurt
and kill Orlando. Orlando testified that appellant threatened to harm him and called him
bad names.
Andrew stepped into the fray at this point to draw attention away from the
younger Orlando, who, according to Andrew, was just standing there looking scared.
Andrew leaned over to pick up a tire iron, had it in his hand, and then thought better of it
and dropped it without ever having stood up with it in his grasp. Andrew announced his
intent to prevent appellant from doing any harm to Orlando and, in an attempt to disarm
appellant and keep appellant’s hostilities focused on him rather than anyone else in the
family, invited his uncle to come down off the porch, to drop the weapons, and to fight
Andrew with his fists. Appellant did come down off the porch and appeared to be ready
3
to fight Andrew but not with fists only. Instead, appellant held up his two weapons and
charged at Andrew, all the while threatening harm to him. As appellant rapidly
approached Andrew, Andrew took a swing at appellant, according to Andrew, in the
hope of putting some distance between the two men and, according to Orlando, in such
a way that it appeared Andrew was trying to knock the weapons from appellant’s grasp.
Andrew ran from appellant out of the yard and into the street and continued to evade
appellant’s advances until police arrived in response to Andrew’s wife’s call, at which
time appellant promptly threw the weapons down.
Appellant testified that he went outside only because he did not know “what was
going on” and wanted to find out. He explained that he believed the two African-
American males who were outside and across the street were conspirators in some type
of plot with Andrew and Orlando to attack or harm appellant. Appellant described the
setting outside as “fishy.” As it turned out, the cousins did not know the two gentlemen
across the street, and there was no evidence that an ambush had been planned against
appellant. Appellant testified that he had carried with him onto the porch the knife he
had been using in the kitchen and only grabbed the hatchet as he was coming onto the
porch, he says, while he was in the front doorway, and only because Andrew, who,
appellant testified, is bipolar and likes to “play[] captain hero,” had started provoking him
and had grabbed the tire iron. He explained he did not go out there to harm anyone and
only went outside to find out what was happening.
Appellant supplied no clear reason for having come down off the porch and
charging after Andrew with the weapons. He does, however, admit to the conduct to
some degree, though rather vaguely:
4
Basically, it was one of them – it was like a magnet, you know. They were
provoking me. I would go out there half way to the – to the – to the front
yard, and then when I would see they wasn’t – they was just talking
baloney, I would come back and they would try to grab me from behind, as
he – as he testified to, you know. So I would turn around. It was one of
those kind of things.
And I was walking to the house when the officer told me to – drove up with
the lights on and told me. I did not even see the officers coming. I threw
them weapons down before the officers even came.
He characterized the interaction between him and Andrew as “going at each other,”
during which appellant would move toward Andrew and then Andrew would move
toward him.
Appellant also admitted that he simply could have gone back inside the house,
and he acknowledged that, when he first came outside, it appeared that Andrew was
preparing to leave, an observation which seems inconsistent with his position that he
feared an attack by four larger, younger males was imminent. He did testify several
times as to how Andrew was provoking him. He admitted, too, that he did threaten
Andrew with bodily harm but denied having threatened to kill him; “[h]e’s my nephew,”
appellant explained. Appellant maintained that, before the police arrived, he had
already thrown down his weapons and gone inside the house, having realized that his
nephews were “just talk.”
Following a trial to the bench, the trial court found appellant guilty of aggravated
assault with a deadly weapon as charged and sentenced appellant to twenty-five years
in prison. In his sole issue, appellant contends that the evidence is insufficient to
support his conviction for aggravated assault because the circumstances presented at
the time made it immediately necessary for him to charge after Andrew while wielding
two deadly weapons. See TEX. PENAL CODE ANN. §§ 2.03, 9.22 (West 2011).
5
Standard of Review
The defense of necessity is a defense to prosecution under Section 2.03 of the
Texas Penal Code. See id. §§ 2.03, 9.22. A defendant asserting a Section 2.03
defense has the burden of producing some evidence to support his claim of the
defense. Zuliani v. State, 97 S.W.3d 589, 594 (Tex. Crim. App. 2003); Smith v. State,
355 S.W.3d 138, 144 (Tex. App.—Houston [1st Dist.] 2011, pet. ref’d). Once the
defendant produces that evidence, the State bears the ultimate burden of persuasion to
disprove the raised defense. Zuliani, 97 S.W.3d at 594. The burden of persuasion
does not require that the State produce evidence disproving the defense; rather, it
requires that the State prove its case beyond a reasonable doubt. See id.; Saxton v.
State, 804 S.W.2d 910, 913 (Tex. Crim. App. 1991) (en banc). If the jury finds the
defendant guilty, then it implicitly rejects his defensive theory. Zuliani, 97 S.W.3d at
594; Saxton, 804 S.W.2d at 914. So, in analyzing the sufficiency of the evidence in this
context, we look not to whether the State presented evidence which refuted appellant’s
necessity defense testimony; rather, we determine whether, after viewing all the
evidence in the light most favorable to the prosecution, any rational trier of fact would
have found the essential elements of the charged offense beyond a reasonable doubt
and also would have found against appellant on the defense of necessity beyond a
reasonable doubt. See Saxton, 804 S.W.2d at 914 (citing the well-established
sufficiency-of-the-evidence standard as outlined in Jackson v. Virginia, 443 U.S. 307, 99
S. Ct. 2781, 61 L. Ed. 2d 560 (1979)); see also Brooks v. State, 323 S.W.3d 893, 895
(Tex. Crim. App. 2010).
6
Applicable Law
A person commits assault if he “intentionally or knowingly threatens another with
imminent bodily injury.” TEX. PENAL CODE ANN. § 22.01(a)(2) (West Supp. 2013). An
assault becomes aggravated if the actor commits assault and uses or exhibits a deadly
weapon during commission of the assault. See id. § 22.02(a)(2). The Texas Penal
Code provides that a person’s conduct is justified, however, if the following elements
are established: (1) the actor reasonably believes the conduct is immediately necessary
to avoid imminent harm; (2) the desirability and urgency of avoiding the harm clearly
outweigh, according to ordinary standards of reasonableness, the harm sought to be
prevented by the law proscribing the conduct; and (3) a legislative purpose to exclude
the justification claimed for the conduct does not otherwise plainly appear. Id. § 9.22.2
A “[r]easonable belief” is “a belief that would be held by an ordinary and prudent
man in the same circumstances as the actor.” Id. § 1.07(a)(42) (West Supp. 2013);
Sanchez v. State, 418 S.W.3d 302, 309 (Tex. App.—Fort Worth 2013, no pet.).
Whether the accused’s belief is reasonable is a question of fact and should be viewed
from the accused’s standpoint at the time he acted. See Fitzgerald v. State, 782
S.W.2d 876, 885 (Tex. Crim. App. 1990) (en banc). A defendant’s belief that his
conduct is immediately necessary to avoid imminent harm is unreasonable as a matter
of law—even if entirely sincere—when the undisputed facts demonstrate a complete
absence of “immediate necessity” or “imminent harm” as legally defined. See Dewalt v.
2
The confession and avoidance doctrine applies to the necessity defense. Juarez v. State, 308
S.W.3d 398, 399 (Tex. Crim. App. 2010). Therefore, a defendant must admit to the conduct—both the
act and the culpable mental state—of the charged offense to be entitled to a necessity instruction. Id.;
see Wood v. State, 271 S.W.3d 329, 334 (Tex. App.—San Antonio 2008, pet. ref’d). For the purpose of
addressing and disposing of the sole issue raised on appeal in the instant case, we will assume without
deciding but with no small amount of doubt that appellant sufficiently confessed to the act charged such
that he would have been entitled to an instruction on necessity.
7
State, 307 S.W.3d 437, 454 (Tex. App.—Austin 2010, pet. ref’d); Washington v. State,
152 S.W.3d 209, 212 (Tex. App.—Amarillo 2004, no pet.). “‘Imminent’ means
something that is impending, not pending; something that is on the point of happening,
not about to happen.” Schier v. State, 60 S.W.3d 340, 343 (Tex. App.—Houston [14th
Dist.] 2001, pet. ref’d); Smith v. State, 874 S.W.2d 269, 272–73 (Tex. App.—Houston
[14th Dist.] 1994, pet. ref’d). “Imminent” requires a present, rather than future, threat.
See Garcia v. State, 972 S.W.2d 848, 849 (Tex. App.—Beaumont 1998, no pet.) (citing
Devine v. State, 786 S.W.2d 268, 270 (Tex. Crim. App. 1989) (en banc)). “[I]mminent
harm” exists “when there is an emergency situation and it is ‘immediately necessary’ to
avoid that harm, when a split-second decision is required without time to consider the
law.” Schier, 60 S.W.3d at 343; Smith, 874 S.W.2d at 273.
Analysis
The State maintains that the evidence is sufficient to prove all the requisite
elements of the charged offense beyond a reasonable doubt and, further, that the
record supports the fact-finder’s implicit rejection of the conclusion that Andrew, who
was outside and preparing to leave the premises, posed a threat of “imminent harm” to
appellant such that it became immediately necessary for appellant to come outside,
come down off the front porch into the yard, and chase Andrew into the street while
wielding a knife and a hatchet. We agree.
The elements of aggravated assault as charged here required the State to prove
the following: (1) Appellant (2) intentionally or knowingly (3) threatened Andrew with
imminent bodily injury while (4) using or exhibiting a deadly weapon, namely, a knife or
a hatchet, or a combination thereof, during the commission of the assault. See TEX.
8
PENAL CODE ANN. § 22.02(a)(2). Without contradiction, the record reveals evidence that
both the knife, described by one witness as “a foot-long butcher knife,” and the hatchet,
a hatchet/hammer combination tool apparently used in the roofing industry, were deadly
weapons. See id. § 1.07(a)(17)(B) (defining a “[d]eadly weapon” as “anything that in the
manner of its use or intended use is capable of causing death or serious bodily injury”).
The record further establishes that appellant came outside to the porch with the
deadly weapons, came down off the porch after issuing threats to his nephews for some
time, and charged after Andrew while bearing those weapons and threatening to kill and
harm him, coming very near to him—near enough that Andrew was almost able to hit
him—before Andrew fled into the street. At trial, Andrew expressed his belief that, had
he not run when he did, he would be “dead for sure.” We do recognize that appellant
described the interaction rather differently; the trial court, sitting as finder of fact, was
free to disregard appellant’s account and was charged with resolving conflicting
testimony. See Joseph v. State, 897 S.W.2d 374, 376 (Tex. Crim. App. 1995) (en banc)
(“The trial judge, when sitting as the sole trier of facts, is the exclusive judge of the
credibility of the witnesses and the weight to be given to their testimony.”).
Appellant acknowledged that, when he came outside, Andrew was preparing to
leave and also conceded that, instead of leaving the porch and charging after Andrew,
he simply could have gone back inside the house. See Schier, 60 S.W.3d at 343.
Appellant’s testimony also suggests that he may have acted so aggressively because
he perceived Andrew and the others as “provoking” him. However, the Texas Penal
Code provides no justification for conduct undertaken as a result of such verbal
provocation. Appellant explained that he went outside to the porch to see “what was
9
going on.” He did not provide a clear explanation of why he came down off the porch
and into the yard where the rest of the family was, other than, perhaps, his insistence
that Andrew was provoking him to do so. A “reasonable and prudent man” under the
circumstances presented here would not have believed that Andrew, who was
positioned outside the house and well away from appellant and who was preparing to
leave when appellant came outside, posed a present, impending threat of harm to
appellant such that it was immediately necessary for appellant to charge after Andrew
with a knife and a hatchet. See id.; Garcia, 972 S.W.2d at 849; see also TEX. PENAL
CODE ANN. § 1.07(a)(42).
Viewing the evidence in the light most favorable to the verdict, we conclude that
sufficient evidence supported the trial court’s verdict that appellant was guilty of
aggravated assault with a deadly weapon as charged and the trial court’s implicit
rejection of appellant’s asserted defense of necessity. See Saxton, 804 S.W.2d at 914.
Accordingly, we overrule appellant’s sole point of error.
Conclusion
Having overruled appellant’s sole issue on appeal, we affirm the trial court’s
judgment of conviction. See TEX. R. APP. P. 43.2(a).
Mackey K. Hancock
Justice
Do not publish.
10
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965 F.Supp. 3 (1997)
Joseph CORETTI, Plaintiff,
v.
Daniel J. LEFKOWITZ, and Daniel J. Lefkowitz, Esq., P.C., Defendants.
Civil No. 3:97CV00586(PCD).
United States District Court, D. Connecticut.
June 6, 1997.
*4 Kent M. Miller, Bridgeport, CT, for Plaintiff.
Michael G. Considine, Catherine Dugan O'Connor, Day, Berry & Howard, Stamford, CT; Daniel J. Lefkowitz, Wayne R. Louis, of Daniel J. Lefkowitz, P.C., Jericho, NY, for Defendants.
RULING ON MOTION TO DISMISS
DORSEY, Chief Judge.
Defendants Daniel J. Lefkowitz and Daniel J. Lefkowitz, Esq., P.C. ("Defendants") move to dismiss Plaintiff's claims under the Federal Fair Debt Collection Practices Act, 15 U.S.C § 1692 et seq. (the "FDCPA"). For the following reasons, Defendants' motion to dismiss is GRANTED.
I. BACKGROUND
Plaintiff subscribed for cable television services supplied by Defendants' client, Cablevision Systems of Southern Connecticut, L.P. ("Cablevision"). By letter dated April 29, 1996, Defendants charged Plaintiff with purchasing an illegal decoding device used in obtaining premium cable services, in violation of federal and state law. Defendants demanded, among other things, $4,000 to settle the matter. Plaintiff did not settle with Cablevision, and Defendants filed suit on behalf of Cablevision in the United States District Court for the District of Connecticut, alleging violations of the Federal Communications Act of 1934, as amended, 47 U.S.C. §§ 553(a)(1), 605(a), and state law.[1]
Plaintiff seeks damages from Defendants under § 1692k of the FDCPA, for mental anguish, embarrassment, humiliation and damage to his reputation. Plaintiff also seeks to recover his legal fees and expenses incurred in defending Cablevision's lawsuit. He alleges a violation of the FDCPA in attempting to collect a "debt" owed to Cablevision. Specifically, he asserts that Defendants' conduct in, among other things, sending the April 29 letter and commencing the federal lawsuit on Cablevision's behalf violated the FDCPA.
II. DISCUSSION
A. Standard of Review
A motion to dismiss is properly granted when "it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Yale Auto Parts, Inc. v. Johnson, 758 F.2d 54, 58 (2d Cir.1985) (quoting Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 2232, 81 L.Ed.2d 59 (1984)). A motion to dismiss must be decided on the facts as alleged in the complaint. Goldman v. Belden, 754 F.2d 1059, 1065-66 (2d Cir.1985). All facts alleged in the complaint are presumed to be true and are considered in the light most favorable to the non-movant. Williams v. Avco Lycoming, 755 F.Supp. 47, 49 (D.Conn.1991). A court, however, is not required to accept legal conclusions that are not supported by factual allegations. Packer v. Yampol, 630 F.Supp. 1237, 1241 (S.D.N.Y. *5 1986) (citing 5 C. A. Wright & A. R. Miller, Federal Practice and Procedure: Civil Sec. 1357, at 595-96 (1969)).
B. Meaning of "Debt" under 15 U.S.C. § 1692
A cause of action under 15 U.S.C. § 1692, must be premised on the existence of a "debt." Zimmerman v. HBO Affiliate Group, 834 F.2d 1163, 1167 (3d Cir.1987). "Debt" is defined as:
"any obligation or alleged obligation of a consumer to pay money arising out of a transaction in which the money, property, insurance or services which are the subject of the transaction are primarily for personal, family, or household purposes, whether or not such obligation has been reduced to judgment."
15 U.S.C. § 1692a(5) (emphasis added).
A "transaction" within the FDCPA is "a transaction in which a consumer is offered or extended the right to acquire `money, property, insurance or services' ... and to defer payment." Zimmerman, 834 F.2d at 1168 (emphasis added).[2] "[T]he paradigmatic example of a `transaction' is when a person is given the opportunity to enjoy a commodity or service now, and pay later." Vosatka v. Wolin-Levin, Inc., No. 94-C-4129, 1995 WL 443950, at *3 (N.D.Ill. July, 21, 1995) (emphasis added). A claim arising out of an alleged theft does not constitute a "debt" under the FDCPA. Shorts v. Palmer, 155 F.R.D. 172 (S.D.Ohio 1994). "[A]lthough a thief undoubtedly has an obligation to pay for the goods or services he steals, the FDCPA limits its reach to those obligations to pay arising from consensual transactions, where parties negotiate or contract for consumer-related goods or services." Bass v. Stolper, Koritzinsky, Brewster & Neider, S.C., 111 F.3d 1322, 1326 (7th Cir.1997).
Plaintiff's alleged unauthorized reception of Cablevision's Pay Per View and Premium Programming constitutes theft not a receipt of services giving rise to a "debt." While Cablevision did extend to Plaintiff the right to defer payment with respect to its basic cable package, it did not extend any such right with respect to Cablevision's Pay Per View or Premium Programming Services.
Plaintiff is correct that a debt collector cannot escape the provisions of the FDCPA by using alternative means of collecting a debt, such as through a court proceeding. However, there must be a debt. Plaintiff's alleged theft by use of an illegal decoding device does not constitute a "debt" within the meaning of the FDCPA.[3] Accordingly, Defendants' April 29 letter and the lawsuit were not an attempt to collect a "debt."[4]
III. CONCLUSION
For the reasons set forth above, Defendants' motion to dismiss [doc. # 7] is GRANTED. Defendants' request that this case be transferred is DENIED AS MOOT.
SO ORDERED.
NOTES
[1] A copy of the April 29, 1996 letter and the proposed settlement agreement are attached as Exhibit A to the Memorandum of Law in Support of Defendants' Motion for Order Dismissing Plaintiff's Complaint Pursuant to Fed.R.Civ.P. 12(b)(6) ("Memo. Supp."). Defendants' complaint in Cablevision Systems of Southern Connecticut, L.P., v. Joe Coretti. et al., Case No. 3:96cv1766, is attached as Exhibit B to the Memo. Supp. When presented with material outside of the pleadings on a motion to dismiss, a court must either disregard such material or give the parties notice that the motion is being converted into one for summary judgment and permit the parties to submit evidence. Kopec v. Coughlin, 922 F.2d 152, 155-56 (2d Cir.1991) (citing Fed.R.Civ.P. 12(b)(6)). Plaintiff references the April 29 letter and Defendants' lawsuit in his complaint. His claims are based largely on those documents. Accordingly, as "integral" to the complaint, those documents may be considered in deciding the motion to dismiss without converting it to one for summary judgment. International Audiotext Network, Inc. v. AT & T, 62 F.3d 69, 72 (2d Cir.1995) (citation omitted).
[2] The Second Circuit has not yet addressed this issue.
[3] Plaintiff's reliance on Narwick v. Wexler, 901 F.Supp. 1275 (N.D.Ill.1995), is misplaced. In Narwick, the plaintiff purchased goods with a check, which was returned for insufficient funds "the check represented Narwick's obligation to pay money for the purchases...." Id. at 1281.
[4] Zimmerman, 834 F.2d at 1167 (a monetary demand for settlement of a potential tort claim is not a "debt" within the FDCPA).
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133 Ariz. 185 (1982)
650 P.2d 487
STATE of Arizona, Appellee,
v.
Norma LYCETT aka Garcia, Appellant.
No. 1 CA-CR 5106.
Court of Appeals of Arizona, Division 1, Department B.
July 29, 1982.
*187 Robert K. Corbin, Atty. Gen. by William J. Schafer, III, Chief Counsel, Crim. Div., Jessica Gifford, Asst. Attys. Gen., Phoenix, for appellee.
Smith & Feola, P.C. by Barry Becker, Dennis I. Wilenchik, Phoenix, for appellant.
OPINION
JACOBSON, Presiding Judge.
The defendant appeals from her conviction of one count of conspiracy and one count of promoting, offering or granting participation in a pyramid scheme following a trial by jury. The imposition of sentence was suspended, and the defendant was placed on two years probation and was fined $240. The defendant was also required to reimburse Maricopa County in the amount of $240 as and for attorney's fees. She timely filed a notice of appeal and raises three issues for our consideration: (1) whether A.R.S. § 44-1731 is unconstitutionally vague and overbroad; (2) whether A.R.S. § 44-1731 is unlawful because it is a strict liability statute; (3) whether the trial court improperly admitted into evidence extrajudicial statements of various co-conspirators against the defendant. We affirm.
This case is a companion case to State v. Hill, 1 CA-CR 5168, Memorandum Decision issued this date. Defendants Hill and Lycett were charged with identical counts arising out of the same transaction and were tried jointly. The evidence at trial revealed that on February 22, 1980, Sandy Gantner, who testified under a grant of immunity, went to a meeting of the Business Men's Venture Club. Hill and Lycett were both present at that meeting. At the meeting, Jack Musgrave used a pyramid chart to explain how each person would pay $1,000 to put his name on the chart. Of that $1,000, $500 would go to the person directly above his name on the chart who recruited him to sign up, and $500 would go to the person at the top of the pyramid chart. Each person who had paid his $1,000 then would recruit two more people to sign up, and those two people would pay $500 to the person who recruited them and $500 to the person on the top line. Each person who paid his $1,000 would start his own *188 chart, the object being for each person's chart to be filled by recruiting others who would then in turn recruit others. Ultimately, if 128 people were recruited the initial investor would make $64,000. Musgrave also explained that of the $64,000, $500 would be paid to the recording secretary for taking care of the books and money. Musgrave told people at the meeting not to mail checks to the recording secretary because "it would be like mail fraud." The defendants Hill and Lycett were both present when Musgrave made the statement.
Hill stated that she came to Arizona from Kansas to get her sister, Lycett, involved. When the formal presentation was complete, the persons attending the meeting broke up into small groups, and at that time Hill explained the charts to people and indicated where their names would go on their charts and how many people they needed in order to hit their "pay line." Hill told Gantner that she had made a lot of money with the Business Men's Venture Club in Missouri and that the charts had worked well for her.
On February 29, 1980, another meeting of the Business Men's Venture Club was held at the Gantner home. Sandy Gantner testified that both defendant Lycett and Hill were present at that meeting and that Bill Musgrave, the brother of Jack Musgrave, made a presentation similar to the presentation at the meeting on February 22, 1980. Musgrave introduced Hill and Lycett saying that they would be the recording secretaries for the Business Men's Venture Club in Phoenix. Lycett gave people her phone number at that meeting and explained the charts to people after they had broken into small groups.
Sandy Gantner testified that she attended another meeting on March 4, 1980, at which both defendants were present. Alice and Bill Musgrave made presentations at that meeting. Alice Musgrave said that the pyramid scheme was "like committing adultery or running three [sic] red lights as long as nobody complained" there was nothing to worry about. At this meeting, both Hill and Lycett explained the charts to other persons attending the meeting. Additionally, Gantner testified that Lycett collected money from participants at the meeting, and that she was assisted by defendant Hill.
Sandy Gantner testified that she held another meeting on March 7, 1980, at her home. Alice Musgrave called Gantner prior to that meeting and said she had found out that it was illegal and that she wanted to call the meeting off because the press might be there. The meeting proceeded nevertheless, and both Hill and Lycett were present. The defendants once again helped explain the charts to persons present at the meeting. It was Gantner's opinion that Hill was promoting the Business Men's Venture Club at that meeting.
Gerald Newhouse, an investigator for the Attorney General's office, testified that he also attended the meeting on March 7, 1980, in an undercover capacity. He tape recorded a major portion of the meeting, and the tape recording was transcribed. Both the tape recording and the transcription were introduced at trial over the defendant's objections. When Newhouse first arrived at the meeting, he heard Hill tell two women that they were not doing anything illegal and not to worry about the legality of the operation. Jack Musgrave made the presentation at this March 7 meeting, and described how much money could be made by the scheme, his personal financial experience with the plan and the financial rewards he experienced. He stated that Sara Hill could vouch for everything he said. He also said that he was putting his children on a chart and setting up a trust fund for them, and that he intended to "get on a chart" in Las Vegas. He told the group that the important thing was for them to get on a chart as soon as possible. He pointed out that the persons organizing the Business Men's Venture Club were his two brothers and Hill. Newhouse testified that during Musgrave's presentation, Hill stated encouraging things: that it was the greatest thing that had happened to her, that she made an investment for her children, and that she would like to invest in Las Vegas. *189 During this presentation, Musgrave, Hill and Lycett all mentioned that the investors were not to put their checks in the mail because it would be like mail fraud. Musgrave introduced Lycett as the recording secretary, and she told the group to call ahead when they had the cashier's check and make an appointment with her. After the meeting broke into small groups, Newhouse, who did not invest any money in the Business Men's Venture Club, received his own chart from a Mr. Garcia, who in turn got it from Lycett. Lycett told Garcia the names to fill out above Newhouse's on his chart, and those names were: J.C. Musgrave, D. Musgrave, S. Hill, B.J. Musgrave, N. Lycett, R. Garcia. Newhouse observed other charts that night with the names S. Hill and N. Lycett on them. Hill questioned Newhouse during the meeting about who his sponsor was and whether or not he was invited to be there. Hill also told Newhouse that the Business Men's Venture Club was a "very good thing and every [sic] good way of making some money" and that he had a potential of making $64,000. Based upon their participation, in Newhouse's opinion, both Hill and Lycett were promoting the Business Men's Venture Club to make money for themselves.
Shortly after the March 7 meeting, Hill, Lycett and the Musgraves were arrested. All of the defendants, with the exception of Hill and Lycett pled guilty. However, prior to trial, the defendants filed a motion to dismiss on the grounds that the case was based on discriminatory enforcement, that the statute defining pyramid scheme was void for vagueness, and that the statute should be stricken because it was a strict liability statute. Those motions were denied by the trial court. Hill and Lycett also filed a motion in limine to preclude the admission of hearsay statements and acts by co-conspirators. This motion was denied by the trial court during trial.
Finally, the state called as an expert witness, Dr. Dennis L. Young, Associate Professor of Mathematics at Arizona State University, who testified that in order for the first 255 people on a pyramid chart to obtain $64,000, 32,512 investors would need to be recruited. For those 32,512 investors to earn their $64,000, more than 4 million investors would be required, and for the 4 million investors to make their $64,000, 532 million investors would have to be recruited, and for those 532 million investors to receive a $64,000 return, 68 billion investors would be necessary. Dr. Young testified that approximately 50 per cent of all investors would never receive their initial $1,000 back, and that slightly less than one per cent would ever make $64,000.
CONSTITUTIONALITY OF A.R.S. § 44-1731
For her first argument on appeal, the defendant asserts that A.R.S. § 44-1731 is unconstitutionally vague and overbroad. A.R.S. § 44-1731 reads as follows:
A. It is illegal and prohibited for any person or his or its agent or employee to promote, offer or grant participation in a chain or pyramid distributor scheme.
B. In this article, a "chain distributor scheme" or a "prayamid distributor scheme" is a sales device whereby a person, upon condition that he make an investment, is granted a license or right to solicit or recruit for profit or economic gain one or more additional persons who are also granted such license or right upon condition of making an investment and may further perpetuate the chain of persons who are granted such license or right upon such condition.
C. In this article, "investment" means any acquisition, for a consideration other than personal services, of property, tangible or intangible, and includes without limitation franchises, business opportunities and services. It does not include sales demonstration equipment and materials furnished at cost for use in making sales and not for resale.
D. A limitation as to the number of persons who may participate, or the presence of additional conditions affecting eligibility for such license or right to recruit or solicit or the receipt of profits therefrom, does not change the identity of the *190 scheme as a chain or pyramid distributor scheme.
In analyzing a claim of unconstitutionality for vagueness and overbreadth, this court has a duty to construe a statute in such a manner that it will be constitutional. Schecter v. Killingsworth, 93 Ariz. 273, 380 P.2d 136 (1963). There is a strong presumption supporting the constitutionality of statutes, and the party challenging the validity of the statute has the burden of establishing the invalidity of the statute beyond a reasonable doubt. Rochlin v. State, 112 Ariz. 171, 540 P.2d 643 (1975). Moreover, "the Legislature possesses broad discretion in defining criminal offenses, so long as the classification of an act is not totally arbitrary or capricious." State v. Leeman, 119 Ariz. 459, 462, 581 P.2d 693, 696 (1978). In State ex rel. Purcell v. Superior Court, 111 Ariz. 582, 535 P.2d 1299 (1975), the Arizona Supreme Court defined the difference between a claim of unconstitutional vagueness and unconstitutional overbreadth as follows:
A statute is too vague when it fails to give fair notice of what it prohibits. It is overbroad when its language, given its normal meaning, is so broad that the sanctions may apply to conduct which the state is not entitled to regulate.
111 Ariz. at 584, 535 P.2d at 1301.
The underlying principle for the requirement that statutes be sufficiently definite to give a person notice that his contemplated conduct is forbidden "is that no person should be required, at the risk of his liberty, to speculate as to the meaning of a criminal statute." State v. Limpus, 128 Ariz. 371, 375, 625 P.2d 960, 964 (App. 1981).
The defendant's argument that the statute is unconstitutionally vague is based on the very nature of the investment in a pyramid scheme, that is, one who invests money in the scheme must encourage other people to join it or else lose his own money, and that therefore, the statute refers to both victims and perpetrators as a single class. She states that all who invest as victims exhibit an attempt to violate subsection A of the statute, and that therefore it is unclear what behavior is intended to be proscribed, the promoting and granting, or the investing. She also asserts that subsection C of the statute is incomprehensible because "acquisition" is not defined and is therefore vague.
The language of the statute is clear on its face that a pyramid scheme involves a person making an investment, who is then given the opportunity to find other people to make the same investment, who, in turn, are granted the same opportunity to get other people involved, all in the hope that each person will receive a profit by getting the other people involved. Under subsection A of § 44-1731, in order for a person to be criminally liable under the statute, a person must promote, offer or grant participation in a pyramid scheme. Even if it is true that most people who join the scheme would attempt to exercise their license to get others involved, the statute makes it clear that the state would have to prove beyond a reasonable doubt that a person charged with an offense under the statute did, in fact, encourage others to join, and thus proof of mere investing would not be enough to sustain a conviction under A.R.S. § 44-1731. We therefore hold that A.R.S. § 44-1731 is not void for vagueness in failing to distinguish between promoters and investors.
Defendant's argument that the statute is also vague because it fails to define the word "acquisition" in subsection C of the statute, also fails. Subsection B of the statute defines the "pyramid scheme" as a "sales device whereby a person, upon condition that he make an investment" is granted a license to solicit others. Subsection C defines "investment" as "any acquisition, for a consideration other than personal services" of tangible or intangible property. In context, the term "acquisition" refers to the consideration that the investor parts with for the privilege of being allowed to participate in the scheme. We therefore reject the defendant's argument that the "acquisition" is the mere hope of the investor making $64,000.
*191 We find the statute is not void for vagueness. Defendant next contends that subsection D is overbroad because it declares all pyramid schemes illegal despite any limitations as to the number of persons who may participate or the presence of conditions as to eligibility. She contends that it prescribes pyramid schemes "even among family members, social acquaintances, and without regard to the degree of sophistication of the participants."
In order to sustain a challenge on overbreadth grounds, a defendant must show that he or she is being punished for some protected expressive activity or is a member of the class whose innocent conduct is being persecuted.[1]State ex rel. Purcell v. Superior Court, supra; State v. Schoner, 121 Ariz. 528, 591 P.2d 1305 (App. 1979). The rationale behind the enactment of the comprehensive pyramid scheme statute is understandable when the nature of a pyramid scheme is understood. A pyramid scheme is made illegal by the legislature because, by its very nature, it's an inherent fraud in that all of the later investors in this scheme must lose their entire investment. A cursory review of the charts of the Business Men's Venture Club indicates that the number of participants on the chart must be constantly doubled in order for persons to recover their original investment.
As Professor Young testified, for the first 255 people on the pyramid chart to obtain the promised return of $64,000, 32,512 investors would need to be recruited. For these 32,512 investors to get their return, an additional 4 million investors are required; then 532 million investors, and then 64 billion investors. It is clear that the number of individuals who would lose their money under such scheme becomes greater as the scheme is allowed to spread. A.R.S. § 44-1731 serves a legitimate public interest by imposing criminal liability on those who would encourage other persons to join the scheme, because unless the promotors are stopped, they will enlarge the number of people who must ultimately lose their money in the scheme. The state is entitled to regulate such inherently fraudulent conduct, even among family members and social acquaintances and without regard to the degree of sophistication of the participants. Clearly the defendant's conduct fell within the parameters of the conduct prohibited by the statute.
Further A.R.S. § 44-1731 does not begin to encroach on any constitutionally protected activities. In this case, the speech and conduct proscribed by § 44-1731 which encourages others to join a pyramid scheme is what is specifically made illegal under the terms of the statute, and does not amount to constitutionally protected speech:
[I]t has never been deemed an abridgment of freedom of speech or press to make a course of conduct illegal merely because the conduct was in part initiated, evidenced, or carried out by means of language, either spoken, written, or printed.
Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 502, 69 S.Ct. 684, 691, 93 L.Ed. 834, 843-44 (1949).
Finally, the defendant contends that there is a denial of equal protection because there is no rational basis for the exception in A.R.S. § 44-1731(C)[2] for sales demonstration equipment and materials furnished at cost for use in making sales. We conclude, as the state points out, that there is a rational difference "between the legitimate business practice of putting up money to demonstrate a product in the hope that it will be purchased, and enticing people to *192 `invest' cash in exchange for the right to entice others into parting with their cash, with the inevitable end result that 50 percent of the participants will lose their cash outlay." We find no denial of equal protection.
STRICT LIABILITY
The defendant next asserts that we should find that A.R.S. § 44-1731 is void simply because it is a strict liability statute. The defendant concedes that the state has the power to enact criminal statutes that do not require a criminal intent, and the question here is whether § 44-1731 is the type of strict liability statute which may be enacted by the legislature. In Morissette v. United States, 342 U.S. 246, 72 S.Ct. 240, 96 L.Ed. 288 (1952), the United States Supreme Court held that strict liability statutes may be enacted to protect the public health, safety and welfare. A.R.S. § 44-1731 is a regulatory statute passed by the legislature in the exercise of its police powers designed to protect society from the automatic loss attributable to pyramid schemes. It is enacted to protect the public safety and welfare from the loss that must occur if pyramid schemes are initiated. In Morissette, the Supreme Court noted that strict liability statutes are becoming more prevalent in modern society, and that society has caused regulations which heighten the duty of care imposed upon individuals in particular activities, stating:
This has confronted the courts with a multitude of prosecutions, based on statutes or administrative regulations, for what have been aptly called "public welfare offenses." These cases do not fit neatly into any of such accepted classifications of common-law offenses, such as those against the state, the person, property, or public morals. Many of these offenses are not in the nature of positive aggressions or invasions, with which the common law so often dealt, but are in the nature of neglect where the law requires care, or inaction where it imposes a duty. Many violations of such regulations result in no direct or immediate injury to person or property but merely create the danger or probability of it which the law seeks to minimize. While such offenses do not threaten the security of the state in the manner of treason, they may be regarded as offenses against its authority, for their occurrence impairs the efficiency of controls deemed essential to the social order as presently constituted. In this respect, whatever the intent of the violator, the injury is the same, and the consequences are injurious or not according to fortuity. Hence, legislation applicable to such offenses, as a matter of policy, does not specify intent as a necessary element.
342 U.S. at 255-56, 72 S.Ct. at 246, 96 L.Ed. at 296-97. It is clear that the legislature enacted A.R.S. § 44-1731 to protect the public from the loss that must occur if pyramid schemes are initiated. Because such schemes are inherently fraudulent, the legislature defined them as malum prohibitum, and we hold that the legislature acted appropriately in so doing.
The defendant also claims that the comments by R. Gerber to A.R.S. § 13-202(B) demonstrates that the legislature did not intend for the pyramid scheme statute to be a strict liability statute. A.R.S. § 13-202(B) provides:
If the statute defining an offense does not expressly prescribe a culpable mental state that is sufficient for commission of the offense, no culpable mental state is required for the commission of such offense, and the offense is one of strict liability unless the proscribed conduct necessarily involves a culpable mental state. If the offense is one of strict liability, proof of a culpable mental state will also suffice to establish criminal responsibility.
Gerber's comments on Subsection B as follows:
Subsection (B) apparently establishes some limitation on strict liability legislation so that an appropriate mental state will be judicially read into statutes which "necessarily involve" a culpable mental state. The Code's only clearly designated strict liability statutes are new A.R.S. *193 § 13-1105 on felony-murder and new A.R.S. § 13-1603 prohibiting littering.
R. Gerber, Criminal Law of Arizona 29 (1978). This comment to Section 13-202(B), refers only to those crimes contained in the new criminal code, A.R.S. §§ 13-101 to 4221, not to offenses defined in other parts of the Arizona Revised Statutes. Nothing in these comments to A.R.S. § 13-202(B) could be construed as a statement that the legislature did not intend A.R.S. § 44-1731 to be a strict liability statute. It is the legislative intent which is determinative of whether a criminal statute is malum prohibitum or malum in se. State v. Burrow, 13 Ariz. App. 130, 474 P.2d 849 (1970).
ADMISSION OF CO-CONSPIRATORS' STATEMENTS
For her last argument on appeal, the defendant contends that the trial court erred in admitting the tape recordings and the transcript of the tape recording containing statements of the co-conspirators.
Concerning the statements admitted in the trial which constitute extra judicial statements by co-conspirators, 17A A.R.S., Rules of Evidence, Rule 801(d)(2)(E), excludes from hearsay the statements made by a co-conspirator of a party "during the course and in furtherance of the conspiracy." It is further clear that while there must be sufficient independent proof of the conspiracy to render such statements admissible, the trial court may vary the order of proof and admit the declarations of co-conspirators subject to the subsequent production of the independent proof of the conspiracy. State v. Ferrari, 112 Ariz. 324, 541 P.2d 921 (1975); State v. Speerschneider, 25 Ariz. App. 340, 543 P.2d 461 (1975). 17A A.R.S., Rules of Evidence, Rule 104(a), provides that preliminary questions concerning the admissibility of evidence shall be determined by the court, and Rule 104(b) provides that the court may permit introduction of the evidence "subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition." The defendant asserts that the trial court should apply a preponderance of the evidence standard to the proof of the conspiracy before determining that the co-conspirators' acts and statements are admissible. However, the Arizona Supreme Court has most recently held that the record must reveal "sufficient reliable evidence of a conspiracy" for the declarations to be admissible. State v. Baumann, 125 Ariz. 404, 411, 610 P.2d 38, 45 (1980).
We therefore must determine whether the state introduced "sufficient reliable evidence" of the conspiracy and the defendant's participation therein (independent of the statements of the co-conspirators) to make admissible the tape recordings and transcripts.
The evidence independent of the tape recording and the transcript indicates that the defendant Lycett gave people her phone number and explained charts to the members at the meeting of February 29, 1980. At the meeting on March 4, she collected money from people and filled in names on their charts. At the meeting on March 7, 1980, she showed Garcia how to fill out a chart for Newhouse, and that chart had her name on it as a person who would receive money. She introduced herself at the meeting and told all persons there not to put their checks in the mail in order to avoid mail fraud charges, and she also told people to spell names correctly on the cashier's checks. This evidence of defendant's actions alone is sufficient to establish the existence of a conspiracy and her participation in it. Moreover, she contends only that the tape recording and the transcript of it were inadmissible. Therefore, the testimony of Sandy Gantner and of Newhouse concerning the explanations of the pyramid chart and the occurrences at the meetings establishes the existence of a conspiracy beyond a reasonable doubt.
The defendant also argues that the statements were improperly admitted without a cautionary instruction to the jury that they were "conditionally admitted." First, there was no request for such an instruction, and therefore the claim of error was waived for purposes of appeal. Moreover, the defendant has cited no Arizona authority for the proposition that the trial *194 court must preliminarily instruct the jury to disregard statements of the co-conspirators until the jury is satisfied that the state has proven the existence of a conspiracy by independent evidence. In United States v. James, 590 F.2d 575 (5th Cir.1979), the court, interpreting Rule 104 of the Federal Rules of Evidence, concluded that the trial court alone had the duty to determine the admissibility of co-conspirator's statements. The court there specifically stated, "[t]he jury is to play no role in determining the admissibility of the statements." 590 F.2d at 580. To that end, the court held that the trial court should whenever practicable require that the conspiracy and the connection of the defendant with the conspiracy be established by independent proof before admitting declarations of a co-conspirator. In cases where it is not reasonably practicable to require such a showing, the Fifth Circuit noted that the trial court may admit the co-conspirator's statement subject to it being connected by the prosecution. Thus, the question of whether sufficient independent proof of the conspiracy had been presented, and the order of proof were questions for the trial court and not for the jury.
We adopt this rule for Arizona. 17A A.R.S., Rules of Evidence, Rule 104(a), provides that preliminary questions concerning the admissibility of evidence shall be determined by the court. We hold that this rule requires the trial court to determine whether sufficient independent proof of the conspiracy and the defendant's connection therewith has been shown in order to render the co-conspirators' statements admissible. In the instant case, we have already concluded that the state presented sufficient independent proof of the conspiracy and the defendant's connection therewith in order to render the tape recording and the transcript thereof admissible. We conclude therefore that the tape recording and the transcript were properly admitted into evidence.
For the foregoing reasons, the judgment and sentence are affirmed.
GRANT, J., and RICHARD M. DAVIS, J. Pro Tem., concur.
NOTES
[1] The defendant herein does not claim that she is being innocently ensnared by an overbroad statute. In a similar case, Division 2 of this court recently held that a defendant has no standing to challenge a statute on grounds of overbreadth, unless the legislation regulates the exercise of First Amendment rights. State v. Carruth, Hawkins and Brown, 132 Ariz. 368, 645 P.2d 1282 (1982). Defendant's First Amendment argument is dealt with later in this opinion.
[2] For a general discussion of pyramid plans, see Annot. 54 A.L.R.3d 217 (1973).
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128 U.S. 185 (1888)
BUNDY
v.
COCKE.
No. 42.
Supreme Court of United States.
Argued and submitted October 29, 1888.
Decided November 12, 1888.
APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF KENTUCKY.
Mr. John Mason Brown for appellant. Mr. Alexander P. Humphrey and Mr. George M. Davis were with him on the brief.
Mr. B.F. Buckner for defendant in error submitted on his brief.
MR. JUSTICE BLATCHFORD delivered the opinion of the court.
On the 4th of February, 1885, Martin L. Bundy, receiver of the Hot Springs National Bank, of Hot Springs, in the State of Arkansas, filed his bill of complaint in the Circuit Court of the United States for the district of Kentucky, against William M. Cocke and Amanda M. Cocke, his wife, and James Flanagan and Sue Flanagan, his wife, all of the defendants being alleged in the bill to be citizens of Kentucky.
The bill alleges that, on the 1st of March, 1884, the bank was a corporation created and organized under the national banking statutes, with a capital stock of $50,000, divided into *186 500 shares of $100 each at their par value; that it had its office of discount and deposit in the city of Hot Springs, in the State of Arkansas; that it suspended the business of banking on the 27th of May, 1884; that the plaintiff was duly appointed receiver of the bank on the 2d of June, 1884; and that, on the 25th of July, 1884, the comptroller of the currency determined that it was necessary to enforce the individual liability of the shareholders in the bank, to the amount of 50 per centum of the par value of its capital stock, "and did make an order and requisition on the stockholders and each and every one of them, equally and ratably, as the shares were held and owned by them respectively at the time said bank suspended and ceased to do business," and directed the plaintiff "as such receiver" to take the necessary legal proceedings to enforce such assessment against the shareholders in said bank, and each and every one of them.
The bill then contains the following allegation: "And your orator would further state, that on the 27th day of May, A.D. 1884, when said bank suspended and ceased to do business, Amanda M. Cocke, wife of William M. Cocke, (both of whom are made defendants hereto,) was the owner of 100 shares of the capital stock thereof, of the par value of $10,000, and the same still stands in her name on the books of the said association, on which the equal and ratable assessment and requisition made by the comptroller as aforesaid is $5000, with interest thereon from the said 25th day of July, 1884; that said defendant Amanda is possessed of property in her own right amply sufficient to pay said assessment, but utterly refuses to do so."
Then follows a like allegation as to Mrs. Flanagan, as the owner of twelve shares of the stock.
The prayer of the bill is, that an account be taken of the shares of stock held by each of the married women defendants respectively, at the date of such suspension and the assessment and requisition made by the comptroller of currency thereon, and that a decree be made for the payment thereof out of the separate property held by the married women defendants in their own right, as each may be found indebted, with interest
*187 Mr. and Mrs. Cocke filed a demurrer to the bill for want of equity and also for multifariousness. The plaintiff then amended the bill by striking out the names of Flanagan and his wife as defendants; and, in July, 1885, he filed a bill of revivor, based on the fact of the death of Mrs. Cocke in March, 1885.
The bill of revivor alleges, that when Mrs. Cocke died, she was a citizen of Kentucky, and was domiciled and resident therein; that she left a will whereby her husband was appointed her sole executor and her sole residuary legatee and devise; that the will had been duly proved and recorded in the proper court in Kentucky; and that Mr. Cocke had accepted the terms of the will and taken upon himself the office of such executor. The bill prays for the revival of the suit against Mr. Cocke as devise and legatee of his wife and as sole executor of her will, and for relief against him out of all assets received or held by him as devise or legatee of his wife or as executor of her will.
Mr. Cocke appeared and filed a demurrer to the bill of revivor, for want of equity. The cause was heard on the demurrer to the bill and the demurrer to the bill of revivor. The court sustained both of the demurrers, giving to the plaintiff time to amend his bill, and, he declining to do so, a decree was entered dismissing it. From that decree the plaintiff has appealed.
From the opinion of the court, accompanying the record, the ground of the dismissal appears to have been, that the bill was defective in not alleging that, at the time Mrs. Cocke became a stockholder, she had the capacity to become a stockholder. But we think the bill is not open to this objection. It alleges that, at the time the bank suspended, Mrs. Cocke "was the owner" of the 100 shares. This is an allegation that she was then the lawful owner of those shares, and had lawfully become such owner, with the capacity to become such owner at the time she became such owner. It is consistent with this allegation, that she may have owned the shares before she married Mr. Cocke, or that, when she became such owner, if she was then the wife of Mr. Cocke, she had the right to become *188 such owner, by virtue of the laws of the State of Arkansas, where the bank was located, in connection with the provisions of the statutes of the United States in regard to national banks.
Section 4194 of the Digest of the Statutes of Arkansas, published in 1874, c. 93, p. 756, provides as follows: "Section 4194. A married woman may bargain, sell, assign and transfer her separate personal property, and carry on any trade or business, and perform any labor or services on her sole and separate account; and the earnings of any married woman, from her trade, business, labor or services shall be her sole and separate property, and may be used or invested by her in her own name; and she may alone sue or be sued in the courts of this State on account of the said property, business or services." Under this provision, if it was in force at the time of the transaction, it would seem that Mrs. Cocke, when a married woman, might lawfully have either subscribed for or taken an assignment of the shares, they being shares of a national bank in Arkansas, and the transaction being, therefore, governed by the statutes of Arkansas, unless, under special circumstances, a different rule ought to govern. Milliken v. Pratt, 125 Mass. 374.
As the bill alleges that Mrs. Cocke is possessed of property in her own right amply sufficient to pay the assessment, and as the prayer of the bill is for a decree for the payment of the amount of the assessment out of the separate property held by her in her own right, and as the bill of revivor prays for relief against Mr. Cocke out of the assets received by him as the legatee or devisee of his wife, or as executor of her will, the case is clearly one of equitable cognizance, because it does not appear that she could be sued at law, to reach her separate property. 3 Pomeroy's Eq. Juris., § 1099.
The original bill and bill of revivor are sufficient on their faces to call upon Mr. Cocke to answer them, and, when all the facts bearing upon the case are fully developed, the rights of the parties can be properly adjudicated. For that reason, we refrain from considering any of the other questions discussed at the bar.
*189 The decree of the Circuit Court is reversed, and the case is remanded to that court, with a direction to overrule the demurrer to the original bill and the demurrer to the bill of revivor, and to take such further proceedings as may be proper and not inconsistent with this opinion.
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877 A.2d 860 (2005)
90 Conn.App. 59
Thomas O'CONNOR
v.
BOARD OF EDUCATION OF the TOWN OF WETHERSFIELD.
No. 24846.
Appellate Court of Connecticut.
Argued February 23, 2005.
Decided July 5, 2005.
*861 Michael J. Rose, Hartford, with whom was Alexandria L. Voccio, for the appellant-appellee (defendant).
Leon M. Rosenblatt, West Hartford, for the appellee-appellant (plaintiff).
DRANGINIS, BISHOP and WEST, Js.
BISHOP, J.
The defendant, the board of education of the town of Wethersfield, appeals from the judgment of the trial court rendered after the jury's verdict in favor of the plaintiff, Thomas O'Connor. On appeal, the defendant claims that the judgment should be reversed, arguing that the court improperly failed to set aside the jury verdict because (1) the plaintiff's invasion of privacy claim was barred by governmental immunity, (2) the plaintiff failed to exhaust his administrative remedies and (3) the plaintiff's claims were barred by collateral estoppel.[1] The plaintiff cross appeals from the court's rendering of summary judgment on two counts that alleged, respectively, breach of contract and negligent infliction of emotional distress. We reverse in part the judgment of the trial court on the ground that the court improperly failed to set aside the verdict on the one count on which the plaintiff prevailed. We affirm the court's rendering of summary judgment on the counts alleging breach of contract and negligent infliction of emotional distress.
The following facts and procedural history are relevant to our discussion of the issues on appeal. The plaintiff, a teacher employed by the defendant since 1982, was placed on administrative leave on March 25, 1999, following accusations concerning his classroom behavior. On March 29, 1999, Fred G. Rubin, a cardiologist, sent a letter to the defendant explaining that the plaintiff had a preexisting coronary disease, was complaining of chest pain, and was "very anxious and depressed." Shortly thereafter, Robert B. Buganski, the assistant superintendent for the defendant, requested that the plaintiff provide a certification that he was fit to return to work. On October 25, 1999, Rubin provided a response in which he stated that he was "extremely concerned about [the plaintiff's] severe anxiety . . . ."
Following receipt of Rubin's communication, the defendant determined that the plaintiff was not presently fit to return to the classroom, and on December 7, 1999, Lynne B. Pierson, the superintendent of schools, directed the plaintiff to submit to an independent psychiatric evaluation by Harold I. Schwartz, a physician. In conjunction with the pending evaluation by Schwartz, Pierson asked the plaintiff to sign a release for his medical records, including psychiatric records and records related to a visit to a rehabilitation facility. The plaintiff declined to sign the release because the release permitted Schwartz to reveal the medical records to the defendant without any confidentiality restrictions. Instead, the plaintiff cancelled his next scheduled evaluative appointment *862 with Schwartz and, on January 29, 2000, filed an action against the defendant and several individual employees of the defendant in Superior Court, seeking injunctive relief and damages relating to the defendant's request for a release of his medical records.[2] The plaintiff remained on leave of absence and was compensated with accrued sick time until November 1, 2000, when his allotment of sick time expired. The plaintiff continued on unpaid leave until January 28, 2002, when he returned to full-time teaching following an examination by Howard Zonana, a physician, who concluded that the plaintiff did not have any psychiatric disability preventing him from teaching.
Thereafter, the plaintiff instituted the present action naming only the defendant. The plaintiff filed an amended complaint on June 10, 2003, in which he alleged breach of contract, refusal to pay wages, wrongful constructive discharge, violations of the state constitution, negligent infliction of emotional distress, intentional infliction of emotional distress, tortious invasion of privacy and a violation of General Statutes § 31-51q. In response to the breach of contract claim, the defendant raised several special defenses, including the plaintiff's failure to exhaust administrative remedies. As to the common-law tort claims, the defendant raised governmental immunity as a special defense.
The defendant filed a motion for summary judgment on February 4, 2003, and the plaintiff filed a cross motion for summary judgment on June 10, 2003. The court initially granted the defendant's motion for summary judgment as to the counts alleging breach of contract, refusal to pay wages, constructive discharge and violations of the state constitution, and denied the motion as to the remaining counts. Additionally, the court denied the plaintiff's cross motion for summary judgment. Subsequently, the defendant filed a motion for reconsideration of the court's denial of its motion for summary judgment regarding the plaintiff's negligent infliction of emotional distress claim, arguing that the claim was precluded by Perodeau v. Hartford, 259 Conn. 729, 792 A.2d 752 (2002). After reconsideration, the court agreed and granted the defendant's motion as to the negligent infliction of emotional distress count. Thereafter, the case was tried before a jury on the counts alleging tortious invasion of privacy, intentional infliction of emotional distress and violations of § 31-51q. The jury found in favor of the plaintiff on the invasion of privacy claim, awarding him damages of $162,500. After the court denied the defendant's motions for remittitur or a collateral source reduction, and to set aside the verdict or in arrest of the judgment, judgment was rendered in favor of the plaintiff on October 31, 2003. This appeal followed.
I
The defendant claims that the court improperly failed to set aside the verdict because the plaintiff's claim against the defendant for invasion of privacy was barred by governmental immunity. We agree.
"We begin with a brief discussion of the appropriate standard of review. The trial court possesses inherent power to set aside a jury verdict which, in the court's opinion, is against the law or the evidence." (Internal quotation marks omitted.) Howard v. MacDonald, 270 Conn. 111, 126, 851 A.2d 1142 (2004). "[T]he proper appellate standard of review *863 when considering the action of a trial court granting or denying a motion to set aside a verdict . . . [is] the abuse of discretion standard. . . . In determining whether there has been an abuse of discretion, every reasonable presumption should be given in favor of the correctness of the court's ruling. . . . Reversal is required only where an abuse of discretion is manifest or where injustice appears to have been done. . . . A court is empowered to set aside a jury verdict when, in the court's opinion, the verdict is contrary to the law or unsupported by the evidence." (Internal quotation marks omitted.) Menon v. Dux, 81 Conn.App. 167, 173, 838 A.2d 1038, cert. denied, 269 Conn. 913, 852 A.2d 743, cert. denied, ___ U.S. ___, 125 S.Ct. 623, 160 L.Ed.2d 463 (2004).
Our Supreme Court recently considered a similar claim in Pane v. Danbury, 267 Conn. 669, 841 A.2d 684 (2004), in which the plaintiff brought an action against the city of Danbury for, inter alia, intentional infliction of emotional distress by one of its employees. As in this case, the only claims before the court were against the city.[3] Id., at 677-78 n. 9, 841 A.2d 684. Our Supreme Court upheld the trial court's grant of summary judgment in favor of the city as to the plaintiff's count alleging intentional infliction of emotional distress because the city could not be liable for intentional torts committed by its employees under General Statutes § 52-557n(a)(2)(A). Pane v. Danbury, supra, at 685-86, 841 A.2d 684.
Section 52-557n (a)(2) provides in relevant part: "Except as otherwise provided by law, a political subdivision of the state shall not be liable for damages to person or property caused by: (A) Acts or omissions of any employee, officer or agent which constitute criminal conduct, fraud, actual malice or wilful misconduct . . . ." In reviewing whether the plaintiff's claim falls within that statutory subdivision, we must determine whether the allegations of invasion of privacy were comprised of "criminal conduct, fraud, actual malice or wilful misconduct." Several considerations guide our analysis. First, the plaintiff admits that the invasion of privacy count was a claim sounding in intentional tort. Second, in the complaint, the plaintiff alleged that "[t]he defendant, by itself and through its agents, including Dr. Schwartz, intentionally intruded into the private affairs of the plaintiff." Third, in charging the jury, the court equated the invasion of privacy claim with an intentional tort, stating that "[t]he defendant is liable for invasion of privacy if you [find] that it unlawfully and intentionally intruded upon the plaintiff's seclusion." On the basis of our review of the record, it is clear that the plaintiff alleged a violation of an intentional tort. Because there is no distinction between "intentional" and "wilful" conduct; see, e.g., Elliott v. Waterbury, 245 Conn. 385, 415, 715 A.2d 27 (1998); Bauer v. Waste Management of Connecticut, Inc., 239 Conn. 515, 527, 686 A.2d 481 (1996); Dubay v. Irish, 207 Conn. 518, 533 n. 8, 542 A.2d 711 (1988); the plaintiff's allegations of invasion of privacy amount to "wilful misconduct" under the statute and, therefore, § 52-557n (a)(2) provides the defendant immunity from the allegations. Because the plaintiff's claim was governed by the immunity provided in § 52-557n (a)(2), the defendant was immune from suit for the intentional torts of its employees, regardless of whether the acts were ministerial or discretionary, and the court should have set aside the verdict.[4]
*864 The plaintiff asserts several arguments in an effort to avoid the preclusive effect of § 52-557n (a)(2). He argues that this statutory provision applies only to the intentional torts of employees, but not to the conduct of municipalities. That argument lacks merit. It is axiomatic that a government subdivision can act only through natural persons as its agents or employees. See Shay v. Rossi, 253 Conn. 134, 168, 749 A.2d 1147 (2000), overruled in part on other grounds, Miller v. Egan, 265 Conn. 301, 325, 828 A.2d 549 (2003). The plaintiff also contends that municipalities are not immune from claims for intentional torts because of the common-law rule that "[g]overnmental immunity does not exempt from liability for a personal injury resulting from a wanton act or a nuisance." Pope v. New Haven, 91 Conn. 79, 88, 99 A. 51 (1916) (Wheeler, J., dissenting); see also Hoffman v. Bristol, 113 Conn. 386, 391, 155 A. 499 (1931). That argument also fails because although § 52-557n codified portions of the law on immunity available to municipalities, the statute overrode the common-law rule by providing immunity for wilful and wanton acts.[5] Thus, we look to the statute for guidance and not to prior decisional law that was based on then contemporary common law. Therefore, that argument by the plaintiff, too, is unavailing.
The plaintiff finally claims that the defendant waived the special defense of governmental immunity by not proving immunity at trial. That argument also is unpersuasive. On the basis of the allegations in the plaintiff's complaint, there is no dispute that the defendant is a political subdivision. Additionally, in the complaint, the plaintiff alleged that the defendant committed an intentional tort. Because the municipal status of the defendant was undisputed, and the protection of § 52-557n (a)(2) is available to a municipal defendant as a matter of law, the evidence at trial was adequate for the court's legal intervention.
II
We next consider the plaintiff's claims on cross appeal. The plaintiff alleges that the court improperly rendered summary judgment on two counts. "The standard of review of a trial court's decision to grant a motion for summary judgment is well established. Summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Practice Book § 17-49. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . Our review of the trial court's decision to grant [a] motion for summary judgment is plenary." (Internal quotation marks omitted.) McManus v. Sweeney, 78 Conn.App. 327, 330, 827 A.2d 708 (2003). "The test is whether a party would be entitled to a directed verdict on the same facts. . . . A motion for summary judgment is properly granted if it raises at least one legally sufficient defense that would bar the plaintiff's claim and involves no triable issue of fact." (Internal quotation marks omitted.) Appleton v. Board of Education., 53 Conn.App. 252, 256, 730 A.2d 88 (1999), rev'd in *865 part on other grounds, 254 Conn. 205, 757 A.2d 1059 (2000).
A
The plaintiff first claims that the court improperly rendered summary judgment in favor of the defendant on the breach of contract claim. We disagree.
In his complaint, the plaintiff alleged that despite his continued contract of employment pursuant to the Teacher Tenure Act(act), General Statutes § 10-151, the defendant breached the plaintiff's employment contract by failing to pay him wages from November 5, 1999, until January 28, 2002. The court rendered summary judgment on that count because an arbitrator had held that the defendant had not breached the collective bargaining agreement by withholding the wages.[6]
The plaintiff contends that the court erred by "confusing the plaintiff's individual contract of employment with his union's collective bargaining agreement." While acknowledging that the collective bargaining agreement covered several areas of his employment, including the payment of wages and sick time allotments, and included an arbitration clause, the plaintiff nevertheless argues that § 10-151 gives him a contractual right to be paid a salary when he is on leave. He argues that by reason of § 10-151, his contract of employment continues from year to year and, therefore, the defendant's failure to pay him while he was on leave constituted a breach of contract. We are unpersuaded.
Section 10-151 mandates continued employment for a tenured teacher unless one of the statutory grounds for termination of employment has been found. The statute is silent about continuing pay during a period of administrative leave. Given that the plaintiff's employment continued throughout his leave and that his employment was not terminated, his rights under the statute were not implicated. See Tucker v. Board of Education, 4 Conn.App. 87, 90, 492 A.2d 839 (1985) ("plaintiff did not have the right to appeal [under § 10-151] from a suspension of employment"). In support of his claim, the plaintiff has cited no germane provisions of § 10-151 nor any supporting decisional law extending the statute's reach to the payment of a tenured teacher during a period of administrative leave. In the absence of clear legislative direction or a decisional gloss in support of the plaintiff's argument, we decline the invitation to extend the act's protections to afford to tenured teachers the right to pay during periods of mandated leave.
In sum, we conclude that the court properly rendered summary judgment in favor of the defendant on the plaintiff's count that alleged breach of contract.
B
The plaintiff next argues that the court improperly rendered summary judgment in favor of the defendant on his claim of negligent infliction of emotional distress. We disagree.
Resolution of that issue is governed by Perodeau, in which our Supreme Court held "that an individual municipal employee may not be found liable for negligent infliction of emotional distress arising out of conduct occurring within a continuing employment context, as distinguished from conduct occurring in the termination of employment." Perodeau v. Hartford, supra, 259 Conn. at 762-63, 792 A.2d 752. In this case, the claim of negligent infliction of emotional distress arose out of circumstances surrounding the defendant's placement of the plaintiff on sick leave and not *866 in conjunction with the termination of his employment.
The plaintiff seeks to evade the application of Perodeau on the basis of his argument that Perodeau involved liability against an individual and not an employer. We agree with the conclusion of the trial court, as set forth in its well reasoned memorandum of decision, that Perodeau applies regardless of whether the defendant is an individual or a government entity. The policy rationale of Perodeau focuses on the importance of preserving stability in the workplace and not on the identity or status of the defendant. Contrary to the plaintiff's argument, we find no merit in the distinction he urges us to adopt. Therefore, in accordance with the holding in Perodeau, the court properly dismissed the plaintiff's claim for negligent infliction of emotional distress because the claim did not arise out of the termination of the plaintiff's employment.
On the defendant's appeal, the judgment is reversed and the case is remanded with direction to set aside the verdict regarding the invasion of privacy claim and to render judgment in favor of the defendant. On the plaintiff's cross appeal, the judgment is affirmed.
In this opinion the other judges concurred.
NOTES
[1] Because we agree with the defendant as to the first issue, and it is dispositive, we do not address the defendant's other claims.
[2] That initial action was removed subsequently to the United States District Court for the District of Connecticut and was dismissed when the court declined to exercise discretionary jurisdiction. The plaintiff instituted the present action pursuant to General Statutes § 52-592, the accidental failure of suit statute.
[3] The action was brought originally against an employee individually, but the claims against the employee were withdrawn.
[4] We also note that the defendant has failed to cite any statute that abrogates the immunity set forth in the General Statutes § 52-557n (a)(2). "Thus, the general rule developed in our case law is that a municipality is immune from liability for [its tortious acts] unless the legislature has enacted a statute abrogating that immunity." (Internal quotation marks omitted.) Pane v. Danbury, supra, 267 Conn. at 677, 841 A.2d 684.
[5] It also is noteworthy that the statute codified part of the common-law rule by exempting municipalities from immunity from nuisance claims in General Statutes § 52-557n (a)(1)(C).
[6] On appeal to this court, the plaintiff has not requested review of the arbitration decision.
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43 S.W.3d 125 (2001)
344 Ark. 602
Jason McGEHEE
v.
STATE of Arkansas.
No. CR 00-760.
Supreme Court of Arkansas.
May 3, 2001.
*126 Sam T. Heuer, Little Rock, for appellant.
Mark Pryor, Att'y Gen., by James R. Gowen, Jr., Ass't Att'y Gen., Little Rock, for appellee.
JIM HANNAH, Justice.
Jason McGehee appeals the denial of his petition for postconviction relief under Ark. R.Crim. P. 37. A Baxter County jury convicted McGehee of the capital murder and kidnapping of fifteen-year-old John Melbourne, Jr. McGehee was sentenced to death by lethal injection on the capital murder charge and life imprisonment on the kidnapping charge. The convictions and sentences were affirmed by this court in McGehee v. State, 338 Ark. 152, 992 S.W.2d 110 (1999). McGehee subsequently filed a petition for postconviction relief under Ark. R.Crim. P. 37. The trial court denied the petition, and this appeal followed.
McGehee asserts five separate errors by counsel that he alleges constitute ineffective assistance of counsel requiring relief under Rule 37. Our jurisdiction is pursuant to Rule 37 of the Arkansas Rules of Criminal Procedure and Arkansas Supreme Court Rule 1-2(a)(8). McGehee's conviction and sentence of death were affirmed by a decision of this court on June 17, 1999. Therefore, pursuant to Ark. R.Crim. P. 37.5(k), Rule 37.5 is applicable *127 to McGehee because he became eligible to file a petition under Rule 37.2(c) after March 31, 1997.
Upon review of the trial court's order on the Rule 37 petition, we find the trial court failed to make specific written findings of fact and conclusions of law as required under Rule 37.5. Accordingly, we reverse and remand with direction that the trial court proceed consistent with this court's opinion in Echols v. State, 344 Ark. 513, 42 S.W.3d 467 (2001). This order is to be completed and the record is to be lodged with this court within ninety days of the date the mandate is issued. The clerk is directed to establish a new briefing schedule.
Additionally, the abstract provided in this case is flagrantly deficient. It fails to comply with Ark. Sup.Ct. R. 4-2(a)(6) in that it does not contain an impartial condensation of material parts of the record necessary to an understanding of all questions presented to the court for decision. We find that affirmance based upon a flagrantly deficient abstract would be unduly harsh in this case, and therefore permit appellant's attorney to revise and provide a brief in compliance with Ark. Sup.Ct. R. 4-2(a)(6). See Ark. Sup.Ct. R. 4-2(b)(3). Appellant's attorney is to bear the expense.
Rule 37.5
As this court discussed in Echols, supra, Rule 37.5 requires a heightened standard of review in death cases. Echols, 344 Ark. at 519, 42 S.W.3d 467 (citing Jackson v. State, 343 Ark. 613, 37 S.W.3d 595 (2001)). Death-penalty cases are different from other criminal cases, due to the obvious finality of the punishment. See, e.g., Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976); American Civil Liberties Union v. State, 339 Ark. 314, 5 S.W.3d 418 (1999); Franz v. State, 296 Ark. 181, 754 S.W.2d 839 (1988), modified on other grounds, State v. Robbins, 339 Ark. 379, 5 S.W.3d 51 (1999). As this court noted in Echols and Wooten v. State, 338 Ark. 691, 1 S.W.3d 8 (1999), Rule 37.5 reinforces the responsibility of the trial court to make specific findings of fact and conclusions of law on each issue raised in the petition. Because McGehee has been sentenced to death, we remand this case to the trial court for entry of a written order in compliance with Rule 37.5(i) and this court's holding in Echols and Wooten. Only issues raised by McGehee on appeal of the denial of the Rule 37 petition need be addressed by the trial court. No new issues may be raised by McGehee. To avoid lengthy delay, the order is to be completed and the record is to be filed with this court within ninety days of the date the mandate is issued.
Deficient Abstract
Our rule in Ark. Sup.Ct. R. 4-2 outlines the requirements for abstracting on appeal, and the burden is clearly placed on the appealing party to provide both a record and abstract sufficient to demonstrate error for appellate review. Greene v. Pack, 343 Ark. 97, 32 S.W.3d 482 (2000); Oliver v. Washington County, 328 Ark. 61, 940 S.W.2d 884 (1997). We have often written that the record on appeal is limited to that which is abstracted, and we will not examine the transcript of a trial to reverse a trial court, although we will do so to affirm. Id.
In the case before us, it is readily apparent from a review of the abstract that all of the documents and records in the transcript that are necessary for an understanding of the questions presented in this appeal are not abstracted. One of McGehee's primary arguments on his Rule 37 appeal is that Candace Campbell and Robert Diemert were accomplices and that the *128 failure of counsel to seek such a finding entitles him to relief. However, it is apparent that the testimony of several witnesses relevant to this issue, as well as the issue of corroboration of their testimony in the event they were found to be accomplices, was not abstracted at all, including that of Charles McMahan, Dr. Charles Kokes, Anthony Page, and, to an extent, testimony of police officers. Additionally in this regard, the testimony of Charla Bright was only partially abstracted and did not include portions relevant to the issue of corroboration. Other testimony and evidence may also be relevant. The appellant bears the burden of providing a sufficient abstract. While abstracting of evidence relevant to corroboration may not be perceived by McGehee to be in his best interest, Ark. Sup.Ct. R. 4-2(a)(6) requires an impartial condensation of records in the abstract. Also, failure to so comply exposes McGehee to affirmance based upon a flagrantly deficient abstract. Ark. Sup.Ct. R. 4-2(b)(3). See also, Moncrief v. State, 325 Ark. 173, 925 S.W.2d 776 (1996). Affirmance based upon a flagrantly deficient abstract would be too harsh in this case. Therefore, as authorized by this same rule, McGehee is granted permission to revise his abstract and brief at his own expense.
Reversed and remanded.
GLAZE, J. dissents for reasons set out in the dissenting opinion in Echols v. State, 344 Ark. 513, 42 S.W.3d 467 (2001).
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Case: 14-40918 Document: 00513013297 Page: 1 Date Filed: 04/21/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 14-40918
Conference Calendar
United States Court of Appeals
Fifth Circuit
FILED
April 21, 2015
UNITED STATES OF AMERICA,
Lyle W. Cayce
Clerk
Plaintiff-Appellee
v.
LORENA GARZA,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:14-CR-128-1
Before REAVLEY, SMITH, and GRAVES, Circuit Judges.
PER CURIAM: *
The Federal Public Defender appointed to represent Lorena Garza has
moved for leave to withdraw and has filed a brief in accordance with Anders v.
California, 386 U.S. 738 (1967), and United States v. Flores, 632 F.3d 229 (5th
Cir. 2011). Garza has not filed a response. We have reviewed counsel’s brief
and the relevant portions of the record reflected therein. We concur with
counsel’s assessment that the appeal presents no nonfrivolous issue for
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
Case: 14-40918 Document: 00513013297 Page: 2 Date Filed: 04/21/2015
No. 14-40918
appellate review. Accordingly, counsel’s motion for leave to withdraw is
GRANTED, counsel is excused from further responsibilities herein, and the
APPEAL IS DISMISSED. See 5TH CIR. R. 42.2.
2
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357 Mass. 535 (1970)
258 N.E.2d 771
BOSTON INSURANCE COMPANY & others
vs.
JOHN FAWCETT[1] & others.[2]
Supreme Judicial Court of Massachusetts, Suffolk.
February 6, 1970.
May 14, 1970.
Present: WILKINS, C.J., SPALDING, KIRK, SPIEGEL, & REARDON, JJ.
Sumner H. Babcock (William G. Young with him) for the plaintiffs.
Lane McGovern (John S. Hopkins, III, with him) for the defendants.
KIRK, J.
This bill for a declaratory decree comes to us at the request of the parties on a report without decision by a judge of the Superior Court on a statement of agreed facts and the pleadings.
The plaintiff Boston Insurance Company (Boston) is a Massachusetts insurance corporation.[3] The defendants have submitted to the jurisdiction of the court.
We first delineate a skeleton of facts to suggest the nature of the substantive issue. Boston is the insured under an "Excess Motor Truck Cargo Reinsurance Policy" issued by the defendants. The coverage of the reinsurance policy is limited to the excess of loss over $75,000, "each and every loss." Boston is also an insurer. It issued to its "Assured," Yale Express System, Inc. (Yale), a basic cargo policy which bore an endorsement required by the Interstate *537 state Commerce Commission (ICC) obligating Boston to pay cargo losses not in excess of $1,000 to Yale's shippers and consignees. Yale petitioned for reorganization under c. 10 of the Bankruptcy Act. Boston thereafter paid numerous separate claims against Yale, no one claim being more than $1,000, but the aggregate of the claims being in excess of $75,000. The question is whether the defendants under the reinsurance policy must pay Boston so much of the aggregate payment as is in excess of $75,000.
At the outset there arises the question whether this court should decline jurisdiction of the suit because of G.L.c. 231A, § 3, which provides: "The court may refuse to ... enter a declaratory ... decree where such ... decree, if ... entered, would not terminate the ... controversy." An interpretation of the reinsurance policy which would impose liability on the defendants would not terminate the entire controversy. On the hypothesis that the defendants are liable, two questions would remain unanswered. One is the precise extent of Boston's losses, despite the mutually accepted fact that they will exceed $75,000. The other is whether Boston is entitled to recover from the defendants its expenses in adjusting and settling the claims. The defendants have expressly reserved the right to contest both of these issues if the main issue is resolved against them.
The interpretation of the reinsurance policy[4] presents an actual controversy between the parties under G.L.c. 231A, § 1. It is the main subject of controversy in the litigation between them. It is the kind of controversy that is especially susceptible of resolution by a declaratory decree. Such a decree would be binding upon the parties. It may indeed prove to be conclusive of the entire litigation. The exercise of jurisdiction by us is sought by Boston and is not opposed by the defendants. To decline jurisdiction would defeat the remedial purpose of the statute. G.L.c. 231A, § 9. We take the case.
*538 We state the essential facts as derived from the statement of agreed facts and the pleadings. For a premium of $85,000 Boston on January 1, 1965, issued policy MFL 421076 to its assured "Yale Express System, Inc. and all subsidiaries and sub-subsidiaries and affiliated companies or corporations." This policy (Basic Cargo Policy or "the original policy") covered the liability of Yale "as carrier, forwarder, consolidator, warehouseman or in a similar capacity," under a bill of lading or similar instrument from January 1, 1965, to January 1, 1966. The policy covered the liability of Yale "against perils as more specifically set forth in Clause #30." The policy limits were $1,000,000 "in any one loss, disaster or casualty at terminals, garages, or other points" and $1,000,000 on "any one vehicle or ... land ... or air conveyance." Typewritten on the printed policy form was the following: "30. This Policy Insures Against: All risks of loss or damage from any cause howsoever or wheresoever occurring except as otherwise excluded herein, including, with respect to vehicles equipped with mechanical refrigeration or dry ice bunkers.... [Yale's] liability for loss, damage or deterioration caused by or resulting from breakdown or failure of such vehicles or refrigeration units thereof. 31. All claims for loss, damage or expense arising out of any one occurrence shall be adjusted as one claim and from the amount of such adjusted claim there shall be deducted the sum of $5,000" (emphasis not supplied).
Yale is a New York corporation. Among its subsidiaries is Yale Transport Corp. (Transport), a common carrier by motor vehicle in interstate and intrastate commerce under certificates granted by the ICC and State authority. Transport is a wholly owned subsidiary of Yale and is also a New York corporation. Pursuant to the requirements of the ICC the Basic Cargo Policy issued by Boston to Yale contained an "Endorsement For Motor Common Carrier Policies of Insurance For Cargo Liability Under Section 215 of the Interstate Commerce Act" (Form B.M.C. 32).
Another and almost wholly owned subsidiary of Yale is Republic Carloading and Distributing Co., Inc. (Republic), *539 a freight forwarder holding a certificate from the ICC. The Basic Cargo Policy contained a corresponding indorsement issued pursuant to ICC regulations for freight forwarders (Form FF. 32).
Form B.M.C. 32 and Form FF. 32 are substantially identical in their provisions. Form B.M.C. 32 which became part of the Basic Cargo Policy provided in pertinent part that Boston "hereby agrees to pay, within the limits of liability hereinafter provided, any shipper or consignee for all loss of or damage to all property belonging to such shipper or consignee, and coming into the possession of the insured [Yale] in connection with its transportation service, for which loss or damage the insured [Yale] may be held legally liable....
"[N]o ... provision ... in the policy, or any other endorsement ... shall affect in any way the right of any shipper or consignee, or relieve ... [Boston] from liability for the payment of any claim for which the insured may be held legally liable to compensate shippers or consignees, irrespective of the financial responsibility or lack thereof or insolvency or bankruptcy of the insured [Yale]. However, all terms, conditions, and limitations in the policy to which this endorsement is attached are to remain in full force and effect as binding between the insured [Yale] and ... [Boston]. The insured agrees to reimburse ... [Boston] for any payment made by ... [Boston] on account of any loss or damage involving a breach of the terms of the policy and for any payment that ... [Boston] would not have been obligated to make under the provisions of the policy, except for the agreement contained in this endorsement.... [Boston] shall not be liable for an amount in excess of $2,000, in respect of any loss of or damage to or aggregate of losses or damages of or to the property hereby insured occurring at any one time and place, nor in any event for an amount in excess of $1,000, in respect of the loss of or damage to such property carried on any one motor vehicle, whether or not such losses or damages occur while such property is on a motor vehicle or otherwise."
*540 Attached to the Basic Cargo Policy and a part of it was "Endorsement #13" entitled, "Transit Indemnity Clause" which reads, "As between ... [Yale] and ... [Boston], the terms of this policy shall govern ... [as though Form 32 was not attached] and ... [Yale] agrees that if ... [Boston] shall be obliged to pay any claim which it would not have been required to pay except for ... [Form 32], [Yale] shall reimburse ... [Boston] for any and all sums ... which ... [Boston] shall have paid in connection with such claim."
On May 24, June 1, and June 9, 1965, respectively, Yale, Republic, and Transport filed petitions for reorganization under c. 10 of the Bankruptcy Act. In each case Boston filed proofs of claim (a) for reimbursement for claims paid by it to shippers and consignees under indorsement Form B.M.C. 32 and Form FF. 32, and (b) for expenses incurred in connection with the handling of the claims of the shippers and consignees.
A plan for the reorganization of Republic has been approved. Others are pending. Republic's plan provides for payment to Boston "of one half of the total amounts including expenses paid or incurred by ... [Boston] on account of Republic, and in addition, the sum of $50,000 has been set aside as a contingency fund to cover future additional payments made and expenses incurred by [Boston]."
Prior to the dates of filing the petitions for reorganization, no claims for cargo damage for amounts under $5,000 in any one case were presented to or paid by Boston. After the filing, however, Boston paid cargo damage claims against Republic in the total amount, up to November 30, 1968, of $188,673.26 on 2,444 claims ranging in face amount from $10 to $1,000. To the same date and within the same value range Boston paid, 1,073 cargo damage claims against Transport for a total of $129,796.34. None of the claims were for cargo damage in excess of $1,000 for property carried on any one motor vehicle or in excess of $2,000 for damage occurring at any one time and place or arising out of any one occurrence.
*541 We now state the essential terms of the reinsurance policies. Boston paid a total premium of $7,000 to the defendants who on April 2, 1965, "respectively," issued to Boston three reinsurance policies "each of which assumed a portion of the risk insured against as therein described." The principal one of the three reinsurance policies was the Lloyd's Policy, 547/RE. 428508, which provided inter alia as follows: "This Reinsurance subject to its limitation, terms and conditions, is to indemnify Boston Insurance Company, et al (hereinafter called the Companies) in respect of the sums which they shall become liable to pay and shall pay under Policy No. MFL. 421076 (hereinafter called the original policy).[5] Provided always that the Underwriters subscribing to this Policy shall be liable only for the excess of loss over U.S. $75,000 ultimate net loss, each and every loss (hereinafter referred to as the Primary Limit or Limits) and Underwriters shall then be liable to pay such additional amounts as may be required to be added to the said Primary Limit or Limits to provide a total coverage of U.S. $1,000,000 ultimate net loss, each and every loss. Definitions 1. The words `ultimate net loss' shall be understood to mean the sums actually paid in cash in settlement of losses for which the Companies are liable after making deductions for all recoveries, salvages and other reinsurance...."
The larger of the two reinsurance policies other than Lloyd's provided inter alia: "This Policy to pay up to $925,000 ultimate net loss, each and every loss in excess of $75,000 ultimate net loss, each and every loss in respect of losses arising under Original Policy No. MFL. 421076 issued to Yale Express System, Inc., et al ... or as more particularly described in Lloyd's Policy No. RE. 428508." Each of such two reinsurance policies provided in substance: "The insurance by this Policy is subject to the same terms and conditions as Lloyd's Policy No. RE. 428508 on identical subject matter and risk."
All of the reinsurance policies of the defendants recited *542 that the type of reinsurance was "Excess Motor Truck Cargo Reinsurance."
Effective June 19, 1965, the Basic Cargo Policy and the reinsurance policies were cancelled. A return premium on the reinsurance policies was made by the defendants to Boston in the sum of $3,759. Thereafter through the remainder of the year 1965 there were exchanges of letters between the parties stating their respective contentions. The present litigation resulted.
Boston's contention, as we understand it, is that the large number of small claims against Yale (i.e. the claims against the subsidiaries Republic and Transport) became on the date of the filing of the respective petitions for reorganization under c. 10, two separate aggregate losses to Boston each in excess of $75,000, since on those dates under ICC forms B.M.C. 32 and FF. 32 Boston became legally liable to pay the aggregate amounts to Yale's shippers and consignees. Stated in another way, it appears to be Boston's argument that under the ICC forms Boston assumed as insurer the risk of Yale's inability to meet the obligation to pay the small claims (not in excess of $1,000) covered by the ICC indorsements; that the risk was that Boston would be called upon to make good as surety; that the risk was one which the defendants reinsured against; and that the risk became a reality with the filing of the petitions for reorganization whereupon Boston's "inchoate contingent liabilities crystalized into two distinct and fixed liabilities, each in excess of U.S. $75,000."
The defendants, on the other hand, take the position that the "loss" referred to in the limitation of coverage to the excess of $75,000 "each and every loss" (in the reinsurance policy) is a cargo loss arising out of one occurrence, such as a collision, a hi-jacking or a refrigeration failure, and not an aggregate financial loss to the original insurer caused by the bankruptcy of its insured. Boston's argument, the defendants say, attributes to and adopts one meaning for the word "loss" in the Basic Cargo Policy (a cargo loss to a shipper) but assigns quite a different meaning (aggregate *543 financial loss to Boston) in the reinsurance policy; and this, despite an absence of language pointing to an intention to a change of meaning.
The efforts of counsel and ourselves have produced nothing in the nature of direct authority on the precise point at issue. We must rely upon general principles for guidance to the right conclusion on the facts. The interrelation among and between the Basic Cargo Policy and indorsements and the reinsurance policies as to subject matter, terminology, parties and time dictates that they be read together. See Williston, Contracts (3d ed.) § 628; Restatement: Contracts, § 235 (c); Corbin, Contracts, § 549, at 190 and n. 28; Thompson, Reinsurance (4th ed.) 267-281. We so read them.
We note also that all the parties to the litigation are large insurance companies long engaged in far-flung activities in that field of economic activity. We are accordingly not disposed to invoke the rule, based on a presumed disparity of experience or acumen, that "ambiguities in the policy are to be construed against the insurer." See Palmer v. Pawtucket Mut. Ins. Co. 352 Mass. 304, 307. Rather, we impute to all parties the ability to use appropriate language to make clear the risks against which the reinsurance is issued.[6]
The subject matter of Boston's Basic Cargo Policy was quite plainly Yale's liability for loss of or damage to goods received from others for transportation (cargo loss), $5,000 deductible. All three reinsurance policies identified the type of reinsurance as: "Excess Motor Truck Cargo Reinsurance." Of the three reinsurance policies, Lloyd's policy (the largest) states the subject matter of indemnification to be "the sums which ... [Boston] shall become liable to pay and shall pay under [the Basic Cargo Policy]." This statement of subject matter is followed by the proviso *544 fixing the liability limitations to "the excess of loss over U.S. $75,000 ... each and every loss." Of the two remaining reinsurance policies the larger, after specifically referring to the Basic Cargo Policy, fixes the liability limitation in the following terms: "This Policy to pay up to $925,000 ultimate net loss, each and every loss in excess of $75,000 ultimate net loss, each and every loss in respect of losses arising under [Basic Cargo Policy].... The insurance by this Policy is subject to the same terms and conditions as Lloyd's Policy No. RE. 428508 on identical subject matter and risk."
Another feature common to the Basic Cargo Policy and the reinsurance policies is the maximum liability limit of $1,000,000. There is a marked disparity, however, in the amount of premiums paid.
The overall similarities of language and subject matter lead us to the conclusion that the phrase "each and every loss" in the reinsurance policies means a cargo loss requiring that payment be made by Boston to a shipper or a consignee where the cargo loss is in excess of $75,000 such as might follow from the occurrence of a collision, a refrigeration failure or a hi-jacking. We think it does not mean contextually an aggregate financial loss in excess of $75,000 to Boston made up of a series of small cargo losses suffered by several shippers and consignees.
Boston's elaborate and somewhat intricate argument to persuade us that the defendants are liable to Boston for so much of the aggregated claim as is in excess of $75,000 is based upon the proposition that a new liability to pay in excess of $75,000 arose or came into being when the petitions for reorganization were filed. The source of the proposition, it is said, is in the ICC indorsement forms. We think that the argument is best understood and refuted by the following analysis.
1. If Yale did not have and the law did not require it to have insurance against losses to shippers or consignees, Yale would solely be liable to its shippers or consignees.
2. If Yale had insurance only under the Basic Cargo *545 Policy, without indorsements, Yale remained solely liable to its shippers or consignees for all losses not in excess of $5,000 and Boston was liable for those over $5,000.
3. Under the Basic Cargo Policy with ICC indorsement forms, made mandatory by Federal law,[7] Boston became liable to pay losses of Yale's shippers or consignees not in excess of $1,000 at the time of the occurrence irrespective of Yale's financial responsibility. Yale, nevertheless, under situation 2 remained solely responsible for losses between $1,000 and $5,000; and Boston remained liable for those in excess of $5,000.
4. Under indorsement No. 13 to the Basic Cargo Policy (the Transit Indemnity Clause), as between Yale and Boston, Yale agreed to reimburse Boston for any payments made by Boston to shippers or consignees under the ICC forms.
5. The result of the interaction of situations 2, 3, and 4, was the creation of certain legal relationships with respect to claims not in excess of $1,000. Boston was liable to pay each of these losses as it occurred with the right to reimbursement from Yale. The filing of the petitions for reorganization by Yale did not bring into being any new duty to pay on the part of Boston. Boston's obligation to pay losses not exceeding $1,000 had already come into being when the cargo losses occurred. The legal effect of the filing of the petitions by Yale was to impair Yale's capability to fulfill its obligation to reimburse Boston. The impairment of Yale's ability to reimburse Boston "for any and all sums ... which ... [Boston] shall have paid in connection with [thousands of ICC Form claims]" is not, we think, a "cargo loss" within the meaning of the term "each and every loss" in the reinsurance policies.
Boston argues that the defendants must be taken to have understood that under the Basic Cargo Policy, Boston ran (a) the risk of indemnifying Yale for a loss in excess of $5,000 and (b) the additional risk of standing as surety *546 under the ICC forms for Yale's payment of numerous small losses.
Granting, arguendo, that the defendants so understood Boston's risks, it does not follow that Boston's risk (b) of paying each of the many small losses of Yale's shippers or consignees became converted under the terms of the reinsurance policies into a single aggregate loss in excess of $75,000, with the result that the defendants must indemnify Boston to the extent of the excess.
It is our conclusion that a reading of the policies ensemble does not support Boston's contention. If the parties did so intend they did not use language calculated to manifest the intention.
A decree is to be entered declaring that the defendants are not liable to indemnify the plaintiff for sums paid by the plaintiff to shippers and consignees under forms B.M.C. 32 and FF. 32 attached to Basic Cargo Policy MFL. 421076.
So ordered.
NOTES
[1] An underwriter at Lloyd's, London, England, and all other underwriters at Lloyd's severally subscribing Lloyd's policy No. 547/RE. 428508.
[2] Excess Insurance Company Limited, European General Reinsurance Company of Zurich, Guildhall Insurance Company Limited, Mercantile and General Reinsurance Company Limited, Victory Insurance Company Limited, English and American Insurance Company Limited, River Thames Insurance Company Limited, Sovereign Marine and General Insurance Company Limited, Orion Insurance Company Limited, Drake Insurance Company Limited, Sphere Insurance Company Limited, Assurances Generales (Incendie of Paris) and Eagle Star Insurance Company Limited.
[3] The plaintiff Boston, under a dissolution plan pursuant to G.L.c. 175, § 44, changed the name to Bimar Corporation on June 6, 1966. On the same date Boston ceded to Continental Insurance Company (Continental), a New York corporation "with an usual place of business in Boston," all of Boston's interests and Continental assumed all of Boston's obligations in Boston's policies and contracts of insurance and reinsurance. Boston-Old Colony Insurance Company (Boston-Old Colony), also a Massachusetts corporation "with an usual place of business in Boston," and Continental on July 25, 1966, executed a retrocession agreement whereby Boston-Old Colony agreed to reinsure and assume from Continental the insurance business which Continental had acquired from Boston. Continental and Boston-Old Colony are necessary parties so that they will be bound by and obtain the benefits of the decree in the pending proceeding.
[4] Although there are three reinsurance policies, the reference to a single reinsurance policy means the Lloyd's policy.
[5] The Basic Cargo Policy.
[6] "The question is not one of morals, nor of public policy; it is no more than the interpretation of certain forms of words, which are not sacred, which have varied, and may be changed at any time to suit the apparent necessities of commercial profit." Queen Ins. Co. v. Globe & Rutgers Fire Ins. Co. 278 Fed. 770, 780-781 (S.D.N.Y.).
[7] See 49 U.S.C. §§ 311 (c), 315, 1003 (c) (1964); 49 C.F.R. §§ 174, 405 (1964) (now 49 C.F.R. §§ 1043, 1084 [1970]).
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74 F.2d 749 (1935)
COMMISSIONER OF INTERNAL REVENUE
v.
KERBAUGH.
No. 2957.
Circuit Court of Appeals, First Circuit.
January 16, 1935.
Harry Marselli, Sp. Asst. to Atty. Gen. (Frank J. Wideman, Asst. Atty. Gen., and J. Louis Monarch and Sewall Key, Sp. Assts. to Atty. Gen., on the brief), for Commissioner of Internal Revenue.
Henry S. Kerbaugh, pro se.
*750 Argued before BINGHAM, WILSON, and MORTON, Circuit Judges.
PER CURIAM.
The Board of Tax Appeals is authorized to establish its own rules of procedure and to determine whether those rules are complied with. Where their decision of such a question is not shown to be clearly wrong, it should not be disturbed.
The decision of the Board of Tax Appeals is affirmed.
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IN THE SUPREME COURT OF PENNSYLVANIA
WESTERN DISTRICT
COMMONWEALTH OF PENNSYLVANIA, : No. 385 WAL 2016
:
Respondent :
: Petition for Allowance of Appeal from
: the Order of the Superior Court
v. :
:
:
MICHAEL J. STEPHANIC, JR., :
:
Petitioner :
ORDER
PER CURIAM
AND NOW, this 7th day of March, 2017, the Petition for Allowance of Appeal is
DENIED.
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360 P.2d 231 (1961)
Frances Lem Pipkin HIGGINS and James W. Pipkin, Plaintiffs in Error,
v.
Marshall W. PIPKIN and Mildred Pipkin, Defendants in Error.
No. 38911.
Supreme Court of Oklahoma.
March 7, 1961.
*232 Dick Bell, Seminole, Bill Biggers, Wewoka, for plaintiffs in error.
J.T. Criswell, Prague, Raymond Criswell, Wewoka, for defendants in error.
HALLEY, Justice.
Mrs. B.V. Pipkin was the mother of the plaintiffs in error, Frances Lem Pipkin Higgins and James W. Pipkin, and also of Marshall W. Pipkin, one of the defendants in error. She had two other daughters and four grandchildren who were not parties to this action.
This action arose because on July 11, 1955, Mrs. B.V. Pipkin executed a warranty deed to her son, Marshall W. Pipkin, conveying about 520 acres of land which she owned in Seminole County, Oklahoma. The deed recited a consideration of $3,500.
At the time of the execution of the above deed, the grantor, Mrs. B.V. Pipkin, was in the hospital at Seminole, Oklahoma, partially paralyzed from a stroke suffered on or about June 20, 1955 at Sterling, Colorado, where she was visiting one of her daughters. She was hospitalized and placed under the care of a doctor. July 6, 1955, she was transferred by plane to Seminole. She spent some of her time in the hospital until she died October 8, 1957.
On January 27, 1958, two of her children, plaintiffs in error, filed an action in the District Court of Seminole County, seeking, among other things to cancel the above warranty deed which she executed to her son, Marshall W. Pipkin, on July 11, 1955, conveying the aforementioned 520 acres of land. It was alleged that Mrs. Pipkin was mentally weak and incompetent and so lacking in understanding as to be unable to realize the nature and effect of her acts, and was induced to execute the deed by fraud and undue influence of her son, Marshall W. Pipkin, and also that the deed was executed without any valuable or monetary consideration.
October 24, 1958, a trial was had before the court and on November 7, 1958, the court rendered judgment in favor of defendants in error, except that defendants in error were ordered to pay to the other heirs at law of Mrs. B.V. Pipkin, deceased, the sum of $1,000. Motion for a new trial was overruled and plaintiffs below have appealed.
Only one assignment of error is presented by the plaintiffs in error, which is that the judgment rendered November 7, 1958, is contrary to law and is not sustained by sufficient evidence. We shall refer to the parties as plaintiffs and defendants as they appeared in the court below.
Plaintiffs call our attention to Section 23, 15 O.S. 1951, which provides as follows:
"A conveyance or other contract of a person of unsound mind, but not entirely without understanding, made before his incapacity has been judicially determined, is subject to rescission without prejudice to the rights of third persons, as provided in the article on extinction of contracts."
It is then asserted that the above statute is clearly construed in Marten v. Wagner, 198 Okl. 273, 178 P.2d 618. With this we do not agree for in the case at bar as will be shown hereafter, there was an abundance of evidence to the effect that Mrs. Pipkin possessed sufficient mental capacity to transfer her land.
This is an equitable action and the rule is well established that in such actions this Court will examine the entire record and weigh the evidence, but will not reverse the findings and judgment of the trial court unless it is clearly against the weight of the evidence.
The above rule is announced in Wahby v. Renegar et al., 199 Okl. 191, 185 P.2d 184, 185, wherein it is said:
"* * * The rule is settled that, in actions of equitable cognizance, this court will examine the record *233 and weigh the evidence, but will not reverse the findings and judgment of the trial court unless clearly against the weight thereof. Also settled is the rule that in actions of equitable cognizance the trial court's findings and judgment based upon conflicting evidence will not be disturbed on appeal because of the conflict in the testimony, or because it is possible to draw another conclusion from the testimony. Johnston v. American Finance Corporation, 182 Okl. 567, 79 P.2d 242; Johnson v. Rowe, 185 Okl. 60, 89 P.2d 955; Harrell v. Nash, 192 Okl. 95, 133 P.2d 748."
Plaintiffs admit there is some conflict in the evidence before us. Frances Higgins testified in part as follows:
"Q. Was she able to comprehend and understand matters fully at that time? A. Part of the time, but not all of the time.
"Q. Do you know whether or not there were any instances happened in the hospital at Sterling, Colorado such as her falling out of bed or anything of that nature? A. Yes.
"Q. Well, you just tell the Court the instance and what happened? A. There was one night that she was delirious I would say, and felt that she could walk. She tried to get out of bed and fell. I found this out from the nurses and doctor when I went over the next morning, they were furious with her.
"Mr. Criswell: We object to this line of testimony.
"Court: Well, sustained. You can't tell what somebody told you, but you can tell what you found out.
"A. There was another high fever and the children's ward was just down the hall and she heard this particular baby crying and she wanted the nurse to bring the baby in and be placed in bed with her. And then there was another time she thought she heard Wade's voice down the hall, and Wade had returned to Denver the day before and I assured her that Wade was not there."
Wilma Hayes testified as to the mental capacity of Mrs. Pipkin to execute the deed in question as did Dr. C.J.M., who treated her in Colorado when she first became ill. Dr. W.E.J. also gave his expert opinion and these witnesses agreed with Mrs. Higgins that Mrs. B.V. Pipkin did not have sufficient mental capacity to understand the nature and effect of a transaction affecting her farm which she deeded to her son, Marshall W. Pipkin.
For the defendants there were several witnesses who testified that Mrs. Pipkin had the mental capacity to understand what she was doing when she executed the deed to her youngest son.
We think the most qualified witness was Dr. P.D.M. of the hospital at Seminole. He was her doctor from the time she returned to Seminole until her death and he testified that she had had a stroke which paralyzed her left side and required a small amount of sedatives, but for only a short time. He testified in part as follows:
"Q. In your opinion Doctor on July 11, 1955, there was a deed executed by Mrs. B.V. Pipkin to her son Marshall of some land in the Northern part of this county. On that date, if you know, could you state whether or not Mrs. Pipkin was in possession of her mental faculties enough as to realize and understand the results of her transactions? A. I think she was, sir.
"Q. Was there any time from the time she was admitted to the hospital in July, 1955, until the time of her death when she was not in possession of her mental faculties? A. I would say perhaps during the last few months there would be times. I don't recall any, except may be the date she died.
"Q. Did you ever see Mrs. Pipkin read a newspaper? A. Well she *234 read the newspaper while she was there in the hospital."
Dr. P.D.M. also testified:
"Q. Doctor M---- from July 6th of 55 through August 21st of 55, was there any period of time in there that Mrs. Pipkin would be rightful and other periods of time not rightful? A. I think she was rightful all the time.
"Q. Do you think she was rightful all the time? A. Yes, sir."
It appears that prior to her last illness, on June 14, 1955, she left a note in her home addressed to her son, Marshall Pipkin, and after she became ill in Colorado and returned to Seminole, she told him where to find this note. He found the note and it is as follows:
"Tuesday June 14 55.
"Marshall in this envelop I am leaving keys to the bldg. & the key to safety deposit box in First National Bank in case anything happens to me I want you to handle things like we have been doing I grant you power of attorney to handle everything for me I also want you to have the farm because you have sweated your life blood out there.
"Love
"Mother.
"B.V. Pipkin."
Dr. M. also testified as follows:
"Q. Did you determine from your examination where this occurred with reference to the brain? A. Yes, sir.
"Q. What portion of the brain was affected? A. What portion of the brain?
"Q. Yes. A. There was the motor area of the brain on the right side and it effected the left.
"Q. Now what effect would a stroke or cerebral hemorrhage of the motor portion of the brain have on a person? A. You mean in her case?
"Q. Yes, sir. A. It produces paralysis of the left side of the body.
"Q. Would a stroke of this hemorrhage of the motor portion of the brain in any way effect her mental faculties? A. No, sir."
* * * * * *
"Q. Would you consider Mrs. Pipkin an intelligent person before the time she had the stroke? A. Yes, I think she was the best one of the Pipkin family. She was all right.
"Q. Did you notice any material change in her mental faculties after the stroke? A. No, sir. She was all right.
* * * * * *
"Q. Doctor M----, does your daily treatment reflect whether or not you gave her any sedatives? A. No, she had on the she had one quarter grain barbital the night she came in. And on the 6th, P.M., late, bed time I gave her a quarter grain pentobartital, not much, and then on the night of July 8th, she had one, and she had one on the night of July 11th, outside of that she had nothing, she didn't require anything."
Floyd Aylor, assistant county clerk, who took the acknowledgment of Mrs. Pipkin to the deed here in controversy on July 11, 1955, about the noon hour on that date, testified that she said she had a lot of expense and that what she was doing was the best way to get the money to meet her financial obligations; that they talked about the deed; that her son, the grantee, Marshall Pipkin, said nothing to urge her to execute the deed; that she talked as reasonable and sensible as any one he ever talked to; that Mrs. Pipkin always recognized him and his wife when they visited her on afternoons.
Herman Bishop testified that he had business transactions with Mrs. Pipkin both prior and subsequent to her illness and the execution of the deed, and could tell no material difference in her mental capacity before she suffered the stroke and after and that she was a shrewd business woman.
*235 Lola Rhae testified she had known Mrs. Pipkin since 1910 and was closely associated with her in 1950 through 1955; that Mrs. Pipkin was perfectly all right mentally, although crushed physically and embarrassed by her condition, yet her intelligence was not affected.
Gerva Anderson, a daughter of Mrs. Pipkin testified that the mental condition of Mrs. Pipkin was unusually good when she arrived at the hospital on July 6, 1955, and after that time her mental condition was as good as it was prior to the stroke. It is true that the testimony offered by defendants was contradicted by that of Dr. C.J.M., who treated Mrs. Pipkin in Colorado and that of Dr. W.E.J. of Seminole and Wilma Hayes. We note that Dr. J. never did actually treat Mrs. Pipkin, but based his opinion mostly upon case history. We cannot say that the findings and judgment of the trial court as to mental capacity, fraud and undue influence is clearly against the weight of the evidence.
Plaintiffs contend that the deed of July 11, 1955, should be declared void because the deed was intended as a gift to Marshall W. Pipkin by the grantor. It is quite clear that the mother intended to give her son the farm on which he had worked very hard. This is shown by her oral words and the note or letter she wrote to him before she became ill. She did expect him to take care of her obligations. He admitted that he had only paid $2,500 in paying her debts but that the consideration of $3,500 did not affect the validity of the deed and had no bearing upon its consideration.
The trial court must have believed that the grantee was obligated to pay the entire $3,500, which accounts for the requirement in the decree of November 7, 1958, that defendant pay the additional $1,000 for the benefit of the estate of his deceased mother. Defendant cites the case of Bush v. Bush, 142 Okl. 152, 286 P. 322, 326, where the facts were that a father deeded land and other property to his son, reciting a consideration of $4,000. The son was to give the father $500 and the father was to make his home on the land and receive rent as long as he lived. The son never paid the $500, but did furnish his father board. Another son of the grantor sought to cancel the deed on the ground of fraud and failure of consideration. In that case the court specifically stated that "there is an absolute absence of proof * * * that there was any relation of trust, confidence, or dominance between the parties.", and in sustaining the deed held:
"Where a deed, executed by a father to his son apparently upon a good and valuable consideration, is sought to be canceled on the ground of fraud, undue influence, and failure of consideration, the fact that the relation of parent and child exists between the parties is not, within itself, sufficient to raise a presumption of fraud, undue influence, or absence of consideration so as to cast the burden upon the grantee to show that the transaction between them was in good faith."
There was no evidence here that the defendant exercised undue influence over his mother or that a confidential relationship existed between them. We consider that Antle v. Hartman et al., 193 Okl. 524, 145 P.2d 756 and Wills v. Dissing, Okl., 356 P.2d 339, are controlling in this case. See also Schatz v. Wintersteen, 201 Okl. 660, 208 P.2d 1136. Under the foregoing decisions and many others, the burden of proof as to lack of mental capacity to make a deed was upon the plaintiffs.
As to consideration for the execution of the deed, defendants do not contend that any consideration was agreed to by grantee to grantor, but say that the conveyance was in the nature of a gift from the mother to the son. In Shaw v. Shaw, Okl., 282 P.2d 748, 752, there was no consideration in the deed from father *236 to son and an effort was made to establish a trust. The court said in part:
"Plaintiffs assert that the evidence does not sustain a gift to the defendant; that no consideration was plead or proven. Love and affection are certainly a valid consideration, and the deed itself recites a consideration. For that matter, the evidence is clear that the defendant accepted the gift if it were one and the finding of the court, which inheres in the judgment, that if it were a gift that all elements of a valid gift inter vivos were present is not clearly against the weight of the evidence."
$3,500 was cited as a consideration for the deed. Certainly this, love and affection and a plain gift were enough to sustain the deed in question.
We find sufficient evidence to justify the judgment of the trial court and the judgment is affirmed.
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468 F.3d 1182
UNITED STATES of America, Plaintiff-Appellee,v.David MARTINEZ-RODRIGUEZ, Defendant-Appellant.
No. 05-50719.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted October 19, 2006.
Filed November 21, 2006.
Stephen D. Demik, Federal Defenders of San Diego, Inc., San Diego, CA, for defendant-appellant David Martinez-Rodriguez.
L. Marcel Stewart, Assistant United States Attorney, San Diego, CA, for plaintiff-appellee United States of America.
Appeal from the United States District Court for the Southern District of California; Napoleon A. Jones, District Judge, Presiding. D.C. No. CR-04-02063-NAJ.
Before HARRY PREGERSON, RONALD M. GOULD, and RICHARD R. CLIFTON, Circuit Judges.
GOULD, Circuit Judge.
1
A jury convicted David Martinez-Rodriguez ("Martinez") of re-entering the United States after removal in violation of 8 U.S.C. § 1326(a). On August 23, 2005, the district court sentenced Martinez to seventy-seven months imprisonment with three years supervised release. Martinez challenges his sentence on two grounds.1
2
First, relying on our decision in United States v. Covian-Sandoval, 462 F.3d 1090 (9th Cir.2006), and the Supreme Court's decision in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), Martinez argues that the district court improperly found that his prior removal "was subsequent to a conviction for commission of an aggravated felony," § 1326(b)(2). Martinez argues that he never admitted this fact, nor was this fact ever proven to a jury beyond a reasonable doubt. The district court relied on Martinez's prior removal subsequent to his aggravated felony conviction to increase his statutory-maximum sentence from two to twenty years under § 1326(b)(2).
3
Second, Martinez argues that the district court erred in finding that his prior conviction for possession of marijuana for sale under California Health and Safety Code section 11359 was a drug trafficking offense under the Federal Sentencing Guidelines. The district court relied on Martinez's prior conviction for a drug trafficking offense to apply a sixteen-level sentence enhancement pursuant to U.S.S.G. § 2L1.2(b)(1)(A) (2004). 28 U.S.C. § 1291 gives us jurisdiction. We affirm.
4
* In 1992, Martinez, a citizen of Mexico, pled no contest in Santa Clara County (California) Superior Court in three separate criminal cases which arose from three separate arrests. In case number 153302, he pled no contest to one count of possession of a controlled substance in violation of California Health and Safety Code section 11350(a) and one count of transportation or sale of marijuana in violation of California Health and Safety Code section 11360(a). In case number 153303, Martinez pled no contest to one count of possession of marijuana for sale in violation of California Health and Safety Code section 11359. And in case number 153304, Martinez pled no contest to another count of possession of marijuana for sale in violation of section 11359. The state court initially sentenced Martinez to four months in prison in each case (resulting in a twelve-month total prison sentence). However, Martinez violated the probation conditions he received upon the conclusion of his initial twelve-month sentence. Upon its revocation of Martinez's probation, the state court sentenced Martinez to two additional years in prison in each case. It appears from the pre-sentence report ("PSR") that Martinez served these two-year sentences concurrently.
5
On June 9, 2004, a United States Border Patrol Agent encountered Martinez in the Otay Mountain Wilderness in San Diego County, California, about one mile north of the United States-Mexico border. After Martinez indicated that he was a Mexican citizen without documents allowing him to be in the United States, the Border Patrol Agent arrested him. On August 4, 2004, a grand jury indicted Martinez on one count of violating 8 U.S.C. § 1326(a). Martinez's case went to trial on March 8, 2005.
6
To obtain a conviction for illegal re-entry, § 1326(a) requires the government to prove, inter alia, that the defendant has been previously removed from the United States. At trial, to prove Martinez's prior removal, the government introduced four pieces of evidence: an order of an immigration judge from 1994, ordering Martinez removed from the United States; a warrant of deportation from 1994, indicating that Martinez had been physically removed from the United States; a reinstatement of the 1994 order of removal from 1998; and a warrant of deportation from 1999. The jury convicted Martinez of violating § 1326(a).
7
Martinez's PSR reflected his two 1992 convictions of possessing marijuana for sale in violation of California Health and Safety Code section 11359. At sentencing, the district court determined that Martinez's two convictions for violating section 11359 were "conviction[s] for commission of an aggravated felony," § 1326(b)(2), and concluded that Martinez's statutory-maximum sentence was twenty years. The district court also found that Martinez's two prior convictions for possession of marijuana for sale under section 11359 were convictions for drug trafficking offenses for the purpose of the Federal Sentencing Guidelines. See U.S.S.G. § 2L1.2(b)(1)(A). Because of the drug trafficking offense convictions, the district court applied a sixteen-level enhancement to Martinez's sentence. See id. Calculating Martinez's Guideline range to be between seventy-seven and ninety-six months, the district court sentenced Martinez to seventy-seven months in prison with three years supervised release.
II
8
Martinez first argues, relying on Apprendi and its progeny, that the district court erred by judicially finding that, because Martinez's prior "removal was subsequent to a conviction for commission of an aggravated felony," § 1326(b)(2), Martinez's statutory-maximum sentence was twenty years, rather than the generally-applicable two-year maximum sentence found in § 1326(a). He argues that the district court's finding that he was removed after being convicted of an aggravated felony violates Apprendi because it increased his statutory-maximum sentence on the basis of facts not alleged in the indictment, proven to the jury, or admitted by him. See Apprendi, 530 U.S. at 490, 120 S.Ct. 2348 ("Other 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."). We review de novo whether Martinez-Rodriguez's sentence violates Apprendi. United States v. Smith, 282 F.3d 758, 771 (9th Cir.2002). We hold that, in this case, because all of the evidence of prior removal presented to the jury related to removals that were subsequent to Martinez's prior aggravated felony conviction, the jury necessarily found beyond a reasonable doubt that Martinez's prior "removal was subsequent to a conviction for commission of an aggravated felony," § 1326(b)(2).
9
Section 1326(a) provides that any alien who violates that section "shall be . . . imprisoned not more than 2 years." However, § 1326(b)(2) modifies the two-year statutory-maximum sentence provided for in § 1326(a) by stating that "[n]otwithstanding subsection (a) of this section, in the case of any alien described in such subsection . . . whose removal was subsequent to a conviction for the commission of an aggravated felony, such alien shall be . . . imprisoned not more than 20 years." Thus, in order for the twenty-year statutory-maximum sentence to apply, (1) the defendant must have been convicted of an aggravated felony and (2) thereafter, the defendant must have been removed from the United States.
10
Under this standard, the first step in our analysis is determining whether Martinez was convicted of an aggravated felony. The district court found, at sentencing, that Martinez-Rodriguez pled no contest to two counts of possession of marijuana for sale under California Health and Safety Code section 11359 in 1992. Our precedent forecloses Martinez's argument the district court violated Apprendi by finding the fact of his prior aggravated felony conviction.
11
For example, in United States v. Reyes-Pacheco, 248 F.3d 942, 943-44 (9th Cir. 2001) the defendant contended that "the district court improperly enhanced his [§ 1326] sentence on the basis of a prior aggravated felony conviction that was neither admitted nor charged in the indictment and proven beyond a reasonable doubt." We found that the defendant's argument was foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). Reyes-Pacheco, 248 F.3d at 944. In Almendarez-Torres, the Supreme Court held that § 1326(b)(2) "simply authorizes a court to increase the sentence for a recidivist. It does not define a separate crime." 523 U.S. at 226, 118 S.Ct. 1219. The Court in Almendarez-Torres rejected the argument that, because the fact of recidivism increased the maximum term to which a defendant could be sentenced, recidivism was an element of the crime that must be charged in the indictment and proven beyond a reasonable doubt. Id. at 239, 118 S.Ct. 1219.
12
Martinez argues that the Supreme Court has effectively overruled Almendarez-Torres. We again reiterate that, while Apprendi may cast doubt on the continuing viability of Almendarez-Torres, Almendarez-Torres remains the law unless and until it is overruled by the Supreme Court. Reyes-Pacheco, 248 F.3d at 945; United States v. Pacheco-Zepeda, 234 F.3d 411, 414 (9th Cir.2000). Thus, the district court properly concluded that Martinez's convictions for possession for marijuana for sale were aggravated felony convictions. We hold that "[t]he district court did not err by considering [Martinez's] prior aggravated felony conviction[s] despite the fact that such conduct was neither admitted nor charged in the indictment, presented to a jury, and proven beyond a reasonable doubt." Reyes-Pacheco, 248 F.3d at 945.2
13
The second step in determining whether the district court correctly subjected Martinez to the twenty-year statutory-maximum sentence in § 1326(b)(2) requires us to examine whether the district court correctly found that Martinez had been removed from the United States and that the removal occurred after his prior convictions for possession of marijuana for sale. In finding Martinez guilty of illegal re-entry under § 1326(a), the jury necessarily found that Martinez had been removed from the United States, because prior removal is an element of the government's § 1326(a) case. However, Martinez argues that because he did not admit and the jury did not find the date of his prior removal, his statutory-maximum sentence was only two years. He argues that the district judge violated Apprendi by finding that his prior removal was subsequent to his 1992 aggravated felony conviction. In support of this argument, Martinez relies on our decision in Covian-Sandoval, 462 F.3d 1090.
14
In Covian-Sandoval, the defendant pled guilty to a charge of illegal re-entry and admitted that he was deported in 1997. See id. at 1092. At sentencing, the district court, consistent with Almendarez-Torres, found that the defendant had been convicted of an aggravated felony in 2002. See id. at 1097. Because the defendant's previous removal in 1997 was prior to his 2002 aggravated felony conviction, he did not qualify for the twenty-year statutory-maximum sentence in § 1326(b)(2). However, the district court, relying on the PSR, found that the defendant had been again deported in 2004. See id. The district court thus applied the twenty-year statutory-maximum sentence because the defendant was deported subsequent to his 2002 aggravated felony conviction. Id.
15
We held that it was error for the district court to rely on the 2004 removal to enhance the defendant's statutory-maximum sentence. Id. Citing Apprendi, we explained that
16
unlike the fact of a prior conviction at issue in Almendarez-Torres, the fact of an alien's prior removal or departure is plainly one of the elements of the crime for which Covian was convicted. Accordingly, it must be proved beyond a reasonable doubt to a jury or admitted by the defendant.
17
Id. at 1098 (citations omitted). Because "[t]he fact of a prior conviction is the only fact that both increases a penalty beyond the statutory maximum and can be found by a sentencing court," we concluded that the district court erred by "[finding] the existence of a subsequent removal that was neither proven beyond a reasonable doubt at trial nor admitted by Covian." Id. at 1097-98.3
18
Martinez analogizes his case to Covian-Sandoval, contending that the date of his removal was not proven to a jury or admitted by him. Since the jury never explicitly found the fact that Martinez's prior removal was after his 1992 aggravated felony conviction, he argues that he was improperly subjected to a twenty-year statutory-maximum sentence based on facts found only by the district judge. We are not persuaded by Martinez's application of Covian-Sandoval.
19
In Covian-Sandoval, the prior removal admitted by the defendant was inadequate to support the application of the twenty-year statutory maximum, so the district judge improperly found the fact of another, qualifying, removal. By contrast, in this case, the jury found beyond a reasonable doubt that Martinez had been previously removed from the United States, because prior removal is an element of the crime defined in § 1326(a). At trial, the jury was presented with evidence that Martinez was deported in both 1994 and 1999. Both of these removals were after Martinez's 1992 aggravated felony conviction and thus were adequate to support the application of the twenty-year statutory-maximum sentence. The district court did not need to determine the date of Martinez's deportation because the jury necessarily found that Martinez was deported after his prior convictions. The salient point is that the only evidence of deportation presented to the jury was from 1994 and 1999, and both were after his 1992 aggravated felony conviction.
20
The fact of "removal . . . subsequent to a conviction for commission of an aggravated felony," § 1326(b)(2) (emphasis added), was proven to the jury beyond a reasonable doubt in this case. Whether the jury found the evidence of the 1994 removal more persuasive or the evidence of the 1999 removal more persuasive, either removal was subsequent to Martinez-Rodriguez's 1992 aggravated felony conviction. We hold that the sentencing court did not erroneously find either the fact of prior removal or its date because the jury necessarily found, beyond a reasonable doubt, that Martinez had been previously removed subsequent to his prior aggravated felony convictions.
III
21
Martinez next argues that the district court erred in enhancing his sentence by sixteen levels because of his two prior convictions for possession of marijuana for sale under California Health and Safety Code section 11359. The Sentencing Guidelines permit such an enhancement if the defendant previously was deported after being convicted of "a drug trafficking offense for which the sentence imposed exceeded 13 months." U.S.S.G. § 2L1.2(b)(1)(A). We review de novo the district court's decision to enhance Martinez's sentence on the basis of U.S.S.G. § 2L1.2. United States v. Bonilla-Montenegro, 331 F.3d 1047, 1049 (9th Cir.2003). We hold that a prior conviction for possession of marijuana for sale under section 11359 categorically qualifies as a "drug trafficking offense" under the Guidelines.
22
To determine whether the district court properly applied the sixteen-level sentence enhancement, we must determine whether a violation of section 11359 is a "drug trafficking offense." We apply the categorical approach of Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), to determine whether a prior state law conviction forms a predicate for sentence enhancement under the Guidelines. United States v. Cortez-Arias, 403 F.3d 1111, 1114 (9th Cir.2005). Under the categorical approach, we look only to the statutory definition of the defendant's prior offense and compare it to the Guidelines' generic definition of the predicate offense. See Taylor, 495 U.S. at 600, 110 S.Ct. 2143; United States v. Franklin, 235 F.3d 1165, 1169 (9th Cir. 2000). Martinez's prior convictions under section 11359 qualify as drug trafficking offenses only if the full range of conduct proscribed by section 11359 falls within the Guidelines' definition of drug trafficking offense. See Taylor, 495 U.S. at 599, 110 S.Ct. 2143; United States v. Baron-Medina, 187 F.3d 1144, 1146 (9th Cir.1999).
23
The Sentencing Guidelines define drug trafficking offense as follows:
24
"Drug trafficking offense" means an offense under federal, state, or local law that prohibits the manufacture, import, export, distribution, or dispensing of a controlled substance (or a counterfeit substance) or the possession of a controlled substance (or a counterfeit substance) with intent to manufacture, import, export, distribute, or dispense.
25
U.S.S.G. § 2L1.2 cmt. n. 1(B)(iv). Section 11359, entitled "Possession for sale," provides: "Every person who possesses for sale any marijuana, except as otherwise provided by law, shall be punished by imprisonment in the state prison." Our analysis of whether the conduct proscribed by section 11359 falls entirely within the Guidelines' definition of drug trafficking offense is guided by our decision in United States v. Sandoval-Venegas, 292 F.3d 1101 (9th Cir.2002).
26
In Sandoval-Venegas, we had to determine whether a conviction under section 11359 was, categorically, a "controlled substance offense" under the Guidelines. Id. at 1107. We examined the Guidelines' definition of controlled substance offense, the text of section 11359, and the relevant California case law interpreting section 11359 and concluded that "California Health & Safety Code § 11359 comfortably fits within the Guidelines definition as a qualifying offense." Id.
27
The Guidelines define a controlled substance offense as
28
an offense under federal or state law, punishable by imprisonment for a term exceeding one year, that prohibits the manufacture, import, export, distribution, or dispensing of a controlled substance (or a counterfeit substance) or the possession of a controlled substance (or a counterfeit substance) with intent to manufacture, import, export, distribute, or dispense.
29
U.S.S.G. § 4B1.2(b). This definition is identical to the Guidelines' definition of drug trafficking offense except (1) a prior conviction need only be punishable by a prison term exceeding one year to qualify as a controlled substance offense, whereas, to qualify as a drug trafficking offense, the prison sentence imposed for a prior conviction must exceed thirteen months and (2) a prior conviction under "local" law can qualify as a conviction for a drug trafficking offense, whereas to qualify as a conviction for a controlled substance offense, the conviction must be under state or federal law. Neither of these differences is material to this case, as Martinez's prior convictions under California state law resulted in a sentence that, for Guidelines purposes, exceeded thirteen months.4
30
Martinez nevertheless argues that, because California's definition of constructive possession is broader than the federal definition of constructive possession, a violation of section 11359 is not a drug trafficking offense under the categorical approach. To constructively possess contraband under federal law, the defendant must know of the existence of the contraband. See United States v. Behanna, 814 F.2d 1318, 1319 (9th Cir.1987) ("In order to prove constructive possession of property, the government must demonstrate that the defendant both knows of the presence of the contraband and has power to exercise dominion and control over it."); see also United States v. Ruiz, 462 F.3d 1082, 1089-90 (9th Cir.2006). Martinez claims that, under California law, a defendant may have constructive possession of contraband when he simply has the right to control the contraband, even if the defendant has no knowledge of the existence of the contraband.
31
We rejected this argument in Sandoval-Venegas and we reject it again today. "[U]nder California law, possession requires knowledge." Sandoval-Venegas, 292 F.3d at 1107 (citing People v. Meza, 38 Cal.App.4th 1741, 45 Cal.Rptr.2d 844, 846 (1995)); People v. Harris, 83 Cal.App.4th 371, 99 Cal.Rptr.2d 618, 620 (2000) ("Unlawful possession of a controlled substance for sale requires proof the defendant possessed the contraband with the intent of selling it and with knowledge of both its presence and illegal character." (internal quotation omitted)). We rely upon our holding in Sandoval-Venegas that
32
California's possession for sale closely mirrors the federal statute that criminalizes possession with intent to distribute. See 21 U.S.C. § 841(a); United States v. Cervantes, 219 F.3d 882, 893 n. 11 (9th Cir.2000) ("Constructive possession requires that the defendant both knew of the controlled substance's presence and had the power to exercise dominion and control over it.")[, abrogated on other grounds by Brigham City v. Stuart, ___ U.S. ___, 126 S.Ct. 1943, 164 L.Ed.2d 650 (2006)]. California does not, as [the defendant] argues, criminalize the mere power to control the narcotic; instead, the offender must knowingly control it with the specific intent to sell it or to have someone else sell it.
33
Sandoval-Venegas, 292 F.3d at 1107 (citation omitted).
34
Next, Martinez argues that, because aiding and abetting liability is broader under California law than under federal law, his convictions for violating section 11359 cannot categorically qualify as drug trafficking offenses under the Sentencing Guidelines. Martinez relies primarily on United States v. Corona-Sanchez, 291 F.3d 1201 (9th Cir.2002) (en banc). We noted in Corona-Sanchez that "[u]nder California law, aiding and abetting liability is quite broad, extending even to promotion and instigation." Id. at 1208. Relying in part on this broad conception of aiding-and-abetting liability, we held that California's general theft statute did not categorically qualify as an aggravated felony under 8 U.S.C. § 1101(a)(43)(G). Id.
35
However, Martinez's sentence was enhanced not as an aggravated felony under § 1101(a)(43), but rather under the Sentencing Guidelines. The Sentencing Guidelines contain the following application note which disposes of Martinez's argument: "Prior convictions of offenses counted under sub section (b)(1) include the offenses of aiding and abetting . . . such offenses." U.S.S.G. § 2L1.2 cmt. n. 5. A conviction for aiding and abetting a drug trafficking offense qualifies as a predicate offense under the Guidelines.
36
In conclusion, Sandoval-Venegas held that section 11359 "comfortably fits within the Guidelines' definition" of a controlled substance offense. 292 F.3d at 1107. The Guidelines' definition of a drug trafficking offense does not differ, in any way pertinent to this case, from the Guidelines' definition of controlled substance offense. We hold that, under Taylor's categorical approach, the full range of conduct proscribed by California Health and Safety Code section 11359 falls within the Guidelines' definition of drug trafficking offense. The district court did not err by relying on Martinez's two prior convictions for violating section 11359 to enhance his sentence by sixteen levels under U.S.S.G. § 2L1.2(b)(1)(A).5
37
AFFIRMED.
Notes:
1
We address the other issues Martinez raised on appeal in a separately filed memorandum disposition
2
Martinez's argument that § 1326(b) is unconstitutional is foreclosed by our decision inUnited States v. Maciel-Vasquez, 458 F.3d 994, 996 (9th Cir.2006) ("[W]e reject Maciel's argument that 8 U.S.C. § 1326(b)(2) is unconstitutional.").
3
Because Covian did not raise thisApprendi argument at sentencing, we reviewed under our plain error standard. Covian-Sandoval, 462 F.3d at 1093. Finding that the district court's error did not affect Covian's substantial rights, we affirmed his sentence. Id. at 1098-99.
4
Martinez argues that the district court erred in concluding that the sentence imposed for his prior convictions for violating section 11359 exceeded thirteen months. In 1992, in state court, there were three separate cases pending against Martinez. In two of the cases, Martinez was convicted of one count of violating section 11359. The state court sentenced Martinez to three four-month sentences (one sentence for each case) that ran consecutively. In 1993, Martinez's probation was revoked and the state court sentenced him to two additional years in prison in each of the three cases. Martinez served these three two-year sentences concurrently. In determining the length of the sentence imposed under U.S.S.G. § 2L1.2, "[t]he length of sentence imposed includes any term of imprisonment given upon revocation of probation." U.S.S.G. § 2L1.2 cmt. n. 1(B)(vii). Martinez's original sentence for the drug trafficking offense in each case was four months. To that, we add the two-year sentence imposed upon his revocation of probation in each case to conclude that the sentence imposed for each of his two prior drug trafficking convictions was two years and four months for the purpose of U.S.S.G. § 2L1.2
5
At oral argument, government counsel suggested that Martinez's 1997 conviction for transportation and sale of a controlled substance (cocaine) under California Health and Safety Code section 11352(a) qualified as a prior conviction for a drug trafficking offense under the Guidelines. Because we hold that section 11359 is categorically a drug trafficking offense, we do not reach this argument
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598 S.E.2d 468 (2004)
278 Ga. 124
The STATE
v.
CARR.
No. S04A0148.
Supreme Court of Georgia.
June 28, 2004.
*469 Paul L. Howard, Jr., Dist. Atty., Bettieanne C. Hart, Ronald Steve Boyter, Asst. Dist. Attys., for appellant.
Garland, Samuel & Loeb, P.C., Donald F. Samuel, Cozen & O'Connor, Michael A. McKenzie, Atlanta, for appellee.
HINES, Justice.
Weldon Wayne Carr was convicted of malice murder and first degree arson in connection with the death of his wife, Patricia Carr. On March 10, 1997, this Court reversed those convictions, returning the case to the trial court on April 15, 1997. See Carr v. State, 267 Ga. 701, 482 S.E.2d 314 (1997). On May 19, 2003, the trial court granted Carr's motion to dismiss for violation of his right to a speedy trial under the Sixth Amendment to the Constitution of the United States. The State appeals, see OCGA § 5-7-1(a)(1), and for the reasons that follow, we affirm.
The motion to dismiss was decided on stipulations of fact. The stipulations revealed that: after this Court's reversal, Carr and the State agreed that the State would hire a new arson expert to investigate the case, and that Carr would not seek bond; the State agreed to report on the status of the case on October 15, 1997; it did not do so, and on October 16, 1997, Carr moved for a bond and declared he was ready to stand for re-trial and was not seeking any delay; the trial court granted bond; in April 1998, the State informed the trial court that efforts to secure an expert had not been successful, and that the State "needed more time to retain an expert in order to decide whether to proceed *470 with the case, if at all"; at a status conference in February 2001, the State announced that it would take several months to retain an expert, and that if that expert determined that the fire was not the result of arson, it was most likely that the case would not be prosecuted; at a status conference in May 2001, the State again stated that no expert had been retained, and the court set the matter down for October 25, 2001, stating that such was a "drop dead" date, and that if no expert had then been retained, the case would be dismissed; the State retained an expert on July 9, 2001; the expert's report was submitted to the State in September 2001, but did not reach a conclusion as to whether the fire was the result of arson; on October 25, 2001, the State announced it was prepared to re-try the case; and at that time, Carr declared that trial under these circumstances would violate both his agreement with the State concerning the expert, and his right to a speedy trial, and that he would move to dismiss.
A trial court's ruling on a motion to dismiss based on the right to a speedy trial found in the Federal Constitution is reviewed under the analysis set forth in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972).
In Barker v. Wingo [...], the Supreme Court of the United States identified four factors to be considered by a court in determining whether an accused's constitutional right to a speedy trial had been violated .... (a) the length of the delay, (b) the reason for the delay, (c) the defendant's assertion of his right, and (d) the prejudice to the defendant. 407 U.S. at 530, 92 S.Ct. 2182. The Supreme Court further stated that it regarded none of the factors as either a necessary or sufficient condition to a finding of a deprivation of the right of speedy trial but rather that the factors should be considered together in a balancing test of the conduct of the prosecution and the defendant. [Cit.]
State v. Redding, 274 Ga. 831-832, 561 S.E.2d 79 (2002). "The question is whether the trial court abused its discretion in ruling that [Carr's] speedy trial rights were violated. [Cit.]" Id. at 832, 561 S.E.2d 79.
The length of the delay is measured from the return of this case to the trial court after this Court's 1997 reversal of Carr's convictions. Four years passed before the State announced it was ready for trial. "A delay of 27 months raises a threshold presumption of prejudice. [Cit.]" Redding, supra at 832. Here, the delay was over 50 months, and the State concedes that such a delay triggers the application of the remaining Barker factors. See Boseman v. State, 263 Ga. 730, 732(1)(a), 438 S.E.2d 626 (1994).
As to the reason for the delay, the second Barker factor, the trial court found that the delay was attributable to the State, and thus weighed against the prosecution. The State urges that the delay should be considered to be, at most, partly the result of State negligence, but also the result of action by Carr and his counsel. Delay caused by State negligence, rather than deliberate action to impair a defense, generally is considered "relatively benign." See Johnson v. State, 268 Ga. 416, 418(2), 490 S.E.2d 91 (1997). However, even then, "a delay attributable to the State is a negative factor and to some extent is weighed against it." Redding, supra at 833. Further, the trial court did not find that the delay was, in part, attributable to the defense, nor did the facts established by the stipulations require it to find that any cause of the delay was attributable to the defense. Although the State argues that the delay was caused by Carr's desire that a new arson expert be consulted after the original convictions were reversed, the only evidence before this Court is that the State willingly undertook to secure such an expert, and that for most of the time between its commitment to do so and the filing of the motion to dismiss, the State made little or no effort to fulfill that commitment.
The third Barker factor is Carr's assertion of his right to a speedy trial. The trial court found that Carr's failure to assert his right before October 2001, was due to the representations of the State concerning its commitment to secure a new arson expert, and that this factor would thus not be weighed against him. Redding, supra at 833, 561 S.E.2d 79. The record supports the trial court's factual determination.
*471 Prejudice to the defendant that is produced by the delay is the final, and most serious, Barker factor. State v. Johnson, 274 Ga. 511, 513(4), 555 S.E.2d 710 (2001). Carr has three protected interests under this factor: preventing oppressive pretrial incarceration, minimizing anxiety and concern, and limiting the chance of impairing the defense. Brannen v. State, 274 Ga. 454, 456, 553 S.E.2d 813 (2001). The trial court looked at these interests and found that they favored Carr.
The trial court noted that Carr was held in custody for eight months after the reversal of his convictions, and found that certain conditions of that incarceration were sufficient to consider the incarceration to be oppressive and to have produced debilitating anxiety.
On the question of impairment of Carr's defense caused by the delay, the court focused upon the fact that three witnesses had either died or otherwise become unavailable. A prominent fire investigator, who would testify that there had been no arson, had died. The State argues that this does not result in any prejudice to Carr because this witness testified at Carr's earlier trial, of which a transcript was available. However, the trial court noted that this was not as valuable to Carr as having this witness, who had over 40 years experience in the field, actually testify before the jury in any retrial.
Another witness who had died was Carr's insurance broker, who would have testified at retrial that he had advised Carr to examine his insurance policies to determine, in part, whether he had adequate fire insurance; this review was part of Carr's behavior in the period of time shortly before the fire that the State deemed suspicious. See Carr, supra at 701, 482 S.E.2d 314.
The third witness whose participation in any retrial was impacted by the passage of time was Carr's mother. At Carr's trial, the State had asserted that Carr's act of taking old family photographs to his place of business was part of his suspicious behavior before the fire; his mother would have testified that she had asked him to package and mail to her the photographs to be viewed by other family members. However, she had developed dementia and other ailments related to age.[1] Although the State notes that transcript testimony could have been introduced here as well, the trial court was within its discretion in determining that the absence of live testimony before the jury on retrial would have impaired Carr's defense.
Additionally, the burned house had been destroyed after Carr sold it in August 1997, and the expert that the State eventually hired was not able to make a firm determination about the cause of the fire without examining the scene. The State argues that Carr voluntarily relinquished control of the crime scene, and that this actually impairs the prosecution, as the State cannot now use it to generate evidence in support of a conviction. However, there is no suggestion in the evidence that Carr sold the home in an attempt to have the scene of the fire destroyed, and the trial court was authorized to determine that the destruction of the scene was prejudicial to Carr's defense.
The trial court did not abuse its discretion in weighing all the Barker factors and granting the motion to dismiss.
Judgment affirmed.
All the Justices concur.
NOTES
[1] She was 91 years old when the trial court granted the motion to dismiss.
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915 F.2d 1577
U.S.v.Johnson (Stephen L.)
NO. 89-2753
United States Court of Appeals,Eighth Circuit.
SEP 21, 1990
1
Appeal From: W.D.Mo.
2
AFFIRMED.
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779 F.2d 44
U.S.v.Levine
84-5038
United States Court of Appeals,Third Circuit.
10/29/85
D.N.J.,
Lacey, J.
AFFIRMED
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21 Md. App. 251 (1974)
319 A.2d 592
RICHARD O. BAUMGARTNER
v.
STATE OF MARYLAND.
No. 544, September Term, 1973.
Court of Special Appeals of Maryland.
Decided May 20, 1974.
The cause was argued before THOMPSON, DAVIDSON and LOWE, JJ.
Robert C. Heeney for appellant.
James G. Klair, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Robert S. Rothenhoefer, State's Attorney for Frederick County, and Peter I.J. Davis, Special Attorney, on the brief, for appellee.
LOWE, J., delivered the opinion of the Court.
Richard O. Baumgartner is the Sheriff of Frederick County. On July 6, 1973 he was convicted by a jury in the Circuit Court for Montgomery County of false pretenses, embezzlement and malfeasance in office. Judge Joseph M. Mathias imposed two concurrent two-year sentences for false pretenses and embezzlement and a sentence of twenty-five days in jail or a fine of $250 for malfeasance in office. The sentences for false pretenses and embezzlement *253 were suspended upon eighteen months probation and restitution of funds to the County.
Appellant submits eight assignments of error. The first two are interrelated and will be treated together, as will the third, fourth and sixth for the same reason.
I and II
JOINDER OF OFFENSES
"The trial judge abused his discretion in refusing to order an election or separate trial of the alleged offenses."
"The joinder and trial of 32 counts in this case prejudiced and improperly limited the appellant's Constitutional Rights."
The grand jury presentment contained thirty-two counts charging Sheriff Baumgartner with offenses committed from the time he took office in December, 1970 until June of 1972. Judge Mathias denied a defense motion for an order requiring separate trials of the various counts or an election among them by the prosecution. During trial, Judge Mathias granted a motion for judgment of acquittal as to fourteen counts. The jury acquitted appellant of fifteen others and convicted him of three.
Appellant contends that the court abused its discretion in refusing to order separate trials as to all counts or to compel the State to elect among them. The gist of appellant's argument appears to be that it is never proper to permit the joinder of offenses unless all of the offenses involve substantially the same facts, form part of the same transaction, and occur during a brief space of time.
Md. Rule 716 a permits the joinder of two or more offenses in one indictment. To protect the legitimate interests of both sides, however, Md. Rule 735 provides that the court "... may order an election or separate trials of counts ... or provide such other relief justice requires." Whether or not to order separate trials is a matter within the sound discretion of the trial court. Jennings v. State, 8 Md. App. 312, 315.
*254 In his June 21, 1973 Memorandum Opinion and Order refusing to order separate trials, or a prosecutorial election, Judge Mathias found that the defendant would not be prejudiced by a joint trial, whereas it "would impose an unconscionable burden on the State and result in an unnecessary expenditure of money to try the defendant separately on these counts." He ruled that the defendant would not be prejudiced because all the offenses charged were similar or related and all grew out of the defendant's conduct as Sheriff of Frederick County. We find no abuse of discretion in this ruling.
The thirty-two counts of the presentment charged Sheriff Baumgartner with a series of acts, dating from his assumption of office, which taken together showed a common design to defraud the County or certain individuals of money, services, or property and in so doing to misuse the trust reposed in him by reason of his office. He was accused of defrauding the Frederick County Commissioners between December, 1970 and June, 1972 by 1) misrepresenting personal telephone calls as official calls (Count 1); 2) purchasing beef steaks charged to the jail, but submitting bills indicating the purchase of stewing beef (Counts 2, 3, 4, 26, 27); 3) working, and assigning his deputies to work, during normal hours for private concerns for compensation, while submitting regular forty-hour and overtime pay vouchers (Counts 5, 6, 7, 8, 9, 10, 11, 12, 28, 29, 30, 31); 4) selling goods charged to the County to his deputies and one other individual, but failing to turn over the proceeds of these sales to the County (Counts 13, 14, 15); and 5) receiving compensation for transporting uniforms from Harrisburg, Pennsylvania to Frederick County in his official vehicle but failing to account for or turn over these monies to the County (Counts 16, 32). He was also charged with embezzling funds belonging to five individuals which he obtained at sheriff's sales for which he collected unauthorized auction fees (Counts 17, 18, 19, 20, 21, 23, 24, 25). Finally he was charged with permitting a prisoner to leave his custody without supervision for the purpose, among others, of painting the Sheriff's house for which work the prisoner received no compensation. All but six charges *255 accuse the defendant of embezzling or obtaining funds by false pretenses from the same victim, the Frederick County Commissioners. Five of the remaining counts charge him with embezzlement by withholding from five individuals funds belonging to them which came into his possession by reason of his office. The final count alleges similar misconduct in permitting a prisoner to leave custody to work without compensation resulting in private gain to the Sheriff.
The appellant errs in contending that the court must require separate trials or elect among counts where the accusations do not arise from the same transaction. In Simmons v. State, 165 Md. 155, the Court of Appeals approved the joinder of eighteen counts charging the defendant with larceny or obtaining funds by false pretenses from a bank in separate transactions over a nine-month period.
It is also not necessary that all the offenses charged be committed against the same victim. In Jennings v. State, supra, this Court upheld the joinder of counts charging the defendant with the burglary of a dwelling and the breaking of a storehouse belonging to different individuals.
In determining whether a defendant will be prejudiced by the joint trial of several counts, "[t]here is no rigid rule, and the only limitation is that courts will guard against injustice." Wanzer v. State, 202 Md. 601, 608.[1] In the instant case, we agree with Judge Mathias that the defendant did not risk prejudice in the joint trial of all the charges against him. We believe that all of the offenses charged were of the same general nature, formed part of a general scheme of unlawful conduct and permitted the same mode of trial. Since the proof tending to show each one of the offenses charged showed a common scheme to appropriate public funds or services for personal gain, the proof of any one offense would be admissible in proving any other. Cf., Jennings v. State, supra, 316. Judge Mathias' refusal to *256 order separate trials or an election by the State was neither an abuse of discretion nor a denial of appellant's constitutional rights.
III, IV and VI
EXCLUSION OF EVIDENCE INSTRUCTIONS REGARDING DUTIES OF SHERIFFS CONSTITUTIONALITY OF "SAFELY KEEP"
"The trial judge was in error in excluding evidence of the customs of the Sheriffs of other Maryland counties."
"The instructions of the trial judge as to the customs and duties of a Maryland Sheriff were in error."
"Article 87, Section 45 of the Maryland Annotated Code is unconstitutionally vague."
The twenty-second count of the grand jury's presentment charged Sheriff Baumgartner with malfeasance in office for permitting a prisoner to leave the jail unescorted and unsupervised during the two and a half month period he was awaiting sentence after pleading guilty to manslaughter. The appellant allowed the prisoner to leave the jail unsupervised, usually to work outside the jail but also to visit his parents at their home on at least three occasions. Lewis testified that he worked "... outside the jail ... and washed cars and everything, mowed the grass." Lewis also testified that he had gone to the Sheriff's home while a prisoner and "done caulking work for him ... built cellar doors, put on some stuff and painted." Under cross-examination, he recalled doing panelling in the court house and moving books in the library. The prisoner always returned when expected and was present in court whenever required.
Exclusion of Evidence
During trial, appellant proffered the testimony of sheriffs of other Maryland Counties as to their permitting trusted *257 prisoners to work outside and unguarded. The court sustained an objection to that proffer saying:
"... These men [sheriffs] are in different counties. The conditions are different.
"It does seem to me that it is the wrong kind of evidence to help the jury decide whether or not the Sheriff of Frederick County in a careful and prudent manner performed his duties in a careful and prudent manner and discharge of his obligations as Sheriff."
Appellant responded that the evidence proffered was relevant to the jury's understanding of Md. Code, Art. 87, § 45 which provides that "The sheriff shall safely keep all persons committed to his custody by lawful authority until such persons are discharged by due course of law."
The sheriffs whose testimony was proffered were from Allegany, Kent, Somerset and Washington Counties. The proffer was that these sheriffs would testify that it was their custom to allow prisoners awaiting trial to work in the Court House without supervision. Appellant argued that this practice was in accordance with a prisoner's "... commitment ... it says keep them and deliver them."[2]
We fail to see the relevance of this proffer for, as noted by the judge, "The conditions are different." The proffer explicitly referred to prisoners in the other counties who were awaiting trial. Obviously, under such circumstances, the sheriff is bound by the explicit orders of the prisoner's commitment. The question before the court did not relate to a prisoner awaiting trial, but rather to one convicted upon his plea and awaiting sentence.
*258 The indictment charged:
"... during the period between October 13, 1971 and December 22, 1971 ... Richard O. Baumgartner, unlawfully and wilfully did permit one Richard Eugene Lewis, a convicted felon, to leave the jail unescorted and unsupervised contrary to his duty . .. ." (Emphasis added.)
The docket entries relating to Richard Lewis indicate the court accepted his plea of guilty to Manslaughter on October 5, 1971 and that he was "... remanded to the custody of the Frederick County authorities pending sentencing." He was not sentenced until December 22, 1971. As a consequence, the proffered testimony of other sheriffs' practices relating to prisoners under commitment awaiting trial was not relevant to the issue of a prisoner held after conviction. The test of admissibility is the connection of the fact to be proved with the offense charged. Wilson v. State, 8 Md. App. 653. The trial judge who "is clothed with broad discretion in determining what evidence is relevant ..." could see no relevant connection, nor can we. See 1 Wharton, Criminal Evidence, § 151.
Beyond that, the custodial practices in the several counties differ markedly by virtue of local legislation enacted by the General Assembly. Frederick County itself has a unique directive to the Sheriff regarding the employment of prisoners who have been convicted and sentenced. Three of the four counties included in the proffer have variants of that local legislation while the fourth is silent. Notwithstanding the fact that sheriffs are state not county officers, see Talbot County v. Carroll, 172 Md. 386, 387, their respective duties do vary from county to county in accordance with such local statutory directives. The proffer contained no assurance that the county practices were governed by the same statutes or statutes similar to those directing the Frederick County Sheriff.
The evidentiary question decided by the judge was whether the proffered evidence tended to prove or disprove the crime charged. Barter v. State, 223 Md. 495. Without the *259 foundation of similarity of authorized practices the evidence could very well have been misleading rather than enlightening. "No precise and universal test of relevancy of evidence is furnished by law but the determination of whether or not particular evidence is relevant rests largely in the discretion of the trial court, which must be exercised according to the teachings of reason and judicial experience." 31A C.J.S. Evidence, § 158. We see no abuse of that discretion.
The Instruction
At the conclusion of the case, the court instructed the jury that a sheriff is a constitutional officer who shall exercise such powers and duties as are now or may hereafter be fixed by law. The judge then stated that the Legislature had enacted Md. Code, Art. 87, § 45 pursuant to th constitutional provision. After reading Section 45:
"The sheriff shall safely keep all persons committed to his custody by lawful authority until such persons are discharged by due course of law,"
he added;
"It has long been established that the place where persons shall be kept is in jail and that the care and control of persons confined in the jail is the responsibility of the Sheriff unless changed by the Legislature. The Sheriff owes a duty to the public to safely keep the prisoners who are committed to his custody."
Appellant argues that, since the term "safely keep" in Art. 87, § 45 is not defined in that Section of the Code or in any other, the court's instructions regarding the proper place for keeping prisoners misstated the law. We do not agree.
Even at common law it was a misdemeanor for a sheriff or jailor having lawful custody of a prisoner voluntarily or negligently to permit him to depart from the custody, no *260 matter how short a time the departure might be. Ex parte Shores. 195 F. Rep. 627, 630 (D.C.N.D. Iowa), citing 4 Blackstone, Commentaries, 129-130; see also Perkins, Criminal Law (2nd. Ed.), Ch. 5, pp. 500-501. Moreover, the principal case interpreting what is now § 45 of Art. 87, Cocking v. Wade, 87 Md. 529, explicitly contradicts appellant's assertion. In Cocking v. Wade, supra, a mob took an accused murderer from a jail by force and lynched him. The prisoner's heirs sued the sheriff for negligently failing to move the prisoner to safety when warned of the existence of public excitement about the prisoner.
In interpreting the meaning of "safely keep" used in Art. 87, § 45 (then § 43), the court said that the place prisoners were to be kept was in jail precisely where the decedent had been placed by the sheriff until he was removed by the lynch mob. As a consequence, the court held the sheriff had not violated the standards of protection expected of him. Although this case interpreted the statute as it related to the safety of the prisoner, the court, in defining the sheriff's duty, made it abundantly clear that for his failure to perform this or any other duty "... he was liable to be proceeded against criminally. His duty to keep safe the prisoner was not for the benefit of the prisoner; it was that he might be detained until discharged in due course of law...." The court's reasoning was confined to one paragraph:
"From a very early day the English law has contained provisions defining and regulating the rights and obligations of sheriffs in respect to the custody of persons charged with the commission of crime. As far back as the Statute of 14 Edward III, ch. 10, the right to the custody of the gaols was `rejoined' to the sheriffs of the bailiwicks; and by the 5 Hen. IV, it was ordained, that none be imprisoned by any justice of the peace, `but in the common gaol.' In our own State, by statute passed in 1809, and now codified as section 16 of Article 42, no citizen committed to the custody of an officer for *261 a criminal matter shall be removed from thence into the custody of another officer, unless by habeas corpus or other legal writ, except when the prisoner is delivered to a constable, or other inferior officer to be carried to some jail, or shall be removed from one place to another * * in order to his discharge or trial; or in case of sudden fire or infection, or other necessity, or, `&c. Mr. Alexander in his valuable work on the `British Statutes,' remarks of this section that it is `intended to prevent the vexation and danger of protracted imprisonment which might be occasioned by the removal of the prisoner from one custody to another. And it affirms therefore the principle that the prisoner ought to be committed to the proper prison in the first instance.' This observation is supported by a fair interpretation of sections 43, 44 and 45 of Article 87 of the Code. The first of these sections provides that the sheriff shall `Safely keep all persons committed to his custody by lawful authority until such persons are discharged by due course of law;' and the place where he shall so `keep' them, is clearly indicated by the 45th section. That section provides that all persons committed under the authority of the United States, the sheriff shall receive and safely keep in jail, `in the same manner and under like penalties as if such persons were committed under the authority of this State.'" Cocking v. Wade, supra, 539-540.
We fully recognize the steps taken by the General Assembly toward implementing the modern view that gainful employment of prisoners better serves society and prisoners than "warehousing" them in jails and prisons. The Legislature has provided for statewide work programs by authorizing the Department of Corrections to establish a "work release program," Md. Code, Art. 27, § 700A, and by permitting courts to prescribe conditions of employment in sentencing prisoners supervised by sheriffs or the *262 Department of Parole and Probation. Md. Code, Art. 27, § 645K, et seq. The counties themselves have been used for experimental purposes in this area. A pointed example is Sec. 5-5 of the Frederick County Code, referred to above:
"Sec. 5-5. Working of prisoners on public roads, etc.
The sheriff of the county is hereby authorized and directed to require all persons of sufficient ability who shall be sentenced to imprisonment in the county jail by any court or justice of the peace of the county as a punishment for any crime or misdemeanor committed therein to work upon the public road, highways, buildings and properties or to do some work in connection with the improvement thereof, as part of the prison discipline and management; provided, the work is for the public and not private benefit. The sentence of every such person shall be reduced by one day for every five working days spent in such work. Laws of 1961, ch. 687, § 1." (This section was amended technically by Laws of 1974, Ch. 275 without change of substance.)
This section not only authorizes but directs the sheriff to see that all able-bodied prisoners work on County projects. To do so obviously necessitates their release from absolute confinement. The act is silent, however, as to what if any supervision is needed or should be provided. However, the act is not decisive of the case at hand because it is applicable solely to those persons who have been sentenced. Richard Lewis had been convicted under his plea but had not yet been sentenced during the period in which the Sheriff was charged with permitting him unsupervised freedom. Although the testimony was most unclear as to Lewis' status between October 13, 1971 and December 22, 1971, the docket entries of the Lewis case, introduced as a State exhibit, show that Lewis' unsupervised departures from jail occurred before "sentencing." Thus, unless the mittimus of the court is to the contrary, Cocking v. Wade, supra, indicates that a sheriff has no discretion in releasing a prisoner "unless some necessity *263 makes it proper to remove him...." Only a court order or a statute can relieve a sheriff of his responsibility to keep prisoners committed to his charge in arcta et salva custodia, strict and safe keeping or, as interpreted in Steere v. Field, 22 F.Cas. 1210, 1218 (No. 13, 350) (C.C.R.I.), "strict confinement under lock and key."
Constitutionality
Appellant contends that the words "safely keep" in Md. Code, Art. 87, § 45 are so vague, indefinite and ambiguous that "Sheriffs of ordinary intelligence must necessarily guess at their meaning and differ as to their application." The record does not indicate that the trial judge actually considered that constitutional challenge, which was not raised until Appellant's case was closed and his Motion for Judgment of Acquittal denied.
In declining to respond to this constitutional question not adequately heard nor decided below we repeat what we said in Vuitch v. State, 10 Md. App. 389, 397-398:
"In concluding that the constitutional questions now sought to be raised were not properly preserved for appellate review, we do not seek to delay the day when these important public issues must be squarely met and decided, either by us, or the Court of Appeals of Maryland. But it would be fool-hardy in the extreme to undertake the resolution of such complex constitutional questions upon a record as procedurally and substantively deficient as that now before us one in which the constitutional questions, though readily apparent prior to trial, were raised for the first time after the State had concluded its case-in-chief, and then only by an inappropriate motion (generally alleging unconstitutionality along a front far more limited in thrust than that presently sought to be aired), submitted without comment, or illuminating argument. Whether the trial judge actually considered appellant's constitutional claims cannot *264 be ascertained from the record since in denying the motion he made no comment thereon, and may well have concluded, quite properly, that the constitutional questions could not be raised at that juncture of the proceedings by motion for judgment of acquittal. Of course, nothing is better settled than the rule that a question as to the constitutionality of a statute will not be considered on appeal when not properly raised and decided by the lower court. Luthardt v. State, 6 Md. App. 251; Iozzi v. State, 5 Md. App. 415; Woodell v. State, 2 Md. App. 433." See also Hallengren v. State, 14 Md. App. 43, 47.
V
Office Records
"The production and use of the Sheriff's personal records was a violation of his Constitutional Rights."
Appellant kept daily work release logs for prisoners and time sheets for jail personnel. He argues that "... no statute required the keeping of those papers ... [and that] appellant kept the same at his own time and expense. Thus the papers were purely private." He contends that the Court "... ordered their production based upon ... Md. Code, Art. 76A, Section 1, the Public Information Statute ... [and] the Court also based their admission into evidence upon this section of the Code." He then argues that even if the records are found to be public his Constitutional rights against self-incrimination, under the Fifth Amendment to the Constitution of the United States and Article 22 of the Declaration of Rights of the Maryland Constitution, were violated. In light of the circumstances, it is difficult to follow appellant's reasoning.
On the third day of the trial, the State filed a subpoena duces tecum for the records. They were produced in the court room over objection. It appears that at least part of *265 those voluminous "jail records" were marked for identification for the State but never introduced into evidence as a State's exhibit. The entire box of records was later introduced by appellant as Defendant's Exhibit No. 4. Although it is unclear what portions of the records appellant claims constituted a violation of his right against self-incrimination, it is distinctly clear that such right does not apply to evidence which appellant introduced. Quite obviously the production of the documents did not prejudice appellant. If anything did, it was their availability to the jury after introduction as evidence. Any objection to the production of the documents was waived by appellant's introduction of the records into evidence as his own exhibits.
VII
"The Court created reversible error in refusing defense counsel's request to submit written instructions to the jury."
Pursuant to Md. Rule 756 b, the trial judge elected to give written instructions to the jury after reading them in open court. Appellant advised the court that he had no request for instructions by the court, but that he "would do his own instructing." He requested the right to submit his own instructions to the jury in writing. The court denied his request. Appellant now complains that the denial gives the court's instructions "the force of law" and that such action was "error and prejudice" which "improperly influenced the decision."
Md. Rule 756 a and b contain the answer to appellant's assignment of error. Rule 756 b authorizes the court to "give its instructions either orally or in writing;" it does not give the parties the same right. Nor do we know of any statutory or judicial authority which does so. Rule 756 a does give appellant the right to "file with the court written requests that the court instruct the jury as set forth in such requests...." Appellant declined that opportunity and decided to "do his own instructing." This of course is his *266 prerogative. He is not denied the right to argue to the contrary and to express his own views of the applicable law. Md. Rule 756 e; Wilson v. State, 239 Md. 245, 256-257. Any differences between court and counsel as to the law are to be resolved by the jury. Schanker v. State, 208 Md. 15, 21, quoted with approval in Wilson v. State, supra. Under Md. Rule 756 f appellant may object to any instruction by the judge which he believes improperly states the law, and he may argue contrary to the court's proper instruction of the applicable law. Even in this instance the judge must advise the jury, as he did here, that "In this State the jury is the judge of both the law and the facts. Therefore, my instructions to you are advisory only and not binding upon you." Md. Rule 756 b.
Appellant's argument that the judge's instructions would have the "force of law" apparently is intended to mean they will be given more weight by virtue of their relative permanence and availability during the jury's deliberations.[3] The argument issues from an erroneous, unspoken but necessary corollary, i.e., that the judge is an advocate rather than an arbiter. To the contrary, such procedural discretion is permitted him because of his impartiality, and denied the parties because of their adversary roles.
Appellant is not prejudiced if the judicial instructions are a correct statement of the applicable law. If they are incorrect Rule 756 f permits review and correction of the erroneous instruction properly objected to. That additional weight may be given judicial instructions by the jury over those of an advocate is a derivative of the protective coloration of judicial impartiality. We see no prejudice by virtue of the procedure elected by the trial judge and authorized by rule.
VIII
"Under the totality of the circumstances the evidence was insufficient to sustain a conviction on counts of embezzlement, obtaining money by false pretenses, and malfeasance."
*267 Appellant's final contention is that the evidence was insufficient to support his convictions of obtaining forty-five dollars from the Frederick County Commissioners by false pretenses, of embezzling eighty-five dollars from the Commissioners, and of malfeasance in office by permitting a prisoner to leave the jail unescorted and unsupervised. As we indicated in our extensive discussion of appellant's conviction for malfeasance under III, IV and VI, we believe the evidence ample to sustain that conviction.
As to the convictions under the counts charging false pretenses and embezzlement, a review of the record reveals that there was sufficient evidence or rational inferences from which a jury could be (and apparently was) convinced beyond a reasonable doubt of appellant's guilt.
Ralph Dwight Brown, owner and operator of the Trading Post located in Jefferson, Maryland, testified that on June 19, 1972, appellant made application to buy a pistol costing $78.95. Baumgartner had previously purchased 29 boxes of .38 caliber wad cutters (ammunition) at $3.00 per box, for a total of $87.00. Both the wad cutters and the pistol were charged to the sheriff's personal account. This account remained open for some time and Brown indicated that he talked to the sheriff several times about the $165.95 owed. On August 31, 1972, Sheriff Baumgartner instructed Brown to transfer the bill for the gun from his personal account to the County's account. Appellant gave Brown a check for $120.95 and instructed him to bill the County Treasurer for $45.00 so that the County account and the sheriff's personal account would both be paid in full. The witness indicated that he received the $45.00 from the County Treasurer.
Subsequent to the transfer of the bill for the pistol from Baumgartner's personal account to the County account, appellant sold the gun for $85.00 to Lewis E. Buckholtz, a Captain in the United States Army who was working part-time for the Frederick County Sheriff's Office. Buckholtz indicated that he paid for the weapon in cash in three payments. He thought that the gun was the personal property of the sheriff.
According to Baumgartner, these funds were deposited in *268 the "Frederick County Sheriff's Association" account. They were not returned to the County Treasurer. Several witnesses who were either current or former deputy sheriffs indicated that Baumgartner sold them boxes of wad cutters for target practice at $3.00 per box. While the County Treasurer paid for the wad cutters, Sheriff Baumgartner indicated that the money that he collected from his deputies was put into the "Frederick County Sheriff's Association" account. This "Association", created by Sheriff Baumgartner, was an informal group of his deputy sheriffs which appeared to have no official connection with County government.
There was ample evidence from which the jury could have found appellant guilty of obtaining $45.00 by false pretenses and of embezzling $85.00 from the County Treasurer. The requisite intent to defraud which appellant suggests is missing was amply demonstrated by his manipulation of the accounts at the Trading Post.
The crime of false pretenses is committed when a chattel, money, or valuable security is obtained from another by making a false representation of past or existing fact with intent to defraud and with knowledge of its falsity. Bosley v. State, 14 Md. App. 83, 89; Polisher v. State, 11 Md. App. 555, 560. The evidence was sufficient to support appellant's conviction under Art. 27, § 140.
"Embezzlement is a statutory offense designed to penalize those fraudulent conversions of money and other personal property which could not be prosecuted in common law as larceny because there was no trespassory taking." Gordon v. State, 5 Md. App. 291, 303. Appellant was convicted under Md. Code, Art. 27, § 138, "Embezzlement by Public Officers." The failure of Sheriff Baumgartner to account for the proceeds from the sale of the pistol after the bill for the weapon had been transferred to the County's account constituted the crime of embezzlement. Cf. League v. State, 1 Md. App. 681.
Judgments affirmed.
Costs to be paid by appellant.
NOTES
[1] In Jennings v. State, supra, 315, we noted that "Rule 735 conforms in substance with the common law rule discussed and applied in Wanzer." See also DiNatale v. State, 8 Md. App. 455, 458.
[2] Appellant was apparently referring to a Bench warrant since the customary "Commitment Awaiting Further Action" issued after a preliminary hearing instructs the sheriff to "safely keep in your jail and custody until he shall thence be delivered according to law." (Emphasis added.) A Bench Warrant on the other hand, usually issued after indictment by a grand jury commands the sheriff to take the offender "if he shall be found in your bailiwick, so that you have [his] bod[y] before the Circuit Court of ___________________ County, immediately, to answer unto the State...."
[3] Scripta manent, verba volent: Written words remain, while spoken words fly away.
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248 So.2d 336 (1971)
KRAUTKRAMER ULTRASONICS, INC.
v.
PORT ALLEN MARINE SERVICE, INC. and Equilease Corporation.
No. 4314.
Court of Appeal of Louisiana, Fourth Circuit.
May 10, 1971.
Rehearing Denied June 7, 1971.
*337 Julian B. Humphrey, New Orleans, for plaintiff-appellee.
Clarence F. Favret, Jr., and Joseph Drolla, Jr., New Orleans, for defendant-appellee and defendant-appellant.
J. Barnwell Phelps of Phelps, Dunbar, Marks, Claverie & Sims, New Orleans, for defendant-appellant.
Before SAMUEL, LEMMON and GULOTTA, JJ.
LEMMON, Judge.
Krautkramer Ultrasonics, Inc. sued Port Allen Marine Service, Inc. and Equilease Corporation for the purchase price of ultrasonic testing equipment, manufactured and sold by Krautkramer. Port Allen now appeals from an adverse judgment. The suit against Equilease was dismissed, and no appeal has been taken from that determination.
Krautkramer, a Connecticut corporation, was contacted on July 28, 1966 by Port Allen about the purchase of ultrasonic equipment, and on July 29, 1966 Port Allen sent a purchase order to Krautkramer for this equipment. On this same date Krautkramer wrote a letter (which apparently crossed Port Allen's letter in the mails) to Port Allen, confirming a price on the equipment recommended in the telephone conversation of the previous day and outlining terms of delivery and payment. The letter also advised that:
"I telephoned Mr. Jerry Godkins of Delta Associates, P.O. Box 5106, New Orleans, La., our Representative for your area, and asked Jerry to call you and make an appointment to demonstrate the USK 5M to you." (Emphasis supplied)
Delta Associates, Ltd., was a manufacturer's representative located in New Orleans and sold, on a commission basis, equipment manufactured by Krautkramer and other companies.
On August 3, 1966 Krautkramer shipped the equipment directly to Port Allen and invoiced them for the purchase price.
After delivery of the equipment, Port Allen entered into a "financing" arrangement whereby Equilease agreed to purchase and pay for the equipment delivered by Krautkramer, and in turn to lease the equipment to Port Allen with an option to purchase. Port Allen had previously engaged in similar lease-purchase arrangements with Equilease. Delta participated in the financing negotiations, and Delta invoiced Equilease for the purchase price, but Krautkramer was unaware of these developments.
On September 21, 1966, after the thirty day term for payment had expired, Krautkramer sent a dunning or reminder letter to Port Allen. A phone call from Port Allen to Krautkramer on September 28, 1966 revealed the financing arrangements with Equilease. However, Krautkramer still continued to seek the purchase price from Port Allen, as subsequent facts will indicate. These events were followed by an exchange of letters, dated October 4, 1966 *338 and October 6, 1966, between Krautkramer and Delta, Krautkramer wanting to know what had happened and why they had not been paid by Port Allen or Equilease.
Unknown to Krautkramer, on October 7, 1966, Equilease paid Delta's invoice, rather than paying Krautkramer, who had been trying to collect from Port Allen.
Krautkramer thereafter sent two more dunning letters to Port Allen, who in reply stated that the purchase was being financed through Equilease, whom they were paying regularly. In a letter dated December 15, 1966 from Equilease to Krautkramer, Krautkramer was informed that Equilease had paid Delta. Equilease claimed that they had no instructions to pay Krautkramer, and advised that they "had accordingly paid your dealer". Upon receiving this information, Krautkramer wrote to Port Allen on January 6, 1967, stating that they had continued to bill Port Allen because they received the purchase order from Port Allen (not Equilease), and they did not even have any knowledge that Equilease was involved until long after the transaction was completed. Krautkramer suggested strongly that all of this trouble would have been avoided, if they, Krautkramer, had been properly informed, and they further repudiated any authority of the sales representative to receive payments. Additionally, on this same date, Krautkramer sent a letter to Equilease, advising that it was not proper to pay the sales representative, who was not authorized to receive payments, and requesting that future financing agreements of this nature be engaged only by Equilease sending purchase orders directly to Krautkramer in order to assure proper invoicing.
From this point events took a turn for the worse. Delta, never having paid Krautkramer, refused to respond to any further communications, with the result that they were released as Krautkramer's sales representative. Shortly thereafter, Delta went into bankruptcy, presumably cutting off any recourse Krautkramer might have had against them.
Port Allen defends the suit that followed these events with the contention that Krautkramer clothed Delta with apparent authority to receive payment from Krautkramer equipment, and Krautkramer is estopped from denying payment to its agent.[1]
Although the Louisiana Civil Code offers no express concept of apparent authority[2] a, this concept is well embedded in our jurisprudence, presumably in response to changing commercial needs.[3]
The doctrine of apparent authority requires (1) that the principal make manifestations to a third party in some form, and (2) that the third party reasonably rely on the agent's purported authority as a result of the manifestations of the principal.
In this case the only manifestation of Delta's apparent authority which Krautkramer made to Port Allen was in the letter of July 29, 1966 referring to Delta as "our representative". While this is a manifestation that Delta possessed the power to act in some capacity for Krautkramer, we do not believe that Port Allen could reasonably have concluded that Delta had the authority to receive payment for Krautkramer.[4]
*339 Krautkramer dealt directly with Port Allen in recommending equipment and quoting prices and terms. Port Allen ordered the equipment directly from Krautkramer and received delivery directly, as well as an invoice for the purchase price. Krautkramer also sent a reminder letter after the invoice was past due, and all of these events occurred before Delta was paid the purchase price, as well as before Krautkramer knew of the Equilease financing arrangements. It can hardly be said that Krautkramer did anything to mislead Port Allen (or Equilease) into believing that Delta should receive payment for the equipment. Furthermore, as soon as Krautkramer discovered the payment to Delta, they repudiated (to both Port Allen and Equilease) the supposed authority of Delta to receive such payment.
Neither can Krautkramer be held responsible for Delta's participation in the financing arrangements, since Delta was not acting with apparent authority to engage in these separate transactions.[5] While Port Allen would point out that Equilease was the party misled, and who made payment to Delta, Krautkramer never did contract or deal with Equilease and made no manifestations to Equilease in regard to Delta's authority. What Port Allen did was done at its own risk, and was unreasonable in the light of any manifestations made by Krautkramer regarding Delta's authority. Therefore, Port Allen should not be relieved from paying the price due to Krautkramer for the purchase of the equipment.
After Krautkramer learned that Delta had been paid but did not forward the payment, Krautkramer began retaining Delta's commissions on other sales as the accounts were collected. Port Allen therefore contends alternatively that the retained funds should be set off against any amount due under the sale involved in this suit.
Since Delta collected the funds due Krautkramer, it could be argued that Delta and Port Allen both owe the debt, and any credits due by either debtor should be set off against the debt. While this argument is persuasive from an equitable standpoint, it is not legally sound under the facts of this case.
Port Allen did not present a third party demand against Delta for the payment made on its behalf by Equilease, and Delta is not a party to this litigation. With the case in its present posture, the commissions held by Krautkramer are simply Delta's funds in the hands of a third party subject to a demand by Delta or a garnishment by Delta's creditors (pretermitting considerations of the bankruptcy proceedings). It would thus be improper for this court to adjudicate a disposition of these funds on the record before us.
For the foregoing reasons, the judgment of the trial court is affirmed at appellant's costs.
Affirmed.
NOTES
[1] For a discussion of the distinction between the doctrines of apparent authority and estoppel, see Agency Power in Louisiana, 15 Tul.L.Rev. 110 (1965).
[2] See, LSA-C.C., Title 15, Of Mandate, arts. 2985-3027.
[3] These jurisprudential concepts would also alter the codal provisions dealing with persons authorized to receive payment for another. See, LSA-C.C. arts. 2140-2145 especially.
[4] See, Wogan v. Grau, No. 7888, 4 Peltier 205 (Orleans Appeals 1921) where the court held that it was not within the apparent scope of an agent's authority to receive rent payments where his sole function was to find tenants for his principal.
[5] The trial judge held, and the record confirms, that Equilease dealt with Delta as principal, rather than agent, apparently under the impression that Delta was the owner of the equpiment.
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No. 04-01-00525-CR
Michael James REICHENAU,
Appellant
v.
The STATE of Texas,
Appellee
From the 216th Judicial District Court, Kerr County, Texas
Trial Court No. A99-118
Honorable Stephen B. Ables, Judge Presiding
Memorandum Opinion
Opinion by: Sandee Bryan Marion, Justice
Sitting: Phil Hardberger, Chief Justice
Alma L. López, Justice
Sandee Bryan Marion, Justice
Delivered and Filed: September 11, 2002
AFFIRMED
Defendant Michael James Reichenau was convicted of capital murder and sentenced to life
imprisonment. In several issues on appeal, defendant argues that: (1) the trial court erred when it
conducted the jury shuffle; (2) the trial court abused its discretion when it admitted into evidence
several graphic photographs and two hearsay statements; and (3) the trial court erred when it
permitted a witness to testify about extraneous offenses that defendant allegedly committed. Finally,
defendant insists that if the complained of evidence is properly excluded, the remaining admissible
evidence is legally and factually insufficient to support his conviction. Because the issues in this
appeal involve the application of well-settled principles of law, we affirm the conviction in this
memorandum opinion under Texas Rule of Appellate Procedure 47.1 for the following reasons:
1. In his first issue, defendant argues that the trial court's methodology of conducting the jury
shuffle was inconsistent with the procedure mandated by Texas Code of Criminal Procedure article
35.11. However, it is well-settled that to preserve error for appeal, trial counsel must timely object
and point out the specific grounds for his objection, even if the claimed error is "incurable" or
"constitutional." See Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996); Boulware v.
State, 542 S.W.2d 677, 682 (Tex. Crim. App. 1976). In this instance, defendant failed to lodge an
objection during the jury shuffle and apprise the trial court of his complaint; therefore, his complaint
was waived. Tex. R. App. P. 33.1. We overrule defendant's first issue.
2. In his second and third issues, defendant contends the trial court erred when it admitted
certain "bloody and gruesome" photographs because their prejudicial effect was outweighed by any
possible probative value. Defendant also argues that even if the trial court did not err in admitting
each photograph, the cumulative effect of the graphic pictures was more prejudicial than probative.
When determining whether the trial court erred in admitting relevant photographs into evidence, our
review is limited to determining whether the probative value of the photos is substantially outweighed
by the danger of unfair prejudice, confusion of issues, or misleading the jury, or by considerations of
undue delay, or needless presentation of cumulative evidence. Tex. R. Evid. 403; Jones v. State,
944 S.W.2d 642, 651 (Tex. Crim. App. 1996). The trial court's decision is reviewed under an
abuse of discretion standard and is disturbed on appeal only when its decision falls outside the zone
of reasonable disagreement.
The record reveals that each time defendant objected to the State's offer of a photograph, the
trial court heard arguments from both the State and defendant, conducted the requisite balancing test
under Rule 403, and ruled that the photographs were admissible. In addition, the authenticating
witnesses, as well as other witnesses, testified to and described the scenes depicted in the photographs
in detail. Generally, a photograph is admissible if verbal testimony as to matters depicted in the
photographs is also admissible. Williams v. State, 958 S.W.2d 186, 195 (Tex. Crim. App. 1997).
Also, the photographs established the manner and means of the victim's death and the force used.
We hold that the trial court did not abuse its discretion by admitting the photographs, and we overrule
defendant's second and third issues.
3. Defendant argues that the trial court erred in allowing April Lynn and Deputy Jeffrey
McCoy to testify to hearsay statements in violation of Texas Rule of Evidence 803 and in violation
of his constitutional rights of confrontation. After reviewing these statements, we hold that they were
excited utterances and properly admissible under Rule 803(2). See Tex. R. Evid. 803(2); King v.
State, 953 S.W.2d 266, 269 (Tex. Crim. App. 1997); Lawton v. State, 913 S.W.2d 542, 553 (Tex.
Crim. App. 1995). Defendant's fourth issue is overruled.
4. Defendant asserts the trial court erred in permitting a witness to testify about prior crimes
or bad acts without first holding a hearing outside the presence of the jury to assess whether the State
had first proven those acts beyond a reasonable doubt. It is well-established that a trial court's
admission of extraneous offense evidence is reviewed under an abuse of discretion standard. Mitchell
v. State, 931 S.W.2d 950, 953 (Tex. Crim. App. 1996). The defendant called Christi Reichenau
during his case in chief, but on cross-examination by the State, she testified that defendant had
assaulted her during their marriage. The defendant objected to this testimony and the trial court held
a hearing outside the jury's presence. Defendant asked the court to determine whether the State had
proven these extraneous offenses beyond a reasonable doubt. However, the court ruled that because
defendant had asked similar questions of Reichenau during direct examination, he had already
"opened the door," and the State was entitled to cross-examine her on those issues. Furthermore,
the trial court properly charged the jury that it could only consider the extraneous offenses or prior
bad acts if they were proven beyond a reasonable doubt. Id. at 954. Accordingly, we hold that no
abuse of discretion occurred, and we overrule defendant's fifth issue.
5. Finally, defendant insists that if all the wrongfully admitted evidence is properly excluded,
there is legally and factually insufficient evidence to support his conviction. We review the sufficiency
of the evidence under the traditional standards of review. See Jackson v. Virginia, 443 U.S. 307, 319
(1979) (legal sufficiency); Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999) (same);
Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997) (factual sufficiency); Clewis v. State,
922 S.W.2d 126, 129 (Tex. Crim. App. 1996) (same). The standard of review is the same in both
direct and circumstantial evidence cases. Kutzner v. State, 994 S.W.2d 180, 184 (Tex. Crim. App.
1999). After a review of the record, we hold that there is legally and factually sufficient evidence to
support the jury's verdict. Accordingly, we overrule defendant's sixth issue.
Based on the foregoing reasons, we affirm the trial court's judgment.
Sandee Bryan Marion, Justice
DO NOT PUBLISH
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979 So.2d 236 (2008)
PETRY
v.
MAYOL.
No. 3D07-1135.
District Court of Appeal of Florida, Third District.
March 26, 2008.
Decision without published opinion. Affirmed.
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If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
UNPUBLISHED
In re B G SALVATORE, Minor. September 3, 2019
No. 347730
Wayne Circuit Court
Family Division
LC No. 18-001254-NA
Before: BECKERING, P.J., and SAWYER and CAMERON, JJ.
PER CURIAM.
Respondent mother appeals by right the trial court’s order terminating her parental rights
to the minor child, BS, under MCL 712A.19b(3)(g) (failure to provide proper care and custody),
MCL 712A.19b(3)(i) (“[p]arental rights to 1 or more siblings of the child have been terminated
due to serious and chronic neglect or physical or sexual abuse, and the parent has failed to rectify
the conditions that led to the prior termination of parental rights[]”), MCL 712A.19b(3)(j)
(reasonable likelihood of harm if returned to custody of the parent) and MCL 712A.19b(3)(k)(i)
(the parent abandoned the child or a sibling of the child “and there is a reasonable likelihood that
the child will be harmed if returned to the care of the parent”). We affirm.
BS was born with amphetamines, methadone, opiates, and benzodiazepines, in her
system. Respondent admitted to the on-call CPS worker at the hospital that she used various
prescription drugs during her pregnancy for which she had no prescriptions, was homeless, and
had untreated mental health issues. She also revealed that a court had previously terminated her
parental rights to another child, DS. The day after giving birth to BS, respondent left the hospital
without naming the child and disappeared. Because of the circumstances of BS’s birth and the
prior termination of her parental rights to DS, the Department of Health and Human Services
(DHHS) moved to terminate respondent’s parental rights at the initial disposition. Despite
multiple efforts by petitioner to contact respondent and ultimately notify her of the proceedings,
respondent failed to appear at any of the ensuing court hearings until the end of the termination
hearing, as the court was stating its decision on the record, when respondent entered and
identified herself for the record. Based on the reasons set forth in the petition, as established at
-1-
the termination trial, the trial court terminated respondent’s parental rights, and this appeal
followed.1
Respondent first argues that the trial court erred by terminating her parental rights
because it did not make reasonable efforts to reunify her with BS. We disagree.
To preserve the issue of whether reasonable efforts were made to reunify a child with his
or her family, a respondent must “object or indicate that the services provided to them were
somehow inadequate” at the trial court level. In re Frey, 297 Mich App 242, 247; 824 NW2d
569 (2012). Respondent failed to object to her lack of a service plan at the trial court level.
Thus, the issue is unpreserved, and our review is for plain error affecting respondent’s substantial
rights. In re VanDalen, 293 Mich App 120, 135; 809 NW2d 412 (2011). Under the plain-error
test, a plain error “affects substantial rights if it caused prejudice, i.e., it affected the outcome of
the proceedings.” In re Utrera, 281 Mich App 1, 9; 761 NW2d 253 (2008). Respondent “bears
the burden of persuasion with respect to prejudice.” See People v Carines, 460 Mich 750, 763;
597 NW2d 130 (1999) (“It is the defendant rather than the Government who bears the burden of
persuasion with respect to prejudice.”) (quotation marks and citation omitted).
“Generally, when a child is removed from the parents’ custody, the petitioner is required
to make reasonable efforts to rectify the conditions that caused the child’s removal by adopting a
service plan.” In re HRC, 286 Mich App 444, 462; 781 NW2d 105 (2009). However, this is not
always the case. The petitioner is not required to make reasonable efforts to reunify a parent and
child where “[t]he parent has had rights to the child’s siblings involuntarily terminated and the
parent has failed to rectify the conditions that led to that termination of parental rights.” MCL
712A.19a(2)(c). The record indicates that respondent’s rights to a prior child, DS, were
terminated in March 2016 after respondent failed to complete or to benefit from a court-ordered
treatment plan that included substance abuse counseling, psychiatric and psychological
evaluations, housing referrals, and parenting classes. According to the record, DS tested positive
for marijuana and morphine at 30 weeks’ gestation, and respondent tested positive for
benzodiazepines, marijuana, methadone, and opiates at the time of DS’s delivery. From the fact
that BS had amphetamines, methadone, opiates, and benzodiazepines in her system at birth, and
respondent admitted to using drugs throughout her pregnancy with BS, it is clear that respondent
failed to rectify the conditions that lead to the termination of her parental rights in DS. Thus, the
conditions set forth in MCL 712A.19a(2)(c) were met, and petitioner was not required to make
reasonable efforts to reunify respondent with BS.
In a conclusory fashion, respondent also argues that the trial court erred by finding clear
and convincing evidence of statutory grounds to terminate her parental rights. We disagree. We
review a trial court’s findings that a ground for termination has been established, and that
1
During the course of the termination proceedings, respondent provided petitioner with the name
of the putative father. That person appeared before the court, DNA testing revealed that he is
BS’s father, and paternity was established. BS was then placed with the father; he was not made
a respondent in these proceedings.
-2-
termination is in the best interests of the children, under the clearly erroneous standard. MCR
3.977(K); In re Rood, 483 Mich 73, 90-91; 763 NW2d 587 (2009). A finding is clearly
erroneous if, although there is evidence to support it, this Court is left with a definite and firm
conviction that a mistake was made. In re Mason, 486 Mich 142, 152; 782 NW2d 747 (2010).
To be clearly erroneous, a decision must be more than maybe or probably wrong. In re Sours
Minors, 459 Mich 624, 633; 593 NW2d 520 (1999). Further, regard is to be given to the special
opportunity of the trial court to judge the credibility of the witnesses who appeared before it.
MCR 2.613(C); In re Miller, 433 Mich 331, 337; 445 NW2d 161 (1989).
“To terminate parental rights, a trial court must find by clear and convincing evidence
that at least one statutory ground under MCL 712A.19b(3) has been established. In re Moss, 301
Mich App 76, 80; 836 NW2d 182. Clear and convincing evidence is evidence that
“produce[s] in the mind of the trier of fact a firm belief or conviction as to the
truth of the allegations sought to be established, evidence so clear, direct and
weighty and convincing as to enable [the fact-finder] to come to a clear
conviction, without hesitancy, of the truth of the precise facts in an issue.” [In re
Martin, 450 Mich 204, 227; 538 NW2d 399 (1995), quoting In re Jobes, 108 NJ
394, 407-408; 529 A2d 434 (1987).]
“Only one statutory ground need be established by clear and convincing evidence to terminate a
respondent’s parental rights, even if the court erroneously found sufficient evidence under other
statutory grounds.” In re Ellis, 294 Mich App 30, 33; 817 NW2d 111 (2011).
The trial court terminated respondent’s parental rights under MCL 712A.19b(3)(g), (i),
(j), and (k)(i), which allow the trial court to terminate a parent’s rights if it finds by clear and
convincing evidence that any of the following exist:
(g) The parent, although, in the court’s discretion, financially able to do so, fails
to provide proper care or custody for the child and there is no reasonable
expectation that the parent will be able to provide proper care and custody within
a reasonable time considering the child’s age.
* * *
(i) Parental rights to 1 or more siblings of the child have been terminated due to
serious and chronic neglect or physical or sexual abuse, and the parent has failed
to rectify the conditions that led to the prior termination of parental rights.
(j) There is a reasonable likelihood, based on the conduct or capacity of the
child’s parent, that the child will be harmed if he or she is returned to the home of
the parent.
(k) The parent abused the child or a sibling of the child, the abuse included 1 or
more of the following, and there is a reasonable likelihood that the child will be
harmed if returned to the care of the parent:
-3-
(i) Abandonment of a young child.
Our review of the record convinces us that the trial court did not clearly err by finding
clear and convincing evidence to terminate respondent’s parental rights pursuant to MCL
712A.19b(3)(j). As already indicated, respondent’s parental rights to an older child were
involuntarily terminated due to substance abuse, untreated mental health issues, and transiency.
Although provided with reunification services, respondent failed to complete or to benefit from
them. Respondent’s inability to rectify—or even properly to address—these issues is evident in
the case at bar, where various drugs were found in BS’s system at birth, respondent’s transiency
would affect BS, and respondent admitted to the on-call CPS worker that she still struggled with
untreated mental health issues. A parent’s untreated mental illness and substance abuse
problems are factors showing that the child could be harmed if returned to his or her parent’s
care. See In re Moss, 301 Mich App at 81-82 (considering the respondent’s untreated mental
health issues and substance abuse problems as factors establishing statutory grounds to terminate
the respondent’s parental rights under MCL 712A.19b(3)(g) and (j)).
In addition, respondent’s conduct after the birth of the child indicates respondent’s lack
of capacity to undertake even minimal parenting responsibilities. Respondent left the hospital
one day after giving birth to BS, before filling out any birth records or naming the child, and did
not return. Although respondent was offered weekly visits with BS, she saw her only once
during the 115 days between her abandonment of BS at the hospital and the date of the
termination hearing; she failed to provide any support for BS, material or otherwise. Respondent
did not provide the foster-care agency or petitioner a reliable means of contacting her, thus
leaving her whereabouts unknown and the foster-care worker at the mercy of respondent’s
decision to initiate contact. In addition, respondent did not participate in the child protective
proceedings,2 and she apparently did not indicate to the foster-care worker or petitioner that she
desired reunification with BS.
On this record, we are not definitely and firmly convinced that the trial court erred in
concluding that there is a reasonable likelihood that BS will be harmed if returned to respondent.
Respondent’s parental rights to BS’s sibling were previously terminated, and she had not
rectified the conditions that lead to that termination. Her drug abuse, untreated mental health
issues, and transiency, left her without the capacity to care for BS and keep the infant safe, and
respondent’s conduct did not indicate that she sought to address these issues. Accordingly, the
trial court did not clearly err in finding grounds to terminate respondent’s parental rights under
MCL 712A.19b(3)(j). Because “[o]nly one statutory ground need be established by clear and
convincing evidence to terminate a respondent’s parental rights,” In re Ellis, 294 Mich App at
33, we need not address the other statutory grounds under which the court terminated
respondent’s parental rights.
2
As noted above, the record shows that respondent first appeared before the court during the
final minute of the termination hearing, just as the court concluded its ruling from the bench.
Respondent entered the courtroom and gave her name for the record.
-4-
Respondent also argues conclusory that termination of her parental rights was not in the
best interests of BS. Once again, we disagree. This Court reviews for clear error the trial court’s
best-interests determination. In re Schadler, 315 Mich App 406, 408; 890 NW2d 676 (2016).
“Once a statutory ground for termination has been proven, the trial court must find that
termination is in the child’s best interests before it can terminate parental rights.” In re
Olive/Metts Minors, 297 Mich App 35, 40-41; 823 NW2d 144 (2012). “[W]hether termination
of parental rights is in the best interests of the child must be proved by a preponderance of the
evidence.” In re Moss, 301 Mich App at 90. The trial court may rely upon evidence in the entire
record, including the evidence establishing the statutory grounds for termination. In re Trejo,
462 Mich 341, 353-354; 612 NW2d 407 (2000), superseded by statute on other grounds as
recognized in In re Moss, 301 Mich App at 83. “The trial court should weigh all the evidence
available to determine the children’s best interests.” In re White, 303 Mich App at 713. In
considering the child’s best interests, the trial court’s focus must be on the child and not the
parent. In re Moss, 301 Mich App at 87. The court may consider the parent-child bond, the
respondent’s parenting ability, and the child’s need for permanency, stability, and finality. In re
Olive/Metts Minors, 297 Mich App at 41-42 (citations omitted).
The trial court found termination of respondent’s parental rights to be in BS’s best
interests because respondent had abandoned BS, had not come forward to engage in a plan to
regain custody of her, and her whereabouts were unknown. The court also noted that respondent
had previously given birth to a drug-addicted child and petitioner had offered a treatment plan to
address the barriers to reunification with that child. However, respondent had failed to benefit
from that plan, resulting in her continued drug abuse, mental health struggles, and transiency.
Based on these factors, the court concluded that a preponderance of the evidence showed that
termination of respondent’s parental rights to BS was in the child’s best interests.
The evidence supports the trial court’s finding that termination of respondent’s parental
rights was in the best interests of BS. As already discussed, BS was born with amphetamines,
methadone, opiates, and benzodiazepines in her system. Respondent admitted that she used
methadone, opiates, benzodiazepines, Xanax, Valium, Norco, and marijuana throughout her
pregnancy with BS, and that she did not have a prescription for any of these drugs, but got them
from friends. The trial court heard testimony that no parent-child bond existed between
respondent and BS, which is not surprising given that respondent abandoned BS shortly after
birth, visited her only once thereafter, and showed no interest in parenting the child.
Respondent’s transience made it unlikely that she could provide a safe, stable environment for
BS. In light of all of these factors, we conclude that a preponderance of the evidence indicated
that termination of respondent’s parental rights was in BS’s best interests, and that the trial court
-5-
did not clearly err in ordering such termination. Especially as an infant, BS needed safety,
security, stability, and a loving home.3
Affirmed.
/s/ Jane M. Beckering
/s/ David H. Sawyer
/s/ Thomas C. Cameron
3
BS’s placement with her father did not weigh against termination or require special
consideration by the trial court when determining the child’s best interests. See In re Schadler,
315 Mich App 406, 413; 890 NW2d 676 (2016).
-6-
| {
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273 Wis. 413 (1956)
KIENBAUM, Plaintiff,
vs.
HABERNY (Edward C.) and others, Defendants: HABERNY (Agnes) and another, Defendants and Appellants: THORNTON FINANCE CORPORATION, Defendant and Respondent.
Supreme Court of Wisconsin.
September 11, 1956.
October 9, 1956.
*414 For the appellant Agnes Haberny there were briefs and oral argument by Clark Dempsey of Whitewater.
For the appellant Home Lumber & Fuel Company there were briefs and oral argument by John J. Byrnes of Elkhorn.
For the respondent there was a brief by Morrissy, Morrissy & Zastrow of Elkhorn, and oral argument by E. C. Zastrow.
STEINLE, J.
The complaint in the mortgage-foreclosure action commenced by the plaintiff, Carl Kienbaum, in March, 1954, alleged default in payment of the obligation of the defendants Edward C. Haberny and Mary Haberny, his wife, under a first mortgage executed to the plaintiff on December 17, 1951, conditioned for the payment of $18,000 as evidenced by a note in said sum.
The complaint also alleged that the defendant, Agnes Haberny, is the owner and holder of a second mortgage in the sum of $2,000 covering the real estate involved. It was alleged that this second mortgage was recorded in vol. 290 of mortgages on page 251 in the office of the register of deeds of Walworth county. It was further asserted that "the right, title, and interest of said Agnes Haberny is subject and subordinate to the lien of plaintiff's mortgage."
The complaint set forth the interests of the defendant, Thornton Finance Corporation, as owner and holder of a third mortgage against the property. Certain recording data *415 was specified. It was alleged that the records indicate an obligation of $7,389.02 due on said mortgage, but that the plaintiff had no knowledge as to the correct amount. The priority of plaintiff's mortgage to said mortgage was alleged.
Further, the complaint alleged the interest of the defendant Lloyd H. Sietam as holder of a judgment against Edward C. and Mary Haberny for $300.43 which was subject and subordinate to the mortgage of the plaintiff.
Judgments of the defendants, Bank of Oregon and John Peyer, against Edward C. and Mary Haberny, also subject to the prior rights of the plaintiff, were set forth in the complaint.
The complaint also alleged that the defendant, Home Lumber & Fuel Company, a corporation, appears to hold a mechanic's lien against the premises, filed October 13, 1953, and that said lien is subject to plaintiff's mortgage lien.
None of the defendants, excepting Thornton Finance Corporation, interposed an answer to the complaint. The answer alleged that $6,229.61 was due to said Finance Company. The answer was served only upon the plaintiff. The defendant, Sietam, by his attorneys, filed a notice of appearance. By its answer, Thornton Finance Corporation set up its third mortgage and its priority to all other interests asserted in the complaint excepting as to the first and second mortgages. Issue was not taken with the answer of Thornton Finance Corporation by any of the parties defendant. In its prayer for relief, the Finance Company petitioned that the remainder of any surplus, after the first and second mortgages had been fully paid, be delivered to it.
The matter came on for hearing before the court on April 21, 1954. The findings of fact and conclusions of law set forth the priority of the mortgages of Carl Kienbaum, plaintiff; Agnes Haberny, defendant; and Thornton Finance Corporation, defendant, in that order. Judgment was entered April 26, 1954. It directed that the surplus money *416 from the sale was subject "to further order of the court." Sheriff's sale of the mortgaged premises was held on June 29, 1955. Thornton Finance Corporation purchased the premises at the sale by offering the highest bid, to wit, $25,500. The amount due to the first mortgagee was $22,229.36. Confirmation of sale came on for hearing on July 18, 1955. The defendants Agnes Haberny and Home Lumber & Fuel Company appeared at said hearing. Agnes Haberny petitioned the court for the face amount of her note in the sum of $2,000 plus the interest thereon. Home Lumber & Fuel Company petitioned for its share of the surplus based upon a mechanic's lien filed subsequent to the execution of the mortgage to Thornton Finance Corporation for materials delivered by it to the mortgaged premises and which were visible to view in the structure of a fence, prior to the execution of said Finance Company's mortgage. The third mortgagee, Thornton Finance Company, made application to the court to disallow all claims for the surplus of the proceeds of the sale made by claimants not appearing and alleging the amount and priority of their claims in the foreclosure action. The sale was confirmed. On September 28, 1955, the court heard motions for the distribution of the surplus. Thornton Finance Corporation moved the court for an order directing payment to it of all surplus after $2,000 had been paid to Agnes Haberny in satisfaction of her mortgage, and after $223.73 had been paid to Lloyd H. Sietam in full payment of his judgment. On November 9, 1955, in its decision on motions for the surplus, the court ordered payment to Agnes Haberny in the sum of $2,000; payment to Lloyd H. Sietam in the sum of $223.73 and payment of the balance of $2,694.67 to Thornton Finance Corporation. Specifically the court determined that "Agnes Haberny and Home Lumber & Fuel Company failed to appear and exert or establish the face amount of their claim or priority in the foreclosure proceedings and are barred now in sharing in the surplus except in so far as their respective priority is agreed to and *417 admitted by Thornton Finance Corporation in its motion for disbursement of the surplus."
The question presented is whether the holder of the second mortgage and the holder of the mechanic's lien, both of whom were parties to the action, lost any of their rights to share in the surplus by failing to answer or make an appearance prior to the confirmation of the foreclosure sale.
The learned trial court was of the view that secs. 278.09 and 278.15, as published in the Wisconsin statutes of 1953 and 1955, show a clear legislative intent that equities in foreclosure should be determined in the foreclosure action, or in any event before the foreclosure sale. It is the position of the appellants that under the common law and the statutes, junior mortgage holders and other junior lien holders are not required in the protection of their interests to make claim for a division of surplus until such time as there has been a determination that a surplus exists.
Appellants and respondents in their printed and oral arguments have presented an abundance of citations to sustain their respective positions with reference to the issue raised.
A crucial consideration in the deciding of the issue is whether the provisions appearing in sec. 278.095 (4), Stats. 1933, were in existence and pertinent to the cause in 1955 when the order appealed from was rendered. Sec. 278.095 (4), Stats. 1933 (Court Rule XXV), provided:
"If there shall be any surplus paid into court by the sheriff or referee, any party to the action or any person not a party who had a lien on the mortgaged premises at the time of sale, may file with the clerk of court into which the surplus was paid, a notice stating that he is entitled to such surplus money or some part thereof, together with the nature and extent of his claim. The court shall determine the rights of all persons in such surplus fund by reference or by testimony taken in open court, but no such hearing shall be had in court or before a referee except upon eight days' notice to all persons that have appeared in the action or filed notice of claim *418 to such surplus money. If any such claimant shall not have appeared by attorney, notice of such hearing may be served by mail directed to the claimant at the place of his residence as stated in his notice of claim."
Ch. 541, Laws of 1935, was an act of the legislature which was designed in part to revise the portion of Title XXV relating to procedure in civil actions "for clarity and conciseness of language and simplifying and improving said proceedings and for harmonizing the substantive provisions with the procedural rules which are being revised by the supreme court." Wisconsin Session Laws, 1935, page 947 et seq.
Ch. 541, Laws of 1935, was introduced in the legislature on January 18, 1935, as Bill No. 50, S. The bill passed in the senate August 16, 1935. It was amended and passed in the assembly August 22, 1935. It was concurred in by the senate August 30, 1935. It was approved by the governor September 28, 1935, and was published October 2, 1935. The act provided for a delayed effective date of January 1, 1936.
Prior to the introduction of Bill No. 50, S., sec. 278.095 (4), Stats. 1933, was included under Title XXV.
In the revisor's note of sec. 369 of ch. 541, Laws of 1935, there appeared a statement that secs. 278.095 and 278.10, Stats., are consolidated, and renumbered sec. 278.10. However, the revised sec. 278.10 as appears in sec. 369 of ch. 541 failed to include any provision of sec. 278.095. Under sec. 373 of ch. 541, Laws of 1935 (Wisconsin Session Laws, 1935, pages 1058, 1059), sec. 278.095 (4), Stats. 1933, in its entirety was made a part of sec. 278.16 entitled "Notice and Report of Sale, Payment to Plaintiff; Confirmation of Sale" and was there numbered as sec. 278.16 (3). This change was the only one made in sec. 278.16 by the act.
Ch. 542, Laws of 1935, was originally introduced in the legislature on April 11, 1935, as Bill No. 314, S. Its purpose was to create sec. 235.68, Stats., relating to confirmation of *419 deeds. It was designated as emergency legislation and provided that no deed given to satisfy an indebtedness was to be effective unless confirmed by the court. Substitute Amendment No. 1, S., was introduced. Under it there was no requirement of confirmation by the court, but merely the filing of an affidavit by the grantees setting forth the agreement and their certification that the grantees understood their rights. As so amended the bill was passed in the senate September 11, 1935.
Amendment No. 1, A., to Bill No. 314, S. (as amended in the senate), was introduced in the assembly September 14, 1935. It added subsection 2 which amended secs. 278.16 and 278.17, Stats., and only with respect to change in the manner of delivering a sheriff's deed,the delivery to be to the clerk of court instead of to the purchaser after confirmation. Amendment No. 1, A., was adopted by the assembly September 17, 1935. The bill as amended was passed in the assembly September 18, 1935. As amended the bill was concurred in by the senate September 25, 1935. It was approved by the governor October 2, 1935, published October 3, 1935, and became effective October 4, 1935.
Bill No. 314, S., as passed, approved, and published, nowhere referred to provisions of sec. 278.095 (4), Stats., as such enactment had existed before or after the adoption of ch. 541, Laws of 1935. Ch. 542, Laws of 1935, in no manner referred to such provisions either as being continued or repealed.
Bill No. 50, S. (Revisor's bill), which became ch. 541, did not repeal sec. 278.095, Stats. By a note in the act it was stated that sec. 278.095 was to be renumbered as sec. 278.10, although that was not done. The provisions of sec. 278.095 (4) were incorporated under sec. 278.16 (3).
There is nothing in the history of the enactments of chs. 541 and 542, Laws of 1935, to indicate an intention *420 by the legislature to repeal sec. 278.095, Stats. 1933. It is to be noted that after Bill No. 314, S. (as amended and adopted by the senate), reached the assembly, it was amended by Substitute Amendment No. 1, A., which added subsection 2, the effect of which was to amend secs. 278.16 and 278.17 in certain particulars. Substitute Amendment No. 1, A., was adopted by the assembly September 17, 1935. The Revisor's bill, No. 50, S., which placed sec. 278.095 (4) in sec. 278.16 (3) had passed the senate on August 16, 1935, and the assembly on August 22, 1935, and on September 17, 1935, when Substitute Amendment No. 1, A., was adopted in the assembly, had as yet not become law. It appears that Substitute Amendment No. 1, A., to Bill No. 314, S., intended to amend secs. 278.16 and 278.17 as they had existed in 1933. Bill No. 50, S., expressly retained the provisions of sec. 278.095 (4) as existed in 1933, but merely renumbered the section as sec. 278.16 (3). Nowhere does Substitute Amendment No. 1, A., to Bill No. 314, S., indicate intention to change provisions of sec. 278.095, Stats. 1933.
The doctrine of implied repeal is not favored, and an earlier act will be considered to remain in force unless it is so manifestly inconsistent and repugnant to the later act that they cannot reasonably stand together. Lenfesty v. Eau Claire (1944), 245 Wis. 220, 227, 13 N. W. (2d) 903; Milwaukee County v. Milwaukee Western F. Co. (1931), 204 Wis. 107, 112, 235 N. W. 545; Pabst Corp. v. Milwaukee (1926), 190 Wis. 349, 208 N. W. 493; Madison v. Southern Wisconsin R. Co. (1914), 156 Wis. 352, 146 N. W. 492.
In McLoughlin v. Malnar (1941), 237 Wis. 492, 297 N. W. 370, it was said that while repeals by implication are recognized, they do not result except when the intent of the legislature clearly appears.
We are constrained to hold that it was not the intention of the legislature by its enactment of ch. 542, Laws of 1935, to repeal the provisions of sec. 278.095 (4), Stats. 1933. *421 Sec. 278.095 (4), Stats. 1933, is not inconsistent and repugnant to the provisions of ch. 542, Laws of 1935. Clearly these two enactments can reasonably stand together. The provisions appearing in sec. 278.095 (4), Stats. 1933, were not repealed, either expressly or by implication. Their omission in the published statutes since 1935 was clearly a matter of oversight. They were in effect during the course of the instant litigation and remain in effect at this time. Had the trial court's attention been directed to the legislative history of sec. 278.095 (4), Stats. 1933, as such was furnished to this court and as it is set forth in this opinion, we believe that the claims of the appellants would have been allowed below. In any event it is considered that under the provisions of sec. 278.095 (4), Stats. 1933, which were in effect during the course of the litigation of this cause below, the claims of the appellants were timely filed and ought to have been allowed. In view of this conclusion we deem it unnecessary to determine other considerations presented on this appeal.
By the Court.The order disbursing surplus from which this appeal was taken is reversed, with directions to modify same so as to allow the respective claims of Agnes Haberny and Home Lumber & Fuel Company.
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COURT OF
APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-02-376-CR
PATRICK
AARON KENNEDY
APPELLANT
V.
THE
STATE OF TEXAS
STATE
------------
FROM
CRIMINAL DISTRICT COURT NO. 1 OF TARRANT
COUNTY
------------
OPINION ON
REHEARING EN BANC
------------
On
August 24, 2005, this court granted Appellant Patrick Aaron Kennedy=s
motion for en banc reconsideration and ordered this case resubmitted en
banc. On December 16, 2005, we
withdrew the majority opinion, dissenting opinion, and judgment of February 3,
2005. We substitute the following
in their place.
A
jury convicted Appellant of murder and assessed his punishment at twenty-seven
years=
confinement in the Institutional Division of the Texas Department of Criminal
Justice. The trial court sentenced
him accordingly. Appellant brings
nine points on appeal, arguing evidentiary errors, charge error, and improper
jury argument. Because we hold that
the trial court did not reversibly err, we affirm the trial court=s
judgment.
I. FACTUAL AND PROCEDURAL
BACKGROUND
On
the afternoon of November 5, 2001, Ginny Ward stood outside Enterprise
Rent-A-Car and observed Brandy Upchurch and Corey McMillan, the complainant,
arguing in the adjoining parking lot of the Budget Inn. Ward testified that the
complainant yelled at and shoved Upchurch; then Upchurch walked away from the
motel. The complainant then began
removing items from his first-floor motel room and loading them into his car,
located directly outside.
About
twenty minutes later, Ward watched a grey Mustang, driven by Matthew Schiffert,
Appellant=s
uncle, and containing Appellant and Upchurch, drive slowly into the parking lot
Alike
they were looking for somebody.@ Near the exit, Schiffert revved the car
motor, drove back around the lot, hit a parked rental truck, and stopped five or
six inches behind the complainant=s
car. Ward watched Appellant get out
of the Mustang=s
front passenger seat and run up to the complainant, who stood up from the
backseat of his car. According to
Ward, the complainant was not holding anything and did nothing physical or
aggressive toward Appellant.
Appellant slashed at the complainant, causing him to back up. Appellant then returned to the Mustang,
which sped off, but not before an Enterprise Rental Car employee wrote down its
license plate number. The
complainant then went to the front of his car while holding his neck and
hollered for somebody to help him.
Ward testified that her husband helped the complainant to the ground and
put his hands on the complainant=s
throat to try to stop the bleeding.
The complainant died from two stab wounds, one in the left side of his
neck and the other in the left side of his chest.
Police
officers identified Schiffert as the owner of the Mustang, and Ward later
picked Appellant out of a photo lineup.
At trial, the trial court submitted the issue of self-defense to the
jury.
II. EVIDENCE AT THE GUILT/INNOCENCE
PHASE
A.
Weapons Found in The Complainant=s
Room
In
his fifth point, Appellant complains that the trial court erred by limiting
defense counsel=s
questioning of a witness concerning weapons found in the complainant=s
room on the day he was killed and by excluding four photographs,
defendant=s
exhibits 12-15. Defense exhibit 12
shows a knife on the floor of the complainant=s
room. Defense exhibit 13 shows a
club on the table inside his room.
Defense exhibit 14 shows the motel room=s
kitchenette. Finally, defense
exhibit 15 shows a large picture of the room from the door and was offered to
give the jury a perspective of the other exhibits. At trial, the defense sought to admit
these exhibits three times: twice
during the cross-examination of Detective Kevin Brown and again during
Appellant=s
case-in-chief. In response to the
first attempt, the State objected that the evidence was irrelevant because the
crime occurred outside the motel and there was no evidence that anyone was near
the room. Defense counsel replied
that the photos were relevant because Ward testified that the complainant had
been going in and out of the room while loading items in his car, and because
they showed what had been going on inside the room moments before and possibly
after the stabbing. The trial court
reviewed the photos and sustained the State=s
objection.
Later,
after establishing that the complainant=s
door was wide open and a large pool of blood was found right in front of the
door, defense counsel asked Detective Brown whether a person could have thrown a
knife or other weapon inside the door of the complainant=s
room. The trial court sustained the
State=s
speculation and relevance objections, but admitted the exhibits for purposes of
the record. The record does not
reflect what Detective Brown=s
response would have been had the questioning been allowed. Defense counsel attempted to introduce
the exhibits again during its case-in-chief, and the State renewed its relevancy
objection, which the trial court sustained.
By
failing to make an offer of proof or file a bill, Appellant failed to preserve
his complaint regarding the exclusion of Detective Brown=s
testimony.[1] In regard to the photographs, Appellant
now argues that they were relevant to show that he acted in self-defense, to
show the complainant=s
alleged violent character, and to show that the complainant was the first
aggressor. Appellant failed,
however, to offer these arguments to the trial court. Therefore, he has also failed to
preserve his complaints regarding the photographs.[2] Accordingly, we overrule
Appellant=s
fifth point.
B. Appellant=s
Vision
In
his eighth point, Appellant complains that the trial court erred by limiting
questions regarding his vision and by preventing his trial counsel from making a
bill when timely requested. At
trial, Appellant testified that he had Aone
good eye and one real weak eye.@ When defense counsel asked Appellant
about the extent of the weakness, the State objected on relevancy grounds, and
the trial court sustained the State=s
objection. Later, after both sides
had rested but before the court=s
charge was read to the jury, defense counsel asked to proffer evidence regarding
what Appellant=s
answers would have been to questions about his vision. The trial court denied the request,
stating, AYou=re
making a request for a bill, and I=m
not going to grant it at this time
. . . . You can file it by
way of a bill later, if you wish to.@ The original record did not contain such
a bill. Therefore, pursuant to
Spence v. State,[3]
we abated this appeal to the trial court for a hearing so that Appellant could
properly perfect the record.
At
the abatement hearing, the only evidence that Appellant offered was that he is
legally blind in his left eye and has to wear a corrective lense to see with his
right eye. Although we allowed
supplemental briefing, Appellant failed to file a supplemental brief regarding
the evidence presented at the abatement hearing, leaving us with only his
contention in his original brief that A[b]ecause
this is a situation where the [t]rial [c]ourt may have found the evidence to be
admissible if the [c]ourt would have heard it, and the jury charge had not yet
been read, this case should be reversed and remanded for a new
trial.@ Because Appellant has not filed a
supplemental brief explaining why the evidence about his vision warrants a new
trial, he has received all the relief required by Spence.[4]
Accordingly, we overrule Appellant=s
eighth point.
III. JURY INSTRUCTIONS
A. Lesser-Included Offense of
Manslaughter
In
his first point, Appellant contends that the trial court erred by failing to
instruct the jury on the lesser-included offense of manslaughter. The State acknowledges that manslaughter
is a lesser-included offense of murder.[5] Therefore, this issue turns on whether
there is some evidence that would permit a rational jury to find that the
defendant is guilty only of the lesser offense and not of the greater.[6] A person commits manslaughter if he
recklessly causes the death of an individual.[7] A person acts recklessly when he is
aware of but consciously disregards a substantial and unjustifiable risk that
the circumstances exist or the result will occur.[8] Therefore, for a defendant to be
entitled to a jury charge on manslaughter, the record must contain some evidence
that the defendant did not intend to kill and that the defendant acted
recklessly while ignoring a known risk.[9]
Appellant
was charged with and convicted of committing murder by intentionally causing
serious bodily injury to the complainant, specifically, by stabbing him with a
knife, which resulted in his death.
According to Appellant, he was afraid that the complainant was trying to
hurt Schiffert and Upchurch after the complainant allegedly ran toward
Schiffert=s
car. Appellant testified that he
exited the car with a knife, immediately showed the knife to the complainant,
and told the complainant to go inside his motel room in an attempt to scare him
off. According to Appellant, the
complainant then grabbed him by the neck, and Appellant was unable to free
himself, so he stabbed the complainant in the neck. Appellant then tried to pull back, but
the complainant allegedly grabbed him with his other hand, and Appellant stabbed
him again in the chest. Appellant
stated that he never intended to cause death or serious bodily injury to the
complainant. However, he also
testified that he stabbed the complainant because he knew that the complainant
was trying to hurt him and he wanted the complainant to let him go, and he
admitted that he stabbed the complainant in highly vulnerable parts of the
body.
Appellant=s
statement that he did not intend to kill the complainant must be examined in
context.[10] Viewed in the context of the entire
record, Appellant=s
testimony that he did not intend to kill the complainant refers to his intent
when he originally pulled out the knife.
Indeed, his intent was to scare off the complainant. But, instead of running away, the
complainant, according to Appellant, grabbed Appellant around the neck. In fear for his life, Appellant stabbed
the complainant in the neck. But,
Appellant testified, the neck injury had no effect on the complainant, who then
grabbed Appellant again, harder.
This time, Appellant could not move, and the complainant seemed intent on
really hurting Appellant. Out of
fear, Appellant intentionally stabbed the complainant harder, but, again,
without intent to kill him.
Appellant testified as follows:
Q. But when he came at you
and grabbed you by the neck?
A. I knew he was trying to
hurt me then. He tried
toChe
just grabbed me real hard and I couldn=t
move away and I tried to but. And
then that=s
why I cut him. I didn=t
want to cut him; I just did.
. .
. .
Q. Why did you stab
him?
A. I didn=t
want to stab him.
Q. Why did
you?
A. Why did I stab
him? Because he grabbed me and I
couldn=t
pull away from him. I
feltCI
tried to pull away but I couldn=t
pull away. I thought he was going
to break my neck. I
justCI
just reacted. I didn=t
want to.
Q. But you had
to?
A.
Yes.
This
exchange, in context, describes self-defense, not manslaughter. Consequently, Appellant=s
testimony does not amount to evidence upon which a jury could rationally find
that he only acted recklessly with respect to killing the complainant.[11] We hold that the trial court did not err
by denying Appellant=s
request for a manslaughter jury charge.
Accordingly, we overrule Appellant=s
first point.
B. Defense of Third
Persons
In
his second point, Appellant contends that the trial court erred by failing to
instruct the jury on the defense of third persons. A defendant is entitled to an
instruction on every defensive issue raised by the evidence regardless of the
strength of the evidence.[12] A
person is justified in using deadly force to protect another A[s]o
long as the accused reasonably believes that the third person would be justified
in using deadly force to protect himself.@[13]
Moreover, the actor must reasonably
believe that his intervention is immediately necessary to protect the third
person.[14]
Here,
there is no evidence that
Appellant reasonably believed that his use of deadly force was immediately
necessary to protect Schiffert and Upchurch. On the contrary, Appellant admitted that
neither Schiffert nor Upchurch was in immediate danger when he got out of the
car with the knife. He
testified,
Q. Were youCdid
you think he might do something to Brandy or your uncle?
A. I thought since he was
running out, I just knew he was trying to do something to any of
us.
Q. But when he came at you
and grabbed you by the neck?
A. I knew he was trying to
hurt me then.
Appellant
admitted that the complainant appeared to be unarmed and that he never saw the
complainant holding any type of weapon.
Appellant also testified that he stabbed the complainant because the
complainant was trying to hurt him.
This evidence supports the trial court=s
decision to submit the issue of self-defense to the jury but does not support
Appellant=s
claim of defense of third persons.
The trial court, therefore, did not err by denying Appellant=s
request for a jury charge on the defense of third persons. We overrule Appellant=s
second point.
C. Sudden
Passion
In
his third point, Appellant contends that the trial court erred by refusing to
give a sudden passion instruction at punishment. If a defendant is convicted of murder,
he may argue that he caused the death while under the immediate influence of
sudden passion arising from an adequate cause, as Appellant did in this case.[15] If the defendant establishes sudden
passion and adequate cause by a preponderance of the evidence, the offense level
is reduced from first degree to second degree, and the ensuing punishment range
is reduced.[16] Sudden passion is defined as a passion
directly caused by and arising out of provocation by the individual killed,
which arises at the time of the offense and is not solely the result of former
provocation.[17] Adequate cause means cause that would
produce a degree of anger, rage, resentment, or terror in a person of ordinary
temper sufficient to render the mind incapable of cool reflection.[18] Therefore, a sudden
passion charge should have been given if some evidence shows that
Appellant=s
mental state rose beyond a bare claim of fear to render him incapable of
rational thought and collected action.[19]
According
to Appellant, the complainant ran outside toward Schiffert=s
side of the car after Schiffert called and confronted the complainant on the
phone while parked directly outside his motel room. Although Appellant testified that he was
not aware that the complainant possessed a weapon and there is no evidence that
the complainant said anything as he approached, Appellant decided to grab a
knife that he remembered leaving in the glove compartment, exit the car,
immediately brandish the weapon, and move toward the complainant while ordering
him back into the motel room, in essence attacking him.[20] According to Appellant, the complainant
reacted by grabbing Appellant=s
neck, and Appellant stabbed the complainant in the neck. When the complainant responded to being
stabbed by grabbing Appellant with his other hand, Appellant stabbed the
complainant in the chest.
Although
testimony was presented raising the issue of self-defense, this alone does not
entitle Appellant to a charge on sudden passion.[21] A defendant who first attacks another
cannot claim the other=s
act of self-defense gave rise to adequate cause so that he was justified in
killing him, even if he was acting under sudden passion after the
other=s
act of self-defense.[22] Consequently, the trial court did not
err by denying Appellant=s
request for a jury instruction on sudden passion. We overrule Appellant=s
third point.
D. Provocation
In
his fourth point, Appellant argues that the trial court erred by instructing the
jury as to provocation. As a
general rule, the use of force against another in self-defense is not justified
if the actor provoked the other=s
use or attempted use of unlawful force.[23] Provoking the use of force acts as a
limitation or total bar on a defendant=s
right to self-defense.[24]
Here, after the jury was instructed
on the issue of self-defense, it was further instructed on provocation over
Appellant=s
objection. The provocation charge
reads in pertinent part,
You
are further instructed as part of the law of this case, and as a qualification
on the law of self-defense, that the use of force by a defendant against another
is not justified if the defendant provoked the other=s
use or attempted use of unlawful force, unless the defendant abandons the
encounter or clearly communicates to the other person his intent to do so,
reasonably believing he cannot safely abandon the encounter; and the other
person, nevertheless, continues or attempts to use unlawful force against the
defendant.
The
Texas Court of Criminal Appeals has held,
A
charge on provocation is required when there is sufficient evidence (1) that the
defendant did some act or used some words which provoked the attack on him, (2)
that such act or words were reasonably calculated to provoke the attack, and (3)
that the act was done or the words were used for the purpose and with the intent
that the defendant would have a pretext for inflicting harm upon the other.[25]
The
exact words said or action taken by the defendant causing the attack need not be
proven to the jury; rather the jury must merely be able to find that there were
some provoking acts or words.[26] It will be enough if the evidence allows
an inference beyond a reasonable doubt that the complainant attacked the
defendant in response to something the defendant did or said.[27]
Here,
Appellant was riding in a car that slowly entered the parking lot Alike
its occupants were looking for someone.@ Near the exit, the engine=s
motor revved, the car drove back around the lot, hit a parked rental truck, and
stopped five or six inches behind the complainant=s
car. Appellant then got out of the car with a knife in
his hand and moved toward the complainant, whom Appellant admitted appeared to
be unarmed. These facts are some
evidence from which the jury could conclude that Appellant provoked the
difficulty. An
act is reasonably calculated to provoke an attack if it is reasonably capable of
doing so or if it has a reasonable tendency to cause an attack.[28] Here, there is evidence from which the
jury could conclude that Appellant=s
actions, as detailed above, were reasonably capable of provoking the complainant
to grab Appellant around the neck or had a reasonable tendency to cause such a
response.
Whether
Appellant intended to provoke the difficulty can only be determined from the
circumstances surrounding the attack.[29] While Appellant testified that he did
not go to the motel parking lot with the intention of confronting the
complainant and that had he known that his uncle was going to confront the
complainant, he would not have gone, he also testified that it was not customary
for him to go with Schiffert to pick up Upchurch and that Upchurch informed them on the way to the
motel that the complainant had Aa
bullet@
for Schiffert. Also, Ward testified
that she saw the car drive into the parking lot like its occupants were looking
for someone and park five to six inches behind the complainant=s
car. Appellant admitted that they
stopped behind the complainant=s
car, which was directly in front of the complainant=s
motel room, and Schiffert confronted the complainant over the phone by saying,
AI=m
looking at you right now[,] punk bitch.@ Finally, Appellant admitted that he
exited the car only after he saw the complainant approaching the car without a
weapon. The jury could have
believed that Appellant=s
actions were the culmination of a plan to lure the complainant outside of his
room. Because sufficient evidence
exists on each element of provocation to allow a rational jury to find
provocation beyond a reasonable doubt, the trial court did not err by
instructing the jury on provocation.
We overrule Appellant=s
fourth point.
IV. IMPROPER
CLOSING
ARGUMENTS
AT
THE
GUILT
PHASE
In
his ninth point, Appellant attacks numerous separate rulings by the trial court
regarding the State=s
closing argument at the guilt phase.
To be permissible, the State=s
jury argument must fall within one of the following four general areas: (1) summation of the evidence; (2)
reasonable deduction from the evidence; (3) answer to argument of opposing
counsel; or (4) plea for law enforcement.[30]
During
its closing argument, the State argued the following regarding Schiffert's
calling out the complainant before Appellant stabbed him:
[Prosecutor]: His uncle went and got him to pick
[Upchurch] up. And recall what he
said, that was not normal. May have
done it once or twice before but it was not normal. Gee, man, I just happen to remember I
got that knife in that glove box. . . .
Gee, what a huge coincidence . . . . [W]e=re
making a slow turn through this parking lot to go get her clothes. Remember, he said, we=re
going to get her clothes. And, gee,
what a huge coincidence[,] my uncle gets on the phone and calls the victim
out. That=s
what he=s
doing, he=s
calling the victim out. What a huge
coincidence.
[Defense]: Judge, I object, that=s
improper argument, and the State is arguing exactly what I argued in the charge
conference at that point in time about provoking the difficulty. I object to that
argument.
[Prosecutor]: I=ll
rephrase.
[Court]: Please.
[Defense
Counsel]: And I=d
ask the jury be instructed to disregard the last statement of the
prosecutor.
[Court]: I=m
going to deny it at this time.
[Defense]: I would ask for a ruling on my
objection.
[Court]: Overruled.
Seconds
later, the prosecutor made the same argument, Appellant=s
trial counsel objected on the same basis, and the trial court asked both sides
to approach the bench, where the following occurred:
[Court]: You keep saying he and I don=t
know who you=re
talking about. When you say call
who out.
[State]: Schiffert is who I was referring
to.
[Court]: You=re
saying thatC
[State]: Schiffert called him out and
he=s
part of it becauseC
(Open
Court)
[Court]: Okay. The objection is
sustained.
[Defense]: I ask the jury be instructed to
disregard the last statements by the prosecutor.
[Court]: You=ll
disregard references to Schiffert being involved in provoking the
difficulty.
[Defense]: And I would ask for a mistrial at this
time, Judge.
[Court]: Denied.
Generally,
an instruction to disregard impermissible argument cures any prejudicial
effect,[31]
and Appellant fails to convince us otherwise regarding this
complaint.
During
the rebuttal closing argument, the other prosecutor argued, AIt=s
not self-defense to go over there, have somebody called outside to his
death.@
However, instead of objecting on the same basis that the trial court had
previously sustained, Appellant=s
counsel objected that the argument was outside the record. The trial court overruled the
objection. Based on our review of
the record, the State=s
argument that Schiffert called the complainant out was an appropriate summation
of and reasonable deduction from the evidence.[32] Accordingly, the trial court did not err
by overruling counsel=s
objection.
Appellant
also contends that the State engaged in improper argument by characterizing him
as Athe
biggest coward that walks the face of the earth.@ His objection that the argument was
Aimproper
argument; outside the scope of the evidence@
was overruled by the trial court.
On appeal, Appellant argues that the argument is Ahighly
prejudicial, unsupported by the record, [and] inject[s] new and harmful facts
into the case.@ Appellant relies on Denton v.
State[33]
out of this court. Denton,
however, does not provide authority for Appellant=s
position; it is not a name-calling
case.[34] Appellant cites no other authority for
his argument. In the interest of
justice, however, we note that Texas courts have upheld arguments calling a
defendant an animal,[35]
a fool,[36]
vicious,[37]
a liar,[38]
a dog,[39]
a cold-blooded killer,[40]
a jerk,[41]
a troublemaker,[42]
and a one-man crime wave[43]
and contending that a defendant Ahas
no conscience, no heart, no recognition of right or wrong [and is] perched on
the rim of hell, looking deep into it@[44]
as reasonable deductions from the evidence in light of the facts of each
case. In context of the entire
record before us, the prosecutor=s
argument was a reasonable deduction from the evidence. Accordingly, the trial court did not err
by overruling Appellant=s
objection.
Finally, Appellant contends that the State engaged in improper argument
by saying: AHe
stepped overCthe
guy that we=ve
been heard [sic] [about] as being called noble, stepped over the man=s
body that he had just murdered.@ The trial court overruled
Appellant=s
objection that the argument was outside the scope of the evidence. If the prosecutor meant the statement
figuratively, it was not improper.
If he meant it literally, the statement was outside the record, and the
trial court erred by allowing it.
Assuming
that the prosecutor intended the comment that Appellant walked over the
complainant=s
body to be taken literally, in light of the entire record, the statement had
little prejudicial effect. The
State did nothing to emphasize the allegedly erroneous comments, and the comment
was a very small portion of the State=s
entire argument at punishment.
Additionally, at the time of the argument, the jury could have either
believed Appellant=s
version of the story and acquitted him because he acted in self-defense or
accepted the State=s
version. The State contended that
Appellant, participated in a calculated, premeditated scheme that involved
calling the complainant out with the intent to make him vulnerable to being
murdered and that Appellant did murder him. The evidence overwhelmingly supports the
State=s
view of the murder. Applying the
appropriate measure of harm,[45]
we hold that any error associated with those comments was harmless. Accordingly, we overrule
Appellant=s
ninth point.
V. EVIDENCE
AT
THE
PUNISHMENT
PHASE
In
point six, Appellant complains the trial court erred during the punishment phase
by admitting evidence of his jail record.
During
the punishment phase, Sergeant Donald Kraul of the Tarrant County
Sheriff=s
Office testified regarding State=s
exhibit 15, a compilation of Appellant=s
jail records made by Tarrant County Jail (ATCJ@)
employees while Appellant was in their custody. Kraul testified that the records were
made and kept in the regular course of TCJ=s
business and that they were made by individuals who had personal knowledge about
the events reflected in them. When the State offered the records into evidence,
Appellant objected that, among other things, the documents were hearsay and did
not fall within the public records exception of rule 803(8)(B) of the Texas
Rules of Evidence because they concerned matters observed by police officers and
other law enforcement personnel in a criminal case.[46]
The State replied that it was
offering the documents as business records under rule 803(6).[47] Appellant further objected that rule
803(6) should not serve to circumvent rule 803(8)(B) and cited the case of
Cole v. State.[48] The trial court overruled the objection.
The
twenty-two page jail records exhibit includes (1) Appellant=s
booking questionnaire, including AReceiving
Officer=s
Observations,@
AReceiving
Officer=s
Screening Guidelines for Mental Disability/Suicide Risk,@
and AMedical
Staff Recommendation@;
(2) Disciplinary Reports; and (3) Disciplinary Hearing Reports, including guilty
pleas, findings of guilt, and punishments assessed. The records contain allegations of
crimes and acts of misconduct. The
records also show that Appellant was incarcerated from November 2001 through
late June 2002.
Appellant
asserts that the exhibit as a whole is hearsay under rule 803(8) and thus
inadmissible under the business records exception found in rule 803(6). Specifically, Appellant argues that the
decision in Cole renders his jail records inadmissible under rule
803(8)(B) because they fall under the exclusion of matters observed by police
officers and other law enforcement personnel.[49] The State relies on Jackson v.
State.[50] The State=s
reliance is misplaced.
Jackson pre-dates the Court of Criminal Appeals=s
original November 1990 opinion in Cole v. State and the opinion on
rehearing from October 1992.[51] The opinion on rehearing clarified but
did not substantially change the original opinion.[52]
Rule
803(8) provides an exception to the hearsay rule for the
following:
Records, reports,
statements, or data compilations, in any form, of public offices or agencies
setting forth
(A) the activities of
the office or agency,
(B) matters observed
pursuant to duty imposed by law as to which matters there was a duty to report,
excluding in criminal cases matters observed by police officers and other law
enforcement personnel; or
(C)
in civil cases as to any party and in criminal cases as against the state,
factual findings resulting from an investigation made pursuant to authority
granted by law; unless the sources of information or other circumstances
indicate lack of trustworthiness.[53]
It
is undisputed that the reports were made by law enforcement personnel pursuant
to their official duties.[54] Consequently, under the plain language
of rule 803(8)(B), the records are inadmissible hearsay. Further, rule 803(8)(B) is a limitation
on rule 803(6) (the business records exception) as well as on rule 803(8)
generally.[55] Rule 803(6) cannot be used to avoid the
clear strictures of rule 803(8)(B).[56]
In
addition to state rules and precedent, the Texas Court of Criminal Appeals has
stated that we may look to federal cases, like United States v. Cain,[57]
for guidance as to the scope and applicability of the Texas Rules of Evidence
because our rules were patterned after the federal rules.[58] Specifically, because rule 803(8) is
worded almost identically to its federal counterpart, Texas courts weigh federal
precedent more heavily in applying this exception.[59] The reports in the case before us are
inadmissible for precisely the same reasons that the Cain court held that
the escape report made at a federal correctional institution was inadmissible.[60] They are reports of crimes and acts of
misconduct reported to or observed by law enforcement personnel. They also reflect law enforcement
personnel=s
rulings regarding culpability and the punishment imposed by law enforcement
personnel.
The
purpose of the disciplinary reports was to take disciplinary action against
Appellant in an adversarial proceeding.
This is the equivalent of an offense report that is to be used for the
purpose of litigation. Rule
803(8)(B) is clear and unambiguous.
As the Cain court
unequivocally stated, evidence that is inadmissible under federal rule 803(8)(B)
cannot be admitted into evidence through the back door as a business record
under federal rule 803(6).[61] To hold otherwise in this state
proceeding would allow clearly inadmissible evidence to be received through the
same back door that the well‑established law is designed to slam shut.[62]
The
rule 803(6) business records exception does not overcome the mandates of rule
803(8)(B). We therefore hold that
the trial court erred by admitting State=s
exhibit 15. We do not reach
Appellant=s
remaining arguments concerning the records=
inadmissibility.[63]
The
erroneous admission of evidence is a nonconstitutional error which must be
disregarded unless it affected a substantial right.[64]
The background information and acts
of misconduct contained in State=s
exhibit 15 involve violations of jail rules, fighting, possessing a razor blade,
possessing tattoo paraphernalia, threatening a guard, and various punishment
decisions after a finding that Appellant had indeed committed the complained-of
violations. This information shows
a propensity to commit violence and Appellant=s
refusal to moderate his behavior.
The medical screening form also shows that Appellant used controlled
substances and alcohol and had at least one juvenile arrest.
Our
review of the other evidence in this case reveals the following. Tom Battle, Jr. testified that he knew
Appellant when Appellant was fifteen or sixteen years old and attending the
school where Battle was employed as a behavior interventionist. Battle described an incident in which
Appellant knocked over some computer equipment during a computer class, swore at
him, and struck him in the head.
Another
witness, Leon Winchester, testified that on November 4, 2001, he participated
with Appellant in the aggravated robbery of a woman and her pregnant daughter,
Jodi Lohr, at a house in Fort Worth.
Winchester claimed that he, Schiffert, and Appellant committed the
robbery to steal drugs. According
to Winchester, Appellant used a .357 magnum handgun during the robbery. Jodi Lohr testified that the
perpetrators pointed guns at her and threatened to kill her and her
mother.
Further,
Appellant testified during the guilt phase of the trial that he stabbed the
unarmed complainant in the neck and the chest, even though he could have left
the scene. Appellant also stated
that neither Schiffert nor Upchurch was in any immediate danger of harm from the
complainant. Appellant
additionally testified that he left the complainant at the scene to die. Additionally, Ginny Ward, an eyewitness
to the murder, testified that as the complainant stood up from loading his car,
she observed Appellant run up to him and stab him in the neck and chest. She stated that she did not see the
complainant make any aggressive movements toward Appellant. Finally, during its argument at the
punishment phase, the State asked the jury to Astart
at fifty [years] and work [its] way up.@ The jury assessed punishment at
twenty-seven years but could have assessed punishment of up to ninety-nine years
or life.[65]
Applying
the appropriate measure of harm,[66]
we conclude that the error did not influence the jury or had but a slight effect
on the punishment assessed.[67]
We therefore conclude that the trial court=s
error in admitting State=s
exhibit 15 did not affect a substantial right of Appellant. Accordingly, we overrule
Appellant=s
sixth point.
In
point seven, Appellant complains that the trial court erred by admitting evidence of an extraneous offense at
punishment because the evidence was legally insufficient to prove the offense
beyond a reasonable doubt.
Appellant=s
complaint involves the uncorroborated testimony of Leon Winchester, who
testified that he, Appellant, and Schiffert committed an aggravated robbery on
November 4, 2001. Appellant
objected and informed the trial court that the State had not indicted Appellant
for the offense because it could not corroborate Winchester=s
accomplice testimony and that without corroboration, the State could not prove
the extraneous offense beyond a reasonable doubt. The State conceded that
Winchester=s
testimony was uncorroborated, but argued that corroboration is not required at
the punishment phase. The trial
court overruled Appellant=s
objection.
The
trial court=s
decision to admit evidence is reviewed under an abuse of discretion standard.[68] Evidence of extraneous crimes or bad
acts can be introduced during the punishment phase if it is shown beyond a
reasonable doubt that the defendant committed them, even if they have not
resulted in a conviction.[69] But
article 38.14 of the Code of Criminal Procedure provides,
A conviction cannot
be had upon the testimony of an accomplice unless corroborated by other evidence
tending to connect the defendant with the offense committed; and the
corroboration is not sufficient if it merely shows the commission of the
offense.[70]
That
is, the State cannot convict a defendant with accomplice testimony alone and
must corroborate the accomplice testimony with other evidence tending to connect
the defendant with the offense committed.[71] The statute says nothing about the use
of accomplice testimony at punishment.
Although
the Texas Court of Criminal Appeals has yet to determine whether article 38.14
applies to the punishment phase of a noncapital trial, it has held that
corroboration is not required when the State offers testimony of an accomplice
witness to prove (1) an extraneous offense at the punishment stage of a capital
murder trial or (2) the use or exhibition of a deadly weapon.[72] Additionally, other Texas courts of
appeals have held that the requirement of article 38.14 does not apply when the
State offers testimony of an accomplice witness to prove extraneous offenses at
the punishment stage of trial in a noncapital case.[73]
We
note that article 38.14 is a rule for sufficiency review, not an evidentiary
rule.[74] Consequently, it does not govern the
admissibility of evidence; rather, it governs determinations of sufficiency of
the evidence when an accomplice testifies.[75] Article 37.07, section 3(a), on the
other hand, which governs the admissibility of evidence at the punishment phase,
is an evidentiary rule, but it contains no requirement that the accomplice be
corroborated.[76] We therefore hold that the trial court
did not err by admitting Winchester=s
uncorroborated testimony at the punishment phase because corroboration was not
required. We overrule
Appellant=s
seventh point.
VI. CONCLUSION
Having
overruled Appellant=s
nine points, we affirm the trial court=s
judgment.
LEE
ANN DAUPHINOT
JUSTICE
EN
BANC
CAYCE,
C.J. concurs without opinion.
MCCOY,
J. concurs without opinion.
PUBLISH
DELIVERED:
March 30, 2006
[1]See
Tex. R.
Evid. 103(a)(2); Tex. R. App. P. 33.2; Fairow v.
State, 943 S.W.2d 895, 897 n.2 (Tex. Crim. App. 1997); Chambers v.
State, 866 S.W.2d 9, 27 (Tex. Crim. App. 1993), cert. denied, 511 U.
S. 1100 (1994).
[2]See
Tex.
R. App. P.
33.1(a); Reyna v. State, 168 S.W.3d 173, 178-80 (Tex. Crim. App.
2005).
[3]758
S.W.2d 597, 598 (Tex. Crim. App. 1988).
[4]See
id. at
600.
[5]See
Tex. Code Crim. Proc. Ann. art.
37.09 (Vernon 1981); Moore v. State, 969 S.W.2d 4, 8 (Tex. Crim. App.
1998).
[6]Feldman
v. State,
71 S.W.3d 738, 750 (Tex. Crim. App. 2002);
Moore, 969 S.W.2d at 8.
[7]See
Tex.
Penal Code Ann.
'
19.04(a) (Vernon 2003).
[8]See
id. '
6.03 (Vernon 2003).
[9]See
Munoz v. State,
932 S.W.2d 242, 245 (Tex. App.CTexarkana
1996, no pet.).
[10]See
Godsey v. State,
719 S.W.2d 578, 584 (Tex. Crim. App. 1986); Martinez v. State, 16 S.W.3d
845, 847 (Tex. App.CHouston
[1st Dist.] 2000, pet. ref=d).
[11]Feldman,
71 S.W.3d at 750; Moore, 969 S.W.2d at 8.
[12]Brown
v. State,
955 S.W.2d 276, 279 (Tex. Crim. App. 1997); Golden v. State, 851 S.W.2d
291, 295 (Tex. Crim. App. 1993).
[13]Hughes
v. State,
719 S.W.2d 560, 564 (Tex. Crim. App. 1986).
[14]See
id.;
see
also Tex.
Penal Code Ann.
'' 9.32(a),
9.33 (Vernon 2003).
[15]See
Tex. Penal Code Ann. '
19.02(d) (Vernon 2003).
[16]See
id.
[17]See
id.
'
19.02(a)(2).
[18]See
id.
'
19.02(a)(1).
[19]See
Jones v. State,
963 S.W.2d 177, 180 (Tex. App.CFort
Worth 1998, pet. ref=d).
[20]See
Villegas v. State,
791 S.W.2d 226, 239 (Tex. App.CCorpus
Christi 1990, pet. ref=d).
[21]Jones,
963 S.W.2d at 180.
[22]See
Adanandus v. State,
866 S.W.2d 210, 231-32 (Tex. Crim. App. 1993), cert. denied, 510 U.S.
1215 (1994); Villegas, 791 S.W.2d at 239.
[23]See
Tex.
Penal Code Ann.
'
9.31(b)(4) (Vernon 2003).
[24]See
Smith v. State,
965 S.W.2d 509, 512 (Tex. Crim. App. 1998).
[25]Id. at
513.
[26]See
id.
at 515.
[27]See
id.
at 516.
[28]Id. at
517.
[29]See
Matson v. State,
819 S.W.2d 839, 846 (Tex. Crim. App. 1991).
[30]Felder
v. State,
848 S.W.2d 85, 94-95 (Tex. Crim. App. 1992), cert. denied, 510 U.S. 829
(1993); Alejandro v. State, 493 S.W.2d 230, 231 (Tex. Crim. App.
1973).
[31]Wesbrook
v. State,
29 S.W.3d 103, 115 (Tex. Crim. App. 2000), cert. denied, 532 U.S. 944
(2001); Dinkins v. State, 894 S.W.2d 330, 357 (Tex. Crim. App.), cert.
denied, 516 U.S. 832 (1995).
[32]See
Felder,
848 S.W.2d at 94-95; Alejandro, 493 S.W.2d at 231.
[33]Denton
v. State,
946 S.W.2d 607, 611 (Tex. App.CFort
Worth 1997, pet. ref=d)
(op. on reh=g).
[34]See
id.
[35]Belton
v. State,
900 S.W.2d 886, 898 (Tex. App.CEl
Paso 1995, pet. ref=d).
[36]Vitiello
v. State,
848 S.W.2d 885, 888 (Tex. App.CHouston
[14th Dist.] 1993, pet.
ref=d).
[37]Ledesma
v. State,
828 S.W.2d 560, 563 (Tex. App.CEl
Paso 1992, no pet.).
[38]Adams
v. State,
813 S.W.2d 698, 700-01 (Tex. App.CHouston
[1st Dist.] pet. ref=d).
[39]Garza
v. State,
783 S.W.2d 796, 800 (Tex. App.CSan
Antonio 1990, no pet.).
[40]Varvaro
v. State,
772 S.W.2d 140, 144 (Tex. App.CTyler
1988, pet. ref=d).
[41]Cates
v. State,
752 S.W.2d 175, 177 (Tex. App.CDallas
1988, no pet.).
[42]Duncantell
v. State,
563 S.W.2d 252, 258 (Tex. Crim. App.), cert. denied, 439 U.S. 1032
(1978).
[43]Villarreal
v. State,
576 S.W.2d 51, 63 (Tex. Crim. App. 1978), cert. denied, 444 U.S. 885
(1979).
[44]McKay
v. State,
707 S.W.2d 23, 36 (Tex. Crim. App. 1985), cert. denied, 479 U.S. 871
(1986).
[45]See
Tex.
R. App. P. 44.2(b);
Martinez v.
State, 17 S.W.3d
677, 692-93 (Tex. Crim. App. 2000); Mosley v. State, 983 S.W.2d 249, 259
(Tex. Crim. App. 1998) (op. on reh=g), cert. denied, 526 U.S.
1070 (1999).
[46]See
Tex. R. Evid.
803(8)(B).
[47]See
Tex.
R. Evid.
803(6).
[48]839
S.W.2d 806 (Tex. Crim. App. 1992) (op. on reh=g).
[49]See
Tex.
R. Evid.
803(8)(B); see also Cole, 839 S.W.2d at 811.
[50]Jackson
v. State,
822 S.W.2d 18, 30-31 (Tex. Crim. App. 1990), cert. denied, 509 U.S. 921
(1993).
[51]Cole
v. State,
839 S.W.2d 798 (Tex. Crim. App. 1990), reh=g
granted,
839 S.W.2d 806 (Tex. Crim. App. 1992) (clarifying original opinion and finding
the State=s
motion for rehearing without merit).
[52]Cole,
839 S.W.2d at 808, 810.
[53]Tex.
R. Evid.
803(8) (emphasis added).
[54]See
id.
[55]See
id.;
see also Tex. R. Evid.
803(6).
[56]Cole,
839 S.W.2d at 811.
[57]United
States v. Cain,
615 F.2d 380, 380‑82 (5th Cir. 1980).
[58]Cole,
839 S.W.2d at 801.
[59]Id. at
801‑02.
[60]Cain,
615 F.2d at 380‑82.
[61]Id;
see also Cole, 839 S.W.2d at 811.
[62]See
Cain,
615 F.2d at 380‑82; Cole, 839 S.W.2d at 811; Willis v. State, 2
S.W.3d 397, 401 (Tex. App.CAustin
1999, no pet.).
[63]See
Tex.
R. App. P.
47.1.
[64]See
Tex. R. App. P.
44.2(b); Mosley, 983 S.W.2d at 259; Coggeshall v. State, 961
S.W.2d 639, 642-43 (Tex. App.CFort
Worth 1998, pet. ref=d).
[65]See
Tex. Penal Code Ann. '
12.32(a) (Vernon 2003)
[66]See
Tex.
R. App. P.
44.2(b); King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997)
(citing Kotteakos v. United States, 328 U.S. 750, 776, 66 S. Ct. 1239,
1253 (1946)).
[67]See
Tex. Penal Code Ann. ''
12.32(a), 19.02(c) (Vernon 2003).
[68]See
Green v. State,
934 S.W.2d 92, 101-02 (Tex. Crim App. 1996), cert. denied, 520 U.S. 1200
(1997).
[69]See
TEX.
CODE
CRIM.
PROC.
ANN.
art. 37.07, '
3(a) (Vernon Supp. 2005).
[70]Id.
art. 38.14 (Vernon 2005).
[71]Id.
[72]See
Vasquez v. State,
56 S.W.3d 46, 48 (Tex. Crim. App. 2001); Jones v. State, 982 S.W.2d 386,
395 (Tex. Crim. App. 1998), cert. denied, 528 U.S. 985
(1995).
[73]See,
e.g., Salazar v. State,
87 S.W.3d 680, 683 (Tex. App.CSan
Antonio 2002, no pet.); Megas v. State, 68 S.W.3d 234, 242 (Tex.
App.CHouston
[1st Dist.] 2002, pet. ref=d);
Goodman v. State, 8 S.W.3d 362, 364 (Tex. App.CAustin
1999, no pet.); Johnson v. State, 969 S.W.2d 134, 135 (Tex.
App.CTexarkana
1998, pet. ref=d).
[74]See
Tex. Code Crim. Proc. Ann. art.
38.14.
[75]See
id.
[76]See
id. art.
37.07, '
3(a). | {
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28 So.3d 6 (2009)
Jennifer Dyas REED
v.
Matthew DYAS.
2071211.
Court of Civil Appeals of Alabama.
July 2, 2009.
*7 Richard L. Watters, Mobile, for appellant.
James W. Bodiford, Jr., Mobile, for appellee.
THOMPSON, Presiding Judge.
Jennifer Dyas Reed ("the wife") appeals from the trial court's denial of her motion seeking to have Matthew Dyas ("the husband") held in contempt for his alleged failure to pay certain debts pursuant to the parties' divorce judgment.
The parties were divorced in July 2004. In the divorce judgment, the trial court awarded the wife the parties' 1999 Saturn automobile; it awarded the husband the parties' 2001 Nissan pickup truck and their 2003 Suzuki four-wheeler vehicles.[1] The trial court ordered the husband to pay the debt on all the vehicles. The husband was awarded custody of the parties' children.
The evidence is undisputed that, sometime after the divorce judgment was entered, the husband asked the wife to allow him to have the Saturn automobile in exchange for the pickup truck because he needed the passenger space for the children. The wife agreed. About two months after the exchange, the husband traded the Saturn automobile for a new vehicle. He also stopped making the required payments on the pickup truck and the four-wheelers.
The husband acknowledged that he had stopped making the required payments. During his testimony, he provided no reason or excuse for his action, and the record does not otherwise reflect any basis, such as an inability to pay, for the husband's decision to stop making the payments.
The vehicles at issue were purchased in the wife's name. Since the husband stopped making the payments, the wife has received numerous telephone calls and letters from creditors, many threatening to pursue legal action against her to recover the balance of the outstanding debts.
In November 2007, the wife filed a petition to modify the divorce judgment. The husband then filed a counterclaim for modification of child support. In response, the wife amended her petition to include a motion for contempt based upon the husband's failure to pay the debts on the vehicles as required by the divorce judgment. An ore tenus hearing was held on the parties' respective petitions, after which the trial court denied the wife's petition for modification, granted the husband's petition, and denied the *8 wife's motion for contempt, stating that "both parties have deviated from the Court's order regarding said vehicles."
The wife contends that the trial court exceeded its discretion in denying her motion for contempt because, she says, the undisputed evidence demonstrated that the husband had failed to pay the debts as required by the divorce judgment. We agree.
"`Civil contempt' is defined as a `willful, continuing failure or refusal of any person to comply with a court's lawful writ, subpoena, process, order, rule, or command that by its nature is still capable of being complied with.' Rule 70A(a)(2)(D), Ala. R. Civ. P. The determination of whether a party is in contempt is within the sound discretion of the trial court, and that determination will not be reversed absent a showing that the court exceeded the limits of its discretion. Stack v. Stack, 646 So.2d 51 (Ala.Civ.App.1994)."
Routzong v. Baker, 20 So.3d 802, 810 (Ala. Civ.App.2009). "`The failure to perform an act required by the court for the benefit of an opposing party constitutes civil contempt.' Carter v. State ex rel. Bullock County, 393 So.2d 1368, 1370 (Ala.1981)." J.K.L.B. Farms, LLC v. Phillips, 975 So.2d 1001, 1012 (Ala.Civ.App.2007). Furthermore, "`[t]he purpose of a civil contempt proceeding is to effectuate compliance with court orders and not to punish the contemnor.' Watts v. Watts, 706 So.2d 749, 751 (Ala.Civ.App.1997)." Hall v. Hall, 892 So.2d 958, 962 (Ala.Civ.App.2004).
The divorce judgment states that it incorporated an agreement between the parties as to the division of marital property. "[A] settlement agreement which is incorporated into a divorce [judgment] is in the nature of a contract." Smith v. Smith, 568 So.2d 838, 839 (Ala.Civ.App. 1990). The husband's obligation to pay the outstanding debt on all of the vehicles pursuant to the parties' agreement did not end when the parties exchanged vehicles, which, we note, was at the husband's request. The husband appears to recognize his obligation under the divorce judgment. In his appellate brief, his sole response to the wife's argument is that "[t]he Court did not say that [the former husband] did not owe the debtbut only that he was not in contempt." The husband makes no assertion that he has resumed paying the debts, or that he even intends to pay the debts.
"`Judicial sanctions in civil contempt proceedings may, in a proper case, be employed for either or both of two purposes: to coerce the defendant into compliance with the court's order, and to compensate the complainant for losses sustained.' United States v. United Mine Workers of America, 330 U.S. 258, 303-04 (1947). Alabama courts have reiterated that a civil-contempt determination may be used to encourage a contemner's future compliance with court orders. Chestang v. Chestang, 769 So.2d 294 (Ala.2000); Pate v. Guy, 934 So.2d 1070 (Ala.Civ.App.2005)."
J.K.L.B. Farms, 975 So.2d at 1012.
In this case, the evidence is undisputed that the husband stopped making the payments on the vehicles that the trial court had ordered him to pay in the divorce judgment. The parties' decision to exchange vehicles without returning to court to obtain permission to do so had no bearing on his obligation to pay the outstanding balances owed on those vehicles. The husband failed to perform an act required of him by the divorce judgment for the benefit of the wife; therefore, he was in contempt. The trial court exceeded its discretion in finding otherwise.
*9 Accordingly, that portion of the judgment denying the wife's motion for contempt is reversed, and the cause is remanded for the trial court to enter a judgment consistent with this opinion.
REVERSED AND REMANDED.
PITTMAN, BRYAN, THOMAS, and MOORE, JJ., concur.
NOTES
[1] It is not clear from the record whether two or three four-wheeler vehicles were awarded to the husband; however, the specific number of vehicles is not relevant for a determination of the issue on appeal.
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Opinions of the United
2007 Decisions States Court of Appeals
for the Third Circuit
9-7-2007
Black v. DA Philadelphia Cty
Precedential or Non-Precedential: Non-Precedential
Docket No. 02-2154
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Recommended Citation
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 02-2154
MICHAEL BLACK
Appellant
v.
DISTRICT ATTORNEY OF PHILADELPHIA CITY;
THE ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA;
ROBERT SHANNON, SUPT. SCI MAHANOY
Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 01-cv-03479)
District Judge: Hon. Ronald L. Buckwalter
Submitted under Third Circuit LAR 34.1(a)
on March 22, 2004
Before: AMBRO, CHERTOFF* and ROTH**, Circuit Judges
(Opinion Filed: September 7, 2007)
*This case was submitted to the panel of Judges Ambro, Chertoff and Roth. Judge
Chertoff resigned before the filing of the opinion. The decision is filed by a quorum of the
panel. 28 U.S.C. § 46(d).
**The Honorable Jane R. Roth assumed senior status on May 31, 2006.
OPINION
ROTH, Circuit Judge:
In this habeas action under 28 U.S.C. § 2254, appellant Michael Black alleges a
violation of his due process rights by his conviction based on a guilty plea for conduct that
was not criminal. Black pled guilty to various crimes, including a violation of the
Pennsylvania Corrupt Organizations Act (the PCOA), 18 Pa. C.S. §911 et seq., based on the
operation of his wholly illegal enterprise of cocaine distribution. Seven years later, the
Supreme Court of Pennsylvania held that the PCOA does not apply to wholly illegitimate
enterprises. Commonwealth v. Besch, 674 A.2d 655 (Pa. 1996). The Pennsylvania Supreme
Court has since held that Besch relates back to the enactment of the PCOA. Kendrick v. Dist.
Att’y of Philadelphia County, 916 A.2d 529, 541 (Pa. 2007).
Consistent with Kendrick, we find that Black did not receive valid notice of the
charges against him and that his actual innocence of the charge of violation of the PCOA
justifies equitable tolling of the statute of limitations. Accordingly, we will vacate the
District Court’s order denying habeas relief and remand this matter to the District Court.
I. BACKGROUND
On July 10, 1989, Black pled guilty to third-degree murder, possessing an instrument
of crime (PIC), possession with intent to deliver a controlled substance (PWID), criminal
conspiracy and violating the PCOA. Pursuant to the plea agreement, he was sentenced to
consecutive sentences of ten to twenty years each for the third degree murder and PCOA
2
violation convictions, concurrent sentences of five to ten years each for the PWID and
conspiracy convictions, and a concurrent sentence of two to five years for PIC.
On January 15, 1997, Black filed a pro se petition under Pennsylvania’s Post
Conviction Relief Act (PCRA), 42 Pa. C.S. §9541, et seq. The PCRA court dismissed the
amended petition on June 25, 1998. The Superior Court affirmed this decision on September
28, 1999. Commonwealth v. Black, 747 A.2d 408 (Pa. Super. 1999). On August 21, 2000,
the Supreme Court of Pennsylvania denied allocatur. Commonwealth v. Black, 766 A.2d
1243 (Pa. 2000).
On March 22, 2001, Black filed an Application for Leave to File Original Process and
Petition for Writ of Habeas Corpus in the Supreme Court of Pennsylvania. The court granted
his petition for leave but denied the habeas petition. Black v. Shannon, No. 40 EM 2001,
June 11, 2001.
On July 12, 2001, Black filed the instant Petition for Writ of Habeas Corpus, arguing
that his guilty plea to the state law crime of violating the PCOA was not knowing and
intelligent and/or the evidence was insufficient to sustain his conviction since his was a
wholly illegitimate enterprise and the Pennsylvania Supreme Court ruled, seven years after
his guilty plea, that the PCOA does not apply to wholly illegitimate enterprises. See
Commonwealth v. Besch, 674 A.2d 655 (Pa. 1996).
In a Memorandum and Order dated April 4, 2002, the District Court held that (1)
Black was not entitled to equitable tolling of the Anti-terrorism and Effective Death Penalty
Act (AEDPA) statute; (2) Besch announced a new rule of law that was not retroactively
3
applicable to Black’s PCOA conviction; (3) Black was not actually innocent of violating the
PCOA.
We granted a certificate of appealability to Black on the question of “whether the
District Court erred by refusing to equitably toll the one-year period of limitation prescribed
in 28 U.S.C. §2244(d)(1) based on Appellant’s claim that he is actually innocent of violating
the Pennsylvania Corrupt Organizations Act as interpreted in Commonwealth v. Besch, 674
A.2d 655 (Pa. 1996).” Because the resolution of this case depended on whether the rule in
Besch applies retroactively, a question then pending before the Pennsylvania Supreme Court
after being certified to them by this Court in Kendrick v. Dist. Att’y of Philadelphia County,
916 A.2d 529 (Pa. 2007), we held Black’s appeal curia advisari vult pending the resolution
of that question.
The Pennsylvania Supreme Court has now concluded that the rule in Besch applies
retroactively, relating back to the day of enactment. Id. at 538-39.
Following the issuance of the Pennsylvania Supreme Court’s decision in Kendrick,
we asked the parties to file memoranda regarding the effect of the decision on this case. In
his response, Black argues that the decision in Kendrick shows that Besch represents the
meaning of the PCOA at the time Black pleaded guilty and that his conviction should
therefore be set aside. The Commonwealth agrees that the conviction should be vacated and
asks that we remand for resentencing.
II. DISCUSSION
The District Court had jurisdiction over this habeas action under 28 U.S.C. §§ 2241(a)
4
and 2254(a). We have appellate jurisdiction under 28 U.S.C. § 2253. Our review of the
timeliness of a federal habeas application is plenary, Hartmann v. Carroll, 492 F.3d 478,
478 (3d Cir. 2007), as is the standard for review of a decision to grant or deny equitable
tolling. Brinson v. Vaughn, 398 F.3d 225, 231 (2005).
The two questions to be addressed before relief may be granted are (1) whether
Black’s claim is barred by his delay in filing for habeas relief, and (2) whether Black’s guilty
plea was involuntary because it was made without a valid disclosure of the charge he faced.
Petitions for habeas relief must be filed within one year of the date on which the state
court judgment became final. 28 U.S.C. § 2244(d)(1). For judgments that became final prior
to the enactment of the AEDPA, the one year statute of limitations runs from April 24, 1996,
the date of enactment of AEDPA. Burns v. Morton, 134 F.3d 109, 111 (3d Cir. 1998). The
running of the statute of limitations is tolled while state court post-conviction review is
pending. Black concedes that, while the statute of limitation was tolled several times for
appeals in state court, he did not file within the statute of limitations. His filing for habeas
relief is therefore time barred unless it qualifies for equitable tolling.
We have held that equitable tolling may be applied where principles of equity would
make rigid application of the statute unfair. Miller v. New Jersey State Department of
Corrections, 145 F.3d 616, 618 (3d Cir. 1998). Generally this will occur when the appellant
has been prevented from asserting his rights in some extraordinary way. Id. Here, the rigid
application of the statute would result in upholding a sentence for a crime that in fact was not
a crime. Such a result would be manifestly unjust, and so we find that equitable tolling of
5
the statute of limitations is appropriate.
A guilty plea can not support a judgment of guilt unless it was made voluntarily. The
plea can not be voluntary in a constitutional sense if the defendant did not receive “real
notice of the nature of the charge against him.” Henderson v. Morgan, 426 U.S. 637, 644-45
(1976). Here, defendant pled guilty to violating the PCOA believing that the statute could
be applied to his cocaine distribution business. Under Besch, conduct of an entirely
illegitimate enterprise does not violate the PCOA. Commonwealth v. Besch, 674 A.2d 655,
661 (Pa. 1996). According to Kendrick, the rule in Besch applies to Black’s PCOA
conviction. Thus, the notice given to Black of the nature of the charge against him
incorrectly suggested that he could have violated the PCOA, rendering his guilty plea
constitutionally invalid.
III. CONCLUSION
The District Court’s denial of the writ of habeas corpus will be vacated and this matter
remanded to the District Court (1) to grant habeas relief unless the Commonwealth chooses
to permit Black to withdraw his guilty plea on the PCOA count and (2) to take such further
action on the remaining counts as it deems appropriate.
6
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721 F.Supp. 1566 (1989)
WHIMSICALITY, INC., Plaintiff,
v.
RUBIE'S COSTUMES CO., INC., Defendant.
No. CV 89-1720.
United States District Court, E.D. New York.
September 11, 1989.
*1567 *1568 Virginia R. Richard and Pamela Bradford, Kane, Dalsimer, Sullivan, Kurucz, Eisele and Richard, New York City, for plaintiff.
Andrew S. Langsam, Levisohn, Lerner & Berger, New York City, for defendant.
DEARIE, District Judge.
This matter is before the Court on plaintiff's application for a preliminary injunction. Plaintiff alleges that defendant's production and distribution of certain children's Halloween costumes infringe plaintiff's copyrighted "soft sculpture" designs. Plaintiff also alleges unfair competition in violation of section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a), and state law.
At the close of oral argument, there appearing to be no dispute as to the material facts bearing on the copyright claim, the Court indicated that it would consolidate the instant application with the merits of the case. See Fed.R.Civ.P. 65(a)(2). The parties thereafter submitted extensive additional legal memoranda, affidavits and documentary evidence. Defendant also cross-moved to dismiss the complaint.
As described in greater detail below, the Court has resolved the question in this case in favor of the defendant, and on August 18, 1989, issued an order denying plaintiff's application for injunctive relief and granting defendant's motion to dismiss the copyright infringement claim. The Court also directed the parties to proceed with discovery on the unfair competition claims and to appear for a status conference on October 6, 1989 at 9:30 A.M. This opinion sets forth the basis of the Court's decision. See Fed.R.Civ.P. 52(a).
FACTS
A. The Parties
Plaintiff Whimsicality, Inc. ("Whimsicality"), a Vermont corporation, is a young and to date thriving enterprise. Founded in 1978 by Pierre Couture, its current president, Whimsicality designs, manufactures and sells various home craft items, such as children's apparel, quilts, adult toys and novelties. Whimsicality promotes its products as home-styled and "made in Vermont." Defendant Rubie's Costume Co., Inc. ("Rubie's"), a New York corporation, for over thirty five (35) years has manufactured, designed and marketed a wide range of theatre-related items, including numerous costumes for children and adults, as well as Halloween novelty items, masks, theatre props, and make-up kits. Rubie's gross sales totalled over $30 million in 1988.
B. The Allegedly Infringed Items
Since 1985, Whimsicality has distributed a line of items designed by Mr. Couture, which it has described to this Court and to the United States Copyright Office as "soft sculptures." Since 1985, when it introduced the Jack O'Lantern (its first soft sculpture design and one of the six items allegedly infringed by defendant), Whimsicality has enjoyed great success with its soft sculptures. At present, the line consists of 66 different soft sculpture designs. The other five allegedly infringed by defendant are Hippo Ballerina, Spider, Tyrannosaurus Rex ("T-Rex"), Bee and Penguin.
Whimsicality's soft sculpture designs have received substantial publicity[1] and *1569 are sold nationwide through numerous catalogs, at trade shows, and in several upscale department and specialty stores. Sales of Whimsicality's soft sculpture designs exceeded $1.4 million in 1987 and $2.2 million in 1988. Approximately 80% of the sales of Whimsicality's sculptures occur between the months of March and August, when retailers and wholesalers place their orders for costumes for the upcoming Halloween season.
Whimsicality has secured copyright registrations on each of the six designs.[2] On each application form submitted to the Copyright Office, Whimsicality identified the "nature of the work" it sought to register as "soft sculpture." Similarly, in its papers submitted to this Court, Whimsicality has consistently used only the term soft sculpture, describing Mr. Couture's designs as "original soft sculptures executed in fabric" which are "adaptable for use as costumes, wall hangings or interior decorations." All other written materials mentioning the articles, however, describe them only as costumes. These materials include the numerous catalogues displaying the subject designs, as well as newspaper and trade journal articles profiling the subject designs, and Whimsicality's own promotional literature and order and price sheets.
C. The Alleged Infringement
During the 1989 National Halloween Show in Chicago, representatives of Whimsicality first discovered what they believed were infringing "knock-off" Halloween costumes i.e., lower priced, lower quality imitations of Whimsicality's soft sculpture designs being displayed and offered for sale by Rubie's. Rubie's also displayed and offered for sale the allegedly infringing knock-offs in its fall 1989 catalog. Immediately thereafter Whimsicality's counsel wrote Mr. Marc Beige, president of Rubie's, asserting Whimsicality's copyrights and demanding that Rubie's cease and desist marketing the knock-offs. Rubie's refused, arguing, as it continues to argue to this Court, that Whimsicality's designs are not properly copyrightable.[3]
DISCUSSION
I.
The Copyright Infringement Claim
A prima facie case of copyright infringement is established by proof of (i) ownership of a valid copyright and (ii) copying by the alleged infringer. Eckes v. Card Prices Update, 736 F.2d 859, 861 (2d Cir. 1984); Zambito v. Paramount Pictures Corp., 613 F.Supp. 1107, 1108, n. 1 (E.D.N. Y.), aff'd 788 F.2d 2 (2d Cir.1985). See also 3 M. Nimmer, On Copyright, § 13.01 (1987).
A. Validity of Whimsicality's Copyrights
1. Introduction
Whimsicality's ownership of a copyright registration for each of the six designs at issue is prima facie evidence of the validity of each copyright and the facts stated in the certificates, including ownership. 17 U.S.C. § 410(c). The presumption of section 410(c), however, may be rebutted. If a copyright claimant failed to disclose fully the nature of its work to the Copyright Office, or if the Copyright Office otherwise lacked a full and fair opportunity to pass upon the question of the work's copyrightability, the copyright certificate's *1570 validity may be questioned. Past Pluto Productions Corp. v. Dana, 627 F.Supp. 1435, 1440 & n. 5 (S.D.N.Y.1986).
If the claimant's incomplete disclosure was in fact calculated to deceive the Copyright Office, a Court may refuse to enforce the certificate. As one court has stated,
[t]he knowing failure to advise the Copyright Office of facts which might have occasioned a rejection of the application constitute[s] reason for holding the registration invalid and thus incapable of supporting an infringement action ..., or denying enforcement on the ground of unclean hands.
Russ Berrie & Co., Inc. v. Jerry Elsner Co., Inc., 482 F.Supp. 980, 988 (S.D.N.Y. 1980), cited with approval in Eckes v. Card Prices Update, 736 F.2d at 861-862. See also Sandwiches, Inc. v. Wendy's International, Inc., 654 F.Supp. 1066, 1071 (E.D.Wis.), appeal dismissed, 822 F.2d 707 (7th Cir.1987).
Rubie's argues that the copyright registrations in this case are invalid because what Whimsicality identifies to this Court and the Copyright Office as soft sculptures are nothing more than costumes, and therefore intrinsically utilitarian articles which are not copyrightable. Rubie's argues that Whimsicality defrauded the Copyright Office, having secured copyright registrations only because it misidentified the works to the Copyright Office as soft sculptures.[4] Whimsicality's counsel conceded at oral argument that had Whimsicality identified its works as costumes, the Copyright Office would probably have rejected its applications. Whimsicality insists, however, that it has not defrauded the Copyright Office, maintaining that its designs are indeed soft sculptures which are simply adaptable and popular as costumes.
Although the parties disagree as to the proper classification of the articles in question, it is uncontested that in every single piece of promotional literature, Whimsicality describes these very same items only and always as costumes. The uncontroverted evidence also shows that 80% of the sales of the soft sculptures are attributable to demands for Halloween costumes. Thus, it is clear on this record that Whimsicality considers the items to be costumes, promotes them as costumes, and profits principally because consumers purchase them as costumes. Moreover, this Court cannot ignore the fact that the Copyright Office has rejected applications for copyright submitted by Rubie's for one of the allegedly infringing costumes (the Bee), as well as other Rubie's costumes in the past, on the ground that costumes are "wearing apparel" and thus not copyrightable.
In short, the evidence strongly suggests that Whimsicality has not been as forthright with the Copyright Office as it could have been, Its obviously calculated use of the term "soft sculpture," however, does not in this Court's view reach the level of dissembling that would constitute a fraud on the Copyright Office and without more preclude the present infringement claims. Possessed of at least an understandable bias about the uniqueness of its creations, Whimsicality could arguably justify describing them to the Copyright Office as something other than just costumes.
Indeed, the issue of copyright law presented in this case is a difficult one and has understandably sparked a war of words in which both parties have embraced certain nomenclature to press their respective points. Indeed, notwithstanding the abundance of tests and the masterful articulation of them by courts and the Copyright Office, reasonable persons may disagree about the copyrightability of costumes. See National Theme Productions, Inc. v. Jerry B. Beck, Inc., 696 F.Supp. 1348 (S.D.Cal.1988), discussed in detail infra at 1575. The Court therefore undertakes *1571 an analysis of the copyrightability of the allegedly infringed items.
2. General Principles.
The Constitution authorizes Congress to "promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." U.S. Const. Art. I § 8. Among the items to which Congress has extended copyright protection are "pictorial, graphic or sculptural works." 17 U.S.C. § 102(a)(5). A "useful article," defined as an "article having an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information," or "an article that is normally part of a useful article," 17 U.S.C. § 101, is generally not copyrightable.
A useful article may be copyrightable as a pictorial, graphic or sculptural work, however, but
only to the extent that [the design of the useful article] incorporates pictorial, graphic or sculptural features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article.
Id.
A codification of official Copyright Office policy, Compendium II of Copyright Office Practices (1984) (the "Compendium")[5] contains provisions which largely track the statutory language but also includes examples and relevant commentary regarding useful articles. For example, according to the Compendium, examples of "useful articles" having intrinsic utilitarian functions and therefore lacking copyrightability, include "automobiles, boats, household appliances, furniture, work tools, garments and the like." Compendium § 505.01 (emphasis added).
Section 505.02 of the Compendium provides:
Separability test. Registration of claims to copyright in three-dimensional useful articles can be considered only on the basis of separately identifiable pictorial, graphic, or sculptural features which are capable of independent existence apart from the shape of the useful article. Determination of separability may be made on either a conceptual or physical basis. (emphasis added)[6]
Section 505.03, especially relevant to this suit, provides:
Separability test: conceptual basis. Conceptual separability means that the pictorial, graphic or sculptural features, while physically inseparable by ordinary means from the utilitarian item, are nevertheless clearly recognizable as a pictorial, graphic or sculptural work which can be visualized on paper, for example, or as a free-standing sculpture, as another example, independent of the shape of the useful article, i.e., the artistic features can be imagined separately and independently from the useful article without destroying the basic shape of the useful article. The artistic features and the useful article could both exist side by side and be perceived as fully realized, separate works one an artistic work and the other a useful article. Thus, carving on the back of a chair, or pictorial matter engraved on a glass vase, could be considered for registration. The test of conceptual separability, however, is not met by merely analogizing the general shape of a useful article to works of modern sculpture, since the alledge "artistic features" and the useful *1572 article cannot be perceived as having separate, independent existences. The shape of the alleged "artistic features" and of the useful article are one and the same, or differ in minor ways; any differences are de minimis. The mere fact that certain features are nonfunctional or cold have been designed differently is irrelevant under the statutory definition of pictorial, graphic, and sculptural works. Thus, the fact that a lighting fixture might resemble abstract sculpture would not transform the lighting fixture into a copyrightable work. (emphasis added)
Finally, in a Printed Form on Useful Articles distributed by the Copyright Office, the Register of Copyrights states:
Designs for useful articles, such as vehicular bodies, ... wearing apparel ... and the like are not protected by copyright. However, the design of a useful article is subject to copyright protection to the degree that its pictorial, graphic or sculptural features can be identified as existing independently of the utilitarian object in which they are embodied.
The line between uncopyrightable works of industrial design and applied art is not always clear. A two-dimensional painting, drawing, or other graphic work is still identifiable when it is printed on or applied to useful articles such as textile fabrics, wallpaper, containers and the like. On the other hand, although the shape of an industrial product may be aesthetically satisfying and valuable, the copyright law does not afford it protection. The designs of some useful objects may be entitled to protection under design patent law ...
Our Court of Appeals, recognizing the difficulty of the conceptual separability principle, recently adopted what it undoubtedly hoped was a clearer articulation of the test, a version first set forth by Professor Denicola in Applied Art and Industrial Design: A Suggested Approach to Copyright in Useful Articles, 67 Minn.L.Rev. 707 (1983). Thus, in this circuit,
if design elements reflect a merger of aesthetic and functional considerations, the artistic aspects of a work cannot be said to be conceptually separable from the utilitarian elements. Conversely, where design elements can be identified as reflecting the designer's artistic judgment exercised independently of functional influences, conceptual separability exists.
Brandir International, Inc. v. Cascade Pacific Lumber Co., 834 F.2d 1142, 1145 (2d Cir.1987). In evaluating a work under this test, the court is to review evidence relating to both the design process and the nature of the work. Id. at 1145-47.
Distilling the amorphous notion of conceptual separability into a handful of manageable propositions is a necessary first step toward determining copyrightability in a particular case. While they hardly light up the world or even map out an easy path toward appropriate resolution, the Compendium and case examples provide some guidance; referencing them and other such concrete examples, this Court can best demonstrate its reasoning.
First, it is accepted copyright law that a garden variety article of wearing apparel is intrinsically utilitarian and therefore a noncopyrightable useful article. Equally noncopyrightable are the elaborate designs of the high fashion industry, no matter how admired or aesthetically pleasing they may be. Notwithstanding the fact that aspects of a garment might well reflect a talented designer's artistic judgments, or that one might admire a garment principally for those artistic aspects, the "ultimate design," Brandir, 834 F.2d at 1147 (emphasis added), of apparel is "as much the result of utilitarian pressures as aesthetic choices." Id. (emphasis added)."[7]
Second, certain items that are "worn" but are not actually garments, though they *1573 serve utilitarian functions, may be copyrightable. For example, in Kieselstein-Cord v. Accessories by Pearl, Inc., 632 F.2d 989 (2d Cir.1980), our Court of Appeals found ornate belt buckles to be copyrightable because their "primary ornamental aspect[s]" were "conceptually separable from their subsidiary utilitarian function." 632 F.2d at 993. Noting that the buckles could be worn separately as jewelry, that Court later explained that the buckles' artistic elements "were not in any respect required by their utilitarian functions." Carol Barnhart Inc. v. Economy Cover Corp., 773 F.2d 411, 419 (2d Cir.1985). Conceptual separability, and thus copyrightability, was also found to exist in a wearable bear paw slipper in Animal Fair, Inc. v. Amfesco Industries, Inc., 620 F.Supp. 175 (D.Minn.1985), aff'd mem., 794 F.2d 678 (8th Cir.1986), and in animal-shaped children's backpacks in Act Young Imports, Inc. v. B and E Sales Co., Inc., 673 F.Supp. 672 (S.D.N.Y.1987). In both of those cases, the courts concluded that the artistic features of the item in question (the animal shapes) were wholly unrelated to the useful function of those stems.
Third, aspects of garments may be copyrightable. Returning to the Copyright Office publications (the Compendium and the Printed Form on Useful Articles), a vase is not copyrightable but a pictorial matter engraved on it might be; a chair is not copyrightable, but a carving on the back of it might be; similarly, while an ordinary garment is not copyrightable, a sculpture (of foam, or fabric, for example), or a detailed embroidery, or some other two-dimensional drawing or graphic work, affixed to a portion of the garment, might be copyrightable. Moreover, the existence of the copyrightable engraving on the vase or the copyrightable carving on the chair does not make the entire vase or chair copyrightable. In other words, a copyrightable feature of an item does not entitle the entire item to copyright protection.
Fourth, turning to the language of the tests themselves, they reflect the principle that the essence of noncopyrightability is utility not, of course, utility's mere presence, but its influence on the identifiable artistic elements. Obviously there are many useful objects which also exhibit artistic elements. The objective of conceptual separability analysis is to grant copyright protection to the art that may be within, or a part of, a useful object, but only where it is possible to locate and identify what for lack of a better term can be called "pure" art i.e., art untainted by utilitarian concerns. In other words, art is protectible under the conceptual separability test only when it can be said that the art came into existence for reasons entirely unrelated to the utilitarian purpose of the useful object (of which the art happens to be an element).
In addition, the Copyright Office and the Brandir court articulations of the conceptual separability principle both reflect a Congressional decision, essentially a policy choice, to protect art underinclusively; that is, Congress decided that it is better to risk not protecting some art than to grant to all so called art, including art resulting from non-artistic (i.e., utilitarian) considerations, the precious protection and monopoly status of copyright. This judgment also reflects the notion that even the design of purely functional attire involves an element of creativity and therefore, as an expression of the designer, is art in the commonly accepted sense. Thus, as the Brandir court stated, when the designer's aesthetic and utilitarian concerns merely merge, or when the ultimate design results as much from utilitarian as aesthetic concerns, protection is denied; protection exists only when the designer's artistic judgment was exercised truly independently of functional influences. Admittedly this test poses a difficult burden for one seeking copyright protection, but the burden is understandable given the policies underlying the copyright laws. In practice, the test requires a finding that the "art" would have resulted even if the designer were not designing the utilitarian object which happens to embody or display his art.
3. The Validity of the Copyrights in the Instant Action.
With these principles in mind, the Court turns to the group of articles in *1574 question. First, Whimsicality's soft sculptures, however fanciful, are "useful articles" as that term is understood for copyright purposes. They are not, however, useful merely as garments, whose purpose is simply to clothe the body, or even to clothe the body pleasingly, alluringly, or luxuriously. Their purpose is more specialized; it is to enable the wearer to masquerade, to pretend to be a jack o'lantern or a bee or a spider.
Since the purpose of the soft sculptures is to enable the wearer to masquerade, the artistic elements of each article are not conceptually separable from each article's utilitarian aspects. The artistic features of the various costumes the elaborate headpieces on the Hippo Ballerina, T-Rex or Jack O'Lantern, for example, or the orange gingham print on the Jack O'Lantern, or the attractive color combinations and facial details on all the costumes all are influenced by, and indeed advance, the utilitarian purpose of the items, which is to enable the wearer to masquerade. In other words, the artistic, and aesthetically pleasing, aspects of Mr. Couture's designs, in this court's judgment, are inseparable from the utilitarian concern with creating something that the consumer will think resembles a bee or penguin or spider for purposes of masquerading.
The Court does not doubt that Mr. Couture has succeeded in displaying his own particular artistic expressions, but his artistic judgment, in this court's view, was not exercised independently of functional influences, since Mr. Couture knew that while he was expressing the idea of pumpkin or bee or spider, he was doing so at least in part to create a costume a consumer would buy and wear.[8] Thus, the artistic elements of the articles clearly advance their utilitarian function. In short, the designs may be art, but it is an art influenced not exclusively, but significantly and materially by utility. It may fairly be said that the artistic elements were without question dominated by utilitarian concerns during the design process and would not have come into being were Mr. Couture not designing the utilitarian objects (costumes) which now embody those elements of art.
There is no question that this Court's conclusion would be otherwise were this Court simply to accept Whimsicality's characterization of the articles. The Court acknowledges that a work of art that happens to be worn, or a wearable toy, might be copyrightable. The reality, however, after a careful review of the record and an examination of the articles themselves, belies Whimsicality's arguments, for there is no doubt in this Court that the subject articles are costumes. Whimsicality's studied position that its sculptures just happen to be adaptable as costumes, and just happen to be popular during the Halloween season, but that the articles are equally adaptable as wall hangings or decorations, must be dismissed. Not a single advertisement ever advises the consumer that his costume had such a different destiny. In sum, every indication in the record *1575 is that Whimsicality designs, manufactures and markets the sculptures not as works of art that can be worn, but as items principally for masquerade wear.
What little evidence this Court has on the design process which is relevant in conceptual separability analysis, see Brandir, 834 F.2d at 1145-1147 confirms this Court's conclusion about the obvious nature of the works in question. The Court of course has no direct evidence of what was in Mr. Couture's mind on the day he designed the first soft sculpture. But given that the various soft sculptures were designed over time, and in response to the success in the market of the previously designed Couture sculptures, the evidence strongly suggests that Mr. Couture in fact had their use as costumes sufficiently in mind as he designed each successive one so that it can be said that the aesthetic and functional considerations merged during the design process.
As the above indicates, this Court must reject the analysis in National Theme Productions, Inc. v. Jerry B. Beck, Inc., 696 F.Supp. 1348 (S.D.Cal.1988). Beginning with the same general principles discussed in this opinion, the National Theme court reasoned that the utilitarian purpose of the Halloween costumes at issue was simply to clothe; accordingly, it quite easily concluded that the costumes were copyrightable because the artistic elements in the costumes "simply do not advance their utilitarian purpose as clothing or accessories," 696 F.Supp. at 1354, and that "the costumes were not ... designed to optimize their function as clothing." Id. at 1353. In this Court's view, the National Theme court's conceptual separability analysis is flawed because the court failed to assess the artistic elements in light of the costumes' purpose as masquerade clothing. Indeed, logically applied, National Theme would extend copyright protection and monopoly status to the high fashion designs of the garment industry, contrary to well established case law, Copyright Office and historical precedent.
Whimsicality presses one final argument that requires brief discussion. Whimsicality argues that the conceptually separable artistic aspect of each of Mr. Couture's creations is the overall effect the shape, or silouhette, or three-dimensional impression on the viewer created by Mr. Couture's particular expression of bee, or pumpkin, or hippopotamus. One could draw line drawings of the whole shape and design of each of the costumes, Whimsicality argues, which would be recognizable as fanciful artistic renditions of a pumkin or spider regardless of what utilitarian object the designs were used to adorn.
Whimsicality relies on a passage from the bear paw slipper case, Animal Fair Inc. v. Amfesco Industries, Inc., in which the court noted that
... "one could draw a line drawing of the whole shape and design which would be recognizable as a fanciful artistic rendition of a bear's paw, regardless of what type of functional or utilitarian object it was used to adorn."
620 F.Supp. at 187.
Whimsicality's analogy, however, misses the mark. Whimsicality is partially correct in that the conceptually separable and therefore copyrightable artistic element of a useful article could be its overall shape or the effect of its overall exterior configuration. Such shape, configuration or appearance is deemed conceptually separable, however, only when the artistic shape exists "independent of the shape of the useful article," Compendium § 505.03 (emphasis added), or when "the artistic features can be imagined separately and independently from the useful article without destroying the basic shape of the useful article." Id. Cf. H.R.Rep. No. 1476 at 55, reprinted in 1976 U.S.Code Cong. & Admin.News, pp. 5659, 5668, ("although the shape of an industrial product may be aesthetically satisfying and valuable, the committee's intention is not to offer it copyright protection ... unless the shape ... contains some element that, physically or conceptually, can be identified as separable from the utilitarian aspects of that article ..."). In short, the aesthetically very pleasing shapes of Mr. Couture's creations their fanciful, sometimes lifelike, *1576 sometimes fantastical, rendition of the image of pumpkin, bee, penguin, dinosaur, hippopotamus and spider are inseparable from the utilitarian function of the objects of which they are a part to enable the wearer to masquerade as a pumpkin, bee, penguin or the like. See Compendium, § 505.03 ("the fact that a lighting fixture might resemble abstract sculpture would not transform the lighting fixture into a copyrightable work"). Thus the artistic shapes of the costumes where shape and appearance are as much a part of function as laces are to shoes are distinguishable from the artistic shapes of the animals on the children's backpacks in Act Young Imports, or the bear-paw shape of the slipper in Animal Fair, and clearly not copyrightable.
B. Copying and Substantial Similarity
Having determined that Mr. Couture's creations are not copyrightable, the Court need not reach the issues of copying and substantial similarity. Two additional points are noteworthy, however. First, as the Director of Copyrights points out in his Printed Form on Useful Articles, designs such as Mr. Couture's may be protectible under patent and trademark law. This Court agrees with Whimsicality that patent or trademark protection, on the one hand, and copyright protection, on the other, are not necessarily mutually exclusive, see, e.g., Mazer v. Stein, 347 U.S. 201, 218-219, 74 S.Ct. 460, 470-471, 98 L.Ed. 630 (1954), but the subject articles do appear to be ones protectible, if at all, under the patent and trademark laws.
Second, features of some of Whimsicality's costumes may be copyrightable the sculpted headpieces on the pumpkin and Hippo Ballerina, like the Compendium's examples of the carving on the chair or the pictorial design on the vase, are two of the more obvious candidates. Those are not, however, the items which Whimsicality registered with the Copyright Office, nor the articles which form the basis of its present copyright infringement claim. Accordingly, the Court takes no action with respect to them.
II.
Unfair Competition Claims
As stated at the outset, at the close of oral argument the Court indicated to the parties that it would decide the case on the merits. The focus of the parties and the court at that time was the copyright claim. Indeed, plaintiff's irreparable harm showing was premised nearly exclusively on the presumption that irreparable harm exists where copyright infringement has been shown. E.g., Gund v. Swank, Inc., 673 F.Supp. 1233 (S.D.N.Y.1987).
The unfair competition claims under section 43(a) of the Lanham Act and state law, however, present a different situation. These issues received less extensive treatment in the parties' submissions before and after argument. Indeed, Whimsicality's most voiced claim is that Rubie's has failed to submit any evidence or argument to counter Whimsicality's unfair competition claims. Rubie's, by contrast, submitted a letter to the Court stating that it has not addressed the unfair competition claims for two reasons. First, Rubie's counsel apparently assumed from the remarks of this Court during oral argument that the case would turn on copyrightability and desired to spare the Court unnecessary materials. More importantly, Rubie's points out that it has not yet engaged in any discovery with respect to the Lanham Act claim.
The Court appreciates the need for discovery on the Lanham Act claim, since the determinative issues in such a claim are very fact intensive. Moreover, since the issues deal with facts that were not the focus of the oral or documentary presentations the Court is not in a position to decide the merits of the unfair competition claims at this point, and directs the parties to proceed with discovery under the supervision of the assigned magistrate.
As stated earlier, Whimsicality's application for permanent injunctive relief was largely based on its copyright claim. Although Whimsicality's submissions give some attention to the merits of the unfair competition claims, they do not do so in a *1577 manner that would enable this Court to evaluate those claims as an independent basis for injunctive relief. In any event, since Whimsicality fuels its unfair competition argument with references to the copyrightability of the packaged articles, it is doubtful, in light of today's decision, that the unfair competition claim has sufficient merit to sustain the issuance of an injunction.
CONCLUSION
Plaintiff's application for injunctive relief is denied. Defendant's cross-motion to dismiss the copyright claim is granted. The parties are to proceed with discovery on the unfair competition claims and to appear for a status conference on October 6, 1989 at 9:30 a.m.
In the exercise of its discretion, given the difficulty of the copyright question presented by this case, this Court declines to award costs or attorneys' fees to the prevailing party under 17 U.S.C. § 505.
SO ORDERED.
NOTES
[1] Over the last two years Whimsicality's designs have been featured in the Chicago Tribune, the Detroit News, the Providence Journal Bulletin, on the cover of New York Magazine, in the trade publications Playthings and Toy and Hobby, and on a nationally telecast edition of ABC Business World News.
[2] Whimsicality's designs are registered with the Copyright office as follows:
Design Registration Date Issued
Pumpkin VA 312 952 8/22/88
Hippo Ballerina VA 148 459 4/17/89
Spider VA 148 458 4/17/89
T-Rex VA 148 460 4/17/89
Bee VA 312 084 8/9/88
Penguin VA 312 085 8/9/88
[3] Although some evidence has been submitted bearing on the packaging of the parties' products, alleged representations by Rubie's to consumers concerning the source of its alleged "knock-offs," and other issues relevant to the unfair competition claims, the Court is not deciding those claims today. See infra at 1576-1577. Rather, this Court has directed the parties to proceed with discovery, and therefore the Court does not now make any preliminary findings of fact relating to the unfair competition claims.
[4] As part of its application to the Copyright Office, Whimsicality also submitted photographs of the subject articles in which they were displayed on a flat surface, without human models, and without a hint that the items depicted could be worn as costumes without alteration or adaptation. By contrast, in all promotional literature and catalogs containing photographs of the articles, they are always being modelled by children.
[5] The Compendium is issued "Under the Copyright Law Which Became Fully Effective on January 1, 1978, Including Title 17 of the United States Code and Amendments Thereto."
[6] The notions of conceptual separability and physical separability developed not from the statute but from its legislative history:
On the other hand, although the shape of an industrial product may be aesthetically satisfying and valuable, the committee's intention is not to offer it copyright protection under the bill. Unless the shape of an automobile, airplane, ladies' dress, food processor, television set, or any other industrial product contains some element that, physically or conceptually, can be identified as separable from the utilitarian aspects of that article, the design would not be copyrighted under the bill (emphasis added).
H.R.Rep. No. 1476, at 55, reprinted in 1976 U.S.Code Cong. & Admin.News, p. 5668.
[7] One additional fact has undoubtedly helped "establish" the noncopyrightability of apparel. As explained by the parties at oral argument, early protectionist economic policy accounts as much as principles of copyright law for the status of apparel under American copyright law. Apparently, apparel was denied copyright protection so the fledgling American fashion industry could with impunity knock-off the expensive creations of the established European designers.
[8] Indeed, some evidence submitted by plaintiff strongly suggests that Mr. Couture was almost exclusively influenced by the utilitarian concern of designing appealing costumes. For example, Plaintiff's Supplemental Exhibit 22, an article from The Times Argus, dated October 29, 1987, reveals Mr. Couture's concerns with his marketthe yuppie mothers and their needs. According to the article's author, Couture stated that a mother feels good sending her child out in one his costumes "because it's what she would make herself." Mr. Couture continued to demonstrate his appreciation of his product's market. He explained that demand is high particularly because Halloween's focus for children has shifted from trick or treating at night to daytime parties, including dress-up days at school, where there is greater pressure to have a high quality costume.
The article also remarks upon the quality of the costumes, noting, inter alia, that none has a mask that could interfere with a child's vision. This observation hints to this Court that perhaps even the decision to design the elaborate headpieces may have been influenced by functional considerations, namely, creating the desired full-body costume effect without subjecting the child wearer of the costume to the discomfort, vision impairment or other inconveniences or dangers of a mask.
Finally, Mr. Couture apparently believes his present endeavors are an outgrowth of a childhood pastime: musingly, he notes that "As a kid, I used to work on Halloween costumes weeks in advance."
| {
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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 20, 1997 Decided January 20, 1998
No. 97-3073
United States of America,
Appellee
v.
Angelo Valentino Garces, a/k/a Lolo,
Appellant
Appeal from the United States District Court
for the District of Columbia
(No. 96cr00269-01)
Jonathan Zucker, appointed by the court, argued the cause
and filed the briefs for appellant.
Pamela S. Satterfield, Assistant U.S. Attorney, argued the
cause for appellee. With her on the brief were Mary Lou
Leary, U.S. Attorney, John R. Fisher, Thomas C. Black, and
Brenda Baldwin-White, Assistant U.S. Attorneys.
Before: Wald, Williams and Randolph, Circuit Judges.
Opinion for the Court filed by Circuit Judge Williams.
Concurring opinion filed by Circuit Judge Randolph.
Williams, Circuit Judge: Angelo Valentino Garces was
convicted of violating 18 U.S.C. s 922(g)(1), which makes it a
crime for a convicted felon to possess a gun and ammunition.
In this appeal he challenges the admission of a car key and
related testimony. Officers found the key in a pair of pants
during a search of Garces's residence pursuant to a lawful
warrant and used it to open a green and white Cadillac
parked outside the residence and owned by Garces's aunt. In
the car, which they searched with the aunt's express written
consent, they found the gun and ammunition giving rise to the
charge. At trial the government offered the key (among
other things) to link Garces to the contraband.
The key was not among the items described in the warrant.
And its seizure did not fall within the "plain view" exception
to the Fourth Amendment's warrant requirement, says
Garces, because the officers lacked probable cause to think it
evidence of a crime until after they had searched the car.
Thus, he says, seizure of the key was illegal.
Because the only reasonable reading of the aunt's consent
to search the car is that it included consent to use the key, we
affirm.
* * *
On July 24, 1996 officers of the FBI and Washington
Metropolitan Police Department went to Garces's house with
a warrant for his arrest for the murder of Thomas Johnson,
and a warrant for search of the premises. The warrant
permitted them to search for and seize various items that
they had probable cause to believe were evidence or instru-
mentalities of the murder:
an auto-loading pistol and ammunition, a black mask, a
dark colored rain slicker and documentation (mail, tele-
phone bills, news clippings) demonstrating connections
between Mr. Garces and decedent, Johnson, which is [sic]
evidence of the crime of murder.
The police entered Garces's home and found him sleeping on
the couch. Though he initially gave a false name, Garces
identified himself when confronted by an officer who knew
him; the officers arrested him and removed him from the
premises. The police then conducted the search. Two offi-
cers, FBI Agent Bamel and another, went to the basement,
where they found a pair of camouflage pants neatly folded on
a chair. They searched the pockets of the pants and found an
identity card belonging to Garces and a key on a nylon key
chain, together with a photo of a young girl who turned out to
be Garces's daughter. The photograph of the key in the
record gives it the appearance of a car key, apparently to a
General Motors car though not necessarily a Cadillac. Agent
Bamel took the key and key chain and went upstairs and gave
them to the "seizing officer," Agent Bedford, who in turn
gave the key to Agent Buckley. Meanwhile, upstairs the
police found a green camouflage rain coat and a black mask in
the coat pocket, which they seized.
During the search the officers noticed a green 1970 Cadillac
with a white roof parked outside. (Tr. 1/6/97, p. 35.) The
officers phoned to find out who owned the car, and found it
registered in the name of a Sophia Garces, shown in the
registration as living at the same residence. Sophia Garces,
appellant's aunt, was in fact on hand. Agent Buckley asked
for her consent to search the car. She gave express written
consent to a search, and also told the officers that Angelo
Garces, known to her as Lolo, sometimes drove the car. (Tr.
1/6/97, pp. 64-66.) The validity of Sophia Garces's consent is
not challenged here.
Agent Buckley turned the key over to Detective Rivera to
use in searching the car. Rivera opened the car and in the
glove compartment found some papers with Garces's name on
them, and several cellular phones; more to the point, he
noticed a .45 caliber Colt semi-automatic pistol under the
front passenger seat. Rivera attempted to look in the trunk
but could not, since it was locked and could not be opened
even with the key from the pants. He left the items in the
car and then asked Sophia Garces whether there was another
key or set of keys for the car, to which she responded no.
(Tr. 3/12/97, p. 143.) The police then decided to have the car
towed to an FBI lot until they could get a warrant to search
it. When the warrant for the car was executed, the FBI
seized the gun from under the seat and various documents
from the glove compartment, some of which had Garces's
prints.
At the suppression hearing Garces focused on a claim that
the car search was illegal. But nested within that contention
was a claim that the seizure of the key itself was illegal; that
illegality supposedly invalidated the aunt's consent to the car
search. (Tr. 3/7/97, pp. 21-23.) As to the key, he argued
first that it fell outside the scope of the search warrant, and
furthermore that it was outside the "plain view" exception to
the warrant requirement because its incriminating nature was
not "immediately apparent." Coolidge v. New Hampshire,
403 U.S. 443, 466 (1971). See also Arizona v. Hicks, 480 U.S.
321, 326 (1987) (specifying that under the plain view doctrine
the officers must have probable cause to believe that the item
is incriminating). Here he no longer claims that illegalities in
the key's seizure undermined the aunt's consent, only that the
seizure of the key itself, and thus its later admission, were
invalid.
The government also focused on the car search during the
suppression hearing. In response to Garces's claims about
the key, the government appeared to assert that the key's
incriminating nature was "immediately apparent," but the
government never clearly explained why this was so. It
referred to evidence that the officers knew Garces used the
Cadillac when he made an illegal threat to potential wit-
nesses. In fact, though, the only knowledge of Garces's car
use shown by the testimony at the suppression hearing was
knowledge (acquired by the officers from Sophia Garces) that
he drove it, so far as appeared, for innocent purposes. The
judge ruled from the bench that the officers' use of the key in
searching the car was reasonable, given the link between
Garces and the car. "[I]f there had been no key they could in
due course have obtained one, and it also appears that they
could have opened the car without a key, or they could have
called a locksmith to make one. The consent not the key was
the key to the solution." (Tr. 3/7/97, p. 25.) Implicitly, the
judge seems also to have regarded as reasonable the seizure
of the key and its introduction as evidence, for the same
reason.
At trial the key acquired a greater significance than the
passing attention given to it in the suppression hearing might
have suggested. During its deliberations the jury sent back
to the judge a query asking whether "if someone has ... sole
control of the only key of the car, does that person have
constructive possession of everything in the car?" (Tr.
3/14/97 (a.m.), p. 2.) With both counsels' consent, the judge
declined to answer; the jury convicted.
* * *
The first question is whether the key can in fact be deemed
"seized" during the time between its discovery in the base-
ment and the gun-revealing search of the Cadillac.1 Here we
divide the process into two periods: the carrying of the key
from the basement up to the "seizing officer," and then its use
outside the house to open the car. The first was not a
seizure. In Arizona v. Hicks, where officers who had entered
an apartment because of exigent circumstances moved a
stereo set enough to be able to read its serial numbers, the
Court found no seizure (beyond that covered by their exigent
circumstances entry), on the ground that merely moving the
equipment around enough to spot the serial numbers did not
__________
1 The search of the pants pockets was plainly legitimate, since
items named in the search warrant, ammunition and documents,
could easily have fitted inside the pants pockets. See, e.g., United
States v. Jenkins, 901 F.2d 1075, 1082 (11th Cir. 1990); United
States v. Martinez-Zayas, 857 F.2d 122, 133 (3d Cir. 1988).
subject the defendant's "possessory interest" to any "mean-
ingful interference" beyond that occasioned by the warranted
search itself, 480 U.S. at 324-25. See also United States v.
Jacobsen, 466 U.S. 109, 113 (1984); Soldal v. Cook County,
506 U.S. 56, 61 (1992).2 Similarly, in United States v. Menon,
24 F.3d 550, 560-61 (3d Cir. 1994), the court found no seizure
in a searching officer's carrying a document from where he
found it to a more knowledgeable officer in the next room,
because moving the document did not meaningfully interfere
with the defendant's possessory interest in it any more than if
the more knowledgeable officer had been brought to the
document.
Although Garces's brief framed his argument about the
movement of the key as a case of unlawful seizure, at oral
argument he seemed to pursue the theory that it was a new
search. He invoked Hicks's finding that the officers' move-
ment of the stereo equipment initiated a new search because
it exposed serial numbers not otherwise accessible, and thus
"produce[d] a new invasion of respondent's privacy unjustified
by the exigent circumstances." 480 U.S. at 325. But Menon
rejected an attempt by the defendant to extend Hicks, similar
to what Garces may be claiming here. Menon argued that
the more knowledgeable officer's review of the documents
constituted a new search because his more complete under-
standing of the case's background enabled him to spot incrim-
inating aspects of the papers imperceptible to the first officer.
The Third Circuit denied the defendant's claim, relying on the
concept of collective knowledge: in determining whether offi-
cers have probable cause to believe an item qualifies as
evidence, the court must look to the aggregate knowledge of
the searching officers. More pragmatically, the court rea-
soned that a contrary ruling would just force law officers to
__________
2 Actually, the Court in Hicks said only that "the mere recording
of the serial numbers did not constitute a seizure," 480 U.S. at 324,
which leaves open the possibility that the separate moving of the
equipment, which constituted a search, also constituted a seizure.
But Justice Powell's dissent, id. at 332, confirms a reading of the
majority's opinion that the movement of the equipment was a
Fourth Amendment search but not a seizure.
have the most informed officer do all the searching. 24 F.3d
at 561-63. We agree. Thus, assuming any variation in the
scope of the various officers' knowledge, we find neither
search nor seizure in their carrying the key about the house
to determine its evidentiary value.
As for the use of the key outside the house to open the
Cadillac, we find it unnecessary to address whether this
action represented a seizure. A warrantless seizure may be
validated by the consent of someone with authority over the
property, United States v. Matlock, 415 U.S. 164, 170-71
(1974), and, as we explain below, Sophia Garces supplied that
consent.
Sophia Garces not only gave consent to the search of her
car, but at the same time said that Angelo drove it. From
Ms. Garces's statements that she owned the car driven by
Angelo, the officers could reasonably have inferred: (1) that
as the car's owner, Sophia Garces was the owner of a key
which the police had found in Angelo's pants and which they
reasonably thought would fit her car; (2) that as the car's and
key's owner, Ms. Garces was legally capable of authorizing
the police to use the key to search the car; and (3) that her
consent to search the car in fact exercised that authority.
Since Ms. Garces was the sole registered owner of the car, it
was a fair inference that she would be the owner of any keys
that opened it. One can, of course, imagine scenarios under
which she might have given her nephew more than mere
possession, e.g., some "estate for years" in the key (which
simply means an estate for a fixed period of time), see
Restatement (First) of Property s 19 cmt. a (1936), but in
judging what is reasonable officers can expect property rela-
tionships to be the normal or customary ones, not the unusual
or outr, at least until they are presented with contrary
information. See United States v. Jenkins, 92 F.3d 430, 437
(6th Cir. 1996). On the natural assumption that Sophia
Garces was simply allowing Angelo the use of her car, she
would normally have the power to revoke her consent to his
possession of the key. We may assume, without deciding,
that she could not herself have lawfully burrowed into his
trouser pockets in order to effect a transfer of possession to
the officers. But no such burrowing was necessary; the
officers had already lawfully secured possession of the key.
Finally, a reasonable reading of Sophia Garces's grant of
consent was that she implicitly exercised her power to autho-
rize use of the key to facilitate the search. Common sense
strongly supports that inference. While the officers could
have effected the car search by jimmying the lock or securing
the aid of a locksmith, that course offered her no advantage.
It would have carried some risk of injury to the car, and it
would have extended the period in which her own access to
the car was suspended. Thus, although we assume that
Garces had a sufficient possessory interest in the key to
entitle him to raise the Fourth Amendment issue, see Soldal,
506 U.S. at 61-62, the seizure (if any) was reasonable because
authorized by a party with apparently superior title.
Although Sophia Garces's consent legitimated the use of
the key to open the car, there is, of course, no reason to
suppose that it legitimated the officers' carrying away of the
key after the car search. (We assume arguendo that the
carrying away at that time played a causal role in the key's
availability for use at trial.) We conclude, however, that the
carrying away was lawful because, once the key was used to
open the car, its incriminating nature was "immediately ap-
parent." Coolidge, 403 U.S. at 466.
If the plain view doctrine's immediate apparency require-
ment were taken literally, it would mean that unless search-
ing officers had probable cause to grasp the incriminating
character of an item not specifically covered by a search
warrant at the precise moment they first spotted it, its seizure
would become unlawful for the duration of the search, regard-
less of information lawfully acquired later in the search.
Such an approach would condition the lawfulness of a seizure
on the fortuity of whether the item was discovered early or
late in the search: if officers entered premises under a
warrant, and first saw a kitchen knife and then a corpse with
its throat slit, they could not take the knife; but they could if
the sequence were reversed. Thus, although the phrase
"immediately apparent" sounds temporal, its true meaning
must be that the incriminating nature of the item must have
become apparent, in the course of the search, without the
benefit of information from any unlawful search or seizure.3
Cases interpreting the immediate apparency requirement
of the plain-view doctrine are few and mixed. Menon, dis-
cussed earlier, clearly takes the view that in assessing compli-
ance with the "immediately apparent" criterion, post-
discovery steps needed to establish the papers' incriminating
character "count" so long as they themselves are legitimate.
24 F.3d at 560-63. The First Circuit has described the onset
of probable cause in the plain-view context as a cumulative
process, using the metaphor of a light bulb: "The sum total of
the searchers' knowledge must be sufficient to turn on the
bulb; if the light does not shine during the currency of the
search, there is no 'immediate awareness' of the incriminating
nature of the object." United States v. Rutkowski, 877 F.2d
139, 142 (1st Cir. 1989) (emphasis added). And just last
month the Fourth Circuit held that the plain-view doctrine
validated a seizure of drug paraphernalia, despite the fact
that the searching officer did not recognize the incriminating
nature of the paraphernalia until he had left the room and
__________
3 Such unlawful search might, of course, include search of the
object itself. See Minnesota v. Dickerson, 508 U.S. 366, 375 (1993)
("If ... the police lack probable cause to believe that an object in
plain view is contraband without conducting some further search of
the object ... the plain-view doctrine cannot justify its seizure.").
But any subsequent legitimate steps in the search process are as
effective as prior steps in supplying the requisite knowledge.
returned to view it a second time. United States v. Jackson,
1997 WL 780240 at *1, *4 (4th Cir., Dec. 19, 1997).
On the other hand, the Sixth Circuit has enunciated the
doctrine that the officers must have probable cause to believe
the item incriminating "at the time of discovery." See, e.g.,
United States v. Szymkowiak, 727 F.2d 95, 98 (6th Cir. 1984);
United States v. Beal, 810 F.2d 574, 577 (6th Cir. 1987). The
latter case, however, is quite reconcilable with our view.
Officers discovered fountain pens that they suspected were in
truth guns and seized them; only later, after disassembly and
lab analysis, did they raise their knowledge from mere suspi-
cion over the probable cause threshold. Id. at 576. Szym-
kowiak explains that the purpose of the temporal immediacy
rule is to "obviate prolonged, warrantless rummaging." 727
F.2d at 98. But as long as any "rummaging" must be lawful
for its yield to qualify (as under our view), it is unclear how
the Szymkowiak rule provides any additional deterrence to
prevent officers from unlawful invasions of privacy or posses-
sory interests. Just as searching officers "are not limited by
the fortuity of which officer first happened upon the evi-
dence," Menon, 24 F.3d at 561-62, we believe they should not
be limited by the fortuity of which piece of evidence they
happen upon first.
Our reasoning here may differ in detail from that of the
trial court and from the theories pressed by the government,
and we are mindful of the resulting risk of prejudice to the
defendant, see United States v. Dawkins, 17 F.3d 399, 408
(D.C. Cir. 1994) (citing Giordenello v. United States, 357 U.S.
480, 488 (1958)). But, as we observed before, at the suppres-
sion hearing the defendant did not focus attention on the
admissibility of the key. The lawfulness of the seizure of the
key was indeed at issue, but mainly as part of the challenge to
the car search. Thus the district court's aphoristic disposi-
tion of the issue ("The consent not the key was the key to the
solution") was a completely understandable telescoping of
issues presented by the defendant. If defendant had been
troubled by the ambiguity as to whether the finding of
consent encompassed use of the key, the burden was on him
to demand clarification. United States v. Mitchell, 951 F.2d
1291, 1299 (D.C. Cir. 1991); United States v. Caballero, 936
F.2d 1292, 1296 (D.C. Cir. 1991).
* * *
Garces raises two evidentiary points. He moved in limine
to exclude evidence of threats made by him with a gun that
looked like the weapon found in the Cadillac. The court ruled
that the victims of these threats could testify to seeing Garces
six days before the seizure and could describe the weapon he
had in hand, but that they could not speak of the threats. At
trial things did not work out exactly as intended. The threat
victims blurted out the threats, saying that Garces had said
he was "going to shoot" them. (Tr. 3/10/97, pp. 78, 149.)
While Rule 404(b) of the Federal Rules of Evidence
generally excludes evidence of "other crimes, wrongs, or
acts ... to prove the character of a person in order to show
action in conformity therewith," it permits such evidence for
such purposes as proving "motive, opportunity, intent, prepa-
ration, plan, knowledge, identity, or absence of mistake or
accident." Appellant does not appear to claim here, however,
that the threat testimony was inadmissible under Rule 404(b),
but only that in admitting it the trial court abused its
discretion under Rule 403, because of its unduly prejudicial
effects. The "emotionally compelling" nature of the "death
threats" testimony was by itself enough to overwhelm deliber-
ative consideration of the "abstract," colorless charge of con-
structive possession of a firearm.
The judge was clearly aware of the potentially prejudicial
nature of the witnesses' references to the threats, and indeed
ruled them out. They were not directly elicited by the
prosecutor's questions, and there is no indication in the
record that the prosecutor encouraged the lapse. Indeed,
one of the blurtings occurred in response to a question by
defense counsel on cross-examination. (Tr. 3/10/97, p. 113.)
The judge took reasonable precautions to minimize the risk of
any misuse, instructing the jury that the threat incident
testimony was admitted only "for the limited purpose of
aiding you to decide whether the defendant possessed the gun
recovered by the police...." (Tr. 3/13/97, p. 64.) He went
on to caution them that they may not consider the testimony
about the threats "as evidence that the defendant had a bad
character or that the defendant has a criminal personality."
Id. Accordingly, we find no abuse of discretion in letting the
jury, properly instructed, proceed to judgment. Further-
more, any possible prejudice from the references to the
threats was well within the threshold of harmless error, given
the overwhelming strength of the case against Garces.
Garces also sought protection from being linked to the
Thomas Johnson murder for which the arrest warrant was
issued. The court ruled that the government could introduce
evidence of the warrant, execution of which had led to seizure
of the car and its contraband, as part of the explanatory
background, but said that the government witnesses must not
refer to the warrant's being for the crime of murder. At
trial, though the murder charge was not specifically men-
tioned, some witnesses referred to "homicide" investigators.
Garces argues that even the reference to the arrest warrant
was a violation of Rule 404(b), on the theory that the search
warrant alone adequately explained the officers' appearance
at Garces's house, while the homicide references improperly
linked him to a murder investigation.
Although the search warrant would have explained the
officers' presence in Garces's home on July 24, it would not
have explained what happened on their finding him there--
his arrest. Yet that was part of the story explaining the links
among Garces, the key and the car. So we reject Garces's
404(b) argument. That the investigators' homicide specialty
came out produced some but by no means all of the taint that
would flow from mention of arrest for murder; jurors would
reasonably suppose that homicide investigators must some-
times arrest for lesser crimes. Thus we find no abuse of the
court's discretion under Rule 403 to balance probative value
against prejudicial effect.
The judgment of conviction is
Affirmed.
Randolph, Circuit Judge, concurring: It should have been
simple enough to explain why the officers' seizure of the car
key complied with the Fourth Amendment. Sophia Garces'
consent to the search of her car carried with it her consent to
using the key to open the car door. See Florida v. Jimeno,
500 U.S. 248, 250 (1991). The officers had already lawfully
discovered the key in the defendant's clothing during the
search authorized by the warrant. When the officers opened
the car with the key, they found a gun. Upon completing
their search of the car, they relocked the door, had the car
towed to an FBI lot, and seized the key.
It does not take any intricate analysis to conclude that in
addition to towing the car away, the officers could take the
key as well. They could lawfully seize both items for the
same reason: the car and the key were plainly evidence of
defendant's criminal activity. Warden v. Hayden, 387 U.S.
294, 307 (1967), is directly on point. As the Court put it in
Soldal v. Cook County, 506 U.S. 56, 65-66 (1992), a plain view
seizure is valid so long as the probable cause standard is
met--it was here--and so long as the seizure is "unaccompa-
nied by unlawful trespass"--which it was in view of Sophia
Garces' consent to the search. Other decisions sustaining
seizures of the sort we have in this case are cited in 3 Wayne
R. LaFave, Search and Seizure s 8.1(c), at 623-24 (3d ed.
1996).
The majority gets itself into an unnecessary tangle by
supposing that the validity of the seizure of the key rests on
"the consent of someone with authority over the property.
United States v. Matlock, 415 U.S. 164, 170-71 (1974)." Maj.
op. at 7. In the first place, Matlock dealt only with the
validity of a search not a seizure. In the second place, the
legality of the seizure of the key (or the car for that matter)
rested on the principles explained in Soldal, not on Sophia
Garces' consent. Her permission enabled the officers to look
for evidence of criminal activity without getting a warrant,
but once they discovered such evidence, they did not need her
consent to seize it.
One other point is worth mentioning. I entirely agree that
the officers had not seized the key within the meaning of the
Fourth Amendment during their search of the premises, even
though they had removed it from its original location. It is
true that the Supreme Court has defined a Fourth Amend-
ment seizure as a "meaningful interference" with an individu-
al's possessory interests. E.g., United States v. Jacobsen, 466
U.S. 109, 113 (1984). But I do not believe the Court meant
this test to apply while a lawful search is ongoing. Whenever
federal officers conduct a search of premises pursuant to a
warrant, there is "a meaningful interference with" everyone's
"possessory interests" in everything in the line of the search.
Those present must stand aside. Until the search has ended,
they cannot grab things, proclaim "these are mine," and walk
away with the objects. If they tried anything of the sort,
they could be prosecuted. See 18 U.S.C. s 2231. The
"meaningful interference" test should be applied only after
the search has ended and the officers have taken property
away or have "secured" the premises from entry. This of
course means that the key was not seized until after the
officers used it to open the car door, at which point its
evidentiary value was plain.
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891 F.2d 294
NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.Willie Dee ALEXANDER. Petitioner-Appellant,v.OREGON STATE BOARD OF PAROLE, Respondent-Appellee.
No. 88-4445.
United States Court of Appeals, Ninth Circuit.
Submitted Oct. 31, 1989.*Decided Dec. 6, 1989.
Before ALARCON, O'SCANNLAIN, LEAVY, Circuit Judges.
1
MEMORANDUM**
2
Petitioner Willie Dee Alexander (Alexander) appeals from a district court judgment dismissing his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 and granting summary judgment to respondent Oregon State Board of Parole (the Board). Alexander's petition alleged that the Board erred in determining his release date in violation of his right to due process.
3
A grant of summary judgment is reviewed de novo. Kruso v. International Tel. & Tel. Corp., 872 F.2d 1416, 1421 (9th Cir.1989). The decision whether to grant or deny a petition for habeas corpus is reviewed de novo. Norris v. Risley, 878 F.2d 1178, 1180 (9th Cir.1989). A federal court's scope of review of parole board decisions is very limited. Pedro v. Oregon Parole Bd., 825 F.2d 1396, 1399 (9th Cir.1987), cert. denied, 484 U.S. 1017 (1988).
4
Alexander preserves two issues on appeal. He first argues that the Board improperly determined his parole release date by using certain aggravating factors. Alexander was convicted on armed robbery and assault with a deadly weapon. His criminal history and risk assessment combined for a "guideline range" of 60 to 80 months before parole. In setting Alexander's initial release date at 72 months, the Board considered two aggravating factors: (A) "Production or use of any weapon during the criminal episode," and (B) "Threat or violence toward witness or victim." Alexander contended on appeal in state court that, because these factors were necessarily included in the crimes for which he was convicted, the Board erred in considering them. The Board then deleted the aggravating facts from its report, styling their original inclusion as "a typographical error," but did not alter the parole date.
5
Alexander contends that the Board's adherence to its initial release date violates due process. He relies on Oregon Administrative Rule 255-35-035, which provides:
6
(1) The Board may depart from the appropriate range only upon making a specific finding, by a preponderance of the evidence that there is aggravation or mitigation which justifies departure from the range....
7
.............................................................
8
...................
9
* * *
10
(b) Any aggravating or mitigating circumstances which constitute a defining element of the crime or subcategory of the crime being rated ... shall not justify variation from the guidelines.
11
Or.Admin.R. 255-35-035(1). Because the Board set Alexander's release date within "the appropriate range," this rule does not apply. The Board had discretion to set Alexander's release date anywhere within the guideline range, and its decision not to alter the date after Alexander complained of improper aggravating factors was also within its discretion. "The Board did not violate petitioner's expectation that, under the rules, a release date would be set within statutory guidelines and ranges...." Pedro, 825 F.2d at 1399.
12
Alexander also argues that his statutory good time credit, see Or.Rev.Stat. § 421.120(1)(b) (1987), should have been deducted from his parole release date. The Board of Parole has no authority to award statutory good time credit against a prisoner's initial release date. Neal v. Maass, 94 Or.App. 119, 122, 764 P.2d 947, 948-49 (1988), appeal denied, 307 Or. 405, 769 P.2d 779 (1989). Thus, the Board's actions did not violate Alexander's due process rights.
13
AFFIRMED.
*
The panel unanimously finds this case suitable for submission on the record and briefs and without oral argument pursuant to Fed.R.App.P. 34(a), Ninth Circuit Rule 34-4
**
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3
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628 F.3d 1044 (2011)
UNITED STATES of America, Plaintiff-Appellee,
v.
Otis JONES, also known as Junior, Defendant-Appellant.
No. 10-1080.
United States Court of Appeals, Eighth Circuit.
Submitted: November 17, 2010.
Filed: January 12, 2011.
*1045 Michael D. Nelson, Omaha, NE, for appellant.
Sara Elizabeth Fullerton, AUSA, Lincoln, NE, for appellee.
Before RILEY, Chief Judge, MELLOY and GRUENDER, Circuit Judges.
*1046 MELLOY, Circuit Judge.
Otis Jones pleaded guilty to conspiring to distribute and possessing with intent to distribute 50 grams or more of cocaine base and 500 grams or more of cocaine powder. The district court[1] sentenced Jones to 151 months' imprisonment. Jones appeals his sentence. He argues that the district court should not have adjusted his offense level for having possessed a "dangerous weapon" in connection with the conspiracy, and he also argues that the district court should have given him credit for the time he spent in state custody prior to the imposition of his federal sentence. We affirm.
I. Background
From roughly January 2007 to January 2009, Jones participated in a conspiracy to distribute crack and powder cocaine in Lincoln, Nebraska. On January 20, 2009, the Lincoln Police Department executed search warrants for two residences where Jones occasionally stayed. At one of the residences, officers found crack cocaine and other drug paraphernalia. Jones admitted the items were his, and Nebraska authorities charged Jones with possession of cocaine.
As a result of these events, Jones violated the terms of probation that he was under due to a 2007 state-court conviction for possession of a firearm by a felon. As a result of his probation violation, a Nebraska judge sentenced Jones to three to six years of prison on February 17, 2009.
On February 19, 2009, a grand jury indicted Jones for conspiring to distribute and possessing with intent to distribute 50 grams or more of crack cocaine and 500 grams or more of powder cocaine, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1), 846. The grand jury also indicted Jones on two separate counts of possessing crack cocaine with intent to distribute, but the government moved to dismiss these two counts after Jones pleaded guilty to the conspiracy charge.
For sentencing purposes, the base offense level for Jones's conspiracy charge was thirty-two. The district court found that Jones possessed a "dangerous weapon"namely, a firearmin connection with the conspiracy, which increased Jones's base offense level to thirty-four. Jones received a three-level decrease for acceptance of responsibility, resulting in a total offense level of thirty-one. Jones had a criminal history category IV, so the district court determined that the advisory guideline sentencing range was 151-181 months' imprisonment. The district court imposed 151 months' imprisonment and ordered the sentence to run concurrently with Jones's state sentence. However, the district court did not give Jones any credit for the time he spent in state custody prior to the imposition of his federal sentence.
Jones raises two issues on appeal. First, Jones argues that the district court erred by finding that Jones possessed a weapon in connection with his conspiracy to distribute crack and powder cocaine. Second, Jones argues that the district court erred by not giving him credit for at least some of the time that he spent in state custody prior to the imposition of his federal sentence.
II. Discussion
A.
Jones first argues that the district court erred by finding that he possessed a firearm *1047 in connection with his conspiracy to distribute crack and powder cocaine. Section 2D1.1 of the Sentencing Guidelines outlines the appropriate offense levels for drug-trafficking crimes. Under section 2D1.1(b), a two-level increase is appropriate if a defendant possessed a dangerous weapon in connection with a drug-trafficking crime. United States v. Anderson, 618 F.3d 873, 879-80 (8th Cir.2010). We review the district court's determination that Jones possessed a firearm in connection with his conspiracy to distribute crack and powder cocaine for clear error. Id. at 879.
At the sentencing hearing, the government sought to prove the applicability of the dangerous-weapon enhancement through the testimony of two witnesses: Christopher Reynolds and Robert Swift. Reynolds testified that he sold crack cocaine to Jones two to three times per week from January through July of 2007. According to Reynolds, every time he sold crack to Jones, Jones was in possession of a gun. Although Reynolds was unsure whether the gun was a nine millimeter or.45 caliber pistol, Reynolds testified that he saw Jones possessing a gun in at least three separate locations: on the table of Jones's apartment, on the floorboard of Jones's vehicle, and in Jones's waistband. Swift testified that he dealt crack cocaine to Jones two to three times per week from August 2007 until March 2008. On at least two or three of those occasions, Swift testified that he saw Jones in possession of a gun. The district court found that a sufficient amount of Reynolds's and Swift's testimony was credible to justify imposition of the two-level dangerous-weapon enhancement.
Jones argues that Swift and Reynolds were not credible witnesses. We are highly deferential to a district court's assessment of witness credibility. United States v. Johnson, 601 F.3d 869, 872 (8th Cir.2010). As such, district court decisions in this regard are "virtually unreviewable on appeal." Id. (internal quotations omitted). A district court's finding that a witness's testimony is credible is only error in extreme circumstances, such as when the witness testified to facts that are physically impossible. United States v. Hakim, 491 F.3d 843, 845 (8th Cir.2007).
Jones first contends Reynolds and Swift were unreliable because they had signed cooperation agreements and were testifying in hope that they would receive sentence reductions on then-pending charges to which they had pleaded guilty. However, the government had not actually promised Reynolds or Swift that they would receive sentence reductions in exchange for testifying, and even if it had, this would not have necessarily made the testimony unreliable. United States v. Boyce, 564 F.3d 911, 915 (8th Cir.2009).
Jones also contends that Swift's testimony was unreliable because Swift made inconsistent statements regarding what type of gun Jones possessed. Initially, Swift testified at the sentencing hearing that Jones possessed a .38 caliber revolver. In a prior interview, however, Swift had stated that Jones possessed a .45 caliber pistol and had said nothing about Jones possessing a .38 caliber revolver. After being questioned about the prior interview, Swift continued to testify at the sentencing hearing that he saw Jones with a gun on two or three occasions, but admitted that he was no longer sure whether Jones had possessed a .38 caliber revolver or a .45 caliber pistol.
Although Swift was clearly unsure about what type of gun Jones possessed, he consistently and unequivocally stated Jones was in possession of a gun. The two-level enhancement of section 2D1.1(b) applies regardless of what type of gun Jones possessed. Therefore, in light of Swift's consistent *1048 statements that Jones possessed a gun, we do not find Swift's uncertainty regarding what type of gun Jones possessed to be a basis for rejecting the district court's determination that Swift was credible.
Finally, Jones argues that both Reynolds and Swift were unreliable because they testified as having seen Jones possessing guns at times when they could not have possibly done so because Jones was incarcerated. Specifically, Jones notes that he was incarcerated for roughly thirty-five days in January and February 2007, a brief period of days in April 2007, and from July 30, 2007, until December 30, 2007. As a result, it was impossible for Reynolds to have been selling crack to Jones two to three times per week from January 2007 through February 2007, and it was impossible for Swift to have been selling crack to Jones two to three times per week from August 2007 to December 2007.
We agree with Jones that Reynolds and Swift probably testified inaccurately as to the dates that they sold crack cocaine to Jones. However, not all of Reynolds's and Swift's testimony consisted of facts that were "physically impossible" to have been true. Specifically, Reynolds and Swift testified that they sold crack cocaine to Jones on dates while he was not incarcerated. On these occasions, Reynolds testified that Jones always had a gun, while Swift testified that Jones had a gun two or three times. The district court was allowed to reject portions of Reynolds's and Swift's testimony that were not credible and accept other portions of testimony that were credible. Boyce, 564 F.3d at 916. Since it was not "physically impossible" that Reynolds and Swift observed Jones possessing a gun during drug transactions on dates when Jones was not incarcerated, we find no error in the district court's credibility findings. As a result, the district court did not commit clear error by imposing the two-level dangerous-weapon enhancement.
B.
Next, Jones argues that the district court improperly applied section 5G1.3(c) of the Sentencing Guidelines. According to Jones, a proper application of section 5G1.3(c) would have resulted in the district court "run[ning] [his] sentence concurrent with the state sentence as of at least the date of the arraignment on the Indictment," which was February 26, 2009, or the date he was taken into state custody, which was January 21, 2009. We review the district court's interpretation of the Guidelines de novo and its findings of fact for clear error. United States v. Hatchett, 622 F.3d 984, 986 (8th Cir.2010).
When a defendant is already subject to an undischarged term of imprisonment, section 5G1.3(c) allows a sentencing judge to impose a sentence that runs "concurrently, partially concurrently, or consecutively to the prior undischarged term of imprisonment." In this case, the district court gave Jones a sentence that ran concurrently with Jones's state sentence from the date the federal sentence was imposed.[2] Had the district court run the federal sentence "concurrently" from any date prior to the date the federal sentence was imposed, then the district court would have been giving Jones credit for the time he had served in state custody. Section 5G1.3(c), however, does not allow sentencing judges to do this. Only section *1049 5G1.3(b) allows sentencing judges to give defendants credit for a "period of imprisonment."
The district court properly chose to apply section 5G1.3(c) rather than section 5G1.3(b). Pursuant to section 5G1.3(b), a sentencing judge may credit a defendant with a period of imprisonment that he has already served on an undischarged term of imprisonment if the undischarged sentence "resulted from another offense that [1] is relevant conduct to the instant offense of [federal] conviction ... and that [2] was the basis for an increase in the offense level for the instant offense." Whether an undischarged sentence was imposed for another offense that is "relevant conduct to the instant offense" for purposes of section 5G1.3(b) is a question of fact. United States v. Burch, 406 F.3d 1027, 1030 (8th Cir.2005).
Jones was serving an undischarged term of imprisonment for a state charge of possession of a firearm by a felon. Jones admitted at his sentencing hearing that this offense did not increase the offense level for his drug-conspiracy charge. Jones's only argument that the possession-of-a-firearm-by-a-felon charge was "relevant conduct" to the drug-conspiracy charge is that the drug-conspiracy charge arose from conduct that triggered the revocation of probation and the imposition of a sentence on the state conviction. This fact, however, does not make the state conviction "relevant conduct" to the federal conviction for purposes of section 5G1.3(b). See United States v. Fifield, 432 F.3d 1056, 1062-63 (9th Cir.2005) (noting that the fact that the conduct underlying a federal charge resulted in the revocation of probation and imposition of imprisonment on a state conviction does not mean that the conduct underlying the state conviction is "relevant" to the federal conviction for purposes of section 5G1.3(c)); see also United States v. Broadnax, 536 F.3d 695, 702 (7th Cir.2008) (implying the same). Therefore, the district court did not commit clear error by finding section 5G1.3(b) inapplicable. As a result, the district court did not misapply section 5G1.3(c) by not crediting Jones for the time he had served in state custody prior to the date the federal sentence was imposed.
III. Conclusion
For the foregoing reasons, the judgment of the district court is affirmed.
NOTES
[1] The Honorable Richard G. Kopf, United States District Judge for the District of Nebraska.
[2] The district court ran Jones's sentence concurrently with Jones's state sentence despite the fact that the commentary to the Guidelines recommends that sentencing judges run sentences consecutively in circumstances such as Jones's. U.S.S.G. § 5G1.3 cmt. n. 3.C (2010).
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567 F.3d 1003 (2009)
UNITED STATES of America, Plaintiff,
State of Missouri, Plaintiff-Appellant,
v.
METROPOLITAN ST. LOUIS SEWER DISTRICT, Defendant-Appellee,
Missouri Coalition for the Environment Foundation; Missouri Industrial Energy Consumers, Intervenors. *1004
Metropolitan St. Louis Sewer District, Counter Claimant-Appellee,
v.
State of Missouri, Counter Defendant-Appellant.
No. 08-3399.
United States Court of Appeals, Eighth Circuit.
Submitted: May 14, 2009.
Filed: June 9, 2009.
*1005 John K. McManus, AAG, argued, Matthew Barton Briesacher, AAG, Joseph P. Bendbeutel, Senior Chief Counsel, Office of Attorney General, on the brief, Jefferson City, MO, for appellant.
Thomas J. Grever, argued, Kansas City, MO, Terry J. Satterlee and David R, Erickson, Kansas City, MO; Robert F. Murray and John Gianoulakis, St. Louis, MO, on the brief, for appellee.
Before WOLLMAN, JOHN R. GIBSON, and MURPHY, Circuit Judges.
MURPHY, Circuit Judge.
The United States and the State of Missouri filed this enforcement action against the Metropolitan St. Louis Sewer District (District) under the Clean Water Act (Act), 33 U.S.C. § 1251 et seq. (2009). They seek federal civil penalties and injunctive relief to limit discharges of untreated wastewater and sewage by the District. The District raised several affirmative defenses claiming financial inability to comply with the Act's requirements and filed two counterclaims. The State then moved to strike the District's affirmative defenses and to dismiss its counterclaims, arguing that they were barred by sovereign immunity and the Eleventh Amendment. The district court[1] denied the motion and Missouri *1006 appeals, arguing that it did not waive its sovereign immunity by filing this action since the Act requires its participation. We affirm.
The District is responsible for wastewater and stormwater management for approximately 1.4 million residential and commercial users in the St. Louis, Missouri area. On June 11, 2007, the United States and Missouri filed this enforcement action under federal law, alleging that from 2000 to 2005 the District allowed discharges of raw sewage from its sewer system in violation of the permits issued by the Missouri Department of Natural Resources. The complaint alleges that these discharges resulted from inadequate flow capacity in the collection system, poor maintenance, and improper connections between the sanitary sewer and stormwater systems.
Critical to this appeal is § 309(e) of the Clean Water Act, 33 U.S.C. § 1319(e), which states:
Whenever a municipality is a party to a civil action brought by the United States under this section, the State in which such municipality is located shall be joined as a party. Such State shall be liable for payment of any judgment, or any expenses incurred as a result of complying with any judgment, entered against the municipality in such action to the extent that the laws of that state prevent the municipality from raising revenues needed to comply with such judgment.
The District argues that the Missouri Constitution limits its authority as a political subdivision to levy taxes and otherwise raise the revenues that it would need to comply with any judgment in this case. See Mo. Const. art. X, §§ 16-24. In its first counterclaim the District alleges that Missouri must indemnify it under § 309(e) for the costs of complying with any adverse judgment. The District's second counterclaim seeks essentially the same relief on equitable rather than statutory grounds.
The State moved to dismiss the District's counterclaims and strike the related affirmative defenses, arguing that both were barred by its sovereign immunity. The State contends that it did not waive its immunity by joining the federal action because it was compelled to do so by § 309(e). It pointed out that it had not added any state law claims to the complaint. The district court concluded that the State had waived its sovereign immunity by initiating the action as one of the plaintiffs and denied the motion to dismiss. A district court's decision denying sovereign immunity is immediately appealable, see Murphy v. Arkansas, 127 F.3d 750, 754 (8th Cir.1997), and our review is de novo, Skelton v. Henry, 390 F.3d 614, 617 (8th Cir.2004).
The Eleventh Amendment[2] provides states with immunity from suit by private citizens in federal court seeking "retroactive relief for violations of federal law that would require payment of funds from a state treasury." Id. The amendment does not automatically divest the federal court of original jurisdiction a state must raise the defense. Wisc. Dep't of Corr. v. Schacht, 524 U.S. 381, 389, 118 S.Ct. 2047, 141 L.Ed.2d 364 (1998). Conversely, a state can waive the defense by voluntarily invoking federal jurisdiction. See Gunter v. Atl. Coast Line R. Co., 200 *1007 U.S. 273, 284, 26 S.Ct. 252, 50 L.Ed. 477 (1906); Clark v. Barnard, 108 U.S. 436, 447, 2 S.Ct. 878, 27 L.Ed. 780 (1883).
In Lapides v. Board of Regents of University System of Georgia, 535 U.S. 613, 620, 122 S.Ct. 1640, 152 L.Ed.2d 806 (2002), the Supreme Court concluded that a state defendant had voluntarily invoked federal jurisdiction by participating in a removal action and therefore waived its Eleventh Amendment protection. The Court explained that the defense of sovereign immunity must be waivable in litigation because of the "judicial need to avoid inconsistency, anomaly, and unfairness" that would arise if states could selectively invoke immunity to obtain litigation advantages. Id. When determining whether a state has clearly indicated its intent to waive immunity, a court should focus on the "litigation act the State takes that creates the waiver," not its motives for those acts. Id.
In addition to joining in the removal of a case to federal court, a state can also waive its immunity by filing a federal complaint, Skelton, 390 F.3d at 618, or a proof of claim in a bankruptcy action. Ga. Dep't of Rev. v. Burke, 146 F.3d 1313, 1319-20 (11th Cir.1998). In contrast, a state does not waive its immunity by entering a general appearance or by defending a case in federal court so long as it asserts its Eleventh Amendment sovereign immunity defense in a timely manner. Union Elec. Co. v. Mo. Dep't of Conservation, 366 F.3d 655, 659-60 (8th Cir.2004). A state may even file a counterclaim and third party complaint at the same time it asserts sovereign immunity without waiving the defense. Skelton, 390 F.3d at 618.
Missouri contends that § 309(e) compels it to become a party by providing that it be joined in any action in which one of its municipalities is a party. Its decision to align as a plaintiff should therefore not be seen as a voluntary waiver of sovereign immunity. The State also argues that it has not taken any other litigation actions to date that affirmatively invoke the court's jurisdiction. The parties do not cite, and we have not found, any other decision addressing the effect of § 309(e) on a state's sovereign immunity. Section 309(e) holds the state liable if it is found that its laws impair the ability of a municipality to comply with the Clean Water Act, but it compels the state to become a party regardless of its potential liability and does not specify how a state should be aligned. In United States v. Metropolitan St. Louis Sewer District, 952 F.2d 1040, 1043-44 (8th Cir.1992), we noted that while the state may normally be named as a defendant, the statute does not require that. See also United States v. City of Joliet, No. 86-2512, 1986 WL 6908, 1986 U.S. Dist. LEXIS 24546 (N.D. Ill. June 5, 1986) (McGarr, J.) (based on its interest in enforcing clean water laws Illinois could realign as a plaintiff even though the United States joined it as a defendant).
We conclude that by choosing to proceed in this action as a plaintiff the State of Missouri waived its immunity. The filing of a complaint in a federal district court is the quintessential means of invoking its jurisdiction. There is no indication in the record that Missouri was reluctant to proceed as coplaintiff since it participated in filing the original complaint with the United States rather than being forcibly joined in the litigation at a later time. The complaint states that Missouri filed the enforcement action "at the request and on behalf of the Missouri Department of Natural Resources," the state agency responsible for enforcement of state laws that implement the Act. The asserted interest in enforcement suggests that the State was not participating as a plaintiff solely to pay any judgment that might be entered under § 309(e) against the District. Moreover, the State has also participated in the development *1008 of a joint proposed scheduling plan for the litigants. That plan has allocated 50 interrogatories and 15 depositions to the State and preserved its ability to call expert witnesses if it chooses. This scheduling plan suggests that the State anticipates an active role as coplaintiff rather than passively waiting for the United States to seek indemnification from it under § 309(e).
Though Missouri did not add any state law claims to those brought by the United States, the fact is that it affirmatively joined in asserting the federal claims. As a result the State will be entitled to participate in negotiating and enforcing any judgment or consent decree entered against the District. Were the State to assert the defense of sovereign immunity against the District's counterclaims while exercising the rights of a plaintiff, we would be condoning the selective invocation of immunity that the Supreme Court recognized as unfair in Lapides. See also Skelton, 390 F.3d at 618.
Section 309(e) undoubtedly compels a state to become a party in federal court, but it does not compel the state to take any action that would waive its sovereign immunity. A state required to join a federal enforcement action under § 309(e) can preserve its potential sovereign immunity defense by aligning as a defendant and taking no other actions inconsistent with the assertion of sovereign immunity. It is well established that defendants may take certain litigation actions such as filing a counterclaim or third party complaint and defending a suit on the merits without waiving sovereign immunity so long as that defense is asserted. See Skelton, 390 F.3d at 618.
Missouri asserts that requiring it to join as a defendant to preserve its sovereign immunity defense is inconsistent with the Eleventh Amendment's purpose of preserving the dignity of states as sovereign entities. See Fed. Mar. Comm'n v. S.C. State Ports Auth., 535 U.S. 743, 760, 122 S.Ct. 1864, 152 L.Ed.2d 962 (2002). The State explains that it chose the party designation of plaintiff to avoid the ignominy of being named as a defendant when it is not responsible for the District's alleged Clean Water Act violations.[3] While the Eleventh Amendment addresses the particular indignity that is suffered when the state is "summoned as defendant[ ] to answer the complaints of private persons," id. (quoting Alden v. Maine, 527 U.S. 706, 748, 119 S.Ct. 2240, 144 L.Ed.2d 636 (1999)), it does not protect states against any indignity caused by appearing as a defendant in an enforcement action brought by the United States. Missouri's concern about being "tarred with the same brush" as the District if it were joined as a defendant may have some validity in the public eye, but a state's motive for taking certain litigation actions "cannot make [a] critical difference" because "[m]otives are difficult to evaluate, while jurisdictional rules should be clear." Lapides, 535 U.S. at 621, 122 S.Ct. 1640.
Should the District prevail on its counterclaims, the financial impact on the State is unlikely to exceed its liability to the United States under § 309(e). The District's counterclaims seek to hold the state liable for the costs of complying with any judgment entered in this case. They essentially mirror the language in § 309(e) defining the scope of liability. The counterclaims also track the requirement in § 309(e) that Missouri is liable only if its *1009 laws are found to have prevented the District from raising sufficient funds for compliance. Compare 33 U.S.C. § 1319(e) with Def.'s Answer, Countercl. ¶¶ 13, 16. In sum, we agree with the district court that the State of Missouri waived its Eleventh Amendment immunity by filing an enforcement action alongside the United States in federal district court.
Accordingly, the district court's order denying the motion of the State of Missouri to strike the District's affirmative defenses and dismiss its counterclaims is affirmed.
NOTES
[1] The Honorable Carol E. Jackson, Chief Judge, United States District Court for the Eastern District of Missouri.
[2] "The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State." U.S. Const. amend. XI.
[3] At oral argument, the State explained that concerns about public perception alone influenced its choice to join as a plaintiff. It conceded that joining as a defendant would not have any different financial consequences than would joining as a plaintiff.
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883 N.E.2d 1152 (2005)
354 Ill. App.3d 1167
IN RE DIONTE Y.
No. 2-04-1019.
Appellate Court of Illinois, Second District.
February 18, 2005.
Affirmed.
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835 So.2d 1259 (2003)
Donald Harvey SMITH, Appellant,
v.
STATE of Florida, Appellee.
No. 2D01-5279.
District Court of Appeal of Florida, Second District.
January 31, 2003.
James Marion Moorman, Public Defender, Bartow, and A. Victoria Wiggins, Assistant Public Defender, Bartow, for Appellant.
Charlie Crist, Attorney General, Tallahassee, and William I. Munsey, Assistant Attorney General, Tampa, for Appellee.
DAVIS, Judge.
Donald Smith challenges the trial court's denial of his motion to withdraw plea. Although an apparent conflict developed between Smith and his trial counsel at the hearing on the motion, the trial court failed to offer Smith the assistance of a separate attorney. We reverse.
The preferred course to follow once a defendant files a motion to withdraw plea alleging misrepresentation, coercion *1260 or duress by defense counsel, or once a conflict of interest arises between the defendant and defense counsel at the motion hearing is for the trial court to appoint or allow the defendant to retain independent counsel solely for the purpose of representation on the motion to withdraw plea.
Holifield v. State, 717 So.2d 69, 69 (Fla. 1st DCA 1998) (emphasis added).
Once the conflict became apparent, Smith was without representation. See Padgett v. State, 743 So.2d 70, 73 (Fla. 4th DCA 1999) ("[A]s the hearing unfolded, Padgett was for all intents and purposes unrepresented. Once it became clear at the hearing that appellant and his counsel had indeed taken adversarial positions ... appellant was entitled to the appointment of conflict-free counsel.").
Accordingly, we reverse and remand for a new evidentiary hearing with instructions for the trial court to appoint conflict-free counsel.
Reversed and remanded.
NORTHCUTT, J., and THREADGILL, EDWARD F., Senior Judge, Concur.
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Order Michigan Supreme Court
Lansing, Michigan
September 14, 2018 Stephen J. Markman,
Chief Justice
Brian K. Zahra
153696(57) Bridget M. McCormack
David F. Viviano
Richard H. Bernstein
Kurtis T. Wilder
PEOPLE OF THE STATE OF MICHIGAN, Elizabeth T. Clement,
Plaintiff-Appellee, Justices
SC: 153696
v COA: 325449
` Gratiot CC: 14-007061-FH
DAVID ALLEN SNYDER,
Defendant-Appellant.
______________________________________/
On order of the Chief Justice, the motion of defendant-appellant to extend the time
for filing his supplemental brief is GRANTED. The supplemental brief will be accepted
as timely filed if submitted on or before October 23, 2018. The defendant-appellant’s
motions for immediate consideration and to hold the case in abeyance remain pending.
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.
July 25, 2018
Clerk
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TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-02-00250-CR
In re Kennith Wayne Thomas
FROM THE DISTRICT COURT OF RUNNELS COUNTY, 119TH JUDICIAL DISTRICT
NO. 3852, HONORABLE CURT F. STEIB, JUDGE PRESIDING
Kennith Wayne Thomas appeals from an order dismissing his pro se motion for forensic
DNA testing of evidence relating to his conviction for aggravated sexual assault. See Tex. Code Crim.
Proc. Ann. arts. 64.01-.05 (West Supp. 2002).1 We will affirm the district court=s order.
In his motion, Thomas requested DNA testing of hair and blood samples taken from him
following his arrest. The motion was not supported by the required affidavit. Id. art. 64.01(a).
Nevertheless, the court instructed the State to respond to the motion. Id. art. 64.02. In its response, the
State informed the court that no physical evidence was obtained during the investigation of this case. The
court thereafter dismissed Thomas=s motion finding that the motion did not comply with the statutory
requirements, that there is no evidence subject to DNA testing and, alternatively, that the testing of hair and
blood samples taken from Thomas would merely prove that the samples were taken from him and would
not be exculpatory. Id. art. 64.03.
1
Appellant=s conviction was affirmed by this Court. Thomas v. State, No. 03-91-00058-CR (Tex.
App.CAustin Aug. 28, 1991, pet. ref=d, untimely filed) (not designated for publication).
In his brief to this Court, Thomas asserts his innocence and complains of several violations
of his rights at trial. The brief does not discuss the merits of his motion for DNA testing or the court=s order
thereon other than to urge that the district court improperly placed the burden of proof on him. This
complaint is without merit. Under the statute, the movant must establish by a preponderance of the
evidence that a reasonable probability exists that he would not have been prosecuted or convicted if
exculpatory results had been obtained through DNA testing. Id. art. 64.03(a)(2)(A).
Having reviewed the record, we find no error in the court=s dismissal of the motion.
Accordingly, the order is affirmed.
Mack Kidd, Justice
Before Justices Kidd, Patterson and Puryear
Affirmed
Filed: August 30, 2002
Do Not Publish
2
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