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832 A.2d 562 (2003)
The SCHOOL DISTRICT OF the CITY OF ERIE, Appellant,
v.
PENNSYLVANIA LABOR RELATIONS BOARD and Erie Education Association.
Commonwealth Court of Pennsylvania.
Argued May 6, 2003.
Decided September 18, 2003.
*563 Mark J. Kuhar, Erie, for appellant.
*564 John B. Neurohr, Harrisburg, for appellee.
BEFORE: McGINLEY, Judge, LEAVITT, Judge, and JIULIANTE, Senior Judge.
OPINION BY Senior Judge JIULIANTE.
The School District of the City of Erie (School District) appeals from the August 6, 2002 order of the Court of Common Pleas of Erie County (trial court) that affirmed the order of the Pennsylvania Labor Relations Board (Board) and dismissed the School District's appeal. The Board's order dismissed the School District's exceptions to a proposed order by Hearing Examiner Peter Lassi that recommended dismissal of the School District's petition for unit clarification. We affirm.
On May 16, 1997, the School District filed a petition for unit clarification with the Board, seeking to exclude over 300 extracurricular positions (supplemental positions) from the bargaining unit of professional employees represented by the Erie Education Association (Association). On June 30, 1997, the Secretary of the Board issued an order directing that a hearing on the matter be held before Hearing Examiner Thomas McConnell. Although a hearing did not occur, the School District and the Association filed a stipulation naming each supplemental position, its current holder, and the fact that it did not require a Pennsylvania Department of Education (PDE) certificate.
Thereafter, on June 22, 1998, the School District filed a motion in limine requesting that the issue be decided based on the stipulation alone and that no evidentiary hearing be held to receive additional evidence. The Association filed a brief in opposition to the School District's motion on August 31, 1998.
Because Hearing Examiner McConnell left the Board's employ, Hearing Examiner John Audi was assigned to hear the matter. By letter dated March 24, 1999, Hearing Examiner Audi granted the School District's motion in limine and declared that the matter would be decided based solely on the parties' stipulation. Hearing Examiner Audi also afforded the parties 30 days in which to file briefs in support of their respective positions. The Association filed a letter brief on April 25, 1999; the School District did not file an additional brief.
In July 2000, the School District inquired of the Board as to the status of the case. By letter of August 30, 2000, the Board informed the parties that Hearing Examiner Audi was no longer employed by the Board and that Hearing Examiner Lassi was assigned to dispose of the matter.
On October 31, 2001, Hearing Examiner Lassi issued an order proposing to dismiss the School District's unit clarification petition. The School District filed exceptions, which were dismissed by the Board. The School District then appealed the Board's final order to the trial court. By order dated August 6, 2002, the trial court dismissed the School District's appeal.
The School District contends that the trial court erred (1) in failing to conclude that the supplemental positions are nonprofessional as a matter of law and (2), in determining that the School District failed to sustain its burden of proof. Our review of the Board's final order is limited to determining whether the necessary findings of fact are supported by substantial evidence and whether the conclusions drawn from those facts are reasonable and not arbitrary, capricious or illegal. Montgomery County v. Pennsylvania Labor *565 Relations Board, 769 A.2d 554 (Pa. Cmwlth.2001). Moreover, we recognize that "the [Board] possesses administrative expertise in the area of public employee labor relations and should be shown deference; the Commonwealth Court will not lightly substitute its judgment for that of the [Board]." American Fed'n of State, County & Mun. Employees, Council 13, AFL-CIO v. Pennsylvania Labor Relations Board, 150 Pa.Cmwlth. 642, 616 A.2d 135, 137 (1992).
In support of its position that the supplemental positions are nonprofessional as a matter of law, the School District directs our attention to Harbor Creek Sch. Dist. v. Harbor Creek Educ. Ass'n, 146 Pa. Cmwlth. 631, 606 A.2d 666 (1992), aff'd, 536 Pa. 574, 640 A.2d 899 (1994) (Harbor Creek I) and Harbor Creek Sch. Dist. v. Pennsylvania Labor Relations Board, 158 Pa.Cmwlth. 396, 631 A.2d 1069 (1993) (Harbor Creek II). The underlying facts of both cases, as recited in Harbor Creek I, are as follows:
The [Harbor Creek School District (school district) ] maintains a program of extracurricular and non-instructional activities, a portion of which involves an athletic program. The athletic program was historically overseen by an "athletic director" who was also a professional employee and a member of the bargaining unit represented by the [Harbor Creek Education Association (education association) ]. The scope of the extracurricular program grew over time and a need developed for the athletic director position to assume added responsibility. On August 1, 1984, the [school district] issued a revised description for the position of "athletic director." The new description was posted the next day. The [education association] responded by filing a grievance over the new job description. On May 23, 1985, an arbitrator sustained the grievance and advocated negotiation by the parties to modify the description of athletic director. At a meeting on June 9, 1989, the Board of School Directors approved a resolution to create the position of an Assistant Principal for Student and Supplemental Activities. This new position would, inter alia, include all of the duties for which the part-time athletic director had previously been responsible. The following week, the [school district] informed the [education association] that the athletic director position previously performed by a full-time professional employee, Mr. O'Neil, had been eliminated and the position of Assistant Principal created. Mr. O'Neil, the previous athletic director, was appointed to the newly created position and left the bargaining unit to assume the full-time responsibilities of the new position.
Harbor Creek I, 606 A.2d at 667.
The education association filed a grievance alleging that the elimination of the supplemental position of athletic director, and the simultaneous transfer of bargaining unit work to a non-bargaining unit individual, violated the collective bargaining agreement (CBA). After a hearing on the matter, the arbitrator found the grievance arbitrable and sustained it on the merits. The court of common pleas then quashed the school district's motion to vacate the arbitration award.
The issue on appeal to this Court in Harbor Creek I was whether the court of common pleas erred in determining that the grievance was arbitrable. Concluding that it was not, we stated that
[t]he [CBA] herein specifically states that it covers professional employees. We have held as a matter of law, citing [Greater Johnstown Area Vocational-Technical Sch. v. Greater Johnstown *566 Area Vocational-Technical Educ. Ass'n, 57 Pa.Cmwlth. 195, 426 A.2d 1203 (Pa. Cmwlth.1981) ], that [CBAs] covering professional employees of a school district do not apply to supplementary contracts wherein teachers perform duties not within, but additional to, the realm of professional employees as defined in the Public School Code of 1949 ([School Code])[1]. In re Grievance by Glover, [137 Pa.Cmwlth. 429, 587 A.2d 25 (Pa. Cmwlth.1991), overruled by Chester Upland Sch. Dist. v. McLaughlin, 655 A.2d 621 (Pa.Cmwlth.1995) ]. In so holding, we are cognizant of previous judicial recognition allowing greater flexibility in the selection of athletic coaches than is allowed in the hiring and firing of teachers. Greater Johnstown. We have also determined that teachers acting in extracurricular capacities are not professional employees as defined in the [School] Code. [Moriarta v. State Coll. Area Sch. Dist., 144 Pa.Cmwlth. 359, 601 A.2d 872 (Pa.Cmwlth.1992) ]; In re Glover; Greater Johnstown.
Id. at 668 (footnote omitted, footnote added).
Based on the foregoing, we concluded that because the athletic director position was a supplementary agreement not within the definition of professional employee covered by the CBA and the School Code, the grievance was not arbitrable. Additionally, although the individual who performed the extracurricular duties was a professional employee, he was not acting in that capacity at the time. Therefore, he was precluded from resolving disputes through the grievance procedure. Accordingly, we reversed the court of common pleas' order quashing the school district's appeal.
In Harbor Creek II, the same factual scenario existed and, in addition to filing a grievance under the CBA, the education association filed an unfair labor practice with the Board. A hearing examiner concluded that the school district had improperly transferred the work of the athletic director to the newly created position without having bargained with the education association and, thus, had engaged in an unfair labor practice.
The court of common pleas affirmed the Board's decision dismissing the school district's exceptions and, on appeal, we again reversed. We reasoned that since Harbor Creek I had established that the duties of the athletic director were not covered by the CBA, those duties were not bargaining unit work. Consequently, the school district did not have an obligation to bargain before taking the action that it did.
Based on our decisions in Harbor Creek I and II, the School District vehemently argues that supplemental positions are nonprofessional as a matter of law. However, the decisions in Harbor Creek I and II were essentially limited by the definitions of "professional employe" as contained in the CBA and the School Code.
The present action, however, was initiated under Section 604 of the Public Employe Relations Act (PERA),[2] which gives the Board authority to determine the appropriateness of a bargaining unit for a public employer.[3] "The purpose of a unit clarification procedure under the PERA is to determine whether certain job classifications are properly included in a bargaining unit, based upon the actual functions of the job." School Dist. of the Tp. of Millcreek *567 v. Millcreek Educ. Ass'n, 64 Pa. Cmwlth. 389, 440 A.2d 673, 675 (1982). Additionally, this Court has recognized the need for unit clarification as a means to insure flexibility in the composition of the bargaining unit as more positions are created or existing positions are changed. Gateway Sch. Dist. v. Pennsylvania Labor Relations Board, 79 Pa.Cmwlth. 506, 470 A.2d 185 (1984).
"Professional employe" is defined in Section 301(7) of the PERA as
any employe whose work: (i) is predominantly intellectual and varied in character; (ii) requires consistent exercise of discretion and judgment; (iii) requires knowledge of an advanced nature in the field of science or learning customarily acquired by specialized study in an institution of higher learning or its equivalent; and (iv) is of such character that the output or result accomplished cannot be standardized in relation to a given period of time.
43 P.S. § 1101.301(7).
The School Code, however, limits the term "professional employe" to include
those who are certificated as teachers, supervisors, supervising principals, principals, assistant principals, vice-principals, directors of vocational education, dental hygienists, visiting teachers, home and school visitors, school counselors, child nutrition program specialists, school librarians, school secretaries the selection of whom is on the basis of merit as determined by eligibility lists and school nurses.
Section 1101(1) of the School Code, 24 P.S. § 11-1101(1).
Clearly, the PERA provides a broader definition of professional employee than the School Code. In Millcreek, we rejected the school district's argument that the Board erred in determining that substitute teachers were professional employees under the PERA since the School Code did not include "substitute teacher" in its definition of "teacher"[4] and the CBAs between the union and the school district were limited in application to teachers and professional employees. We found no merit to the argument, declaring that "the provisions of the [School Code] are not dispositive of employee status under the PERA." Id. at 675.
The School District maintains that Millcreek is inapplicable because the issue in that case did not involve the professional employee status in the first instance and because the positions in Millcreek required PDE certification. We disagree and conclude that Millcreek is particularly applicable. It holds that the definition found in one statute is not controlling where another statute provides its own definition of the same term. Where a statute provides internal definitions, the meanings of the terms provided are controlling. See Commonwealth v. Sitkin's Junk Co., 412 Pa. 132, 194 A.2d 199 (1963) (by specifically defining "manufacture," the legislature indicated its intent that the term be construed in accordance with the statutory language and that the construction of such word was not controlled by prior judicial construction of the word under prior tax statutes); Hodges v. Rodriguez, 435 Pa.Super. 360, 645 A.2d 1340 (1994) (Superior Court is bound by internal definitions provided by statute); Lynch v. Hook, 298 Pa.Super. 27, 444 A.2d 157 (1982) (attorney for estate could not be classified as "personal representative" as that term was defined by the Probate, Estates and Fiduciaries Code[5] where decedent died intestate *568 and attorney was not appointed as administrator).
The Board, the entity empowered to prevent unfair labor practices, is thus required to use the definition of professional employee as provided in the PERA. In determining whether the supplemental positions at issue were properly part of the bargaining unit, Hearing Examiner Lassi was required to consider whether the public employees have an identifiable community of interest and the effects of over-fragmentization. 43 P.S. § 1101.604; State Sys. of Higher Educ. v. Pennsylvania Labor Relations Board, 757 A.2d 442 (Pa.Cmwlth.2000), appeal denied, 565 Pa. 659, 771 A.2d 1293 (2001).
To that extent, the distinction of professional employees as defined by the PERA and the School Code is but one factor to be considered when determining an identifiable community of interest under the PERA. Millcreek. Similarly, the requirement or lack thereof of PDE certification should also be considered. State Sys. of Higher Educ.
Giving deference to the Board's expertise in the area of labor relations, Berks/Lehigh Valley Coll. v. Pennsylvania Labor Relations Board, 763 A.2d 548 (Pa. Cmwlth.2000), we cannot conclude that the Board erred in determining that the term "professional employee" as defined in the PERA includes the supplemental positions sought to be excluded by the School District. Its determination is not arbitrary, capricious or illegal and is in accordance with our decision in Millcreek.
In the alternative, the School District contends that the stipulation describing the supplemental positions was sufficient to meet its burden of proof in seeking to exclude said positions from the bargaining unit. In Board proceedings, the party seeking to exclude a position from a bargaining unit has the burden of proving by substantial evidence that the statutory exclusion applies. School Dist. of Philadelphia v. Pennsylvania Labor Relations Board, 719 A.2d 835 (Pa.Cmwlth.1998).
A sample supplemental position described in the stipulation is as follows:
CENTRAL HIGH SCHOOL VARSITY BOYS FOOTBALL COACH
The holder of the position ... is responsible for coaching the Boys Varsity Football team at Central High School. No certification from the Pennsylvania Department of Education is required for the position.
(R.R. 7a) Each of the remaining supplemental positions is similarly described.
If this matter was governed by the definition of professional employee as provided by the School Code, the School District's argument would have merit. Nevertheless, because the definition of professional employee in the PERA is controlling, the School District was required to show more than the lack of state certification.
In considering whether the positions shared a community of interest, the Board needed to consider, inter alia, the "type of work performed, educational and skill requirements, pay scales, hours and benefits, working conditions, interchange of employees, grievance procedures, and bargaining history." State Sys. of Higher Educ., 757 A.2d at 447. The stipulation offered by the parties completely ignores these other factors. Thus, we cannot conclude that the trial court erred in determining that the School District failed to carry its burden of proof.
Accordingly, we affirm.
*569 ORDER
AND NOW, this 18th day of September, 2003, the August 6, 2002 order of the Court of Common Pleas of Erie County is AFFIRMED.
NOTES
[1] Act of March 10, 1949, P.L. 30, as amended, 24 P.S. §§ 1-101-27-2702.
[2] Act of July 23, 1970, P.L. 563, as amended, 43 P.S. § 1101.604.
[3] Although the PERA does not set forth the procedure for unit clarification, the Board's regulations do provide for unit clarification proceedings. See 34 Pa.Code § 95.23.
[4] See Section 1141(1) of the School Code, 24 P.S. § 11-1141(1).
[5] 20 Pa.C.S. §§ 101-8815.
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100 Cal.Rptr.2d 1 (2000)
83 Cal.App.4th 239
SAN REMO HOTEL L.P., et al., Plaintiffs, Cross-Defendants and Appellants,
v.
CITY AND COUNTY OF SAN FRACISCO et al., Defendants, Cross-Complainants and Respondents.
No. A083530.
Court of Appeal, First District, Division Five.
August 8, 2000.
As Modified on Denial of Rehearing September 6, 2000.
Review Granted November 21, 2000.
*4 Law Offices of Andrew M. Zacks, Andrew M. Zacks, San Francisco, James B. Kraus, Law Offices of Paul F. Utrecht, Paul F. Utrecht, San Francisco, for Plaintiffs, Cross-Defendants and Appellants.
Louise H. Renne, City Attorney, Andrew W. Schwartz, Deputy City Attorney, for Defendants, Cross-Complainants and Respondents.
STEVENS, J.
Appellants San Remo Hotel L.P., Robert Field, Thomas Field, and T & R Investment Corp. (the Hotel) alleged in the trial court that the Hotel Conversion Ordinance (HCO) as amended in 1990, of the City and County of San Francisco (the City) resulted in an unconstitutional taking of appellants' property. Appellants had originally made their claims in the federal courts, and had initially obtained an injunction from the federal district court forbidding the City from enforcing the HCO as to them. On appeal, however, the Ninth Circuit determined that it was more appropriate for appellants to pursue their claims in the state courts. (See The San Remo Hotel v. City and County of San Francisco (9th Cir.1998) 145 F.3d 1095, 1102-1106 (SanRemo I).)
The state trial court sustained, without leave to amend, the City's demurrers to appellants' allegations that the City carried out an unconstitutional taking when it forbade the Hotel from continuing to operate as a tourist hotel, unless appellants paid the City the amount of $567,000, in the form of a "conversion fee" under the HCO.[1]
We conclude that the Hotel's amended pleadings state causes of action alleging a challenge to the HCO, and the required payment of the mitigation fee under the HCO, as an unconstitutional taking. We therefore reverse the trial court's ruling sustaining the demurrers on this issue.
Appellants also claim the trial court erred by denying their petition for a writ of mandate relating to another separate issue, appellants' contention that the Hotel was as a matter of law a prior nonconforming use in 1987, and therefore it qualified as such under the terms of the North Beach Neighborhood Commercial District (NBNCD) zoning ordinance. This contention presents a pure issue of law over which we must exercise de novo review. The trial court ruled as a matter of law that the operation of the Hotel as a tourist hotel in 1987 was not a lawful prior nonconforming use. However, we conclude that if actual use of the Hotel by tourists were demonstrated, such use as a matter of law could legally be a prior nonconforming use for purposes of the NBNCD, and we therefore must reverse the trial court's ruling on this legal issue, and remand for further proceedings.
In a cross-appeal, the City asserts that the trial court abused its discretion by assessing nominal penalties of only $190 for appellants' purported violations of the HCO and NBNCD by renting rooms to tourists on 190 days. The trial court considered testimony of witnesses and received evidence regarding appellants' attempts to lawfully operate the Hotel while navigating the maze of City regulations and HCO compliance issues, ultimately ordering that only nominal penalties should be imposed. We find no abuse of discretion in imposing such nominal penalties, under the unusual circumstances of this case, and affirm the trial court's ruling as to this issue.
*5 I. FACTS AND PROCEDURAL HISTORY
A portion of this appeal proceeds from a ruling on the City's demurrers, while the remaining portions proceed from rulings after trials, on a petition for writ of mandate and in an action for civil penalties. We first summarize the facts adduced at the trial of the petition for writ of mandate, and in the penalty action, for purposes of providing necessary factual background to those claims.
A. The San Remo Hotel
The San Remo Hotel is a small, 62-unit, three-story hotel in the North Beach or Fisherman's Wharf area of San Francisco. The Hotel was built in 1906, by A.P. Giannini, the founder of the Bank of America, in a Victorian Italianate style. The building was used to temporarily house persons displaced by the great earthquake and fire of 1906. However, in 1916 the City approved the operation of a hotel and restaurant on the site, and thereafter the Hotel has always been used by travelers or other persons who were making short stays in San Francisco, as well as by some long-term or residential guests.
By the early 1970's, the Hotel had fallen on hard times and was in a dilapidated condition, with the City pursuing condemnation proceedings due to fire code violations and other problems. The Hotel was then purchased by Thomas and Robert Field, who restored the building to its former good condition, expending many years of their own labor as well as several hundred thousand dollars. The Field brothers have operated the establishment primarily as a European-style bed and breakfast inn for overnight guests, with between 10 and 20 long-term or residential guests in addition. Appellants have at all relevant times had a permit from the City to operate as a hotel, and the City has always collected local taxes on the Hotel's rentals to tourists.
B. The Hotel Conversion Ordinance (HCO)
The City's board of supervisors enacted an initial "temporary" moratorium on the demolition or conversion of residential hotel units in 1979. (1981 HCO, § 41.3(g), S.F. Admin. Code, hereafter HCO.) The moratorium was assertedly in response to a housing shortage for low-income and elderly residents, caused by the conversion of residential hotels to nonresidential hotels or condominiums. (1981 HCO, § 41.3(a)(c).) The "temporary" moratorium proved to be permanent in 1981, when the board replaced the moratorium with the first version of its HCO, which began to regulate or prevent the conversion of "residential" hotels to other uses. The HCO's stated objective was to alleviate the "adverse impact on the housing supply and on displaced low income, elderly, and disabled persons resulting from the loss of residential hotel units through their conversion and demolition." (1981 HCO, § 41.2.)
In 1990, the City enacted the current version of the HCO, which is in issue here. The 1990 HCO made two significant changes to the preexisting 1981 version of the HCO. First, he 1990 HCO doubled the conversion fee imposed on hotels wishing to convert to other uses. Second, and more critical, is the fact that the 1990 HCO generally forbids the rental of rooms in residential hotels to tourists during the tourist season, absent permission from the City. (1990 HCO, § 41.1 et seq.)
The 1981 HCO provided for a survey to classify all of the City's hotel rooms as either "tourist" or "residential" based on their use as of September 23, 1979. The HCO regulated and prevented all changes after its enactment, unless there was an exemption or the payment of a fee to the City. (1981 HCO, §§ 41.5, 41.6.) Thus, if rooms were rented to tourists on September 23, 1979, the HCO allowed unlimited tourist use of those rooms after that date. Conversely, if rooms were used for "residential" purposes as of that date, which *6 the HCO defined as meaning only that a guest had stayed in the room for 32 days or more, then the 1990 HCO required that the rooms stay in "residential" use forever, or regulated their "conversion" by payment of a fee to the City. (1990 HCO, § 41.12.)
The current, 1990 version of the HCO now places substantial restrictions on owners of residential hotel units that have been classified as "residential." The most salient of these is that the Hotel may not generally rent such rooms to tourists except by special permission of the City. If a hotel owner wishes to convert residential units to other uses, such as short-term tourist rentals, a permit is required. (1990 HCO, § 41.20(a)(1).) A conversion permit will be granted only if the owner agrees to provide "one-for-one replacement of the units to be converted." (1990 HCO, § 41.13(a).) The replacement housing may be provided by 1) constructing new residential hotel rooms limited to that use, 2) rehabilitating existing residential hotel units, or 3) contributing a substantial "inlieu" fee to construct new units. Originally under the 1981 HCO, this fee was 40 percent of the cost of constructing a replacement; now it is 80 percent of the cost of construction, plus site acquisition costs. (1990 HCO, §§ 41.12; 41.13; 41.14.)[2]
In the present case, the City claimed, based upon the results of its 1979 survey, that all 62 units in the Hotel had been occupied by residential guests as of 1979, and therefore no rooms in the Hotel could legally be rented out to overnight guests or tourists, except in compliance with the HCO.
Appellants alleged that the City acted erroneously when it initially classified all the units in the Hotel as "residential" units subject to the HCO; the City's action was based upon a 1979 survey form it sent to the then operator of the Hotel, Mr. Jean Iribarren, who had leased it from appellants; and that "Mr. Iribarren submitted a false declaration, which stated that all of the rooms in the San Remo Hotel were occupied by persons who had resided in their rooms for more than 32 days." (See San Remo I, supra, 145 F.3d at p. 1099.)
All the evidence of record shows the Hotel was always in use by overnight guests and tourists, with residential guests as well. The number of residential guests was always between 10 and 20, but never 62, as the City asserts based upon the 1979 survey, which even the City does not contend was accurate. Using this survey, which it declined to correct, the City asserted that the HCO governed all the rooms in the Hotel as "residential" rooms, and forbade their use by overnight guests absent the City's approval.[3]
The City ultimately assessed the Hotel an "in-lieu" fee of $567,000, or almost $9,000 per "residential" room, which the Hotel paid under protest in 1996, in order to "convert" the Hotel and exempt it from further regulation under the HCO. The Hotel was also required to offer lifetime leases to its long-term tenants, as a condition of this "conversion." The fee of $567,000 would normally have been twice as large, but the Hotel was able to take advantage of a window provided by the 1990 HCO for conversion under the financial provisions of the 1981 HCO, which required the Hotel to provide only 40 percent, *7 not 80 percent, of the replacement cost of new housing. Faced with the prospect of a doubling of the demanded fee unless it acted quickly, the Hotel paid under protest.
The various versions of the HCO have been the subject of numerous lawsuits over the years since the original enactment of its initial versions in 1979 and 1981, and the California Courts of Appeal have previously upheld the 1981 HCO against claims that it violated the principles of due process and equal protection (Terminal Plaza Corp. v. City and County of San Francisco (1986) 177 Cal.App.3d 892, 898, 907-908, 223 Cal.Rptr. 379 (Terminal)), and that the less rigorous 1981 ordinance effected an unconstitutional taking of property without just compensation. (Terminal, supra, at p. 912, 223 Cal.Rptr. 379; Bullock, supra, 221 Cal.App.3d at p. 1089, 271 Cal.Rptr. 44.)
However, we have also held that owners of such hotels must be permitted the right to cease operating as residential hotels, and that the City could not legally exact "ransom" for the exercise of that right. (Bullock, supra, 221 Cal.App.3d at p. 1101, 271 Cal.Rptr. 44.) Also, in commenting upon an earlier version of the HCO, we expressed concerns regarding its fairness to property owners: "We are concerned that the ordinance places a disproportionate share of the burden of providing low-cost housing upon residential hotel property owners, rather than fairly dispersing the cost of conferring such a social benefit upon society as a whole." (Terminal, supra, 177 Cal.App.3d at p. 912, 223 Cal. Rptr. 379.)
In federal district court, the more rigorous 1990 version of the HCO in issue here was initially enjoined as an unconstitutional taking without just compensation, although that ruling was later reversed on statute of limitations grounds. (Golden Gate Hotel Ass'n. v. San Francisco (N.D.Cal.1993) 864 F.Supp. 917, revd., (9th Cir.1994) 18 F.3d 1482, 1487.) There is at present no published ruling by either the federal or state courts which definitively addresses the question of whether the current 1990 version of the HCO may have effected an unconstitutional taking of private property without just compensation.
C. Procedural history of this litigation.
1. Federal Court Proceedings.
As previously mentioned ante, the present litigation began in federal court. In The San Remo Hotel v. City and County of San Francisco, No. C-93-64-WHO, the Federal District Court for the Northern District of California granted an injunction in favor of the Hotel against the operation of the HCO, which the court had held was an unconstitutional taking without just compensation. On appeal, the Ninth Circuit Court of Appeals did not reach the merits of the trial court's ruling that the HCO was unconstitutional, and instead determined that the federal courts should abstain from deciding the controversy, in favor of litigation in the state courts. (San Remo I, supra, 145 F.3d at pp. 1102-1106.) The matter then proceeded in state court.
2. The Demurrers to the Hotel's Claim of an Unconstitutional Taking
The Hotel pleaded its allegations of an unconstitutional taking, both facially and as applied, in our state trial court as claims of inverse condemnation in the Hotel's first amended complaint. In the third cause of action of the first amended complaint, appellants alleged: "The City's ordinances and its administrative actions regarding the San Remo violate plaintiffs' federal and state constitutional rights in that they fail to substantially advance legitimate government interests as required by the Takings Clause of the Fifth Amendment to the United States Constitution and Article I, Section 19, of the California Constitutional." The complaint continued: "The application of the City's ordinances to plaintiffs forces them, and a small group of other property owners, to bear the full *8 cost of providing a general public benefit: housing for low income, elderly and disabled San Francisco residents. This violates the Takings Clause...."
The City filed demurrers to the first amended complaint, contending that appellants facial and as-applied claims of unconstitutionality failed to state a cause of action upon which relief could be granted. The trial court was requested to take judicial notice of the text of the HCO in aid of the demurrers.
The City's demurrer as to appellants' facial challenge in the third cause of action was sustained. Although the basis of the ruling is somewhat unclear from a reading of the order, it appears the trial court ruled as a matter of law that the HCO was facially constitutional. In the trial court's words, "Under applicable case law, Plaintiff cannot state a cause of action challenging the constitutionality of the Hotel Conversion Ordinance...." As to appellants' attempts to plead an unconstitutional taking, as applied, the City's demurrers were overruled, in part, and sustained with appellant granted leave to re-plead its allegations of unconstitutionality as to the City's requirement for payment of the $567,000 mitigation fee under the HCO, applying a "heightened scrutiny" test.
The Hotel endeavored to re-plead, some without leave of court, all of its claims of unconstitutional taking in a second amended and supplemental complaint. For example, the second cause of action alleged that the City had carried out an unconstitutional taking and was liable in inverse condemnation, because the City had erroneously classified the San Remo as containing 62 units of residential "`group housing.'" The third cause of action charged the City with demanding and receiving $567,000 as a "replacement housing fee" under the HCO, which the Hotel claimed was also an unconstitutional taking, and did not advance a legitimate state interest. A fourth cause of action similarly claimed that the City's demand for a $567,000 replacement fee was an unconstitutional taking, and sought a refund of that fee. Finally, the fifth cause of action pleaded that the HCO and the demand for the $567,000 fee, as applied to the Hotel, constituted an unconstitutional taking and justified damages in inverse condemnation.
The trial court sustained the City's demurrers to this second amended and supplemental complaint, without leave to amend. As to the second and third causes of action, the trial court reasoned that no cause of action could be stated, apparently because appellants had paid the City's demanded fee, and had therefore waived the right to challenge it. The fourth and fifth causes of action were found to be a repleading of appellants' facial challenge to the HCO in the third cause of action of the first amended complaint. Because the trial court previously rejected the legal basis for this challenge, the City's demurrers were again sustained, this time without leave to amend.
3. The Petition for a Writ of Mandate as to Zoning Issues.
The Hotel also filed a petition for a writ of mandate, seeking a legal ruling by the trial court that the Hotel was a prior legal nonconforming use under the terms of the NBNCD zoning ordinance, so that it would not require a new use permit under the NBNCD in order to continue to operate as a tourist hotel. The trial court denied the requested relief, finding as a matter of law, that appellants' operation after 1981 as a tourist hotel was not a legal use under the certificate of use issued the Hotel under the HCO. We discuss this matter at greater length in part II. B of this opinion.
4. The Penalty Proceeding and Trial
In a cross-complaint, the City sought the imposition of up to $500 per day in civil penalties against the Hotel for its continued operation as a tourist hotel, allegedly in violation of the HCO and NBNCD. The trial court granted summary adjudication against certain of the Hotel's defenses to *9 the penalty action, which we address, post. The cross-complaint seeking penalties proceeded to a contested trial; and we discuss the relevant facts more fully in part II. C of this opinion. The trial court ordered that appellants should pay penalties of only $190, i.e., one dollar per day for each of the 190 days of alleged violations.
II. DISCUSSION
A. The judgment following the demurrers as to the Hotel's claims of an unconstitutional taking must be reversed.
1. Standard of Review.
"For purposes of ruling on a demurrer, the court assumes the truth of all well-pleaded allegations of a complaint. The ability of the plaintiff to prove them is not in issue." (Diamond Multimedia Systems, Inc. v. Superior Court (1999) 19 Cal.4th 1036, 1041, fn. 4, 80 Cal.Rptr.2d 828, 968 P.2d 539, (Diamond).) Instead, the facts alleged must be treated as having been admitted, and we review de novo to determine whether the facts as pleaded could entitle the plaintiff to any legal remedy as a matter of law. (Quelirnane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 38, 77 Cal.Rptr.2d 709, 960 P.2d 513 (Quelirnane Co.).)
A demurrer merely tests the legal sufficiency of the complaint, not its factual truth. (Hernandez v. City of Pomona (1996) 49 Cal.App.4th 1492, 1497, 57 Cal.Rptr.2d 406.) On appeal, "[w]e give the complaint a reasonable interpretation, reading it as a whole and viewing its parts in context. [Citations.] We deem to be true all material facts properly pled. [Citations.]" (Lazar v. Hertz Corp. (1999) 69 Cal.App.4th 1494, 1501, 82 Cal.Rptr.2d 368.) In other words, "`plaintiff need only plead facts showing that he may be entitled to some relief [citation].' (Alcorn v. Anbro Engineering, Inc. (1970) 2 Cal.3d 493, 496, 86 Cal.Rptr. 88, 468 P.2d 216.)" (Gruenberg v. Aetna Ins. Co. (1973) 9 Cal.3d 566, 572, 108 Cal.Rptr. 480, 510 P.2d 1032; accord, Quelirnane Co., supra, 19 Cal.4th at p. 38, 77 Cal.Rptr.2d 709, 960 P.2d 513; Moore v. Regents of University of California (1990) 51 Cal.3d 120, 125, 271 Cal.Rptr. 146, 793 P.2d 479.)
2. The Level of Scrutiny to be Applied
The parties first dispute the level of scrutiny which we should apply to the HCO, and the $567,000 payment made by the Hotel as a "conversion fee" to avoid the restrictions of the HCO.
The federal Supreme Court has held that a heightened or intermediate level of scrutiny must be applied to an exaction by a governmental unit as a condition of the legal use of property. (See Dolan v. City of Tigard (1994) 512 U.S. 374, 385, 114 S.Ct. 2309, 129 L.Ed.2d 304 (Dolan); Nollan v. California Coastal Comm'n (1987) 483 U.S. 825, 834, 107 S.Ct. 3141, 97 L.Ed.2d 677 (Nollan).)
As applied by our Supreme Court in Ehrlich v. City of Culver City (1996) 12 Cal.4th 854, 50 Cal.Rptr.2d 242, 911 P.2d 429 (Ehrlich), the decisions in Nollan and Dolan hold that a discretionary exaction, such as the HCO conversion fee in issue here, may be challenged under the "heightened standard of scrutiny." Such scrutiny is "triggered by a relatively narrow class of land use casesthose exhibiting circumstances which increase the risk that the local permitting authority will seek to avoid the obligation to pay just compensation." (Ehrlich, supra, at p. 868, 50 Cal.Rptr.2d 242, 911 P.2d 429.)
For example, in Nollan, the California Coastal Commission required residential property owners to grant a lateral easement for public access across the seaside of their beach-front property as a condition for approval of a building permit to construct a larger beach house. (Nollan, supra, 483 U.S. at p. 828, 107 S.Ct. 3141.) In Dolan, the City of Tigard, Oregon, required the plaintiff to dedicate a portion of her property to public use as a pedestrian and bicycle pathway as a condition for *10 granting a building permit allowing her to expand her business. (Dolan, supra, 512 U.S. at pp. 377-380, 114 S.Ct. 2309.) In each instance, local government conditioned the approval and issuance of a development permit on a land-use restriction, dedication, or exaction that would have amounted to the uncompensated requisition of private property for public use, but for the claim that the conditions were justified by the ultimate police power to deny a permit altogether. (See Ehrlich, supra, 12 Cal.4th at p. 868, 50 Cal.Rptr.2d 242, 911 P.2d 429.)
Similarly, in Ehrlich, supra, 12 Cal.4th at pp. 862, 867-869, 50 Cal.Rptr.2d 242, 911 P.2d 429, our high court held that a "mitigation fee" of $280,000 imposed by a local government and paid under protest by the property owner, as a condition of development of a property, and as a "replacement" for the recreational facilities formerly operated on the property, should be subjected to heightened scrutiny as a possible taking, because the government may have used its discretionary power over the granting or denying of permits as a means of "leverag[e]" in order to extract a monetary fee from the property owner. As Ehrlich reasoned, "such a discretionary context presents an inherent and heightened risk that local government will manipulate the police power to impose conditions unrelated to legitimate land use regulatory ends, thereby avoiding what would otherwise be an obligation to pay just compensation.... It is the imposition of land-use conditions in individual cases, authorized by a permit scheme which by its nature allows for both the discretionary deployment of the police power and an enhanced potential for its abuse, that constitutes the sine qua non for application of the intermediate standard of scrutiny formulated by the court in Nollan and Dolan." (Ehrlich, supra, at p. 869, 50 Cal.Rptr.2d 242, 911 P.2d 429, italics in original.) In the present case, appellants have also alleged that the City effected a taking when it made a discretionary, individualized, adjudicatory ruling requiring that the Hotel pay $567,000 as a replacement fee under the HCO.
In Ehrlich, our Supreme Court applied the Nollan /Dolan analysis to instances where local government has imposed special monetary exactions on an individual and discretionary basis. The court expressly contrasted such specific, individual exactions with the circumstance in which generally applicable fees or assessments are imposed on a broad class of property owners in a nondiscretionary, ministerial fashion. In the latter case, Ehrlich found there is less risk of an extortionate use of the police power to impose unconstitutional conditions. (Ehrlich, supra, 12 Cal.4th at p. 876, 50 Cal.Rptr.2d 242, 911 P.2d 429.) Thus by contrast, where a regulatory exaction takes the form of a generally applicable fee or assessment, "the courts have deferred to legislative and political processes to formulate `public program[s] adjusting the benefits and burdens of economic life to promote the common good.' [Citation.]" (Ehrlich, supra, at p. 881, 50 Cal.Rptr.2d 242, 911 P.2d 429.)
The Hotel's allegations, as pleaded, fit those to which the Nollan/Dolan/Ehrlich heightened or intermediate scrutiny analysis should apply. Like the $280,000 mitigation fee imposed on the particular developer in Ehrlich as a condition for approval of his request that his property be rezoned to permit construction, or the property exacted as a condition of permit approval in Nollan and Dolan, the monetary sum of $567,000 exacted by the City here is a fee, exaction or payment in a "discretionary context" which presents "an inherent and heightened risk that local government will manipulate the police power" in a manner which "avoid[s] what would otherwise be an obligation to pay just compensation." (Ehrlich, supra, 12 Cal.4th at p. 869, 50 Cal.Rptr.2d 242, 911 P.2d 429.) In the case under review, as in Ehrlich, it "is the imposition of land-use conditions in individual cases, authorized by a permit scheme *11 which by its nature allows for both the discretionary deployment of the police power and an enhanced potential for its abuse, that constitutes the sine qua non for application of the intermediate standard of scrutiny formulated by the court in Nollan and Dolan." (Ehrlich, supra, at p. 869, 50 Cal.Rptr.2d 242, 911 P.2d 429.)
The City acknowledges these authorities, but disputes their application in the matter under review.[4] The City suggests Nollan, Dolan, and Ehrlich, supra, may have been wrongly decided when they applied heightened scrutiny to the required dedications of property, or monetary fees, in issue in those decisions.[5] We are bound by and follow the decisions of our Supreme Court. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455, 20 Cal.Rptr. 321, 369 P.2d 937 (Auto Equity).) The decisions of the federal Supreme Court also indicate that heightened scrutiny is warranted, and those decisions are binding upon both the California Supreme Court and ourselves as to issues of federal constitutional law. (See ibid.) Further, we note that subsequent decisions of both the federal and California Supreme Courts have reaffirmed the application of heightened scrutiny in these limited circumstances, where it is alleged that a taking resulted from a specific, discretionary decision of the government with reference to a particular property, rather than from a law of general application which applies to all land. (See, e.g., City of Monterey v. Del Monte Dunes (1999) 526 U.S. 687, 119 S.Ct. 1624, 1635, 143 L.Ed.2d 882; Santa Monica Beach, Ltd. v. Superior Court (1999) 19 Cal.4th 952, 966, 81 Cal.Rptr.2d 93, 968 P.2d 993; cf. also Eastern Enterprises v. Apfel (1998) 524 U.S. 498, 118 S.Ct. 2131, 2149, 2154, 2156, 141 L.Ed.2d 451.)
In the context of this particular case, the heightened level of scrutiny is particularly appropriate since the $567,000 mitigation fee was imposed "in lieu" of taking the Hotel's property itself, and in order to accomplish the condemnation of the same value of real property for public purposes. The 1990 version of the HCO explicitly states that it demands increased fees from property owners, since other official sources of public funding for low-cost housing became more difficult for the City to procure, thereby shifting the burden of public funding for low-cost housing to the property owner. (1990 HCO, § 41.13.) This is potentially the type of individual taking of property by the government, for an asserted public purpose, which the jurisprudence developed under the takings clause was designed to protect citizens against, and for which heightened scrutiny is appropriate. (See Ehrlich, supra, 12 Cal.4th at pp. 869, 876, 50 Cal.Rptr.2d 242, 911 P.2d 429.)
3. The City's Demurrer to the Facial Challenge, as Pled in the Second, Amended Complaint
Appellants sought to plead both a facial challenge and an as-applied constitutional challenge to the HCO in the first amended complaint. At the appellate oral argument, the parties acknowledged that *12 appellants' facial challenge to the constitutionality of the HCO was contained in the third cause of action of this first amended complaint, and that the question of whether the trial court ruled correctly on this issue was properly before us on appeal.
However, after the trial court had initially sustained the City's demurrer to the Hotel's attempt to allege a facial challenge to the HCO, appellants re-pled all of its takings allegations in a second amended and supplemental complaint. Insofar as the fourth and fifth causes of action attempted to restate a facial challenge to the HCO, appellants failed to seek leave of court to replead such causes of action. More importantly, the present state of these pleadings is insufficient to allow us to fully assess the ultimate legal validity of the facial constitutionality of the HCO. If appellants desire to make such a challenge, they might seek leave to amend their pleading to reassert a facial challenge in additional detail, so that the trial court may rule on this issue with the benefit of a more complete record.
4. The City's Demurrer to Appellants' As-Applied Challenge Should Have Been Overruled, Because the Hotel has Properly Alleged an Unconstitutional Taking.
By the provisions of the takings clause in the Fifth Amendment to the United States Constitution, and the California Constitution, article I, section 19, the government is prohibited from taking private property for public use without just compensation.[6] A governmental regulation of property may in certain circumstances constitute a taking for which just compensation must be granted. (See Penna. Coal Co. v. Mahon (1922) 260 U.S. 393, 415-416, 43 S.Ct. 158, 67 L.Ed. 322 (Mahon); Ehrlich, supra, 12 Cal.4th at p. 876, 50 Cal.Rptr.2d 242, 911 P.2d 429.) Here, for the reasons discussed, ante, we must also apply "heightened scrutiny" to the HCO and the $567,000 fee or exaction by the City under the HCO. Under that standard, we determine whether the Hotel's allegations regarding the $567,000 fee pled a claim for an unconstitutional taking, or whether as a matter of law the fee constituted a valid regulatory action intended to respond to the effects of the "conversion" of the Hotel from a "residential" use. (Ehrlich, supra, at p. 876, 50 Cal.Rptr.2d 242, 911 P.2d 429.)
The purpose of the takings clause, as authoritatively construed by the federal and California Supreme Courts, is to prevent governments from taking private property for public goals without payment of just compensation. The building and maintaining of affordable housing for the indigent or necessitous may be precisely such a worthy public goal, but governments may not simply take private property without just compensation for such a purpose. The goal of modern takings jurisprudence is "to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole." (Armstrong v. United States (1960) 364 U.S. 40, 49, 80 S.Ct. 1563, 4 L.Ed.2d 1554; accord, Ehrlich, supra, 12 Cal.4th at pp. 880-881, 50 Cal.Rptr.2d 242, 911 P.2d 429.)
Under these precedents, we conclude that the following legal standard *13 should be applied to determine the sufficiency of the Hotel's pleadings. The Hotel, like any other property owner challenging a monetary exaction under the takings clause, may attempt to show, under the heightened scrutiny standard, that there is no proof of "both an `essential nexus' or relationship between the permit condition and the public impact of the proposed development, and of a `rough proportionality' between the magnitude of the fiscal exaction and the effects of the proposed development." (Ehrlich, supra, 12 Cal.4th at p. 860, 50 Cal.Rptr.2d 242, 911 P.2d 429.)
The allegations of the Hotel's pleadings question whether the City can show, under the heightened scrutiny standard, that the worthy goals enunciated in the HCO were served at all by the exaction of a conversion fee under the HCO from appellants. As we have stated ante, appellants alleged the City erroneously classified all the units in the Hotel as "residential" units subject to the HCO. It is asserted that the Hotel was always used by overnight guests and tourists, with some residential guests as well. Historically, the number of residential guests is claimed to have always been between 10 and 20, and not 62, as the City asserts based only upon the 1979 survey. Using this survey, the City claimed that the HCO governed all the rooms in the Hotel as "residential" rooms, and forbade their use by overnight guests unless the City approved. The result was the payment by appellants of a conversion fee for each of the 62 rooms to avoid the claimed illegality under the HCO.
In addition, appellants pleaded that they were required to offer lifetime leases to all of the current residential guests, none of whom were evicted as a result of the "conversion" of the Hotel from residential use: "[N]ot only is there an abundance of vacant residential hotel units available in San Francisco, no residents protected by the HCO will be displaced by such continued commercial use." Because the same number of residential guests will reside at the Hotel after the "conversion" as before, appellants contend there will be no actual loss of residential units as a result of the "conversion," and that the only apparent effect of the "conversion" will be appellants' payment of $567,000, which the City may someday use to build affordable public housing elsewhere. The 1990 version of the HCO requires increased fees from property owners, because other official sources of public funding for low-cost housing became more difficult for the City to procure, and thus a greater burden of public funding is shifted to the property owner. (1990 HCO, § 41.13.)[7] Affordable housing for the indigent may be a worthy goal, but it is also an expense traditionally and rightly borne by society as a whole. (See Ehrlich, supra, 12 Cal.4th at pp. 880-881, 50 Cal.Rptr.2d 242, 911 P.2d 429.)
The Hotel's pleadings essentially state there is no "`essential nexus'" or "`rough proportionality'" between this governmental exaction and the purported objects to be remedied by the exaction. (See Ehrlich, supra, 12 Cal.4th at pp. 880-883, 50 Cal.Rptr.2d 242, 911 P.2d 429.) In this regard, appellants claim there is no such rough proportionality in the HCO conversion fee imposed, and that the exaction is not based upon the number of residential guests displaced (which would be zero) or on relocation costs for guests (again zero) or even on the number of rooms occupied by residential guests (about 10). Instead, it is alleged, the fee is based upon the undeniable fiction that all of the Hotel's 62 rooms are occupied by residential guests, thereby requiring appellants to pay for the construction of "replacements" for all those rooms. The foregoing circumstances, as pleaded, demonstrate the absence of the required constitutional "`essential nexus'" or "`rough proportionality.' " (See Ehrlich, supra, at pp. 880-883, 50 Cal.Rptr.2d 242, 911 P.2d 429.)
*14 We also find instructive the only published decision by a state's highest court dealing with any ordinance similar to San Francisco's HCO, the decision of New York's Court of Appeals in Seawall Associates v. City of New York (1989) 74 N.Y.2d 92, 544 N.Y.S.2d 542, 542 N.E.2d 1059, 1061-1073, cert. den. (1989) 493 U.S. 976, 110 S.Ct. 500, 107 L.Ed.2d 503 (Seawall). This decision found a similar New York City ordinance, which likewise forbade the conversion of residential hotels except upon payment of large fees, to be unconstitutional as a violation of the takings clause. (Seawall, supra, 544 N.Y.S.2d 542, 542 N.E.2d at pp. 1061-1073.)
Seawall found the similar New York ordinance regarding residential hotels to be an unconstitutional taking, because there was no required constitutional nexus, and because the provisions of the residential hotel ordinance "inevitably force property owners `alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole' (Armstrong v. United States, supra, 364 U.S. at 49 [80 S.Ct. 1563]). Because the owners are, by the terms of the law, afforded no compensation, [the residential hotel ordinance], we hold, is facially invalid, under the `Takings' Clauses of both the Federal and State Constitutions [citations]." (Seawall, supra, 544 N.Y.S.2d 542, 542 N.E.2d at pp. 1070-1071, fn. omitted.)
The City suggests Seawall is factually distinguished because the New York ordinance required residential hotels to continue to stay in business and rent out rooms to residential guests, thereby accomplishing a physical occupation of the hotels' property. However, we question whether a physical occupation is always necessary to accomplish a taking, since the "mitigation fee" to replace the sports facilities in Ehrlich was not a physical occupation, but rather a taking of money. Here, the alleged taking by the City nonetheless did contemplate a government-mandated physical occupation, for the Hotel was required to offer lifetime leases to its residential guests. A hotel which is required to offer such lifetime leases cannot close down or go out of business, except after the end of all tenant lives in being. In addition, the City rezoned the Hotel's property so that it could only be used as a residential hotel, and not continue in use as a tourist hotel, a subject we discuss, post. And finally, the 1990 version of the HCO, but not the previous versions of the HCO, required the Hotel to rent out its rooms to residential guests during the winter season, then forbade eviction of those residential guests during the summer tourist season, or else forbade the Hotel from renting to tourists at all.
Appellant's claims are virtually indistinguishable from Seawall, in that the Hotel was required to submit to a physical occupation of its property except upon payment of a large conversion fee, circumstances found to constitute a taking in Seawall.[8] We can find no principled basis on which to distinguish Seawall from the case before us. Of course, in the context of the present case, we need not go so far as Seawall, in finding an unconstitutional taking; we need only hold that the Hotel has properly alleged such a taking, and that those allegations should have survived the City's demurrers, and should be put to proof in the trial court.
The numerous other authorities cited by the City fail to establish that the demurrers were properly sustained as to the Hotel's allegations of an unconstitutional taking. The City notes in passing that the prior version of the HCO was upheld by *15 other divisions of this District in Terminal, supra, 177 Cal.App.3d at pp. 907-909, 223 Cal.Rptr. 379, and Bullock, supra, 221 Cal. App.3d at p. 1089, 271 Cal.Rptr. 44.
However, Terminal did not deal with the present version of the HCO, but rather with one that was much less rigorous. Unlike its earlier version, the 1990 HCO generally forbids the rental of rooms in residential hotels to tourists during the tourist season. (1990 HCO, § 41.1 et seq.) Nor did Terminal address the question of whether the HCO constituted a taking, but instead reached the conclusion that the 1981 version did not violate equal protection and due process rights, while nevertheless expressing concern "that the ordinance places a disproportionate share of the burden of providing low-cost housing upon residential hotel property owners, rather than fairly dispersing the cost of conferring such a social benefit upon society as a whole." (Terminal, supra, 177 Cal.App.3d at p. 912, 223 Cal.Rptr. 379.) Similarly, the appeals court in Bullock, supra, did not consider the 1990 HCO, but the 1981 version, which not even the Hotel contends would involve an unconstitutional taking.
The City also contends that because appellants paid the amount demanded by the City, that is, by paying $567,000 under protest, the Hotel has waived the right to challenge that taking as alleged in its second amended complaint, second and third causes of action. This argument, if accepted, would prevent most enforcements of the takings clause where the takings had already occurred. We have difficulty accepting the logic of the City's argument, since the Hotel's forced payment of the demanded sum is alleged in the pleadings in order to show a taking, as opposed to a voluntary and knowing relinquishment of the Hotel's rights. The City's argument is also at odds with Ehrlich, because the holding of that case allows a property owner to pay a demanded fee under protest, and then challenge the fee as a taking. This argument is also unduly broad and, if accepted, would seemingly bar judicial review of completed takings accomplished by a property owner's payment under protest as a result of immediate governmental compulsion, with no judicial remedy. Our state Supreme Court has rejected that possibility. (See Ehrlich, supra, 12 Cal.4th at pp. 863, 867-869, 50 Cal.Rptr.2d 242, 911 P.2d 429.)
The position argued by The City is also not supported by its citation to Pfeiffer v. City of La Mesa (1977) 69 Cal.App.3d 74, 78, 137 Cal.Rptr. 804 (Pfeiffer). Pfeiffer dealt with a building permit application, which is not in issue here. Specifically, Pfeiffer considered a condition requiring construction of a storm drain on the property, and held that a builder who had accepted such a condition on his building permit could not first accept the permit, and then sue to overturn the conditions. The builder was required to pursue a mandamus action to remove the offending conditions. (Ibid.) The instant case is not one in which the City could legitimately impose conditions upon the granting of a building permit, as was the case in Pfeiffer, but instead we consider here a permit allowing an existing use to continue, without new construction. Since there is no new construction necessary, the permit in question here cannot be justified as a legitimate response to the impact of new construction or development. Of course, the Pfeiffer court also did not have the benefit of the many cases decided in this area since 1977, most especially Ehrlich, supra, 12 Cal.4th at pp. 864-867, 50 Cal.Rptr.2d 242, 911 P.2d 429.
The City's reliance on Pfeiffer is misplaced for yet another related reason. Since Pfeiffer was decided, the Legislature has adopted the Mitigation Fee Act, Government Code section 66000 et seq. The Mitigation Fee Act allows a property owner to pay a governmentally imposed fee under protest, and then litigate its validity, as our Supreme Court found in Ehrlich, supra, 12 Cal.4th at pp. 864-867, 50 Cal. Rptr.2d 242, 911 P.2d 429. Consequently, *16 the authority that the City cites to support its contention, that appellants have waived the right to challenge the alleged taking, is unpersuasive.[9]
For the first time on appeal, the City attempts to raise other arguments which were not before the trial court on demurrers, and which concern such matters as the applicable statute of limitations. For example, it is now suggested (although this argument was not made in its demurrers or elsewhere during the proceedings below) that the Hotel's 1993 action challenging the 1990 HCO is somehow barred by the applicable five-year statute of limitations. (See Baker v. Burbank-Glendale-Pasadena Airport Authority (1985) 39 Cal.3d 862, 867-868, 218 Cal.Rptr. 293, 705 P.2d 866; Hensler v. City of Glendale (1994) 8 Cal.4th 1, 23-24, 32 Cal.Rptr.2d 244, 876 P.2d 1043 [applying five-year statute of limitations contained in Code Civ. Proc, §§ 318, 319].) It also claims that there were other miscellaneous pleading errors in the Hotel's complaint. However, we reject these arguments because they were not properly raised below. (See Franz v. Board of Medical Quality Assurance (1982) 31 Cal.3d 124, 143, 181 Cal. Rptr. 732, 642 P.2d 792.)
We recognize that the HCO may be a well-intentioned measure intended to aid persons on limited incomes by providing affordable housing, but even well intentioned measures may create unconstitutional takings. (See Nollan, supra, 483 U.S. at pp. 828-835,107 S.Ct. 3141 [protection of public access to scenic beaches]; Dolan, supra, 512 U.S. at pp. 377-580, 114 S.Ct. 2309 [preservation of "green-ways" and creation of pedestrian trail]; Ehrlich, supra, 12 Cal.4th at p. 862, 50 Cal.Rptr.2d 242, 911 P.2d 429 [government-required mitigation fee of $280,000 to replace the sports complex and fitness center that the property owner had closed].)
B. The Hotel as a Lawful Non Conforming Use
On a separate issue of law, we must rule on a zoning question relating to the operation of the Hotel, as this District did in Bullock, supra, 221 Cal.App.3d at p. 1101, 271 Cal.Rptr. 44.
Appellants' petition for a writ of mandate sought a legal ruling by the trial court that the Hotel was a prior legal nonconforming use under the terms of the NBNCD zoning ordinance, so that it would not need a new conditional use permit under the NBNCD to continue its operation as a tourist hotel. The trial court denied the requested relief, finding as a matter of law that the Hotel's operation in 1987 as a tourist hotel was in violation of the provisions of the HCO.
Appellants contend that the City has buttressed the HCO through the enactment of zoning ordinances designed to prevent residential hotels from obtaining permits to operate as tourist hotels, unless a conversion fee is paid to the City. Among the more recent zoning ordinances was the enactment of the NBNCD in 1987. If the Hotel could not show a prior nonconforming use, it could have been required to obtain a conditional use permit for the existing tourist operations.
It is well established that a new zoning ordinance does not generally render illegal a prior lawful nonconforming use. (See Hansen Brothers Enterprises, Inc. v. Board of Supervisors (1996) 12 Cal.4th 533, 551-552, 48 Cal.Rptr.2d 778, *17 907 P.2d 1324.) "The rights of users of property as those rights existed at the time of the adoption of a zoning ordinance are well recognized and have always been protected." (Edmonds v. County of Los Angeles (1953) 40 Cal.2d 642, 651, 255 P.2d 772 (Edmonds).)
The Hotel argued that as a matter of law it was a lawful nonconforming use at the time the City enacted the NBNCD zoning ordinance in 1987, as well as at the time of prior planning code changes in 1984. If the Hotel, and the rental of its rooms to tourists, was a lawful nonconforming use at the time the NBNCD zoning ordinance was enacted, appellants would not be required to comply with the new NBNCD zoning law or obtain City permission to continue to operate as a tourist hotel.
The trial court apparently assumed in its decision that even if the Hotel was operating such an actual use by renting rooms to tourists throughout the 1980's, this prior use was not a legal use. The only question before us involves the legality of the use at that time. The legality of a prior nonconforming use is a pure issue of law, over which we must exercise de novo review. (Bauer v. City of San Diego (1999) 75 Cal.App.4th 1281, 1289, 89 Cal.Rptr.2d 795.)[10]
Here, the City argued that appellants failed to demonstrate the legality of the prior use, and that because the Hotel's rooms were classified as "residential" for purposes of the HCO, by virtue of the survey form returned by Mr. Iribarren, the Hotel's rentals to tourists under the HCO were therefore not a lawful use. Consequently, the City argued that as a matter of law no legal use was demonstrated.[11]
However, the classification of rooms for purposes of the HCO is not determinative as to this zoning issue under the NBNCD. The 1981 HCO and the City allowed legal tourist use of vacant "residential" rooms at the Hotel during the tourist season, and the HCO itself was not enacted as a zoning law to govern the legality of such uses in different neighborhoods. (Terminal, supra, 177 Cal.App.3d at p. 902, 223 Cal. Rptr. 379.) We must look to the local zoning laws applicable to the Hotel in assessing the legality of the prior use for zoning purposes. (See City of Ukiah v. County of Mendocino (1987) 196 Cal.App.3d 47, 56-57, 241 Cal.Rptr. 585.)
The Hotel in the 1980's was in a commercial district allowing hotels, and had previously obtained a use permit from the City to operate as a hotel. The City's local zoning laws applicable to hotels in the early 1980's made no distinction between the use permits for hotels based upon their "residential" or "tourist" status under the HCO. Thus, such Hotel rentals to tourists in the 1980's would have been legal, under the City's planning code then in effect. We therefore conclude that the Hotel could be an existing legal nonconforming use under the NBNCD, notwithstanding the 1981 certificate of use. (See Edmonds, supra, 40 Cal.2d at p. 651, 255 P.2d 772.)[12]
*18 Our reasoning accords with a written opinion letter drafted by the city attorney and provided for the City's board of supervisors in 1981, when the HCO was under consideration for enactment. The formal opinion letter, no.81-54, signed by the city attorney's own expert on such matters, Burk Delventhal, and by the city attorney, acknowledged and advised the board of supervisors that the 1981 HCO could lawfully be enacted without a prior hearing before the Planning Commission, since the HCO did not operate as a zoning law[13] and would not make illegal the operations of commercial establishments such as the Hotel which rented rooms to tourists: "Under this concept [of a legal nonconforming use], uses or structures which are no longer permitted under present land use ordinances but which were lawfully permitted at the time of their inception or construction, are permitted to continue to exist.... The adoption of an ordinance such as the hotel conversion ordinance does not render an existing structure or use a nonconforming structure or use." (Italics added.)
The City makes several other arguments which are without merit. For instance, the City contends that since there was undisputed evidence that residential guests used some rooms of the Hotel, therefore all tourist uses of the Hotel's rooms must have been illegal. This is a non sequitur. The fact that some rooms at the Hotel were used by residential guests did not render all tourist uses of those rooms, or the Hotel in general, illegal under the 1981 HCO. Likewise, the fact that the City's survey classified all the rooms of the Hotel as "residential" in 1979 did not prevent their legal use under the 1981 HCO for tourist rentals. The designation of a unit as "residential" for purposes of the 1981 HCO did not preclude the rental of this unit for summer tourist use when the room was vacant.
Nor are we impressed by the City's belated attempt to disavow the use permit for a "hotel," which it had always issued to appellants, in favor of an attempt to squeeze the Hotel into another legal category of "group housing," a miscellaneous non-commercial, non-tourist category applicable to boarding houses, communes, fraternity houses, and the like, which are permitted in residential areas under S.F. Planning Code section 209.2. The Hotel remained at all relevant times factually and legally a hotel renting to tourists, not a commune, fraternity house or any of the other uses specified in the "group housing" category. Appellants had been renting to tourists long before the enactment of the HCO and the enactment of the NBNCD. If appellants were not operating a "hotel," then one might wonder why the City always issued to it a use permit as a hotel, collected hotel taxes on its tourist rentals as a tourist hotel, and required a "mitigation fee" under the HCO when it was "converted" from a residential "hotel" to a tourist "hotel."[14] In the final analysis, whether the City chose to call the Hotel a "hotel," a "group housing," or call it by any other name, it would have remained a lawful nonconforming use if actual tourist use were shown. (See Edmonds, supra, 40 Cal.2d at p. 651, 255 P.2d 772.)
*19 In the present case, the trial court did not explicitly reach the issue of actual use of the Hotel, since the court accepted the city's argument that any such actual use would not be a lawful use. The trial court's ruling on this legal issue precluded it from reaching the factual issue of an actual use. We must reverse and remand this issue to the trial court, so that it may make factual findings regarding the actual use of the Hotel in the relevant period.[15] In light of those factual findings, the trial court should enter a new ruling on the Hotel's petition for writ of mandate.
C. The penalty trial
The City contends in its cross-appeal that the trial court erred by imposing only nominal penalties of $190, or one dollar per day, against the Hotel as a result of the City's cross-complaint for civil penalties, alleging violations of the HCO and NBNCD. Those violations arose because the Hotel had rented rooms to tourists, purportedly in violation of the HCO and NBNCD.
We may review the trial court's decision after the trial of this issue only for an abuse of discretion. (See People ex rel. Smith v. Parkmerced Co. (1988) 198 Cal. App.3d 683, 692, 244 Cal.Rptr. 22; cf. also People v. Thygesen (1999) 69 Cal.App.4th 988, 992, 81 Cal.Rptr.2d 886.) We find none.
Although the Hotel did rent rooms to tourists, purportedly in violation of the 1990 version of the HCO on 190 days after the federal court lifted its injunction against the HCO, we agree with the trial court that at most only nominal penalties were required, in the particular circumstances of this case.[16]
Although the City contends the trial court was required to set the penalty much higher, so as to accomplish "disgorgement" of the more than $100,000 which the Hotel earned by renting to tourists during the 190 days in issue, we can find no authority necessarily requiring such "disgorgement" in the form of penalties. In addition, the trial court was certainly in the best position to consider circumstances such as the Hotel's payment of a $567,000 conversion fee; the extensive testimony from appellants regarding their own efforts to restore and legally operate the Hotel; as well as the testimony of a 20-year resident of the premises, in which the Hotel's owners were praised as model landlords who had saved the Hotel from ruin and had thereby undoubtedly saved the witness from homelessness.
Under these circumstances, we conclude that the trial court did not abuse its discretion by imposing only nominal penalties.[17]
III. DISPOSITION
The judgment is reversed in part, affirmed in part, and remanded in part, as follows. With respect to the Hotel's first amended complaint and its second amended and supplemental complaint, the judgment is reversed and the cause is remanded to the trial court with directions to vacate those portions of its judgment of May 5, 1998, that sustained the City's demurrers without leave to amend, and to enter a new order in conformity with this opinion. The judgment is also reversed to the extent the trial court ruled that the Hotel was not a legal nonconforming use, *20 and that matter is remanded with instructions to the trial court to enter a new order on the Hotel's petition for writ of mandate, in conformance with the views expressed herein. The judgment is affirmed as to the penalty of $190 imposed on the City's cross-complaint. The Hotel shall recover costs on appeal.
JONES, P.J., and KRAMER, J.[*], concur.
NOTES
[1] This District obliquely characterized the required conversion fee under the HCO as "ransom" in Bullock v. City and County of San Francisco (1990) 221 Cal.App.3d 1072, 1101, 271 Cal.Rptr. 44 (Bullock ).
[2] The City relies on other federal, state, and local funding sources for public housing in order to provide the remaining 20 percent of the replacement costs. The 1990 version of the HCO states that the increase in the percentage to be paid by the property owner resulted because other official sources of public funding became more difficult for the City to procure, and therefore a greater burden of the public funding was shifted to the property owner. (1990 HCO, §§ 41.3(m); 41.13.)
[3] The Hotel alleged it had filed an application with the City in 1990 to correct the residential designation of the rooms and legalize its use of tourist rooms under the HCO. The City's board of supervisors denied the Hotel's administrative appeal, on a vote of six to five. No relief was granted by the City until the Hotel paid the $567,000 conversion fee in late 1996.
[4] The City agreed in the trial court that this heightened standard of scrutiny should be applied to the $567,000 mitigation fee.
[5] The City now argues that the HCO is similar to a zoning law of general application, and therefore heightened scrutiny does not apply. However, this ordinance is not a general zoning law which, for example, forbids the building of new factories on all properties in San Francisco. (Terminal, supra, 177 Cal.App.3d at p. 902, 223 Cal.Rptr. 379 [HCO does not regulate property as a zoning law].) To the contrary, appellants alleged that the HCO affected only them and a small group of other property owners, leaving unregulated all of the many thousands of other commercial and residential properties in the City. The $567,000 mitigation fee obviously was not imposed on every other property in the City. Consequently, a heightened level of scrutiny is proper, because this is the type of particularized governmental exaction imposed upon a property owner which was seen in Ehrlich. (See Ehrlich, supra, 12 Cal.4th at p. 876, 50 Cal.Rptr.2d 242, 911 P.2d 429.)
[6] The takings clause of the Fifth Amendment to the United States Constitution provides, in pertinent part: "nor shall private property be taken for public use, without just compensation." The analogous provision of the California Constitution, article I, section 19, reads in pertinent part: "Private property may be taken or damaged for public use only when just compensation, ascertained by a jury unless waived, has first been paid to, or into court for, the owner." We recognize that our Supreme Court has held that this provision of the California Constitution is more protective of private property than the federal Constitution (see Varjabedian v. City of Madera (1977) 20 Cal.3d 285, 296-298, 142 Cal.Rptr. 429, 572 P.2d 43), but for present purposes we will assume the federal and state rights are materially equivalent, since both would indicate an unconstitutional taking has occurred under the facts as alleged by the Hotel.
[7] The City received the money 4 years ago, but has not yet spent it on any affordable housing.
[8] The City also attempts to distinguish Seawall because the New York ordinance was designed to prevent homelessness, by providing affordable housing, whereas the City now claims that the HCO has nothing to do with the problem of homelessness, and is simply intended to provide affordable housing as an end in itself. The basis for the City's claimed distinction is not apparent, since both the New York and San Francisco ordinances appear to have been designed to provide low-cost housing to the indigent, a public goal, at private expense.
[9] The payment of the City's "conversion fee" in return for favorable action on the Hotel's request for a permit to convert and operate as a tourist hotel was also a mitigation fee for a "development" under the provisions of the Mitigation Fee Act, Government Code sections 66000 and 66020. The Mitigation Fee Act adopts the very broad definition of "development" fees set forth in Government Code section 65927, including any "change in the density or intensity of use of land." The "conversion" of the Hotel required a change in the intensity of use of the land, pursuant to the City's planning code, which requires issuance of a new conditional use permit for the intensification of the use of land. The City does not now contend otherwise, although it contested this issue in the trial court.
[10] The City so informed the trial court, conceding that the issue before the court was "an issue of pure law."
[11] The City also contends the survey is final and binding on the Hotel because no appeal was filed form the result of the survey within 10 days. However, appellants' pleadings allege: "45. Plaintiffs did not receive any notice that a declaration was required nor any notice that Mr. Iribarren had submitted his false declaration. The 1981 Hotel Ordinance only allows appeals for 10 days after the initial unit usage report was issued, which plaintiffs could not have filed because they had no notice of the false declaration nor the City's initial usage report." In this regard, appellants have alleged that the application of the HCO and the survey to their property effected an unconstitutional taking. We can find no language in the HCO or other relevant authority which would support the City's argument that the failure to file an appeal requires that the survey is final and binding.
[12] In light of our ruling on this issue, we need not address the other contentions made by the parties as to whether such an application of the 1990 HCO, together with the NBNCD, would have been preempted by state laws outlawing commercial rent controls, an issue as to which the trial court granted summary adjudication. (See Civ.Code, § 1954.26, subd.(d).) Similarly, we need not take judicial notice of the legislative history of state laws on that issue, since we find them irrelevant.
[13] The District agreed with the city attorney's position in that respect in Terminal, supra, 177 Cal.App.3d at p. 902, 223 Cal.Rptr. 379, where we held that the HCO "does not regulate land use in the same manner as zoning laws."
[14] The 1990 HCO also provides, in section 41.4, subdivision (r): "A tourist hotel shall be considered a commercial use pursuant to City Planning Code Section 216(b) and shall not be defined as group housing permitted in a residential area under City Planning Code Section 209.2." In the present case, the Hotel was always a hotel renting to tourists, and therefore not a "group housing."
[15] The trial court may also consider whether it is appropriate to remand the matter to the administrative agency for the development of a more complete administrative record as to actual use in this period, and the entry of a new administrative ruling in conformance with the views expressed in this opinion.
[16] In light of this ruling, we need not address the Hotel's additional contention that the amount of the penalty could not exceed the $5,000 bond set by the federal court for the federal injunction, which was another of the legal defenses rejected by the trial court on summary adjudication.
[17] The Hotel does not challenge the amount of the penalties imposed.
[*] Judge of the San Francisco Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
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Opinions of the United
2005 Decisions States Court of Appeals
for the Third Circuit
12-30-2005
Chen v. Atty Gen USA
Precedential or Non-Precedential: Precedential
Docket No. 03-4887
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PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 03-4887
XIA YUE CHEN,
Petitioner
v.
ALBERTO R. GONZALES, ATTORNEY GENERAL OF
THE UNITED STATES
Respondent
On Petition for Review from the Board of Immigration
Appeals
Agency No. A78-746-838
Submitted Under Third Circuit LAR 34.1(a): January 14,
2005
Before: SCIRICA,* Chief Circuit Judge, ROTH, Circuit
Judge, and IRENAS,** Senior District Judge
(Filed December 30, 2005)
*
This case was originally submitted to the three judge
panel of Roth, Chertoff and Irenas. Judge Chertoff
subsequently resigned and Chief Judge Scirica was designated
as the third member of the panel.
**
Honorable Joseph E. Irenas, Senior United States
District Judge for the District of New Jersey, sitting by
designation.
2
ORDER AMENDING OPINION
ROTH, Circuit Judge
IT IS ORDERED that the published Opinion in
the above case filed December 29, 2005, be amended as
follows:
On page 13, line 2, "women" should be
"woman";
On page 14, line 29, "do documents" should be
"no documents";
On page 16, line 8, "base" should be "based";
Footnote 12, line 2, "reports" should be
"report."
By the Court,
/s/ Jane R. Roth
Circuit Judge
Dated: December 30, 2005
CMH/cc: NKWW, MJC, DEG, JLL, JDW
3
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762 So.2d 380 (1999)
Gary Dewayne ALVIS
v.
STATE.
CR-98-0182
Court of Criminal Appeals of Alabama.
March 26, 1999.
Opinion on Return to Remand November 19, 1999.
Gary Dwayne Alvis, pro se, appellant.
Bill Pryor, atty. gen., and Joseph G.L. Marston III, asst. atty. gen., for appellee.
McMILLAN, Judge.
The appellant, Gary Dewayne Alvis, appeals from the trial court's summary dismissal of his Rule 32, Ala.R.Crim.P., petition.
The appellant was convicted of sexual abuse in the first degree, in violation of § 13A-6-66, Ala.Code 1975. He was sentenced to 10 years' imprisonment.
*381 In his Rule 32 petition, the appellant raises numerous claims, including an ineffective-assistance-of-trial-counsel claim. The trial court's order, however, fails to specifically state whether the claims contained in the petition were rejected on their "merits" or on "procedural" grounds. See Benefield v. State, 583 So.2d 1370, 1370 (Ala.Cr.App.1991) (wherein this Court noted that meritorious allegations "warrant either an evidentiary hearing or an adequate explanation for their denial"); Smith v. State, 598 So.2d 1009, 1010 (Ala. Cr.App.1991) ("the petitioner is entitled to notice of a specific ground of preclusion upon which the circuit court relied in dismissing the petition"). See also Ex parte Rice, 565 So.2d 606 (Ala.1990). In the event that the trial judge has personal knowledge of the actual facts underlying any of the appellant's allegations, he may deny the allegations without further proceedings so long as he states the specific reasons for the denial in his written order. See Sheats v. State, 556 So.2d 1094 (Ala. Cr.App.1989).
Should the trial court conduct an evidentiary hearing addressing the claims raised in the appellant's petition, the trial court's return to remand shall include a transcript of those proceedings. In the event that the trial court conducts an evidentiary hearing, it must enter specific findings of fact addressing each material issue of fact presented. Rule 32.9(d), Ala.R.Crim.P. The trial court should take the necessary action to ensure that the circuit clerk makes due return to this Court within 35 days from the date of this opinion.
REMANDED WITH INSTRUCTIONS.
LONG, P.J., and COBB, BASCHAB, and FRY, JJ., concur.
On Return to Remand
McMILLAN, Judge.
On March 26, 1999, we remanded the case to the trial court for that court to conduct an evidentiary hearing, if necessary, on the appellant's Rule 32, Ala. R.Crim.P., petition. If such a hearing was conducted, the trial court was instructed to include on its return to our remand order a transcript of those proceedings and a written order containing its specific findings of fact addressing each material issue of fact presented.
The record indicates that the trial court conducted an evidentiary hearing, after which it denied the appellant's petition and issued the following order:
"This cause coming on to be heard on remand from the Criminal Court of Appeals on the defendant's Rule 32 petition and the Court denying the motions of the defendant requesting a recusal and appointment of counsel, the defendant, Gary D. Alvis, presented his case pro se; the Court finds as follows:
"(1) The allegations of the defendant with regard to perjured testimony were only assertions without a factual basis.
"(2) The allegations with regard to faulty indictment were without basis.
"(3) The allegations of ineffective assistance of counsel were without basis and arose from a misunderstanding of the law in the case.
"(4) Matters involving identification of the defendant were addressed on appeal in this case.
"(5) The allegations of prosecutor misconduct were without foundation and were mere assertions without foundation.
After conducting an evidentiary hearing on a Rule 32 petition, a trial court is required to make specific findings of fact relating to each material issue of fact presented. Rule 32.9(d), Ala.R.Crim.P. Furthermore, the petitioner is entitled to notice of the specific ground of preclusion upon which the circuit court relied in dismissing the petition. Ex parte Rice, 565 So.2d 606 (Ala.1990). The record in this case, including the trial court's order on return to remand, fails to list the specific grounds of preclusion. Additionally, we *382 cannot determine from the record whether the trial court denied the allegation that the indictment was faulty based upon a determination of the merits or upon procedural grounds. Hence, we must remand this case to the trial court to allow it a second opportunity to state its findings and its reasons for denying the appellant's petition. The trial court should take the necessary action to ensure that the circuit court makes due return to this Court within 35 days from the date of this opinion.
REMANDED WITH INSTRUCTIONS.[*]
LONG, P.J., and COBB, BASCHAB, and FRY, JJ., concur.
NOTES
[*] Note from the reporter of decisions: On February 18, 2000, on return to second remand, the Court of Criminal Appeals affirmed, without opinion.
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215 F.Supp.2d 1135 (2002)
LASER TECHNOLOGY, INC., a Delaware corporation, Plaintiff,
v.
NIKON, INC., a New York corporation, and Asia Optical Co., Inc., a Taiwanese corporation, Defendants.
No. CIV.A. 00-B-272(PAC).
United States District Court, D. Colorado.
August 19, 2002.
*1136 *1137 *1138 *1139 Ty Cobb, Hogan & Hartson, Denver, CO, for plaintiff.
Anthony J. Shaheen, Davis, Graham & Stubbs LLP, Denver, CO, Robert Charles Faber, Ostrolenk, Faber, Gerb & Soffen, New York City, Leonard J. Santisi, Brad Jon Hattenbach, Dorsey & Whitney, LLP, Denver, CO, Neil Peck, Snell & Wilmer, LLP, Denver, CO, for defendants.
MEMORANDUM OPINION AND ORDER
BABCOCK, Chief Judge.
This is a patent infringement action by Plaintiff Laser Technology, Inc. against Defendants Nikon, Inc. and Asia Optical Co., Inc. Plaintiff claims Defendants infringed upon twenty-one patent claims in three separate but related U.S. patents, U.S. Patent No. 5,612,779 ('779 patent), U.S. Patent No. 6,057,910 ('910 patent), and U.S. Patent No. 6,226,077 ('077 patent). The patents claim inventions for low-cost, high-quality laser range finders suitable for recreational use. Defendant Asia Optical manufactures such laser range finders in Taiwan and China, and sells them to distributors such as Defendant Nikon, Inc. for sale in the United States. Five of the patent claims are independent: Claim 11 of the '779 patent; Claim 18 of the '779 patent; Claim 25 of the '779 patent; Claim 8 of the '910 patent; Claim I of the '077 patent. The other sixteen claims are dependent on those five independent claims. The parties cross move for claim construction and summary judgment.
Three main features of the accused device, made by Asia Optical, are at issue: 1) whether the laser range finder assigns pulse values to received laser pulses; 2) whether the device includes an automatic noise threshold adjustment circuit; and 3) whether the device includes a precision timer for determining the time-of-flight of received laser pulses. See Plaintiff's Memorandum in Support of Its Combined (1) Cross-Motion for Proposed Claim Construction and Summary Judgment and (2) Response to Defendants' Proposed Claim Construction and Motion for Summary Judgment (Plaintiff's Memo), 1-2.
*1140 There are two motions pending: 1) Plaintiff's Cross-Motion for Summary Judgment Including Markman Claim Construction; 2) Defendants' Cross-Motion for Summary Judgment Including Markman Claim Construction. Plaintiff contends its patent claims teach a definite structure to one of ordinary skill in the art. Id. at 2. Plaintiff further asserts that Defendants' mean-plus-function arguments fail because none of the claims of the patents-in-suit are means-plus-function claims. Plaintiff argues the patent claims at issue are not drafted in a way that would invoke 35 U.S.C. § 112 ¶ 6. Id. Plaintiff contends Defendants' argument that certain claims are means-plus-function claims is an attempt to inappropriately narrow the claims so that they do not apply to the accused laser range finder. Id.
Defendants argue Plaintiff chose unclear language that does not adequately define some claim terms. Defendants' Reply Memorandum in Support of Their Proposed Claim Construction and in Opposition to Plaintiff's Proposed Claim Construction and Cross-Motion for Summary Judgment (Defendants' Reply Memo), 7. Therefore, Defendants contend the Court must reference specifications in the patent to understand the claim language, thereby invoking 35 U.S.C. § 112, ¶ 6, and narrowing the meaning of some of the patent claims. Id. Defendants further argue that "the patent claims in suit are so limited in scope as to not extend to the accused Nikon/AOI laser range finder." Defendants' Reply Memo, 3.
Defendants state that there are three main concepts embodied in various combinations in the claims of the three patents-in-suit. Id. They are: "(a) a precision timing circuit for timing the time of flight of a laser pulse, (b) the assignment of pulse values to be used for enabling discriminating true return pulse from a noise pulse and (c) an automatic noise threshold adjustment to eliminate some noise pulse signals to enable the laser range finder to discriminate the return [pulses] from the noise pulses." Id.
Defendants argue that the accused Nikon/AOI laser range finder does not have any of the features claimed by Plaintiff because the device: "(a) does not have a timing circuit that clocks the flight time of a pulse, (b) ... does not automatically adjust the noise threshold to achieve a constant noise pulse firing rate, and does not adjust the noise threshold, (c) and ... does not assign any values or pulse values to any pulse signals." Defendants' Memorandum in Support of Their Proposed Claim Construction and Motion for Summary Judgment (Defendants' Memo), 3. Defendant argues that when the claims are properly construed their laser range finder is a different structure and practices a different method than those claimed in the patents-in-suit. Id.
Disputed Claim Language and Summary of Construed Claims
1) '779 patent, Claim 11: "assigning a pulse value for each of said reflected signal pulses with respect to said series of signal pulses transmitted to said target;"
Claim Construction: Pulse value means a value identifying time-of-flight data, including noise and signals reflected from the target, that provides information sufficient to permit correlation of the received signal with other received signals to determine which of the received signals represents the actual return or target-reflected signal, as opposed to random noise signals.
2) '779 patent, Claim 11: "comparing each of said assigned pulse values with other ones of said assigned pulse values"; "continuing to perform said comparing step until a predetermined *1141 number of said assigned pulse values coincide within a specific precision"; and "determining said actual return signal to be represented by said ... values."
Claim Construction: Comparison of pulse values-both noise and target-continually until a large enough number of pulse values is gathered that falls within a specific, limited degree of variation. The comparison is not necessarily an immediate one. The actual target signal represents the distance from range finder to target. It corresponds to the pulse values within that specified, limited degree of variation. The target signal is associated with the "matching" pulse values that correspond within the specified limit.
3) '779 patent, Claim 18: "a circuit for automatically adjusting a noise threshold of said laser light receiver to a level at which said laser light receiver produces an output from said noise light pulses having a constant pulse firing rate."
Claim Construction: A circuit consisting of a feedback loop composed in part of diode 316 that adjusts a noise threshold of a laser light receiver to a level at which a laser light receiver produces an output from noise light pulses having a constant pulse firing rate.
4) '779 patent, Claim 25: "A method for adjusting a noise threshold of said laser light receiver to a level at which said laser light receiver produces a noise light pulse output having a constant pulse firing rate."
Claim Construction: A method including a feedback loop composed in part of diode 316 for adjusting a noise threshold of a laser light receiver to obtain a constant pulse firing rate from the laser light receiver to a level at which said laser light receiver produces a noise light pulse output having a constant pulse firing rate.
5) '910 patent, Claim 8: "a precision timing section coupled to said laser transmit section and said laser receive section for determining a flight time of said laser pulses to said target and said reflected laser pulses from said target"; "based upon a flight time of a pulse"
Claim Construction: A precision timer coupled to the transmitter and receiver that determines a flight time of laser pulses reflected from a target. A separate clock or timer is not required.
6) '910 patent, Claim 8: "A central processor section ... for determining a range to said target derived from said flight time of said laser pulses to said target and said flight time of said reflected laser pulses from said target."
Claim Construction: A processor compares time-of-flight information stored in memory to locate the times-of-flight that occur with the greatest frequency, and uses the most frequent times-of-flight to determine a range to the target. Neither a specific microcomputer nor anything that puts received laser pulses in a "stack" is required.
7) '077 patent, Claim 1: "for input to a comparator circuit for providing an automatic noise threshold adjustment to said laser receiving section to facilitate discrimination between said returned laser pulses and said noise pulses"
Claim Construction: For input to a circuit that consists of a feedback loop composed in part of diode 316 for adjusting the noise threshold based on the noise environment in relation to reflected pulses received by the laser receiving section, before the noise signals are parsed out from the actual target signals. The circuit adjusts the noise threshold by comparing incoming pulse values with previously received pulse values to ascertain the noise environment.
*1142 8) '077 patent, Claim 1: "a central processing section coupled to said laser transmitting and receiving sections for determining a distance to said target based on a time of flight of said transmitted and returned laser pulses"
Claim Construction: A processor that determines a distance to the target using time-of-flight information from the received laser pulses.
Plaintiff's Assertions of Infringement
1) Defendants' device infringes on Claim 11 of the '779 patent by assigning pulse values to received signals and comparing the pulse values to discriminate between the target signal and random noise;
2) Defendants' device infringes on Claim 18 of the '779 patent because the noise threshold adjustment circuit in Defendants' device generates a constant noise pulse output;
3) Defendants' device infringes on Claim 25 of the '779 patent because the noise threshold adjustment circuit in Defendants' device generates a constant pulse firing rate;
4) Defendants' device infringes on Claim 8 of the '910 patent by using a precision timer for determining the time-of-flight of received laser pulses; and
5) Defendants' device infringes on Claim 1 of the '077 patent by including an automatic noise threshold adjustment circuit and a central processing section that determines distance to a target based on time-of-flight information.
Plaintiff's Memo, 1-2.
I. Summary of the Ruling
1) For '779 patent Claim 11, both cross-motions for summary judgment as to literal infringement and infringement by the doctrine of equivalents are DENIED.
2) For '779 patent Claim 18, DEFENDANT's cross-motion for summary judgment as to literal infringement is GRANTED. Both cross motions for summary judgment as to infringement by the doctrine of equivalents are DENIED.
3) For '779 patent Claim 25, DEFENDANT's cross-motion for summary judgment as to literal infringement is GRANTED. Both cross-motions for summary judgment as to infringement by the doctrine of equivalents are DENIED.
4) For '910 patent Claim 8, both cross-motions for summary judgment as to literal infringement and infringement by the doctrine of equivalents are DENIED.
5) For '077 patent Claim 1, DEFENDANT's cross-motion for summary judgment as to literal infringement of the first disputed claim language is GRANTED. Both cross-motions for summary judgment as to infringement by the doctrine of equivalents of the first disputed claim language are DENIED. Both cross-motions for summary judgment as to literal infringement and infringement by the doctrine of equivalents of the second disputed claim language are DENIED.
6) For all patents-in-suit, PLAINTIFF's cross-motion for summary judgment for patent validity is GRANTED.
II. Law
A. Claim Construction
1. Markman Analysis: Two-step Determination
Patent infringement requires a two-step analysis. CCS Fitness, Inc. v. Brunswick Corp., 288 F.3d 1359, 1365 (Fed.Cir.2002). See also, Johnson Worldwide Assocs. v. Zebco Corp., 175 F.3d 985, 988 (Fed.Cir.1999). First, I "must determine as a matter of law the correct scope *1143 and meaning of a disputed claim term." CCS Fitness at 1365; Lizardtech, Inc. v. Earth Resource Mapping, Inc., 35 Fed. Appx. 918, 923 (Fed.Cir.2002) (Claim terms may be "viewed in the context of the invention as a whole and through the lens of one skilled in the relevant art."); Hoganas AB v. Dresser Indus., Inc., 9 F.3d 948, 952 n. 15 (Fed.Cir.1993) (citing SmithKline Diagnostics, Inc. v. Helena Laboratories Corp., 859 F.2d 878, 882 (Fed.Cir.1988) ("[T]he claims should be construed as one skilled in the art would construe them.")). At the first stage, I construe the claims' meaning without reference to what is known as the "accused device." See Young Dental Mfg. Co. v. Q3 Special Prods., 112 F.3d 1137, 1141 (Fed.Cir.1997).
The "accused device" is the device, machine, or method that allegedly infringes the patents-in-suit. In interpreting a patent's claims, I first look to the intrinsic evidence of record, including the claims of the patent, the specification, and the prosecution history. See CCS Fitness at 1366 ("Claim interpretation begins with an examination of the intrinsic evidence, i.e., the claims, the rest of the specification and, if in evidence, the prosecution history."); Gart v. Logitech, Inc., 254 F.3d 1334, 1339-40 (Fed.Cir.2001). A patent claim is "an assertion of what the invention purports to accomplish [that] define[s] the invention and the extent of the grant." BLACK'S LAW DICTIONARY 169 (6th ed.1991). A patent specification is "a particular or detailed statement, account, description, or listing of the various elements, materials, dimensions, etc. involved" in the patent. Id. at 973. The prosecution history is the account of every step in the process to obtain a United States patent. See id. at 849.
Intrinsic evidence is "the most significant source of the legally operative meaning of disputed claim language." Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1582 (Fed.Cir.1996). Only if the intrinsic evidence is ambiguous in delineating the scope of the patent should I resort to extrinsic evidence. See Phillips Petroleum Co. v. Huntsman Polymers Corp., 157 F.3d 866, 870 (Fed.Cir.1998).
Second, I must compare "the properly construed claims to the accused device, to see whether that device contains all the limitations, either literally or by equivalents, in the claimed invention." CCS Fitness, Inc., 288 F.3d at 1365. See also, Johnson Worldwide, 175 F.3d at 988. Although generally a question of fact, "[t]he litigants frequently do not dispute the structure of the accused device, meaning the infringement analysis often turns on the interpretation of the claims alone." CCS Fitness at 1365.
In step one, I start with the language of the claims themselves. There is a "heavy presumption that a claim term carries its ordinary and customary meaning." Id. at 1366 (internal citations omitted). See also, Johnson Worldwide at 989. Also, "[a] word or phrase used consistently throughout the patent claims should be interpreted consistently." Epcon Gas Sys., Inc. v. Bauer Compressors, Inc., 279 F.3d 1022, 1030 (Fed.Cir.2002). If a claim "recites a general structure without limiting that structure to a specific subset of structures, [I] will generally construe the term to cover all known types of that structure that the patent disclosure supports." CCS Fitness at 1366 (internal citations omitted) (citing Renishaw PLC v. Marposs Societa' per Azioni, 158 F.3d 1243, 1250 (Fed.Cir.1998)). I may use dictionary definitions to establish a claim term's ordinary meaning. See CCS Fitness at 1366. See also, Rexnord Corp. v. Laitram Corp., 274 F.3d 1336, 1344 (Fed. Cir.2001).
A patentee need not "describe in the specification every conceivable and *1144 possible future embodiment of his invention." CCS Fitness at 1366. But a claim "may not be construed [by the patentee] one way in order to obtain [its] allowance [approval from the U.S. Patent and Trademark Office] and in a different way against accused infringers." Spectrum Int'l v. Sterilite Corp., 164 F.3d 1372, 1379 (Fed. Cir.1998) (internal citations omitted).
An accused infringer may overcome the heavy presumption that the claim terms embody their ordinary meaning, and attempt to narrow the meaning of the terms, although he "cannot do so simply by pointing to the preferred embodiment or other structures or steps disclosed in the specification or prosecution history." CCS Fitness, Inc., 288 F.3d at 1366. See also, Johnson Worldwide, 175 F.3d at 989-90, 992. Instead, it may attempt to convince the Court that the claims' terms should be narrowed in one or more of four different ways. First, "the claim term will not receive its ordinary meaning if the patentee acted as his own lexicographer and clearly set forth a definition of the disputed claim term in either the specification or prosecution history." Id. Second, "a claim term will not carry its ordinary meaning if the intrinsic evidence shows that the patentee distinguished that term from prior art on the basis of a particular embodiment, expressly disclaimed subject matter, or described a particular embodiment as important to the invention." CCS Fitness at 1366-67. Third, "a claim term also will not have its ordinary meaning if the term chosen by the patentee so deprive[s] the claim of clarity as to require resort to the other intrinsic evidence for a definite meaning." Id. See also, Johnson Worldwide at 990. Other intrinsic evidence includes the specification and prosecution history.
Finally, "as a matter of statutory authority, a claim term will cover nothing more than the corresponding structure or step disclosed in the specification, as well as equivalents thereto, if the patentee phrased the claim in ... means-plus-function format." CCS Fitness at 1367 (citing 35 U.S.C. § 112 ¶ 6 (2001)). See also, Watts v. XL Sys., 232 F.3d 877, 880-81 (Fed.Cir.2000) (construing § 112 ¶ 6). A claim written in means-plus-function format describes a function but does not describe the structure or materials for performing that function. Therefore, one must turn to the patent specification for performance instruction. I must read the claims in the context of the specification, which includes a written description of the invention that must be clear and complete enough to allow those of ordinary skill in the art to make and use the patented method or device. See Vitronics, 90 F.3d at 1582.
"The specification is always highly relevant to the claim construction analysis. Usually, it is dispositive; it is the single best guide to the meaning of a disputed term." Id. See also, Multiform Desiccants, Inc. v. Medzam Ltd., 133 F.3d 1473, 1478 (Fed.Cir.1998) ("The best source for understanding a technical term is the specification from which it arose, informed, as needed, by the prosecution history.").
The claims are always construed in light of the specification, of which they are a part. The role of the specification includes presenting a description of the technologic subject matter of the invention, while the role of claims is to point out with particularity the subject matter that is patented. The claims are directed to the invention that is described in the specification; they do not have meaning removed from the context from which they arose. Thus the claims are construed to state the legal scope of each patented invention, on examination of the language of the claims, the description *1145 in the specification, and the prosecution history.
Netword, LLC v. Centraal Corp., 242 F.3d 1347, 1352 (Fed.Cir.2001) (internal citations omitted). Two fundamental rules of claim construction assist reading claims in light of the specification:
(a) one may not read a limitation into a claim from the written description, but (b) one may look to the written description to define a term already in a claim limitation, for a claim must be read in view of the specification of which it is a part. These two rules lay out the general relationship between the claims and the written description.
Renishaw, 158 F.3d at 1248. The specification can also define claim terms either expressly or by implication. Vitronics, 90 F.3d at 1582 ("The specification acts as a dictionary when it expressly defines terms used in the claims or when it defines terms by implication.").
Reference to prosecution history further informs understanding of the meaning of disputed claim language. See Biodex Corp. v. Loredan Biomedical, Inc., 946 F.2d 850, 862 (Fed.Cir.1991). For example, a patentee may disclaim certain interpretations of claim language to avoid replicating prior art. See id. at 863; Builders Concrete, Inc. v. Bremerton Concrete Products Co., 757 F.2d 255, 260 (Fed.Cir. 1985) ("[T]he prosecution history of all claims is not insulated from review in connection with determining the fair scope of [a] claim.... To hold otherwise would be to exalt form over substance and distort the logic of this jurisprudence, which serves as an effective and useful guide to the understanding of patent claims.").
After gleaning as much information as I can from the intrinsic evidence, I may rely on extrinsic evidence to correctly interpret the true meaning of the patent's language. See CCS Fitness, Inc., 288 F.3d at 1366 ("Courts may also use extrinsic evidence (e.g., expert testimony, treatises) to resolve the scope and meaning of a claim term."). I will only consider extrinsic evidence when intrinsic evidence fails to sufficiently describe the claim's scope. Vitronics Corp., 90 F.3d at 1583. The type of extrinsic evidence I may consider and the extent of its use are limited. Extrinsic evidence regarding the proper construction of claim terms is permissible only when "the patent documents, taken as a whole, are insufficient to enable the court to construe disputed claim terms." Id. at 1585. I begin with the language of the claims, specification, and prosecution history and will only resort to extrinsic evidence if the disputed claim terms are not clear in that context. Id. at 1584. In this case I need not refer to extrinsic evidence to construe the disputed claim language.
2. Means-plus-function Construction
Whether a claim is written in means-plus-function format is a question of law. Personalized Media Communs., LLC v. ITC, 161 F.3d 696, 702 (Fed.Cir. 1998). Some claim limitations portray a function to be executed, but provide no instruction as to the structure or materials for executing that function. Such means-plus-function claims are construed pursuant to 35 U.S.C. § 112 ¶ 6:
An element in a claim for a combination [where the claim encompasses two or more elements combined to work together] may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
35 U.S.C. § 112 ¶ 6 (2001). So, "§ 112 ¶ 6 operates to restrict claim limitations drafted in such functional language to those *1146 structures, materials or acts disclosed in the specification (and their equivalents) that perform the claimed function." Personalized Media Communs., 161 F.3d at 703. See also, CIVIX-DDI, LLC v. Microsoft Corp., 84 F.Supp.2d 1132, 1141 (D.Colo.2000) (quoting Data Line Corp. v. Micro Technologies, Inc., 813 F.2d 1196, 1201 (Fed.Cir.1987) ("`[W]here a claim sets forth a means for performing a specified function, without reciting any specified structure for performing that function, the structure disclosed in the specification must be considered, and the patent claim construed to cover both the disclosed structure and the equivalents thereof.'")).
Moreover, "use of the word `means' [in the claim language] creates a presumption that § 112 ¶ 6 applies ... and that the failure to use the word `means' creates a presumption that § 112 ¶ 6 does not apply." Personalized Media Communs. at 703-04. A party may rebut these presumptions using intrinsic and extrinsic evidence. "In deciding whether [the] presumption has been rebutted, the focus remains on whether the claim as properly construed recites sufficiently definite structure to avoid the ambit of § 112 ¶ 6." Id. at 704. Specifically, a party may rebut the presumption that § 112 ¶ 6 does not apply by "demonstrat[ing] that the claim term fails to recite sufficiently definite structure or else recites a function without reciting sufficient structure for performing that function." CCS Fitness, Inc., 288 F.3d at 1369. To assist my analysis, I examine whether the claim term has an understood meaning in the art. Id.
If the claim embodies means-plus-function language, I then determine the structure(s) identified in the specification that perform(s) that function. "The applicant must describe in the patent specification some structure which performs the specified function.... [A] court must construe the functional claim language `to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.'" Valmont Industries, Inc. v. Reinke Mfg. Co., 983 F.2d 1039, 1042 (citing 35 U.S.C. § 112 ¶ 6 (2001)). However, a claim term can avoid application of § 112 ¶ 6 even if it does not describe a precise physical structure if it describes structural components sufficient for performing the function. CCS Fitness at 1370.
The Federal Circuit applied the § 112 ¶ 6 standards in Personalized Media Communs. It reversed the International Trade Commission's conclusion that the claim phrase "digital detector" was a means-plus-function limitation subject to § 112 ¶ 6:
"[D]etector" had a well-known meaning to those of skill in the electrical art connotative of structure, including a rectifier or demodulator.... Moreover, neither the fact that a "detector" is defined in terms of its function, nor the fact that the term "detector" does not connote a precise physical structure in the minds of those of skill in the art detracts from the definiteness of the structure. Even though the term "detector" does not specifically evoke a particular structure, it does convey to one knowledgeable in the art a variety of structures known as "detectors." We therefore conclude that the term "detector" is a sufficiently definite structural term to preclude the application of § 112 ¶ 6.
Personalized Media Communs., 161 F.3d at 705-06.
B. Summary Judgment
The very purpose of a summary judgment motion is to assess whether trial is necessary. White v. York Int'l Corp., 45 F.3d 357, 360 (10th Cir.1995). Summary judgment is appropriate in patent cases as it is in any other case. Becton *1147 Dickinson & Co. v. C.R. Bard, Inc., 922 F.2d 792, 795-96 (Fed.Cir.1990). Pursuant to Fed.R.Civ.P. 56, I shall grant summary judgment if the pleadings, depositions, answers to interrogatories, admissions, or affidavits show that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). The non-moving party has the burden of showing that there are issues of material fact to be determined. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). A party seeking summary judgment bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the pleadings, depositions, interrogatories, and admissions on file together with affidavits, if any, which it believes demonstrate the absence of genuine issues for trial. See Celotex at 323, 106 S.Ct. 2548; Mares v. ConAgra Poultry Co., 971 F.2d 492, 494 (10th Cir.1992). Once a properly supported summary judgment motion is made, the opposing party may not rest on the allegations contained in his complaint, but must respond with specific facts showing the existence of a genuine factual issue to be tried. See Otteson v. United States, 622 F.2d 516, 519 (10th Cir.1980); Fed. R.Civ.P. 56(e). These specific facts may be shown "by any of the kinds of evidentiary materials listed in Rule 56(c), except the pleadings themselves." Celotex, 477 U.S. at 324, 106 S.Ct. 2548.
If a reasonable juror could not return a verdict for the non-moving party, summary judgment is proper and there is no need for a trial. Id. at 323, 106 S.Ct. 2548. The operative inquiry is whether, based on all documents submitted, reasonable jurors could find by a preponderance of the evidence that the plaintiff is entitled to a verdict. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). However, I should not enter summary judgment if, viewing the evidence in a light most favorable to the nonmoving party and drawing all reasonable inferences in that party's favor, a reasonable jury could return a verdict for that party. Anderson at 252, 106 S.Ct. 2505; Mares, 971 F.2d at 494. Where, as here, the parties file cross-motions for summary judgment, I assume that no evidence need be considered other than that filed by the parties. "When both parties move for summary judgment, each party's motion must be evaluated on its own merits and all reasonable inferences must be resolved against the party whose motion is under consideration." McKay v. United States, 199 F.3d 1376, 1380 (Fed.Cir.1999).
"To support a summary judgment of noninfringement it must be shown that, on the correct claim construction, no reasonable jury could have found infringement on the undisputed facts or when all reasonable factual inferences are drawn in favor of the patentee." Netword, LLC v. Centraal Corp., 242 F.3d 1347, 1353 (Fed. Cir.2001). See also, Anderson at 248, 106 S.Ct. 2505 ("[A dispute is genuine] if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.").
C. Summary Judgment Related to Infringement
1. Markman Construction and Infringement Analysis
As discussed above, I first determine the scope of the claims of the patents-in-suit. Markman v. Westview Instruments, 517 U.S. 370, 384, 116 S.Ct. 1384, 134 L.Ed.2d 577 (1996). This is a matter of law. Id. Second, I apply the properly construed claims to the accused device. Pitney Bowes, Inc. v. Hewlett-Packard Co., 182 F.3d 1298, 1304 (Fed.Cir.1999). "Thus, summary judgment of non-infringement can only be granted if, after viewing the alleged facts in the light most favorable to *1148 the non-movant, there is no genuine issue whether the accused device is encompassed by the claims." Id. If the parties do not dispute relevant facts regarding the accused product, summary judgment may be appropriate. Johnson Worldwide, 175 F.3d at 988-89.
If the parties disagree over the possible claim interpretations but not the accused device, the Markman analysis resolves the disagreements because at this point there are no genuine issues of material fact left that would preclude summary judgment. See Johnson Worldwide at 988-89. Therefore, if the parties do not dispute the relevant aspects of the accused device's structure and function, summary judgment may enter based only on claim construction. Hence, I may decide the infringement question as a matter of law if no genuine issues of material fact exist, expert testimony is not required to explain the patents-in-suit or the accused device, and a claim or claims read(s) on the accused device. Amhil Enters. v. Wawa, Inc., 81 F.3d 1554, 1557-58 (Fed.Cir.1996). As will be discussed, here significant disputes exist concerning relevant aspects of the accused device.
2. Infringement
A patent owner must prove either "literal" infringement or infringement under the "doctrine of equivalents" by a preponderance of the evidence. See Under Sea Industries, Inc. v. Dacor Corp., 833 F.2d 1551, 1557 (Fed.Cir.1987). To infringe a claim literally, the accused device must incorporate every limitation in a valid claim exactly. See Zodiac Pool Care, Inc. v. Hoffinger Indus., 206 F.3d 1408, 1415 (Fed.Cir.2000) (emphasis added). To infringe a claim under the doctrine of equivalents, the accused device must incorporate every limitation in a valid claim by a substantial equivalent. Id.
a. Literal Infringement
I begin by comparing each limitation in every disputed claim with the accused device to discover if the limitations are present in the accused device. See Pennwalt Corp. v. Durand-Wayland, Inc., 833 F.2d 931, 935 (Fed.Cir.1987) (en banc), cert. denied, 485 U.S. 961, 108 S.Ct. 1226, 99 L.Ed.2d 426 (1988) (overruled on other grounds). The question whether a properly construed claim corresponds or "reads on" the accused device is generally one of fact. See General Mills, Inc. v. Hunt-Wesson, Inc., 103 F.3d 978, 980-981 (Fed. Cir.1997).
b. Infringement by the Doctrine of Equivalents
If every claim limitation is not present in the accused device so that the device literally infringes upon the patent, I turn to the doctrine of equivalents. The doctrine holds that if part of the accused device performs substantially the same function in substantially the same way to achieve substantially the same result as an element or limitation of the claimed device, then that part of the accused device is considered equivalent. See Warner-Jenkinson Co. v. Hilton Davis Chem. Co., 520 U.S. 17, 39, 117 S.Ct. 1040, 137 L.Ed.2d 146 (1997); Graver Tank & Mfg. Co. v. Linde Air Products Co., 339 U.S. 605, 609, 70 S.Ct. 854, 94 L.Ed. 1097 (1950). This is called the "function-way-result" test. Alpex Computer Corp. v. Nintendo Co., 102 F.3d 1214, 1222 (Fed.Cir.1996), cert. denied, 521 U.S. 1104, 117 S.Ct. 2480, 138 L.Ed.2d 989 (1997). Under this doctrine, I analyze each claim limitation literally missing from the accused device to determine whether the accused device contains the equivalent of that claim limitation. See Warner-Jenkinson at 21, 117 S.Ct. 1040. Where the differences between the claim limitation and the accused device are insubstantial, *1149 equivalence exists. Id. at 36, 39-40, 117 S.Ct. 1040. Finally, the analysis proceeds on a limitation-by-limitation (element-by-element) basis, rather than comparing the claim as a whole to the accused device. Id. at 40, 117 S.Ct. 1040.
If the challenging party shows that a person skilled in the art knows that a claimed feature and an accused feature are interchangeable, that is strong evidence of insubstantial differences. Id. at 37, 117 S.Ct. 1040. The question is not whether the structures serve the same function. Rather, the question is whether it was known that one structure is the equivalent of the other. Chiuminatta Concrete Concepts, Inc. v. Cardinal Indus., 145 F.3d 1303, 1310 (Fed.Cir.1998). "An important factor is whether persons reasonably skilled in the art would have known of the interchangeability of an ingredient not contained in the patent with one that was." Id. (quoting Graver Tank & Mfg. Co., 339 U.S. at 609, 70 S.Ct. 854). Infringement by the doctrine of equivalents appears to me to be more fact-intensive than literal infringement.
3. Infringement of Claims Construed under § 112 ¶ 6 Means-Plus-Function Format
Infringement occurs under the § 112 ¶ 6 means-plus-function format if the relevant structure in the accused device performs the identical function recited by the claim, and the relevant structure is identical or equivalent to the corresponding structure in the specification. Odetics, Inc. v. Storage Tech. Corp., 185 F.3d 1259, 1267 (Fed.Cir.1999). Thus, I look to whether a claim limitation written in § 112 ¶ 6 form is met literally or equivalently, like all other claims. For an accused structure to literally infringe a § 112 ¶ 6 means-plus-function claim limitation, the accused structure must be either the same as the claimed structure or a § 112 ¶ 6 "equivalent." See id. at 1267. A § 112 ¶ 6 "equivalent" performs the identical function and is insubstantially structurally different than that proffered by the claim limitation. Id.
Section 112 ¶ 6 structural equivalence is "an application of the doctrine of equivalents ... in a restrictive role, narrowing the application of broad literal claim elements." Warner-Jenkinson Co., 520 U.S. at 28, 117 S.Ct. 1040. Thus, the § 112 ¶ 6 test and the doctrine-of-equivalents test are similar approaches to the notion of insubstantial change. See Chiuminatta, 145 F.3d at 1310.
The most important difference between the two tests is that § 112 ¶ 6 equivalence requires functional identity. The function of the asserted substitute must be shown before I reach the equivalence analysis. See 35 U.S.C. § 112 ¶ 6 (2001); Chiuminatta, 145 F.3d at 1308. It follows then that I may apply § 112 ¶ 6's identical function requirement to the doctrine of equivalents analysis. Two structures may be equivalent pursuant to § 112 ¶ 6 if they perform the identical (rather than substantially the same) function in substantially the same way to produce substantially the same result. See Warner-Jenkinson at 39, 117 S.Ct. 1040; Graver Tank at 609, 70 S.Ct. 854. Simply put, I replace "substantially the same function" with "identical function," then apply the doctrine-of-equivalents analysis in light of this modified rule.
4. Invalidity for Indefiniteness
United States patents are presumed valid. United States v. Telectronics, Inc., 857 F.2d 778, 785 (Fed.Cir.1988). Invalidity is a question of law. Exxon Research & Eng'g Co. v. United States, 265 F.3d 1371, 1376 (Fed.Cir.2001). To rebut the presumption of validity, a defendant must establish by clear and convincing *1150 evidence that the patent is invalid. Telectronics at 785. The presumption of validity applies to all of the statutory requirements for patent validity, including those of § 112 ¶ 6. Id. If as a matter of law, the evidence of record is insufficient to show clearly and convincingly patent invalidity, summary judgment may enter on the validity question. Transmatic, Inc. v. Gulton Indus., 53 F.3d 1270, 1274-75 (Fed.Cir.1995).
Two provisions of 35 U.S.C. § 112 provide standards for patent validity. Pursuant to § 112 ¶ 1, patents must meet both a description requirement so that one may identify the invention possessed by the patentee, and an enabling requirement so that one can build the invention. If a patent specification describes the claimed invention with enough detail so that one skilled in the art can reasonably conclude the inventor possessed the claimed invention, that satisfies the "description requirement" of the statute. See Vas-Cath, Inc. v. Mahurkar, 935 F.2d 1555, 1560-63 (Fed.Cir.1991). If a patent specification describes the claimed invention so that one skilled in the art can make and use the device without unduly extensive experimentation, that also satisfies the "enabling requirement" of § 112 ¶ 1. See Telectronics at 785.
Section 112 ¶ 2 requires patent claims to particularly define the subject that the applicant regards as his invention. Section 112 ¶ 2's definiteness requirement is met if those skilled in the art understand the scope of the invention after reading the claim in light of the patent specification. Orthokinetics, Inc. v. Safety Travel Chairs, Inc., 806 F.2d 1565, 1576 (Fed.Cir.1986). "As has been noted in the context of definiteness, the inquiry under section 112, paragraph 2, now focuses on whether the claims, as interpreted in view of the written description, adequately perform their function of notifying the public of the [scope of the] patentee's right to exclude." Solomon v. Kimberly-Clark Corp., 216 F.3d 1372, 1379 (Fed.Cir.2000). But if the claims are so ambiguous that a person of ordinary skill in the art cannot determine their scope, the claims are invalid for indefiniteness. See Exxon, 265 F.3d at 1375.
Again, claims construed pursuant to § 112 ¶ 6 must comply with the first and second paragraphs of 35 U.S.C. § 112. See In re Donaldson Co., 16 F.3d 1189, 1195 (Fed.Cir.1994). If a claim is in § 112 ¶ 6 format, I must interpret it to cover the corresponding structure, acts, or materials and their equivalents in the specification. See 35 U.S.C. § 112 ¶ 6; B. Braun Medical v. Abbott Lab., 124 F.3d 1419, 1424 (Fed.Cir.1997).
Although [35 U.S.C. § 112 ¶ 6] statutorily provides that one may use means-plus-function language in a claim, one is still subject to the requirement that a claim `particularly point out and distinctly claim' the invention. Therefore, if one employs means-plus-function language in a claim, one must set forth in the specification an adequate disclosure showing what is meant by that language. If an applicant fails to set forth an adequate disclosure, the applicant has in effect failed to particularly point out and distinctly claim the invention as required by [35 U.S.C. § 112 ¶ 2].
In re Donaldson Co., 16 F.3d at 1195.
III. DISCUSSION
A. Five Independent Claims for Construction
'779 Claim 11
Disputed Claim Language
"assigning a pulse value for each of said reflected signal pulses with respect to said *1151 series of signal pulses transmitted to said target;"
Analysis
Plaintiff argues that the claim term "pulse value" should be construed according to its plain meaning. Plaintiff's Memo, 3. The plain meaning, according to Plaintiff, would require "assigning a pulse value to reflected signal pulses received in the receiving section of the laser range finder." Id. "Pulse value" would mean "a value that provides information sufficient to permit correlation of the received signal with other received signals to determine which of the received signals represents the actual return-reflected signals, as opposed to noise signals." Id.
This claim language does not define "pulse value." What is clear from the claim language, however, is that each reflected signal pulse is assigned a pulse value, whatever its definition may be. There is one "pulse value" for each of "said reflected signal pulses."
The '779 patent specification sheds light on the term "signal pulses" as related to "pulse value." It reads: "The system includes means responsive to the central processing section for determining a desired signal-to-noise ratio for a series of possible signal pulses, including both noise and actual signal pulses received through the signal receiving section. The possible signal pulses each have a representative pulse value with respect to a pulse previously transmitted from the signal transmitting device." '799 Patent, col. 2, lines 22-29 (emphasis added). From this, I conclude that the term "signal pulses" covers both noise and actual pulses, which fall into the category of "possible" signal pulses. Further, I conclude that each signal pulse, including both noise and actual pulses, has an associated pulse value.
Other sections of the '779 specification support my conclusions. The device must arrange all of the "possible signal values" before the "predetermined number of them coincide within a specified precision." Id. at col. 2, 30-32. Then, "the value of one or more of the predetermined number of the possible signal values is ... considered to be representative of the actual return signal." Id. at col. 2, 32-35. The specification then states "a method for discriminating between an actual return signal and associated noise ... [which] comprises the steps of transmitting a series of signal pulses to a target and receiving a number of possible reflected signal pulses therefrom with the possible reflected signal pulses including both noise and actual signal pulses." Id. at col. 2, 55-62.
So, the "possible" signal values consist of both noise and target signals, because the device could not parse out the noise values before receiving all possible values, consisting of both noise and those values "representative of the actual return signal." That the target signal is the "actual" return signal is buttressed by the statement that pulses are transmitted to the target, with possible reflected signals including both noise and actual signal pulses. I conclude that this statement also clarifies that both noise and actual signal pulses are reflected signal pulses.
I agree with Plaintiff that "pulse value should be construed to mean a value that provides information sufficient to permit correlation of the received signal with other received signals to determine which of the received signals represents the actual return-reflected signal, as opposed to random noise signals." Plaintiff's Reply Memo, 3.
I reject Defendants' contention that a pulse value should only refer to "reflected" signals but not "noise" signals. Defendants' Reply Memo, 12. See also, Defendants' Memo, 26 (Defendants argue that "pulse value" is undefined). The '779 patent *1152 specification reads, "the possible reflected signal pulses includ[e] both noise and actual signal pulses." '779 patent, col. 2, lines 61-62. The specification further reads: "The system includes means responsive to the central processing section for determining a desired signal-to-noise ratio for a series of possible signal pulses, including both noise and actual pulses received through the signal receiving section. The possible signal pulses each have a representative pulse value with respect to a pulse previously transmitted from the signal transmitting device." Id. at col. 2, lines 22-29.
The '779 patent specification clearly acknowledges that the possible signal pulses include both noise and actual signals. Indeed, even I, a layperson, understand that in order to determine whether a signal is one reflected from the target here, the "actual" signals or reflected from other light-reflecting surfaces here, "noise" signals, there must be a way to identify them so that they may be separated from one another in the process of target discrimination.
Finally, Defendants argue that "pulse value" itself lacks clear meaning. Defendants' Memo, 28-30; Defendants' Reply Memo, 12. Although Defendants point to deposition testimony as support for their contention, see id., they need not go so far. Neither in the plain language of Claim 11 nor in the patent specification is there clear indication of what "pulse value" means. But Defendants assume, and virtually conceded at oral argument, that "the pulse value assigned is a time of flight," contending "... this is not done by the Nikon/AOI laser range finder." Id.
In any event, construing "pulse value" to mean "time of flight" makes the most sense. As Plaintiff argues, "[t]he claim term pulse value should be construed to mean a value that provides information sufficient to permit correlation of the received signal with other received signals to determine which of the received signals represents the actual return-reflected signal, as opposed to random noise signals. ... Indeed, why else would one assign a value to a pulse for the purpose of target discrimination other than to assist in the discrimination process?" Plaintiff's Memo, 3 (citing McAlexander Decl. ¶¶ 18-19). Discounting the parties' "battle of experts" over the meaning of "pulse value," I construe "pulse value" to identify time-of-flight data.
CONSTRUCTION: Pulse value should be construed to mean a value identifying time-of-flight data, including noise and signals reflected from the target, that provides information sufficient to permit correlation of the received signal with other received signals to determine which of the received signals represents the actual return or target-reflected signal, as opposed to random noise signals.
Disputed Claim Language
"comparing each of said assigned pulse values with other ones of said assigned pulse values"; "continuing to perform said comparing step until a predetermined number of said assigned pulse values coincide within a specific precision"; and "determining said actual return signal to be represented by said ... values."
Analysis
Plaintiff argues that the these claim elements should be construed according to their plain meaning "to require comparing pulse values until a predetermined number of the pulse values coincide within a specified precision and determining the target signal to be the signal associated with a desired threshold of matching pulse values (as opposed to the random pulse values associated with noise signals)." Plaintiff's Reply Memo, 7. Plaintiff contends that this construction is supported *1153 by the '779 patent specification. I agree. "The specification is always highly relevant to the claim construction analysis. Usually, it is dispositive; it is the single best guide to the meaning of a disputed term." Johnson Worldwide, 175 F.3d at 990.
Given the patent specification language referenced above ('779 patent specification, col. 2, lines 22-29, 30-35, 50-62), I conclude that pulse values are assigned to both noise and actual pulses. Therefore, when each pulse value is compared with every other pulse value, logical relationships result. Noise pulse values are compared with other noise pulse values. Noise pulse values are compared with actual, or target pulse values. Actual, target pulse values are compared with other actual pulse values.
Accordingly, the plain language of the claim elicits the following construction. The device compares pulse values continually until a large enough sample of pulse values is gathered that falls within a specific, limited degree of variation. The actual target signal (representing the distance from range finder to target) corresponds to the pulse values within that specified, limited degree of variation. Therefore, I agree with Plaintiff that the target signal is associated with the "matching" pulse values that correspond within the specified limit.
This claim interpretation is consistent with the '779 patent specification. "A representative pulse value is assigned for each of the possible reflected signal pulses with respect to the series of signal pulses transmitted to the target and each of the representative pulse values is compared with other ones of the representative pulse values. Each of the representative pulse values [is] compared until any predetermined number of the representative pulse values coincide within a specified precision and the actual return signal is determined to be represented by the predetermined number of the representative pulse values. ..." '799 patent, col. 2, lines 62-67, col. 3, lines 1-4.
The nature of the claimed invention further supports my reading. Because the range finder emits multiple pulses of laser light, it receives multiple return signals. The device must sort them out and decide which of them are actual target signals. Assigning pulse values to each signal gives the machine "handles" with which to identify each signal for later grouping. When a group of very similar values grows to a large enough number within a user-specified range of pulse values, the device defines this group as representative of the target.
This makes sense. If the target is a certain, specific distance from the range finder, laser pulses emitted from the range finder will travel that same, specific distance to the target, and return that same, specific distance to the range finder. Variations in the topography of the target surface might cause slight variations in the target, or actual, signal travel distance. These subtle variations would seem to be of much smaller magnitude than random variations in signals reflected from noise-creating objects like dust or water droplets in the air that could be any distances from the range finder. Therefore, pulse values indicative of the target should be similar.
Defendants argue that "the element of the claim `comparing each of said assigned pulse values with other ones of said assigned pulse values' ... should be construed [so] each newly arrived pulse is assigned a pulse value that ... is immediately compared at the time of arrival with previously stored pulses"; and "each newly arrived representative pulse value [is] compared with all previously assigned representative pulse values at the time the newly arrived pulse value [sic] is assigned *1154 its pulse value, and not at the end of the pulse transmission, pulse collection and pulse storage process." Defendants' Reply Memo, 10. I disagree. I "may not add a narrowing modifier before an otherwise general claim term that stands unmodified in a claim." CCS Fitness, Inc., 288 F.3d at 1365-68. While Claim 11 of the '779 patent recites the term "comparing," it says nothing about comparing immediately as Defendants suggest. And, nothing in the '779 patent specification or other intrinsic evidence supports the conclusion that comparisons must happen immediately instead of at the end of the pulse transmission, collection, and storage process.
At first, Defendants argued that Claim 11 does not instruct a person of ordinary skill in the art how to compare pulse values. Defendants' Memo, 29-30. Defendants argued that the claim element merely states the function of comparing. Id. Now, Defendants seem to acknowledge that the comparison requires discrimination "between actual returned reflected signals and noise signals." Defendants' Reply Memo, 9. Still, Defendants argue that the proper way to construe this claim language is to require "assigning pulse values for the laser pulses transmitted and the actual reflected pulses received (but not for noise pulses), comparing pulse values for a match and then halting the comparing upon finding a match to a selected precision." Defendants' Memo, 33. See also, Defendants' Reply Memo, 12 (arguing that Claim 11 requires "assigning pulse values to the return pulse (and not the noise pulses) and comparing each incoming pulse with previously recorded pluses").
I agree that actual reflected pulses receive pulse values. I disagree, however, that Claim 11 limits pulse values to actual-or target-reflected pulses. As Defendants acknowledge, without differentiating between noise and actual pulses, it would be impossible for the device to separate the wheat (the actual, target pulses) from the chaff (the noise). See id. As I have said, both noise and target pulses receive pulse values under Claim 11.
CONSTRUCTION: Comparison of pulse values-both noise and target-continually until a large enough number of pulse values is gathered that falls within a specific, limited degree of variation. The comparison is not necessarily an immediate one. The actual target signal represents the distance from range finder to target. It corresponds to the pulse values within that specified, limited degree of variation. The target signal is associated with the "matching" pulse values that correspond within the specified limit.
'779 Claim 18
Disputed Claim Language
"a circuit for automatically adjusting a noise threshold of said laser light receiver to a level at which said laser light receiver produces an output from said noise light pulses having a constant pulse firing rate."
Analysis
Defendants argue I should construe this claim element in means-plus-function format pursuant to § 112 ¶ 6. Defendants' Memo, 35. I agree. Means-plus-function formatting applies to claim limitations that portray a function to be executed, but provide no instruction as to the structure or materials for executing that function. See CCS Fitness, Inc., 288 F.3d at 1369-70. Because I conclude that this claim element is in that format, I go to the specification to understand the "means" for performing the function embodied by the claim.
The second element of Claim 18 is not written in means-plus-function format, typified by the use of the word "means." *1155 Personalized Media Communs., 161 F.3d at 703-704 (citations omitted). Therefore, there is a rebuttable presumption that the element should not be construed according to means-plus-function format. Id. Defendants may rebut the presumption that § 112 ¶ 6 does not apply by "demonstrat[ing] that the claim term fails to recite sufficiently definite structure or else recites a function without reciting sufficient structure for performing that function." CCS Fitness, Inc., 288 F.3d at 1369. Also, "[i]n deciding whether [the] presumption has been rebutted, the focus remains on whether the claim as properly construed recites sufficiently definite structure to avoid the ambit of § 112 ¶ 6." Personalized Media Communs., 161 F.3d at 704. To determine whether the claim term recites sufficient structure, I may examine whether the claim term has an understood meaning in the art. See CCS Fitness at 1369.
Defendants argue that "circuit" does not have a definite meaning. Defendants' Reply Memo, 20. They cite a Southern District of New York case in which "use of the words `circuit,' `interface' and `units' were means-plus-function claims even though the customary terms `means' or `means for' were not used." Id. (citing Apex, Inc. v. Raritan Computer, Inc., 187 F.Supp.2d 141 (S.D.N.Y.2002)). That court concluded that the term "circuit" is "so generic that by itself it conveys no structure at all." Id. at 158 (citations omitted).
In 1998, the Federal Circuit decided that a very similar claim element was not in means-plus-function format. The Court held that "video delay circuit" was not limited to the preferred embodiment in the patent specification. Comark Communs. v. Harris Corp., 156 F.3d 1182 (Fed.Cir. 1998). Other district courts are in accord. See CellNet Data Sys. v. Itron, Inc., 17 F.Supp.2d 1100 (N.D.Cal.1998) (The Northern District of California held that "circuit means for recording energy use" was not a means-plus-function claim because one of ordinary skill in the art would understand the claim element as a structural limitation.); Intel Corp. v. Broadcom Corp., 172 F.Supp.2d 478, 515 (D.Del.2001) (The District of Delaware ruled that "I/O circuitry ... for providing processed video signal to said I/O port ..." was not in means-plus-function format because it could be reasonably understood by one skilled in the art.).
In all three of those cases, the word "circuit" is modified in a way that sufficiently narrows its meaning so one skilled in the art may understand it. "Video delay circuit," Comark at 1182, is a phrase in which "video" and "delay" significantly modify "circuit" so that the term is clearly not just any of millions of circuits in existence. Similarly, "circuit means for recording energy use," CellNet Data Systems at 1100, can only be understood when the words "for recording energy use" appear. If they did not, circuit would exist in a vacuum. Moreover, the word "circuitry" in "I/O circuitry ... for providing processed video signal to said I/O port," Broadcom at 515, can only be understood in light of "I/O" and "for ... port." Otherwise, "circuitry" lies naked in the claim.
In Claim 18, "circuit" similarly is modified by its companion terms in a way that gives it meaning. Without "for automatically adjusting a noise threshold," circuit cannot be understood by one skilled in the art as anything but a universally abundant electrical component. Without the modifying language, a dictionary definition provides little clarification either. Circuit may be "[t]he complete path of an electric current including any displacement current" (6a); or "[a] specified portion of a circuit" (6b); or "[a]n assemblage of electronic elements" (8a). WEBSTER'S 3RD NEW INTERNATIONAL DICTIONARY 408 (3rd *1156 ed.1986). None of these definitions provides more than a murky outline.
If a claim element recites a function without reciting sufficient structure for performing that function, § 112 ¶ 6 may apply. CCS Fitness, Inc., 288 F.3d at 1369. But while the functional phrase "for automatically adjusting a noise threshold" gives "circuit" context, without more it does not provide sufficient structural meaning to withstand application of § 112 ¶ 6. There is no structural context that teaches one how a circuit, which may be as vague as "an assemblage of electronic elements" automatically adjusts a noise threshold.
Pursuant to § 112 ¶ 6, I must go to the patent specification and the prosecution history for clues to the meaning of Claim 18. "One of skill in the art can only reconcile the claim language with the inventor's disclosure by recourse to the specification." Comark, 156 F.3d at 1187.
Defendants state: "[t]his claim element should be construed to require a feedback circuit which adjusts the noise threshold. ..." Defendants' Reply Memo, 18. Defendants also argue that I should read diode 316, found in the preferred embodiment in the '779 patent specification, into Claim 18. Defendants argue that diode 316 is "at the essence of the circuit for automatically adjusting a noise threshold, [so] the essence cannot be ignored when construing the claim or determining infringement." Defendants' Memo, 38.
While Defendants may overcome the heavy presumption that the claim terms embody their ordinary meaning and attempt to narrow the meaning of the terms, they "cannot do so simply by pointing to the preferred embodiment or other structures or steps disclosed in the specification or prosecution history." CCS Fitness, Inc., 288 F.3d at 1366. Here, Defendants do more than simply point to the specification or prosecution history. They identify a portion of the prosecution history without which the '779 patent likely would not have been approved by the U.S. Patent and Trademark Office. By doing so, the presumption is rebutted.
During the prosecution of the '779 patent, inventor Jeremy Dunne distinguished his invention from the prior art embodied in Frungel's U.S. Patent no. 4,259,592. In an amendment to his '779 patent application, Dunne summarized Frungel's invention in two-and-a-half pages. Amendment to Application for Automatic Noise Threshold Determining Circuit and Method for a Laser Range Finder, U.S. Patent and Trademark Office, 1995 (Amendment). Immediately thereafter, he summarized his invention to distinguish it from patent no. 4,259,592. In his summary relating to Claim 18, Dunne wrote: "The essence of [the] automatic noise threshold section ... is a feedback loop that comprises the detected (see detector 314, 316, 322, 324) average noise firing rate...." Id. at 16. Plaintiff and Defendants agree that the "316" of the "detector" of the feedback loop is diode 316. Motions Hearing, U.S. District Court for the District of Colorado, July 18, 2002 (Motions Hearing). See Figure 8, '779 patent. Later in the same document, Dunne writes that "no structure within the cited Frungel patent operates to dynamically use a range/noise signal that is reflected from the target in order to change a detection threshold as a function of noise pulses that are received.... Frungel purposely does not generate a noise threshold signal." Amendment, 22-23.
The feedback loop that is at the "essence" of Claim 18 of the '779 patent includes diode 316. And without that feedback loop, Plaintiff's laser range finder would not be able to perform the noise thresholding that distinguishes Dunne's invention from the Frungel prior art. Defendants' *1157 explanation of the importance of diode 316 in the feedback loop was not overcome by Plaintiff at the motions hearing. Because diode 316 is integral to the feedback loop that is essential to the noise thresholding circuit of Claim 18, I conclude as a matter of law that the thresholding circuit requires diode 316 and the feedback loop.
CONSTRUCTION: A circuit consisting of a feedback loop composed in part of diode 316 that adjusts a noise threshold of a laser light receiver to a level at which a laser light receiver produces an output from noise light pulses having a constant pulse firing rate.
'779 Claim 25
Disputed Claim Language
"A method for adjusting a noise threshold of said laser light receiver to a level at which said laser light receiver produces a noise light pulse output having a constant pulse firing rate."
Analysis
Defendants argue that I should read the structural limitation of diode 316 into this claim as I did in Claim 18. Defendants' Reply Memo, 27. Again, I agree. Defendants argue: "[j]ust as the adjustment circuit in Claim 18 is a means-plus-function element, the adjusting step in Claim 25 is a step-plus-function element, and a reader must turn to the specification to learn how one does [the method]."
Section 112 ¶ 6 applies when a claim element recites a step plus a function, without reciting actions to enact the function. O.I. Corp. v. Tekmar Co., 115 F.3d 1576, 1582-83 (Fed.Cir.1997). Here, "adjusting a noise threshold of said laser light receiver to a level at which said laser light receiver produces a noise light pulse output having a constant pulse firing rate" is a method, or step, for doing something. This claim language does not recite a "function." The purpose for which the adjusting ultimately is done-the why and what for-is noticeably absent from the disputed language. Therefore, this is a step without a function, and § 112 ¶ 6 does not apply.
Nonetheless, there are three other circumstances in which I may refer to intrinsic evidence outside the claim language to construe a claim. First, "the claim term will not receive its ordinary meaning if the patentee acted as his own lexicographer and clearly set forth a definition of the disputed claim term in either the specification or prosecution history." CCS Fitness, Inc., 288 F.3d at 1366. Second, "a claim term will not carry its ordinary meaning if the intrinsic evidence shows that the patentee distinguished that term from prior art on the basis of a particular embodiment, expressly disclaimed subject matter, or described a particular embodiment as important to the invention." Id. at 1366-67. Third, "a claim term also will not have its ordinary meaning if the term chosen by the patentee so deprive[s] the claim of clarity as to require resort to the other intrinsic evidence for a definite meaning." Id. at 1367.
All three apply here. First, Jeremy Dunne, the '779 patent inventor, clearly defined the "method for adjusting a noise threshold of said laser light receiver to a level at which said laser light receiver produces a noise light pulse output having a constant pulse firing rate" in the prosecution history. He described, detail-by-detail, the automatic noise threshold section, which is the embodiment of the method described in Claim 25, for two-and-half pages. Amendment, 16-18. He began by stating, "[a]n important feature of the present invention is the detailed construction and arrangement of ... [the] automatic noise threshold section. The essence of [the] automatic noise threshold section ... is a feedback loop that comprises *1158 the detected (see detector 314, 316, 322, 324) average noise firing rate...." Id. at 16. Second, by describing his automatic noise thresholding mechanism which includes diode 316, Dunne distinguished patent '779 from patent no. 4,259,592 by highlighting the "essence" of a particular embodiment, i.e., the feedback loop including diode 316. Id. Third, the phrase "a method for adjusting the noise threshold" is so deprived of clarity that it is not sufficiently understandable without reference to other intrinsic evidence. Claim 18 gives meaning to the method. Based on my construction of that claim, I look to the feedback loop that includes diode 316.
All three circumstances require me to look to the feedback loop composed in part of diode 316 that is at the "essence" of the automatic noise thresholding mechanism for understanding. Therefore, I construe Claim 25 to incorporate the feedback loop and diode 316.
CONSTRUCTION: A method including a feedback loop composed in part of diode 316 for adjusting a noise threshold of a laser light receiver to obtain a constant pulse firing rate from the laser light receiver to a level at which said laser light receiver produces a noise light pulse output having a constant pulse firing rate.
'910 Claim 8
Disputed Claim Language
"a precision timing section coupled to said laser transmit section and said laser receive section for determining a flight time of said laser pulses to said target and said reflected laser pulses from said target"; "based upon a flight time of a pulse"
Analysis
Plaintiff argues that this claim should be construed in accordance with its plain language and that there is no basis for construing the claim subject to § 112 ¶ 6. I agree.
As discussed above, means-plus-function formatting applies to claim limitations that portray a function to be executed, but provide no instruction as to the structure or materials for executing that function. See CCS Fitness, Inc., 288 F.3d at 1369, 1370. Claim 8 does not fit this format. First, the Claim 8 language is not written in means-plus-function format, typified by the use of the word "means." See id. at 1369. Therefore, the rebuttable presumption applies that the element should not be construed according to means-plus-function format. Personalized Media Communs., 161 F.3d at 702. Second, a claim term can avoid application of 112 ¶ 6 even if it does not espouse a precise physical structure. CCS Fitness at 1370.
Once again, Defendants may rebut the presumption that § 112 ¶ 6 does not apply by "demonstrat[ing] that the claim term fails to recite sufficiently definite structure or else recites a function without reciting sufficient structure for performing that function." Id. at 1369. "In deciding whether [the] presumption has been rebutted, the focus remains on whether the claim as properly construed recites sufficiently definite structure to avoid the ambit of § 112 ¶ 6." Personalized Media Communs. 161 F.3d at 704. To determine whether the claim term recites such sufficient structure, I may examine whether the claim term has an understood meaning in the art. See CCS Fitness, Inc., 288 F.3d at 1370. Defendants fail to rebut the presumption as to this claim language.
The disputed language in Claim 8 describes definite structure. The precision timing section is "coupled" to the laser transmit and laser receive sections. The verb "couple" means "to fasten together" (2), or "to bring (electric circuits) into such close proximity as to permit mutual influence" (2d-2), or "to join (electric circuits or devices) into a single circuit." (2d-3). *1159 WEBSTER'S 3RD NEW INTERNATIONAL DICTIONARY 521 (3rd ed.1986). This joining or increase in proximity connotes the relationship of two or more parts. Structure itself is defined as "something made up of more or less interdependent elements or parts" (2b), "the interrelation of parts dominated by the general character of the whole" (5), and "the elements or parts of an entity or the position of such elements or parts in their external relationship to each other" (6). Id. at 2267.
While the claim language here might not describe a "known specific structure," it need not do so. See CCS Fitness at 1370. I conclude that the claim language recites sufficiently definite structure to resist application of 112 ¶ 6.
I also conclude that Claim 8 does not require more than one separate precision timing section or clock, and does not require a capacitor. See Defendants' Memo, 29-30. Both of these interpretations would have me look beyond the plain claim language. Markman construction of a claim requires me to look first to the plain text of the claim language. See CCS Fitness at 1366. While Defendants suggest I look beyond the plain language, it is not apparent from the specification that Plaintiff intended the claim language to embody anything but its ordinary meaning. And, "[r]eferences to a preferred embodiment, such as those often present in a specification, are not claim limitations." Laitram Corp. v. Cambridge Wire Cloth Co., 863 F.2d 855, 865 (Fed.Cir.1988), cert. denied, 490 U.S. 1068, 109 S.Ct. 2069, 104 L.Ed.2d 634 (1989).
Defendants refer to extrinsic evidence to support their conclusion that Claim 8 requires a separate clock. See Defendants' Memo, 29 (citing Creusere Decl. ¶ 35). They argue that "[since] the precision timing section is not defined by components specified in Claim 8, construing the claim element requires reference to the '910 patent specification." Id. I conclude there is no basis to import the limitation of a separate clock into the claim from the specification sections-parts of the preferred embodiment-that Defendants cite ('910, col. 8, lines 1-25 and 52-55; col. 12, lines 26-31 and 34-38).
As Plaintiff argues, the precision timing section includes a transistor that charges a capacitor, but the capacitor itself is not the precision timing section. See Plaintiff's Reply Memo, 28 (citing '910 patent, col. 8, lines 31-35). The capacitor effectively "stretches" the time-of-flight of received laser pulses. That information then goes to a system clock. The preferred embodiment clearly depicts a capacitor that expands the flight time "so that the slower clock in the CPU section can then count it accurately." '910 patent, col. 8, lines 29-34.
While the capacitor is part of the preferred embodiment of Claim 8, there is no reason to construe the claim to require the capacitor. There is no mention of a capacitor in the claim itself, and the capacitor is not the precision timing section. Although the capacitor assists the laser range finder's ability to clock laser-pulse flight times by "stretching" the times-of-flight, it does not determine the times-of-flight. Therefore, I conclude that Claim 18 requires "a precision timer coupled to the transmitter and receiver that determines a flight time of laser pulses reflected from a target." Plaintiff's Reply Memo, 26.
CONSTRUCTION: A precision timer coupled to the transmitter and receiver that determines a flight time of laser pulses reflected from a target. A separate clock or timer is not required.
Disputed Claim Language
"A central processor section ... for determining a range to said target derived from said flight time of said laser pulses to said target and said flight time of said reflected laser pulses from said target."
*1160 Analysis
Defendants contend the elements of the central processor section are not specified, nor is any microprocessor, algorithm or the like specified in the claim. I agree. Because the term "central processor section" is unclear, I look for meaning in the specification. It describes a microcomputer that places flight times of received laser pulses in a "stack," and compares successively received pulses to those already in the stack. '910 patent, col. 17, lines 3-20. Each place in the "stack" must represent a flight time, so when a relatively large number of pulses occupy one "slot" in the "stack," that "slot" represents the flight time indicative of the distance to the target.
Plaintiff argues that in the preferred embodiment for the central processor section, "the processor compares time-of-flight information stored in memory to locate the time-of-flight information that occurs with the greatest frequency, and uses these signals to determine a range to the target." '910 patent, col. 17, line 3 col. 18, line 30. I also agree with Plaintiff. Plaintiff's description is general while Defendants' description focuses on the specifics of the "stack" mechanism. In the end, both parties describe the same process.
I construe the disputed claim language in the general sense that Plaintiff uses to describe the preferred embodiment of the disputed claim. As stated above, while Defendants may overcome the heavy presumption that the claim terms embody their ordinary meaning and attempt to narrow the meaning of the terms, they "cannot do so simply by pointing to the preferred embodiment or other structures or steps disclosed in the specification or prosecution history." CCS Fitness, Inc., 288 F.3d at 1366. Here, Defendants point to the preferred embodiment of the '910 patent specification to impermissibly narrow the meaning of the claim to include the stacking mechanism. But "limitations from the specification are not to be read into the claims." Comark, 156 F.3d at 1186. "[W]hile ... claims are to be interpreted in light of the specification and with a view to ascertaining the invention, it does not follow that limitations from the specification may be read into the claims." Id. Therefore, I decline to incorporate the specification language that describes the stacking mechanism into the disputed language of Claim 8.
CONSTRUCTION: A processor compares time-of-flight information stored in memory to locate the times-of-flight that occur with the greatest frequency, and uses the most frequent times-of-flight to determine a range to the target. Neither a specific microcomputer nor anything that puts received laser pulses in a "stack" is required.
'077 Claim 1
Disputed Claim Language
"for input to a comparator circuit for providing an automatic noise threshold adjustment to said laser receiving section to facilitate discrimination between said returned laser pulses and said noise pulses"
Analysis
Plaintiff asserts that this disputed claim language should be read in accordance with its plain meaning and argues I should refer to Claim 18 of the '779 Patent for analysis. Plaintiff's Reply Memo, 32. But here, Plaintiff argues that this claim does not require obtaining a constant pulse firing rate as does Claim 18. Defendants contend that Claim 1 "includes several of the elements discussed above in connection with claims in the other two patents," specifically, "an automatic noise threshold adjustment" and "a comparator circuit." Defendants' Memo, 35. Apparently, Defendants ask me to refer to previous *1161 analysis of those components of this claim. Id.
A comparator "compares something to be measured with a standard measure." WEBSTER'S 3RD NEW INTERNATIONAL DICTIONARY 462 (3rd ed.1986). By the plain language of Claim 1, this comparison provides a foundation for adjusting the noise threshold. Both parties refer me to Claim 18. There, I construed the noise threshold circuit to include a feedback loop composed in part of diode 316. Here, I do the same.
CONSTRUCTION: For input to a circuit that consists of a feedback loop composed in part of diode 316 for adjusting the noise threshold based on the noise environment in relation to reflected pulses received by the laser receiving section, before the noise signals are parsed out from the actual target signals. The circuit adjusts the noise threshold by comparing incoming pulse values with previously received pulse values to ascertain the noise environment.
Disputed Claim Language
"a central processing section coupled to said laser transmitting and receiving sections for determining a distance to said target based on a time of flight of said transmitted and returned laser pulses"
Analysis
For the reasons stated above in my discussion of the central processor section in Claim 8 of the '910 patent, and because Defendants simply point me toward their previous argument there, I accept Plaintiff's suggested construction of the disputed claim language. This language requires "a processor that determines a distance to the target using time-of-flight information from the received laser pulses." Plaintiff's Reply Memo, 33.
CONSTRUCTION: A processor that determines a distance to the target using time-of-flight information from the received laser pulses.
B. Infringement Analysis
Infringement generally is a matter of fact to be decided by the fact finder. However, summary judgment may enter if the pleadings, depositions, answers to interrogatories, admissions, or affidavits show there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed. R.Civ.P. 56(c).
At this juncture, I must apply the claims as construed to the accused device. Pitney Bowes, Inc. v. Hewlett-Packard Co., 182 F.3d 1298, 1304 (Fed.Cir.1999). "Thus, summary judgment of non-infringement can only be granted if, after viewing the alleged facts in the light most favorable to the non-movant, there is no genuine issue whether the accused device is encompassed by the claims." Id.
If the parties disagree over the possible claim interpretations but not the accused device, the Court's Markman analysis resolves the disagreements, because at that point there could be no genuine issues of material fact left that would preclude summary judgment. See Johnson Worldwide Assocs., 175 F.3d at 988-89. Having construed the disputed claim language, I turn to whether genuine issues of fact remain as to the relevant aspects of Defendants' accused device. In this case, the parties incorporate into their briefs and attach expert declarations and deposition testimony based in part on reverse engineering of the accused device.
'779 Claim 11
Plaintiff argues that the Nikon/Asia Optical laser range finder "assigns to received signals a pulse value that corresponds directly to the time-of-flight of the received signal." Plaintiff's Reply Memo, 4. "Each assigned value comprises *1162 a `1' stored in a memory location that corresponds directly to the time-of-flight of the received signal." Id. Plaintiff argues that this "1" is recorded in a memory element "at a position in an array of memory elements (i.e., the delay line) which uniquely identifies the time-of-flight of the received signal." Id. (emphasis provided).
According to Plaintiff, undisputed facts establish that Defendants' range finder assigns pulse values to received signals to uniquely identify time-of-flight information. First, Plaintiff asserts Defendants' device uses "flip-flop" circuits in a "delay line." Id. Plaintiff defines flip-flop circuits as digital circuit elements that store either a "0" or a "1" in reaction to a clock signal. Id. at n. 2. Second, each received signal that exceeds a "noise threshold" causes a "one-shot circuit" to output a "1." When a signal is not received, the device records a "0." Id. at 5. Third, "when a laser pulse is transmitted, the delay line is activated so that the output of the one-shot circuit during each clock cycle is written to a flip-flop in the delay line that corresponds directly to the number of clock cycles that have elapsed since the laser pulse was transmitted." Id. Plaintiff argues that the output (1 or 0) of the one-shot circuit during the first "clock cycle" is stored in the first flip-flop, and the output during the second clock cycle is stored in the second flip-flop, and so forth. Id. Further, Plaintiff contends (based on Dr. Chien's affidavit) that the Nikon/Asia Optical range finder includes a clock that measures flight times of received optical signals. Id. Finally, Plaintiff argues that in Defendants' technical reports by Dr. Creusere, Defendants "implicitly admit that the [Defendants'] laser range finder assigns pulse values representative of time-of-flight of received signals." Id. at 6.
In summary, Plaintiff asserts that each flip-flop in the delay line "represents a specific and different point in time that has elapsed since the transmission of a laser pulse." Id. at 7 (citing McAlexander Decl. ¶ 24). Therefore, in Plaintiff's view, no two pulse values are identical because each individual "1" attached to a specific flip-flop circuit "uniquely identifies the time-of-flight of the received pulse that generated the ... `1'." Id. at 7.
According to Defendants, their range finder "does not either assign or rely on pulse values." Defendants' Memo, 29. Defendants state:
[W]hen an optical pulse enters a detector of the [Defendants'] laser range finder, the pulse is electrically amplified and ultimately actuates a one-shot circuit. A one-shot circuit is a circuit that for each pulse it receives at its input provides a digital output of fixed duration. The digital output of the one-shot is fed into a delay line composed of flip-flops.... The delay line acts much like a ski lift: it starts operating when a pulse is transmitted toward a target and each received pulse `boards' the lift at fixed intervals. If no pulse is present at the time when the chair swings by, that chair goes up empty. After running for a period of time, the `lift' (i.e., the delay line) stops and the contents of each chair [are] placed into a range bin corresponding to the position of each stopped chair. The position of each stopped chair corresponds directly to a possible target range. After the contents of the chairs are placed in the range bins, the `lift' begin[s] another cycle of operation corresponding to another target pulse. By transmitting multiple laser pulses and adding up the contents of the range bins after the process is complete, the Nikon/AOI rangefinder can determine which range bin corresponds to the actually [sic] target (the chair that always has someone sitting in it).
*1163 Id. at 30 (citing Creusere Decl. ¶ 11). So, Defendants argue that their range finder "does not assign pulse values as called for in the claim, does not have representative pulse values, as called for in the specification, does not recognize any pulse value and the claim element is not infringed." Id. at 30.
Plaintiff also contends Defendants' laser range finder "compares pulse values to discriminate the target signal from noise." Plaintiff's Reply Memo, 9. Plaintiff asserts that, according to Dr. Chien's deposition, Defendants' device compares pulse values that indicate time-of-flight for received laser pulses to discriminate the target signal from noise signals. Id. at 9. Plaintiff asserts that Defendants acknowledge in their Memorandum that "[t]he computer ... looks at the loaded range bins and sees how many pulses are stored in each bin. [And] the range bins are searched to determine in which range bin the maximum number of pulses [has] been recorded." Plaintiff's Reply Memo at 9-10 (quoting Defendants' Memo at 10 and stating that Defendants "misleadingly" refer to time bins as "range bins" there).
Defendants respond that their range finder does not do any comparing, so does not infringe this element. Defendants' Memo, 33. They argue that a "1" in a range bin indicates that the delay line picked up that pulse at the moment it was received. Id. While a "0" indicates no pulse was received, a "1" may indicate either a target or a noise signal. Id. Defendants state:
Pulse values ... are not assigned. Consequently, pulse values are not compared and are not compared until a predetermined number of assigned pulse values coincide within a specified position. [Defendants'] laser range finder never looks for coincidence of values to a particular precision ... [and] does not compare for either coincidence of pulse values or compare to a level of precision.
Id. Finally, Defendants argue the claim phrase "determining said actual return signal to be represented by said predetermined number of said assigned pulse values" relies upon assigned pulse values. Id. at 34. Since their range finder does not rely upon pulse values, Defendants argue there is no infringement. Id.
My review of the record leads me to conclude that genuine issues of fact exist as to the relevant aspects of Defendants' accused device. McAlexander's Third Declaration does not alter my conclusion. Therefore, summary judgment is inappropriate for any party as to literal infringement or infringement under the doctrine of equivalents. The parties' cross-motions for summary judgment will be denied as to Claim 11 of the '779 patent.
'779 Claim 18
Defendants base their non-infringement argument on the "essence" of diode 316 and the fact that Plaintiff's laser range finder has this diode and theirs does not have it. Defendants' Reply Memo, 38. Defendants argue, simply, that their laser range finder does not infringe this patent claim because their device does not have a diode for preventing electrical back-flow. Id. at 39.
Defendants argue that expert McAlexander recognized Defendants' laser range finder lacks diode 316, "the essence." But, McAlexander never refers to it as such. Id. at 39-40 (citing McAlexander Depo., 74, lines 13-21). They also state that Plaintiff's expert, Faber, never measured whether Defendants' laser range finder achieves a constant pulse firing rate. Id. at 41. Defendants also argue expert Creusere's tests established that Defendant's laser range finder does not produce a constant noise pulse firing rate. Id.
*1164 In sum, Defendants contend: "With part of the essence of the invention missing from the Nikon/AOI laser range finder, nothing apparently taking its place, and no measurement of whether the Nikon/AOI laser range finder operates in the same way as in the LTI patent without the essential diode, there is no basis on which to find infringement of this claim element." Id.
Literal Infringement
To infringe on this claim literally, each limitation in the disputed claim must be present in the accused device. See Pennwalt Corp. 833 F.2d at 935. This is a question of fact. See General Mills, Inc., 103 F.3d at 980-981. I construed the disputed language of '779 Claim 18 to require "a circuit consisting of a feedback loop composed in part of diode 316 that adjusts a noise threshold of a laser light receiver to a level at which a laser light receiver produces an output from noise light pulses having a constant pulse firing rate." See Claim 18 claim construction, above.
Plaintiff and Defendants agree that the accused device does not include diode 316. Since each limitation in the construed claim must be present in the accused device, and diode 316 is missing, Defendants' laser range finder does not literally infringe '779 patent Claim 18. Based on my review of the record, I find that no issues of genuine material fact exist with regard to literal infringement of Claim 18. Summary judgment for Defendants is appropriate to that extent.
Infringement Under the Doctrine of Equivalents
Defendants contend that their device does not infringe '779 Claim 18 under the doctrine of equivalents because "the Nikon/AOI laser range finder does not set or reset a noise threshold automatically, as there is no apparatus therein for doing so." Defendants' Memo, 61-62. Plaintiffs argue that with regard to noise thresholding, Defendants' device includes "an integrating RC circuit that provides negative feedback to the MAX 913 comparator to automatically adjust the receiver's noise threshold so that the receiver maintains a constant noise output." Plaintiff's Memo, 70 (citing McAlexander Decl. ¶ 68). I construed this claim as one under § 112 ¶ 6. Under the § 112 ¶ 6 doctrine of equivalents, if part of the accused device performs identically the same function in substantially the same way to achieve substantially the same result as an element or limitation of the claimed device, then that part of the accused device is considered equivalent. See Warner-Jenkinson Co., 520 U.S. at 39, 117 S.Ct. 1040. Plaintiff asserts that Defendants' device performs noise thresholding (identically the same function) using an integrating feedback circuit (in substantially the same way) to a receiver that generates a constant noise output (to achieve substantially the same result). Plaintiff's Memo, 70.
However, Plaintiff concedes there may exist a question of material fact whether Defendants' device generates a constant pulse firing rate, which Plaintiff uses interchangeably with the phrase "constant noise output." Plaintiff's Reply Memo, 37. Plaintiff asserts that experts Carpenter and McAlexander testified, based on their own tests of Defendants' device, that Defendants' range finder generates a constant pulse firing rate. Id. at 18-20 (citing Carpenter Depo., 74; McAlexander Decl. ¶ 38; Second McAlexander Decl. ¶¶ 7, 11).
Defendants contend their device does not infringe because it has no feedback circuit, does not automatically adjust the noise threshold, and does not generate a constant frequency of noise pulses. Id. Specifically, Defendants assert their device does not provide a feedback signal proportional to the noise pulse firing rate because it lacks diode 316. Id. Defendants conclude *1165 that "without that diode, automatic noise threshold adjustment cannot occur." Id. at 19. Defendants have consistently referred to diode 316 as the "essence" of the comparator circuit at issue here and in other claims. See e.g., id. at 38.
Plaintiff argues that Defendants' device uses a MAX 913 component as the comparator circuit. See e.g., Plaintiff's Reply Memo, 16. I have construed the word "circuit" in relation to automatic noise thresholding as requiring diode 316 as part of a feedback loop. See '779 Claim 18 claim construction, above. Defendants argue that the MAX 913 circuit is not used as a comparator, but rather is used as an amplifier that has nothing to do with automatic noise thresholding. Motions Hearing, Defendants' argument re: MAX 913.
Whether the MAX 913 circuit actually provides for the threshold adjustment to sort out noise and target signals is unclear. Defendants argue that their expert, Creusere, "specifically conducted an experiment and found that there is no automatic noise threshold adjustment in the Nikon/AOI laser range finder," so the accused device cannot generate a constant pulse firing rate. Defendant's Reply Memo, 24. Plaintiff contends its expert Joe McAlexander analyzed the accused device and found it "automatically adjusted the noise threshold of the MAX 913 comparator to generate a constant pulse firing rate." Plaintiff's Reply Memo, 21 (citing McAlexander Decl. ¶ 38; Second McAlexander Decl. ¶ 11).
Plaintiff's and Defendants' experts testified that they tested the accused device to find out whether it automatically adjusts the noise threshold to produce a constant pulse firing rate. Plaintiff's experts and Defendants' expert disagree so a genuine issue of material fact exists. Plaintiff concedes that "Claims 18[and] 25 should proceed to trial on the issue of whether the Nikon/Asia Optical laser range finder generates a constant pulse firing rate." Plaintiff's Reply Memo, 37. The issue whether the MAX 913 component functions as part of an automatic noise thresholding system similarly prevents me from issuing summary judgment.
My review of the record leads me to conclude that because these genuine issues of fact exist as to the relevant aspects of Defendants' accused device, summary judgment is inappropriate for any party as to infringement under the doctrine of equivalents. So, to this extent, the parties' cross-motions for summary judgment will be denied as to Claim 18 of the '779 patent.
'779 Claim 25
As with Claim 18, Claim 25 must be analyzed under § 112 ¶ 6. Plaintiff argues that, "[a]s required by Claim 25, the Nikon/Asia Optical laser range finder adjusts the negative input on the MAX 913 comparator in response to the noise level of the received signal in a way that achieves a constant pulse firing rate." Plaintiff's Reply Memo, 24 (citing McAlexander Decl. ¶ 38; Carpenter Depo., 71-72). Plaintiff asserts that Claim 18 analysis applies with equal force here. In addition, "[n]otwithstanding the test referred to by Dr. Creusere, the majority of the evidence shows that the Nikon/Asia Optical laser range finder obtains a constant pulse firing rate." Id. at 25.
Defendants argue "[t]he reasons for non-infringement of this claim element ... are the same as for the corresponding element in Claim 18.... When this element of Claim 25 is properly construed to require the presence of a diode, [it] does not infringe." Defendants' Reply Memo, 46.
Literal Infringement
To infringe on this claim literally, each limitation in the disputed claim must be present in the accused device. See Pennwalt *1166 Corp. 833 F.2d at 935. I construed the disputed language of '779 Claim 25 to require "a method including a feedback loop composed in part of diode 316 for adjusting a noise threshold of a laser light receiver to obtain a constant pulse firing rate from the laser light receiver to a level at which said laser light receiver produces a noise light pulse output having a constant pulse firing rate." See Claim 25 claim construction, above.
Plaintiff and Defendants agree that the accused device does not include diode 316. Since each limitation in the construed claim must be present in the accused device, and diode 316 is missing, Defendants' laser range finder does not literally infringe '779 patent Claim 25. As with Claim 18, no genuine issues of material fact remain that preclude summary judgment as to literal infringement. See Johnson Worldwide Assocs., 175 F.3d at 988-89.
Infringement Under the Doctrine of Equivalents
Defendants contend their device does not infringe '779 Claim 25 under the doctrine of equivalents because "the Nikon/AOI laser range finder does not set or reset a noise threshold automatically, as there is no apparatus therein for doing so." Defendants' Memo, 61-62. Plaintiffs argue that with regard to noise thresholding, Defendants' device includes "an integrating RC circuit that provides negative feedback to the MAX 913 comparator to automatically adjust the receiver's noise threshold so that the receiver maintains a constant noise output." Plaintiff's Memo, 70 (citing McAlexander Decl. ¶ 68). Under § 112 ¶ 6 doctrine of equivalents, if part of the accused device performs identically the same function in substantially the same way to achieve substantially the same result as an element or limitation of the claimed device, then that part of the accused device is considered equivalent. See Warner-Jenkinson Co., 520 U.S. at 39, 117 S.Ct. 1040. Plaintiff asserts that Defendants' device performs noise thresholding (identically the same function) using an integrating feedback circuit (in substantially the same way) to a receiver that generates a constant noise output (to achieve substantially the same result). Plaintiff's Memo, 70.
My § 112 ¶ 6 doctrine of equivalents analysis of Claim 25 is identical to that of Claim 18. As with Claim 18, Plaintiff's and Defendants' experts testified that they tested the accused device to find out whether it automatically adjusts the noise threshold to produce a constant pulse firing rate. Plaintiff's experts and Defendants' expert disagree so a genuine issue of material fact exists. Plaintiff concedes that "Claims 18[and] 25 should proceed to trial on the issue of whether the Nikon/Asia Optical laser range finder generates a constant pulse firing rate." Plaintiff's Reply Memo, 37. The issue whether the MAX 913 component functions as part of an automatic noise thresholding system also prevents me from issuing summary judgment.
My review of the record leads me to conclude that because these genuine issues of fact exist as to the relevant aspects of Defendants' accused device, summary judgment is inappropriate for any party as to infringement under the doctrine of equivalents. So, to this extent, the parties' cross-motions for summary judgment will be denied as to Claim 25 of the '779 patent.
'910 Claim 8
Plaintiff argues that "[t]he same undisputed facts, deposition testimony, and admissions that establish infringement of Claim 11 of the '779 patent also establish that [Defendants'] laser range finder includes a precision timer that determines the time-of-flight of received signals." Plaintiff's Reply Memo at 29. Plaintiff *1167 argues that, because Defendants' range finder records a flip-flop "1" for each received signal at a position in the delay line that uniquely identifies the flight time of the signal, the delay line implements a precision timer. Id. Plaintiff claims that Defendants' laser range finder "includes a precision timing section driven by the system clock and including the one-shot circuit clement and the data latch section (or delay line) of flip-flops." Id.
Next, Plaintiff argues that, because there is nothing in the claim that requires a clock separate from the internal system clock, Defendants do not escape infringement because their laser range finder does not have an extra clock. Id. Finally, Plaintiff argues that the data latch section of Defendants' laser range finder "implements a clock ... capable of measuring a time duration of 256 clock cycles." Id. at 30 (citing Creusere Rebuttal Report, 3, 9).
Defendants respond that their range finder "does not time the interval between the firing of a laser pulse and the detection of a received pulse. A particular pulse is not clocked so ... the basic clocking function is not performed." Defendants' Memo, 53. "Rather, all detected pulses are delivered to registers based on increments of distance and an individual pulse itself is not timed. The distance a pulse traveled has been determined by which register or range bin it ends up in and not by using a counter to precisely time it." Id. at 54 (citing Creusere Decl. ¶ 37).
Further, Defendants argue that "[t]he Nikon/AOI laser range finder does not determine a range of target from individual flight times or pulses, does not place pulses in a stack and certainly does not compare successive pulses with location in the stack or successive pulses with one another, which is how the central processor circuit section operates by its algorithmas described in the '910 Patent." Id. at 56 (citing Creusere Decl. ¶ 41). "Since the Nikon/AOI laser range finder uses a different technique to determine range, does not place pulses in any stack and does not compare pulses with locations in the stack or with other pulses in the stack, the Nikon/AOI laser range finder does not infringe this element of Claim 8 of the '910 Patent." Id.
As with Claim 11 of the '779 patent, my review of the record leads me to conclude that genuine issues of material fact exist as to the relevant aspects of Defendants' accused device. Because summary judgment is inappropriate for any party as to literal infringement or infringement under the doctrine of equivalents, the cross motions will be denied.
'077 Claim 1
Plaintiff argues Defendants' range finder falls within the literal scope of the claim language "a comparator circuit for providing an automatic noise threshold adjustment to said laser receiving section." Plaintiff's Reply Memo, 32. Plaintiff contends Defendants' range finder receiver includes a MAX 913 component as a comparator that provides automatic noise threshold adjustment, an issue already discussed in the context of Claims 18 and 25 of the '779 patent. The only difference is that Claim 1 does not require a constant pulse firing rate. Id. at 32-33.
Second, Plaintiff contends Defendants' range finder "includes a central processing section that determines the distance to the target based on time-of-flight information." Plaintiff's Reply Memo, 34. Plaintiff argues that, as established in its arguments about Claim 11 of the '779 patent and Claim 8 of the '910 patent, Defendants' laser range finder "includes a precision timer that determines the time-of-flight of received signals." Id. According to Plaintiff, Defendants' device records two kinds of information about each received signal. The first is the receipt of the signal, represented *1168 by the flip-flop switch "1." Id. at 35. The second is the position in the delay line where the "1" is recorded. Hence, this positioning "uniquely identifies the time-of-flight of the received signal." Id. Further, Plaintiff asserts "the undisputed evidence demonstrates that the Nikon/Asia Optical laser range finder correlates time-of-flight information through a central processor that determines the range to the target." Id. (citing Defendants' Memo, 31). To support its argument, Plaintiff contends that Defendants' expert Chien admitted that the Nikon/Asia Optical device includes "a microprocessor that correlates the time-of-flight of received optical signals to determine the range to the target." Id. (citing Chien Depo., 72-73).
Defendants counter that their discussion of Claims 18 and 25 of the '779 patent applies here to the claim element "for input to a comparator circuit for providing an automatic noise threshold adjustment to said laser receiving section to facilitate discrimination between said returned laser pulses and said noise pulses." Defendants' Memo, 57. Further, Defendants' assert, "this claim element has an objective of discriminating between returned laser pulses and noise pulses." Id. As discussed in connection with Claims 18 and 25, Defendants reemphasize that "such discriminating step is not performed by the Nikon/AOI laser range finder, when that clause of the claim is properly construed." Id. (citing Creusere Decl. ¶ 43). Defendants contend that when this claim is construed with reference to what they deem the "essence" of the comparator circuit, the 316 diode, the Nikon/AOI laser range finder does not infringe because it does not have such a diode.
Finally, Defendants argue that, in connection with Claim 8 of the '910 patent, they discussed the the central processor circuit aspect of Claim 1 of the '077 patent, at issue here. "For the reasons stated there," Defendants contend, "when this claim element is properly construed, it is not present in the Nikon/AOI laser range finder, and this claim element is not infringed." Id. at 59.
Literal Infringement
To infringe on this claim literally, each limitation in the disputed claim must be present in the accused device. See Pennwalt Corp., 833 F.2d at 935. This is a question of fact. See General Mills, Inc., 103 F.3d at 980-981. I construed the first disputed claim language of '077 Claim 1 as follows: "[f]or input to a circuit that consists of a feedback loop composed in part of diode 316 for adjusting the noise threshold based on the noise environment in relation to reflected pulses received by the laser receiving section, before the noise signals are parsed out from the actual target signals. The circuit adjusts the noise threshold by comparing incoming pulse values with previously received pulse values to ascertain the noise environment." See Claim 1 claim construction, above. I construed the second disputed claim language to require "a processor that determines a distance to the target using time-of-flight information from received laser pulses." Id.
The first part of my analysis of Claim 1 necessarily parallels my analysis of Claims 18 and 25. Plaintiff argues Defendants' device "includes a MAX 913 comparator that provides automatic noise threshold adjustment." Plaintiff's Reply Memo, 32. Plaintiff contends this process is exactly what Claim 1 requires. Id. As discussed previously in relation to '779 patent Claims 18 and 25, Plaintiff's and Defendants' experts disagree about whether the accused device adjusts a noise threshold or produces a constant pulse firing rate. However, Plaintiff and Defendants agree that the accused device does not include diode 316. Since each limitation in the construed *1169 claim must be present in the accused device, and diode 316 is missing, Defendants' laser range finder does not literally infringe '779 patent Claim 25. Based on my review of the record, I find that no issues of genuine material fact exist with regard to the first disputed claim language in Claim 1, so I grant summary judgment for Defendants as to literal infringement.
Plaintiff next contends Defendants' device includes a central processing section that determines the distance to the target based on time-of-flight information. Plaintiff's Reply Memo, 34. Plaintiff refers to '779 Claim 11 and '910 Claim 8 to establish that Defendants' device includes a precision timer that determines flight times. Id. I determined that summary judgment for infringement of '779 Claim 11 and '910 Claim 8 may not enter for either party. For the same reasons stated above in my infringement analyses of those claims, summary judgment may not enter here for the second disputed claim language of '077 Claim 1.
Infringement Under the Doctrine of Equivalents
Plaintiffs again argue that with regard to noise thresholding, Defendants' device includes "an integrating RC circuit that provides negative feedback to the MAX 913 comparator to automatically adjust the receiver's noise threshold." Plaintiff's Memo, 70 (citing McAlexander Decl. ¶ 68). As described in my § 112 ¶ 6 analyses of '779 Claims 18 and 25, whether Defendants' device performs noise thresholding is a genuine question of material fact because Plaintiff's and Defendants' experts disagree over the function of the accused device. See doctrine of equivalents analysis for Claims 18 and 25, above. Therefore, summary judgment under the doctrine of equivalents does not issue for either party for the first disputed claim language of Claim 1.
As for the second disputed claim language, I have construed it to require "a processor that determines a distance to the target using time-of-flight information from received laser pulses." See '077 Claim 1 claim construction, above. As I discussed at length in relation to '910 patent Claim 8 and '779 patent Claim 11, see Claim 8 and Claim 11 infringement analyses above, Plaintiff and Defendants disagree whether the accused device uses time-of-flight information. As with those claims, my review of the record leads me to conclude that genuine issues of material fact exist as to the relevant aspects of Defendants' accused device. Because summary judgment is inappropriate for any party as to infringement under the doctrine of equivalents, the cross motions will be denied.
C. Invalidity Analysis
Defendants argue that all of the patents-in-suit are invalid because Plaintiff redefines its claims so they differ from the meanings provided in the specification. Defendants' Reply Memo, 38. Defendants do not make their arguments in relation to each patent-in-suit. Instead, they profer various examples. Id. For example, Defendants state: "Plaintiff now says that `automatic noise threshold adjustment' does not include a diode which the prosecution history of the '779 patent says is part of the essence of that element, [and] `a pulse value' apparently can have any number of meanings, not only the meaning in the specification." Id.
The inquiry under § 112 ¶ 2 is whether the claims in light of their written descriptions notify the public of the scope of the patent. See Solomon, 216 F.3d at 1379. When the claims are so ambiguous that a person of ordinary skill in the art cannot determine their scope, the claims are invalid for indefiniteness. See Exxon, 265 F.3d *1170 at 1375. Patents are presumed valid. Id. at 1376. To rebut the presumption of validity, a defendant must establish by clear and convincing evidence that the patent is invalid. Telectronics, 857 F.2d at 785. Defendants fail to present any genuine issue of material fact sufficient to overcome the presumption of validity.
A patent specification which describes the claimed invention with sufficient detail so that one skilled in the art can reasonably conclude that the inventor possessed the claimed invention satisfies the "description requirement" of 35 U.S.C. § 112 ¶ 1. See Vas-Cath, Inc. v. Mahurkar, 935 F.2d 1555, 1560-63 (Fed.Cir.1991). If a patent specification describes the claimed invention so that one skilled in the art can make and use the device without unduly extensive experimentation, that also satisfies the "enabling requirement" of § 112 ¶ 1. See Telectronics, 857 F.2d at 785.
As discussed above in relation to Claims 18 and 25 of the '779 patent and Claim 1 of the '077 patent, the automatic noise thresholding mechanism claimed in those patents requires diode 316 as part of a feedback loop. See Claims 18, 25 and 1 claim constructions, above. In the '779 patent prosecution history, inventor Dunne described the feedback loop and diode 316 as essential to the automatic noise thresholding mechanism. See Amendment, 16. In the preferred embodiment of the '779 patent, diode 316 is clearly required. "The automatic noise threshold section 36 of FIG. 8 discloses a circuit that automatically sets a threshold such that a constant noise pulse firing rate is output from the detector comprising resistor 315, diode 316, capacitor 324 and resistor 322." '779 patent specification, col. 14, lines 41-45 (emphasis added). Although this language does not refer to a "feedback loop," it describes the feedback loop in sufficient detail, including diode 316, to meet the requirements of § 112 ¶ 1. For that reason and based on the reasoning throughout this Order, I conclude that Claims 18 and 25 of the '779 patent and Claim 1 of the '077 are not so ambiguous that a person of skill in the art cannot determine their scope or the public cannot understand their scope.
Defendants assert '910 Claim 8 is invalid in light of prior art apparently pursuant to 35 U.S.C. §§ 102(a) and 103(a). Defendants' Reply Memo, 32. Section 102(a) states: "[a] person shall be entitled to a patent unless the invention was known or used by others in this country, or patented or described in a printed publication in this or a foreign country, before the invention thereof by the applicant for patent." 35 U.S.C. § 102(a) (2001). Section 103(a) states:
A patent may not be obtained though the invention is not identically disclosed or described as set forth in section 102 of this title, if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains. Patentability shall not be negatived by the manner in which the invention was made.
35 U.S.C. § 103(a) (2001).
In order to establish such an invalidity claim, a defendant must clearly and convincingly state facts relating to scope and content of the prior art, the level of ordinary skill in the art, the differences between the claimed invention and the prior art, and objective evidence of nonobviousness. C.R. Bard, Inc. v. M3 Sys., Inc., 157 F.3d 1340, 1349 (Fed.Cir. 1998). Here, Defendants argue that Plaintiff's patent is invalid because Claim 8 describes a laser transmitter and laser receiver that was already in the prior art. *1171 Defendants' Reply Memo, 32-33. They also contend Plaintiff's use of a precision timing section, elapsed-time processor, and target-acquisition switch makes Plaintiff's patent invalid in light of prior art. Id. at 33-34. Defendants do not address the prior art specifically, nor do they follow the C.R. Bard test. Without clear and detailed reference to the scope and content of the prior art, the ordinary skill in the art, and the differences between the prior art and Plaintiff's patent, see C.R. Bard, Defendants fail to convince me that any part of Claim 8 is invalid.
Accordingly, I ORDER that:
1) For '779 patent Claim 11, both cross-motions for summary judgment as to literal infringement and infringement by the doctrine of equivalents are DENIED.
2) For '779 patent Claim 18, DEFENDANT's cross-motion for summary judgment as to literal infringement is GRANTED. Both cross-motions for summary judgment as to infringement by the doctrine of equivalents are DENIED.
3) For '779 patent Claim 25, DEFENDANT's cross-motion for summary judgment as to literal infringement is GRANTED. Both cross-motions for summary judgment as to infringement by the doctrine of equivalents are DENIED.
4) For '910 patent Claim 8, both cross-motions for summary judgment as to literal infringement and infringement by the doctrine of equivalents are DENIED.
5) For '077 patent Claim 1, DEFENDANT's cross-motion for summary judgment as to literal infringement of the first disputed claim language is GRANTED. Both cross-motions for summary judgment as to infringement by the doctrine of equivalents of the first disputed claim language are DENIED. Both cross-motions for summary judgment as to literal infringement and infringement by the doctrine of equivalents of the second disputed claim language are DENIED.
6) For all patents-in-suit, PLAINTIFF's cross-motion for summary judgment for patent validity is GRANTED.
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733 F.Supp. 1186 (1990)
UNITED STATES of America, Plaintiff,
v.
Cynthia Marie ALLEN, Defendant.
No. 87 CR 711-1.
United States District Court, N.D. Illinois, E.D.
March 13, 1990.
Canella Heinrichs, Asst. U.S. Atty., Chicago, Ill., for U.S.
Cynthia Allen, Alderson, W. Va., pro se.
Roberta Samotny Atty. of Record, Chicago, Ill., for defendant.
*1187 MEMORANDUM OPINION AND ORDER
HART, District Judge.
Cynthia Allen and Sabra Diogioes conditionally pleaded guilty to knowingly and intentionally possessing 43 kilograms of a mixture containing cocaine, with intent to distribute in violation of 21 U.S.C. § 841(a)(1). The underlying offense occurred on September 15, 1987. Each defendant was sentenced to ten years' incarceration to be followed by five years' mandatory supervised release. See 21 U.S.C. § 841(b)(1)(A) (1987). On appeal, defendants raised the issue of the propriety of the search that occurred when they arrived at Chicago's Union Station. On February 24, 1989, the Seventh Circuit affirmed both convictions by unpublished order. United States v. Allen, 870 F.2d 659 (7th Cir.1989).
On November 2, 1989, Allen submitted a pro se motion to correct an illegal sentence pursuant to Fed.R.Crim.P. 35(a). Since the offense occurred prior to November 1, 1987, the former version of that rule applies which allows the present type of motion to be raised at any time. Moreover, where there is an illegal sentence, the court is obliged to correct the sentence sua sponte. Lee v. United States, 400 F.2d 185, 188 (9th Cir.1968). If Allen's sentence were to be modified, the ruling would also be applied to the sentence imposed on Diogioes even though she did not bring any motion.
Allen's motion complains that she could not be subjected to a term of supervised release since her offense occurred at a time that 21 U.S.C. § 841(b)(1)(A) did not provide for such a sentence. The government argues that a term of supervised release is appropriate, but, if not, then defendants should be sentenced to a term of special parole. For the reasons stated below, it is held that a term of supervised release was proper.
Prior to 1984, 21 U.S.C. § 841(b) provided for fines and/or incarceration, and also for the imposition of a mandatory special parole term in conjunction with prison sentences imposed as a result of cocaine charges. See Comprehensive Drug Abuse Prevention and Control Act of 1970, Pub.L. No. 91-513, § 401(b), 84 Stat. 1236. On October 12, 1984, § 841 was amended by the Comprehensive Crime Control Act of 1984 ("CCCA"), Pub.L. No. 98-473, § 502, 98 Stat. 1837. Section 841(b)(1)(A) applied to large-scale transactions, including those involving one kilogram or more of cocaine. Section 841(b)(1)(B) applied to smaller-scale transactions, including those involving less than one kilogram of cocaine. Section 841(b)(1)(A) provided for longer prison terms than § 841(b)(1)(B), but no mandatory special parole term. Section 841(b)(1)(B) contained a provision for mandatory special parole. Pursuant to § 224 of the CCCA, the provision regarding mandatory special parole was to be deleted on November 1, 1986, the effective date of the Sentencing Reform Act of 1984. In 1985, however, the effective date of the Sentencing Reform Act was postponed to November 1, 1987. See Sentencing Reform Amendments Act of 1985, Pub.L. No. 99-217, § 4, 99 Stat. 1728.
Section 841 was again amended in 1986. The Anti-Drug Abuse Act of 1986 ("ADAA"), Pub.L. No. 99-570, 100 Stat. 3207, was signed into law on October 27, 1986. Subtitle A of Title I, §§ 1001-09, of the ADAA[1] contains the amendments to § 841. Section 1002 of the ADAA contains new versions of §§ 841(b)(1)(A) & (B). Both subsections provided for mandatory supervised release, a new form of supervision which was defined by the Sentencing Reform Act, an act that did not go into effect until November 1, 1987.[2] It must *1188 again be emphasized that subsection (A) replaced a former version that did not provide for special parole, whereas subsection (B) replaced a former version that had provided for special parole. Section 1004 of the ADAA provided as follows:
(a) The Controlled Substances Act and the Controlled Substances Import and Export Act are amended by striking out "special parole term" each place it appears and inserting "term of supervised release" in lieu thereof.
(b) The amendments made by this section shall take effect on the date of the taking effect of section 3583 of title 18, United States Code.
No provision of the ADAA expressly referred to an effective date for § 1002.
The present case involves imposition of supervised release under § 841(b)(1)(A). In a recent case, the Seventh Circuit considered the question of the proper penalties to apply under § 841(b)(1)(B)[3] when the offense occurred between October 26, 1986 and November 1, 1987. See United States v. Duprey, 895 F.2d 303, 311 (7th Cir.1989). The Seventh Circuit held that it was improper to impose a term of supervised release pursuant to the ADAA because § 1004 of that act contained an effective date of November 1, 1987. Id. at 311 (citing United States v. Byrd, 837 F.2d 179, 181 (5th Cir.1988); United States v. Padilla, 869 F.2d 372, 381 (8th Cir.), cert. denied, ___ U.S. ___, 109 S.Ct. 3223, 106 L.Ed.2d 572 (1989)). Instead, it held that the district court should have imposed a term of special parole under the CCCA version of § 841(b)(1)(B). The Seventh Circuit also held that the "sentence enhancement" provisions of § 1002 of the ADAA went into effect immediately upon passage of the ADAA. Duprey, 895 F.2d at 311 (citing Padilla, 869 F.2d at 381-82; United States v. Levy, 865 F.2d 551, 559 n. 4 (3d Cir.1989) (en banc); United States v. Meyers, 847 F.2d 1408, 1414-16 (9th Cir.1988)). Accordingly, the longer terms of imprisonment provided for in § 1002 of the ADAA apply to offenses occurring between October 26, 1986 and November 1, 1987.
The present case is distinguishable from Duprey because Duprey involved sentences under § 841(b)(1)(B) whereas the present case involves sentences under § 841(b)(1)(A). That is an important distinction as regards supervised release.[4] Section 1004(a) of the ADAA refers to amendments striking out "special parole term" and replacing those words with "term of supervised release." Such an amendment was made to § 841(b)(1)(B), but no such change was made to § 841(b)(1)(A) since the latter never contained any provision for special parole. Section 1004(b) of the ADAA provides that "amendments made by this section" do not go into effect until November 1, 1987, the effective date of 18 U.S.C. § 3583. "Amendments made by this section" is read by the Seventh Circuit as meaning only changes made by § 1004(a) of the ADAA. See Padilla, 869 F.2d at 381-82 (followed by Duprey); Meyers, 847 F.2d at 1415 (same); Levy, 865 F.2d at 559 n. 4 (citing Meyers) (followed by Duprey). Since § 1004(a) referred to an amendment of special parole made to § 841(b)(1)(B), supervised release under that subsection did not go into effect until the time provided for in § 1004(b). Since § 1004(a) does not refer to any amendment made to § 841(b)(1)(A), the effective date contained in § 1004(b) does not apply to that subsection. As with the sentence enhancement provisions of § 1002 of the ADAA, see Duprey, 895 F.2d at 311, the supervised release provision of § 841(b)(1)(A) went into effect on October 27, 1986, the date of the ADAA enactment. Two circuits have so held. See United *1189 States v. Gozlon-Peretz, 894 F.2d 1402, 1404 (3d Cir.1990); United States v. Torres, 880 F.2d 113, 114-15 (9th Cir.1989) (per curiam), cert. denied, ___ U.S. ___, 110 S.Ct. 873, 107 L.Ed.2d 956 (1990). See also Ferryman, 897 F.2d at n. 4. (dictum). Contra United States v. Levario, 877 F.2d 1483, 1488-89 (10th Cir.1989). The statute in force, at the time the defendants in this case committed their offense, mandated the imposition of a minimum of five years of supervised release. The sentences imposed on defendants was legal.
IT IS THEREFORE ORDERED that defendant Allen's motion to correct sentence is denied. If defendant wishes to appeal this order, she must file a Notice of Appeal to the United States Court of Appeals for the Seventh Circuit with the Clerk of the Court, United States District Court for the Northern District of Illinois, 219 South Dearborn Street, 20th Floor, Chicago, Illinois 60604, within ten (10) days of the entry of this order.
NOTES
[1] This Subtitle is also known as the Narcotics Penalties and Enforcement Act of 1986. See Pub.L. No. 99-570, § 1001. The legislative history of the various proposed versions is set forth in detail in United States v. Ferryman, 897 F.2d 584, 588 (1st Cir.1990).
[2] Section 1002 also increased the penalties for drug offenses, refigured the quantities of controlled substances necessary to trigger different penalty levels, and prohibited parole for various offenders. Under the version contained in the ADAA, 5 kilograms or more of a mixture or substance containing a detectable amount of cocaine is necessary to trigger the provisions of § 841(b)(1)(A). Under the CCCA, only one kilogram was necessary to trigger the provisions of § 841(b)(1)(A).
[3] The Seventh Circuit apparently only considered the question of possible sentences under § 841(b)(1)(B) as provided for in the ADAA and CCCA. The Seventh Circuit apparently did not consider that distribution of 1000 grams would have fallen under § 841(b)(1)(A) of the CCCA version of that statute.
[4] As regards the possible term of confinement, the rule for both subsections would be that the provisions of § 1002 of the ADAA would apply.
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934 F.2d 1260
Sossamanv.Hauskins
NO. 90-1538
United States Court of Appeals,Fifth Circuit.
MAY 21, 1991
1
Appeal From: N.D.Miss.
2
VACATED.
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708 F.2d 967
Hardy W. RYLAND and Alma Odessa Ryland, Plaintiffs-Appellants,v.Alfred B. SHAPIRO, et al., Defendants,Edwin O. Ware and Edward E. Roberts, Jr., Defendants-Appellees.
No. 82-3201.
United States Court of Appeals,Fifth Circuit.
July 5, 1983.
Dennis R. Whalen, Baton Rouge, La., for plaintiffs-appellants.
Gold, Little, Simon, Weems & Bruser, John F. Simon, Alexandria, La., for Ware and Roberts.
Appeal from the United States District Court for the Western District of Louisiana.
Before CLARK, Chief Judge, THORNBERRY and REAVLEY, Circuit Judges.
THORNBERRY, Circuit Judge:
Introduction:
1
Hardy and Alma Ryland appeal from the dismissal of their section 1983 suit against Edwin Ware and Edward Roberts, defendants below.1 In their complaint, the Rylands alleged that their daughter, Lavonna, was murdered by Shapiro, and that the defendants, acting under color of state law, concealed that fact, and prevented a full investigation into the murder. The district court granted the defendants' motion to dismiss, holding that the Rylands lacked standing to bring this suit, and that the defendants were protected by prosecutorial immunity.2 We reverse and remand.
Facts and Disposition Below:
2
Since this is an appeal from a dismissal for failure to state a claim upon which relief can be granted, Fed.R.Civ.Pro. 12(b)(6), we accept as true the allegations of the complaint, together with any reasonable inferences that may be drawn therefrom. Marrero v. City of Hialeah, 625 F.2d 499, 502 (5th Cir.1980), cert. denied, 450 U.S. 913, 101 S.Ct. 1353, 67 L.Ed.2d 337 (1981). The complaint alleges the following facts. Lavonna Ryland was murdered by Shapiro, then a local prosecutor, on November 25, 1979. After shooting Lavonna, Shapiro telephoned Roberts, then an assistant District Attorney, and asked him to come to his residence. Subsequent to the murder, Roberts and co-defendant Ware, at the time the District Attorney, while acting under color of state law, prevented a full investigation into the causes of Lavonna's death. Ware and Roberts accomplished this by cancelling an autopsy previously scheduled to be performed by the local coroner. During the next six weeks, the defendants sought to obtain the signatures of various deputy coroners and doctors on Lavonna's death certificate, which listed as suicide the cause of death. No doctor would sign the certificate. Finally, the defendants persuaded the coroner to sign a Coroner's Report and Death Certificate, even though he had never examined the body. The Certificate listed the cause of death as suicide. The defendants also stymied a police investigation into the circumstances surrounding Lavonna's death by representing to the police that her death was a suicide. The alleged murder cover-up was exposed by the Attorney General of Louisiana, who, on September 30, 1980, obtained a conviction of Shapiro for the murder.3 The Rylands claim that by concealing the murder for a period of approximately eleven months, the defendants prevented them from discovering that their daughter had been murdered. Since the Rylands were entitled to bring a wrongful death action against Shapiro under Article 23154 of the Louisiana Civil Code, they claim that the defendants deprived them of their civil rights by wrongfully interfering with their access to the state courts to pursue their tort claim against Shapiro.
3
In concluding that the Rylands did not have standing to bring a section 1983 action against Roberts and Ware, the district court stated that the conduct of the defendants did not invade any legally protected right of the parents. Rather, the court viewed the complaint as nothing more than one for failure to enforce the criminal laws of Louisiana. As a result, the court determined that the Rylands had only a generalized grievance against the defendants, common to all citizens of Louisiana, namely, the enforcement of the criminal laws. This, the court concluded, did not constitute a "case or controversy" sufficient to maintain a suit in federal courts. See Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 2204, 45 L.Ed.2d 343 (1975); Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663 (1962). As stated by the district court:
4
The alleged conduct of the defendants, Ware and Roberts, did not invade a private substantive or procedural legally protected interest guaranteed by the statutes and constitution of the United States. It deals with the defendants' failure to enforce the criminal laws of Louisiana, since this failure has allegedly delayed the plaintiffs in securing the necessary information to bring their civil actions in the state court. Rights which derive solely from state law cannot be the subject of a claim for relief under Section 1983.
5
It is clear that what the defendants are charged with is a generalized grievance held in common by all citizens; i.e., the enforcement of the criminal laws. Hoston v. Silbert, 514 F.Supp. 1239 (1981). The principal motivating factor was not to deny the parents of their right of access to the courts and thereby violate their constitutional rights under the Fourteenth Amendment. The plaintiff's alleged damages were too remote a consequence of the defendants' action to hold them responsible under Section 1983. The complaint does not make out a claim of federal constitutional magnitude.
6
The district court next held that the defendants enjoyed absolute prosecutorial immunity under Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976). The court characterized the complaint as one for suppression of evidence damaging to Shapiro. Finding no distinction between a prosecutor who conspires to bring false criminal charges (Imbler ) and the suppression of evidence that might lead to an indictment, the court concluded that "the functional nature of the activities that defendants ... were actually engaged in ... were in the scope of their prosecutorial duties, and under Imbler, they are immune from suit."
Discussion:
7
Our standard of review on this appeal is that set out by the Supreme Court in Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957): "In appraising the sufficiency of the complaint we follow ... the accepted rule that a complaint should not be dismissed for failure to state a claim unless it appears beyond a doubt that a plaintiff can prove no set of facts in support of his claim which would entitle him to relief."
8
In dismissing the Rylands' complaint, the district court held that the alleged conduct of the defendants "did not invade a private substantive or procedural legally protected interest guaranteed by the ... constitution." (emphasis added). We shall therefore begin our analysis by briefly discussing the difference between suits brought to remedy substantive constitutional violations, and those brought to remedy procedural due process violations.
9
In paragraph 8 of their complaint, the Rylands alleged that "the defendants have denied the complainants the privileges and immunities extended by the Constitution of the United States, to seek redress in the Courts of Louisiana, thereby depriving [them] ... of Civil Rights guaranteed by the Constitution...." We read the complaint as alleging both substantive and procedural deprivations. That state agents may simultaneously violate both substantive and procedural rights was made clear by the now retired Justice Stewart, sitting by designation:
10
A single act of depriving a citizen of his right to correspond may simultaneously constitute a violation of substantive constitutional rights and of the right to procedural due process. Because the right to correspond is protected by the First and Fourteenth Amendments, the result of depriving a citizen of this right will violate those substantive guarantees unless the action is justified by sufficiently compelling countervailing state interests. At the same time, because the interest in corresponding is a "liberty" interest within the meaning of the Fourteenth Amendment, the manner of depriving a citizen of this right could violate the procedural norms embodied in the Due Process Clause. See, e.g., Procunier v. Martinez, 416 U.S. 396, 94 S.Ct. 1800, 40 L.Ed.2d 224 (1973) (analyzing restrictions on a prisoner's correspondence rights as a violation of both substantive constitutional rights and the right to procedural due process).
11
Owen v. Lash, 682 F.2d 648, 652 n. 4 (7th Cir.1982) (emphasis in original). Although Justice Stewart was speaking of the right to correspond, we will show below that the right of access to the courts, like the right to correspond, is also protected by the first amendment.
The Substantive Right of Access to Courts:
12
The right of access to the courts is basic to our system of government, and it is well established today that it is one of the fundamental rights protected by the Constitution. In Chambers v. Baltimore & Ohio Railroad, 207 U.S. 142, 28 S.Ct. 34, 52 L.Ed. 143 (1907), the Supreme Court characterized this right of access in the following terms:
13
The right to sue and defend in the courts is the alternative of force. In an organized society it is the right conservative of all other rights, and lies at the foundation of orderly government. It is one of the highest and most essential privileges of citizenship, and must be allowed by each state to the citizens of all other states to the precise extent that it is allowed to its own citizens. Equality of treatment in this respect is not left to depend upon comity between the states, but is granted and protected by the Federal Constitution.
14
207 U.S. at 148, 28 S.Ct. at 35 (citations omitted). It is clear that the Court viewed the right of access to the courts as one of the privileges and immunities accorded citizens under article 4 of the Constitution and the fourteenth amendment.
15
In California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508, 92 S.Ct. 609, 30 L.Ed.2d 642 (1972), the Supreme Court found in the first amendment a second constitutional basis for this right of access: "Certainly the right to petition extends to all departments of Government. The right of access to the courts is indeed but one aspect of the right of petition." Id. 92 S.Ct. at 612.
16
This court recognized the first amendment right of access to the courts in Wilson v. Thompson, 593 F.2d 1375 (5th Cir.1979), where we stated: "It is by now well established that access to the courts is protected by the First Amendment right to petition for redress of grievances." Id. at 1387. See also NAACP v. Button, 371 U.S. 415, 83 S.Ct. 328, 336, 9 L.Ed.2d 405 (1963); Coastal States Marketing, Inc. v. Hunt, 694 F.2d 1358, 1363 (5th Cir.1983).
17
A number of other courts have also recognized that this right of access is encompassed by the first amendment right to petition. See McCray v. Maryland, 456 F.2d 1, 6 (4th Cir.1972); Harris v. Pate, 440 F.2d 315, 317 (7th Cir.1971); Pizzolato v. Perez, 524 F.Supp. 914, 921 (E.D.La.1981); Crews v. Pertrosky, 509 F.Supp. 1199, 1204 n. 10 (W.D.Pa.1981).
18
A third constitutional basis for the right of access to the courts is found in the due process clause. In Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974), the Supreme Court defined the right of access in a civil rights action under section 1983 in the following terms:
19
The right of access to the courts, upon which Avery [Johnson v. Avery, 393 U.S. 483, 89 S.Ct. 747, 21 L.Ed.2d 718 (1969) ] was premised, is founded in the Due Process Clause and assures that no person will be denied the opportunity to present to the judiciary allegations concerning violations of fundamental constitutional rights. It is futile to contend that the Civil Rights Act of 1871 has less importance in our constitutional scheme than does the Great Writ.
20
Id. 94 S.Ct. at 2986. See also Mitchum v. Purvis, 650 F.2d 647, 648 (5th Cir.1981); Rudolph v. Locke, 594 F.2d 1076, 1078 (5th Cir.1979). The due process clause has also been construed to allow prisoners meaningful access to the courts. See Bounds v. Smith, 430 U.S. 817, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977); Boddie v. Connecticut, 401 U.S. 371, 91 S.Ct. 780, 28 L.Ed.2d 113 (1971).
21
A mere formal right of access to the courts does not pass constitutional muster. Courts have required that the access be "adequate, effective, and meaningful." Bounds v. Smith, 97 S.Ct. at 1495; see also Rudolph v. Locke, 594 F.2d at 1078. Interference with the right of access to the courts gives rise to a claim for relief under section 1983. Sigafus v. Brown, 416 F.2d 105 (7th Cir.1969) (destruction by jail guards of legal papers necessary for appeal supports claim for damages under Sec. 1983); McCray v. Maryland, 456 F.2d at 6 ("Of what avail is it to the individual to arm him with a panoply of constitutional rights if, when he seeks to vindicate them, the courtroom can be hermetically sealed against him by a functionary who, by refusal or neglect, impedes the filing of his papers?"); Crews v. Petrosky, 509 F.Supp. at 1204 ("An allegation that a clerk of state court has negligently delayed the filing of a petition for appeal, and that the delay has interfered with an individual's right of access to the courts, may state a cause of action under 42 U.S.C. Sec. 1983.") (emphasis added). See also Harris v. Pate, 440 F.2d 315, 317 (7th Cir.1971) (prison authorities may not place burdens on right of access to courts); Corby v. Conboy, 457 F.2d 251, 253 (2d Cir.1972).
22
In conclusion, it is clear that, under our Constitution, the right of access to the courts is guaranteed and protected from unlawful interference and deprivations by the state, and only compelling state interests will justify such intrusions.
Procedural Due Process:
23
As stated above, the Rylands' complaint may also be construed to allege a deprivation of their right to procedural due process under the fourteenth amendment. Our analysis must begin with the inquiry whether the Rylands possessed an interest protected by the due process clause of the fourteenth amendment. The Rylands claim that they have been deprived of property without due process. The Supreme Court has long held that "[t]he hallmark of property ... is an individual entitlement grounded in state law, which cannot be removed except 'for cause.' " Logan v. Zimmerman Brush Co., 455 U.S. 422, 102 S.Ct. 1148, 1155, 71 L.Ed.2d 265 (1982). See Goss v. Lopez, 419 U.S. 565, 95 S.Ct. 729, 735-36, 42 L.Ed.2d 725 (1975); Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 2708-09, 33 L.Ed.2d 548 (1972). Article 2315 of the Louisiana Civil Code, supra note 4, defines the right of parents to institute wrongful death claims as a property right.5 We have previously recognized the rights of survivors to bring a wrongful death action under sections 1983 and 1988 where authorized by state law. Brazier v. Cherry, 293 F.2d 401 (5th Cir.), cert. denied, 368 U.S. 921, 82 S.Ct. 243, 7 L.Ed.2d 136 (1961). In Brazier, we held that in enacting section 1988, "Congress adopted as federal law the currently effective state law on the general right of survival." 293 F.2d at 405 (emphasis added).6
24
Violation of the Right of Access?
25
Our determination that the Rylands have a substantive constitutional right of access to the courts as well as a property right in the wrongful death action leads us to conclude that the district court erred when it held that the Rylands lacked standing to maintain their suit. In reaching this conclusion, the district court viewed the Rylands' claim merely as a suit by citizens to compel state prosecutors to initiate a criminal action against an alleged murderer. In so limiting its analysis, the district court failed to entertain the legal theory upon which the Rylands based their case. Their complaint alleged that agents of the state intentionally engaged in conduct that interfered with their exercise of their constitutionally protected right to institute a wrongful death suit in the Louisiana courts. As we have already shown, this theory of recovery is a valid one.
26
We have recently held in a Title VII case that a summary judgment by a court rendered as a result of its failure to entertain a valid legal theory was reversible error. Trevino v. Celanese Corp., 701 F.2d 397 (5th Cir.1983). A similar failure to consider a valid theory of recovery under the Constitution resulting in a dismissal for failure to state a claim upon which relief can be granted amounts, in our view, to far more egregious error. Accordingly, we remand the case to the district court for further proceedings.
27
On remand, the court should first address the issue of whether the actions of the defendants amounted to interference with the Rylands' right of access to the courts, as defined in the discussion above. A few words, however, are in order.
28
In essence, the allegations in the complaint may be characterized as wrongful interference by the defendants with the Rylands' access to the courts. Alternatively, the actions of the defendants can be analyzed as a conspiracy to obstruct justice.7
29
An analysis of the extent of a constitutional deprivation is not an exact science capable of quantification; rather, it is qualitative in nature. Thompson v. Washington, 497 F.2d 626, 636 (D.C.Cir.1973). However, we have previously held that "if state officers conspire ... in such a way as to defeat or prejudice a litigant's rights in state court, that would amount to a denial of equal protection of the laws by persons acting under color of state law." Dinwiddie v. Brown, 230 F.2d 465, 469 (5th Cir.), cert. denied, 351 U.S. 971, 76 S.Ct. 1041, 100 L.Ed. 1490 (1956). Conduct by state officers which results in delay in the prosecution of an action in state court may cause such prejudice. As we stated in Rheuark v. Shaw, 628 F.2d 297 (5th Cir.1980), cert. denied, 450 U.S. 931, 101 S.Ct. 1392, 67 L.Ed.2d 365 (1981):
30
Delay haunts the administration of justice. It postpones the rectification of wrong and the vindication of the unjustly accused. It crowds the dockets of the courts, increasing the costs for all litigants, pressuring judges to take short cuts, interfering with the prompt and deliberate disposition of those causes in which all parties are diligent and prepared for trial, and overhanging the entire process with the pall of disorganization and insolubility. But even these are not the worst of what delay does. The most erratic gear in the justice machinery is at the place of fact finding, and possibilities for error multiply rapidly as time elapses between the original fact and its judicial determination.
31
Id. at 303-04 n. 10 (quoting Southern Pacific Transportation Co. v. Stoot, 530 S.W.2d 930, 931 (Tex.1975) (emphasis added).
32
The actions of the defendants may also have amounted to a violation of the Louisiana Constitution, which provides in section 22 of its Declaration of Rights that "every person shall have an adequate remedy by due process of law and justice, administered without denial, partiality, or unreasonable delay, for injury to [his] ... property...." La.Const. art. I, Sec. 22 (emphasis added).
33
An action for conspiracy may be maintained under section 1983. Slavin v. Curry, 574 F.2d 1256, 1261 (5th Cir.), modified, 583 F.2d 779 (5th Cir.1978). However, federal courts view conspiracy claims under section 1983 differently than similar claims under section 1985. We explained this important distinction in Nesmith v. Alford, 318 F.2d 110 (5th Cir.1963), cert. denied, 375 U.S. 975, 84 S.Ct. 489, 11 L.Ed.2d 420 (1964):
34
In the Plaintiff's complaint and in the pretrial order outlining the issues for the trial then to be held * * * the Plaintiffs asserted the theory of a conspiracy among the several police officers and city officials to violate their Civil Rights. Of course, for a claim under Sec. 1983, a conspiracy as such is not an indispensable element as it is under Sec. 1985. But it may be charged as the legal mechanism through which to impose liability on each and all of the Defendants without regard to the person doing the particular act. Conspiracy is asserted in that situation on more or less traditional principles of agency, partnership, joint venture, and the like.
35
Id. at 126 (emphasis added). We applied the same principle in Mansell v. Saunders, 372 F.2d 573, 576 (5th Cir.1967):
36
We hold that appellants stated causes of action under 42 U.S.C.A. Sec. 1983. This statute embraces deprivation or [sic] both due process of law and equal protection of the laws, and the action charged was under color of state law. * * * It contemplates such deprivation through the unconstitutional application of a law by a conspiracy or otherwise.
37
See also Mizell v. North Broward Hospital District, 427 F.2d 468, 472 (5th Cir.1970).
38
Applying these principles to our case, we cannot say with certainty that there is no possibility that any set of facts which might be proved in support of the allegations would entitle the Rylands to some relief. Therefore, it was error by the district court to dismiss the complaint. First, the complaint alleges that the defendants successfully covered up Lavonna's murder for a period of eleven months. Thus, a fact finder could conclude that the alleged conspiracy to obstruct justice and/or deny the Rylands their constitutional rights was actually carried out. We reject the argument by the defendants that they are not liable because they did not intend to harm the Rylands by their actions. It is well settled that there is no requirement of specific intent in actions under section 1983. Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 484, 5 L.Ed.2d 492 (1961); Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 1219, 18 L.Ed.2d 288 (1967). The defendants' actions could have prejudiced the Rylands' chances of recovery in state court because the resulting delay would cause stale evidence and the fading of material facts in the minds of potential witnesses. Moreover, it could well prove more expensive to litigate such action. Finally, any interference with a substantive constitutional right, such as the right of access to the courts, may by itself amount to a constitutional deprivation (unless reasonably justified by a countervailing state interest).
Immunity:
39
The district court held that the defendants were shielded by absolute immunity because their actions were taken in their role as prosecutors. We disagree. Prosecutors are immune from damage actions brought for conduct performed in the role of a prosecutor. Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976). However, the Supreme Court in Imbler left open the question whether this immunity extends to actions in which the prosecutor acts as an investigator or administrator, rather than as an advocate. 96 S.Ct. at 995. We answered this question in Marrero v. City of Hialeah, 625 F.2d 499 (5th Cir.1980), cert. denied, 450 U.S. 913, 101 S.Ct. 1353, 67 L.Ed.2d 337 (1981). After examining relevant Supreme Court decisions since Imbler, and the policies underlying the immunity defense and section 1983, we held that "a prosecutor is not entitled to absolute immunity when he engages in activities outside his quasi-judicial role." 625 F.2d at 510. Instead, we held that, under certain conditions, a prosecutor may be entitled to qualified immunity. Id. For example, if a prosecutor performs functions analogous to those of a policeman, he is entitled to assert the defense of qualified immunity. Id. We expressed no opinion "as to whether a prosecutor may lose his qualified privilege through abuse of the privilege." 625 F.2d at 511 n. 16. We need not address this issue at present because we conclude that, under the allegations in this case, the district court erred in holding that the defendants were entitled to assert the defense of absolute immunity. Therefore, the case must be remanded.
40
In Marrero, we held that "it is the official function that determines the degree of immunity required, not the status of the acting officer." 625 F.2d at 508 (emphasis in original). Imposing liability upon a prosecutor for actions "outside his quasi-judicial role would not interfere with the independence of his quasi-judicial functions of deciding which suits to bring and conducting them in court." Id. at 509. We hold that the alleged actions of the defendants in falsifying the death certificate and in covering up the murder for a period of eleven months, if proven, were actions performed outside their role as prosecutors. See Bell v. City of Milwaukee, 514 F.Supp. 1363, 1372 (E.D.Wis.1981). Characterizing these actions as akin to those traditionally undertaken by officers of the court (which would entitle them to assert absolute immunity) would make a mockery of the judicial system. Accordingly, we reverse the district court's holding that the defendants were entitled to the defense of absolute immunity. On remand, the court should determine whether the actions of the prosecutors would entitle an ordinary prosecutor to qualified immunity. Should the court answer this question in the affirmative, it should then decide whether these particular defendants abused their privilege to assert qualified immunity. An affirmative answer to this question would require the court to address the issue whether, under these circumstances, these defendants are entitled to any immunity defense. Finally, should the court conclude that these defendants are entitled to qualified immunity, it should then determine whether their actions "violate[d] clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1983).
Conclusion:
41
For the reasons stated above, we remand the case to the district court for proceedings consistent with this opinion. We intimate no opinion whether the Rylands, should they prove their claim for a constitutional deprivation, have presented a claim for serious damage. It is not clear whether, by delaying the Rylands' access to the state courts, the defendants have caused actual injury. The rule in our circuit is that in the absence of proof of actual injury, a plaintiff who has been deprived of his constitutional rights may only collect nominal damages. "Mere proof of the violation of a right will not support an award of [compensatory] damages." Familias Unidas v. Briscoe, 619 F.2d 391, 402 (5th Cir.1980). However, claims of mental and emotional distress, if proven, can support an award of compensatory damages. Carey v. Piphus, 435 U.S. 247, 98 S.Ct. 1042, 1052, 55 L.Ed.2d 252 (1978). Moreover, the societal interest in deterring or punishing violators of constitutional rights supports an award of punitive damages even in the absence of actual injury. Wilson v. Taylor, 658 F.2d 1021, 1033 (5th Cir.1981); McCulloch v. Glasgow, 620 F.2d 47, 51 (5th Cir.1980). Finally, an award of nominal damages may support an award of attorney's fees under section 1988. Basiardanes v. City of Galveston, 682 F.2d 1203, 1220 (5th Cir.1982).
42
REVERSED AND REMANDED.
1
The suit also named Alfred Shapiro as a defendant in a pendent state law claim. The district court dismissed this claim, and the Rylands have not appealed that ruling. Consequently, any claim against Shapiro is not before us on this appeal
2
The record is somewhat unclear on whether the ruling below was pursuant to a motion to dismiss, or a motion for a summary judgment. Both motions were before the district court. Although the standing issue was decided in the context of a motion to dismiss, it appears that the court considered certain affidavits by the defendants in deciding the immunity issue. However, our reading of the district court's ruling discloses that the court dismissed the claim because it believed that the facts stated in the Rylands' complaint were not sufficient to state a cause of action under the Constitution. We therefore review this appeal as one from a dismissal for failure to state a claim upon which relief can be granted, Fed.R.Civ.Pro. 12(b)(6). Rutherford v. United States, 702 F.2d 580, 581 n. 1 (5th Cir.1983)
3
It has come to our attention that the Supreme Court of Louisiana, after first affirming Shapiro's conviction, has, on rehearing, on April 4, 1983, reversed the conviction on insufficiency of evidence grounds. State of Louisiana v. Shapiro, No. 81-KA-1905 (La. Apr. 4, 1983) (on rehearing). This reversal does not change the disposition of our case because, under Louisiana law, evidence of prior acquittal is inadmissible in a civil suit. See Quatray v. Wicker, 16 La.App. 515, 134 So. 313, 316 (La.App.1931); Annotation, 18 A.L.R.2d 1287, 1315. On remand, however, the district court should consider the effect of the Louisiana Supreme Court's reversal on this case
4
La.Civ.Code Ann. art. 2315 (West 1979) provides in part:
Art. 2315. Liability for acts causing damage; survival of action
Art. 2315. Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.
* * *
The right to recover all other damages caused by an offense or quasi offense, if the injured person dies, shall survive for a period of one year from the death of the deceased in favor of: .... (2) the surviving father and mother of the deceased, or either of them, if he left no spouse or child surviving.... The survivors in whose favor this right of action survives may also recover the damages which they sustained through the wrongful death of the deceased. A right to recover damages under the provisions of this paragraph is a property right which, on the death of the survivor in whose favor the right of action survived, is inherited by his legal, instituted, or irregular heirs, whether suit has been instituted thereon by the survivor or not.
5
Moreover, even if the Rylands had failed to institute suit for wrongful death, that right of action would still survive in favor of their heirs
6
But see Whitehurst v. Wright, 592 F.2d 834, 840 (5th Cir.1979). In Whitehurst, we held that section 1983 survival law was irrelevant to a murder cover-up claim because there could be no deprivation of the decedent's constitutional rights after his death. Whitehurst is not on point here because the alleged unconstitutional actions here deprive the parents', not the decedent's, protected rights
7
42 U.S.C. section 1985(2) prohibits conspiracies to obstruct justice in state and federal courts. However, that section cannot support a cause of action in the present suit because there is no claim that the actions of the defendants are motivated by "racial, or perhaps otherwise class-based animus." Griffin v. Breckenridge, 403 U.S. 88, 102, 91 S.Ct. 1790, 1798, 29 L.Ed.2d 338 (1971). An allegation that the defendants are motivated by some class based discrimination is essential to the maintenance of a suit under the second portion of section 1985(2), which applies to obstruction of justice in state courts:
[O]r if two or more persons conspire for the purpose of impeding, hindering, obstructing, or defeating in any manner, the due course of justice in any State or Territory, with intent to deny to any citizen the equal protection of the laws, or to injure him or his property for lawfully enforcing, or attempting to enforce, the right of any person, or class of persons, to the equal protection of the laws... (emphasis added).
42 U.S.C. Sec. 1985(2) (1976). See Kush v. Rutledge, --- U.S. ----, ----, 103 S.Ct. 1483, 1485, 75 L.Ed.2d 413 (1983).
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318 F.3d 976
Randy TRAINOR, Plaintiff-Appellant,v.APOLLO METAL SPECIALTIES, INC. and Danny Pilgrim, Defendants-Appellees.
No. 01-5077.
United States Court of Appeals, Tenth Circuit.
December 13, 2002.
As Amended on Denial of Rehearing January 23, 2003.
Donald Gregory Bledsoe (Steven A. Novick with him on the briefs), Tulsa, OK, for Plaintiff-Appellant.
Catherine Louise Campbell (Joseph A. Sharp, Karen M. Grundy and Matthew B. Free, with her on the brief), of Best & Sharp, Tulsa, OK, for Defendants-Appellees.
Before SEYMOUR, ALDISERT* and EBEL, Circuit Judges.
SEYMOUR, Circuit Judge.
1
Randy Trainor sued his former employer, Apollo Metal Specialties, Inc., and Apollo's majority stockholder, Danny Pilgrim, alleging disability employment discrimination in violation of Title I of the Americans with Disabilities Act, 42 U.S.C. §§ 12111-17 ("ADA"), and raising state law claims of discrimination, retaliatory discharge, breach of contract, tortious interference with an employment contract, and false inducement to employment. The district court granted defendants' motion for summary judgment, ruling that Apollo was not an employer covered by the ADA because it did not have fifteen or more employees in each of twenty calendar weeks during the relevant period as required by 42 U.S.C. § 12111(5)(A)1 and declining to exercise jurisdiction over the state law claims. Mr. Trainor appeals, contending the district court erred in placing the burden on Mr. Trainor to establish, in response to the summary judgment motion, the number and status of Apollo's temporary employees for purposes of the ADA's fifteen-employee requirement, and in holding that Mr. Pilgrim was not an Apollo employee. We reverse.
2
* Defendants filed a motion to dismiss under Fed.R.Civ.P. 12(b)(1) or alternatively for summary judgment, contending the court lacked subject matter jurisdiction because Apollo was not within the ADA definition of an employer. In support of this motion, defendants attached corporate payroll records and an affidavit by Mr. Pilgrim. Mr. Trainor filed a brief in response and attached his affidavit. While noting some disagreement among the circuits and within this circuit as to whether meeting the employer definition in the ADA is an issue of subject matter jurisdiction,2 the district court properly converted the motion to one for summary judgment. We have held that "[w]hen subject matter jurisdiction is dependent upon the same statute which provides the substantive claim in the case, the jurisdictional claim and the merits are considered to be intertwined." Wheeler v. Hurdman, 825 F.2d 257, 259 (10th Cir.1987) (citing Clark v. Tarrant County, 798 F.2d 736, 742 (5th Cir.1986) (jurisdictional claim and merits intertwined in determining whether defendant was employer under Title VII)). When, as here, both parties submit evidence beyond the pleadings, the motion is properly characterized as one for summary judgment. Id.
3
The court disposed of Mr. Trainor's claims in two rulings. In its first order, the court treated as Apollo employees all those listed on the payroll, including all temporary employees. Under that scenario, Apollo met the fifteen-employee requirement for the requisite number of weeks if Mr. Pilgrim was considered an employee. After ruling that Mr. Pilgrim was not an employee, the court acknowledged Mr. Trainor's challenge to the accuracy of defendants' payroll records and held that he had shown an adequate basis for further investigation. Accordingly, the court granted limited discovery to allow Mr. Trainor to investigate the number of Apollo's employees, both full and part-time. In so doing, the court stated that it had "insufficient evidence to grant summary judgment to Defendants at this early stage." Aplt.App. at 52.
4
In its second order, the district court agreed with Mr. Trainor that Mrs. Pilgrim, who was also a shareholder in Apollo and worked for the corporation, was an employee each week during the time she worked there, a ruling defendants do not challenge on appeal. However, the court rejected Mr. Trainor's argument that the fifteen-employee requirement had been met for twenty weeks. In reaching this conclusion, the court refused to deem all of Apollo's temporary workers "employees," ruling that Mr. Trainor had failed to controvert defendants' showing that some of these temporary workers were in fact independent contractors. Accordingly, the court granted summary judgment for defendants.
II
5
We first address Mr. Trainor's argument that the district court erred in holding he failed to carry his burden of proof under the summary judgment standard. We review the grant of summary judgment de novo, taking the facts and the reasonable inferences to be drawn from them in the light most favorable to the nonmoving party. See Whitesel v. Sengenberger, 222 F.3d 861, 867 (10th Cir. 2000). Under Rule 56(c), the moving party bears the initial burden of presenting evidence to show the absence of a genuine issue of material fact. See Hom v. Squire, 81 F.3d 969, 973 (10th Cir.1996). In our circuit, "`[t]he moving party carries the burden of showing beyond a reasonable doubt that it is entitled to summary judgment.'" Hicks v. City of Watonga, 942 F.2d 737, 743 (10th Cir.1991) (quoting Ewing v. Amoco Oil Co., 823 F.2d 1432, 1437 (10th Cir.1987)). Once this burden is met, Rule 56(e) requires the non-moving party to set forth specific facts showing there is a genuine issue for trial. See Hom, 81 F.3d at 973. Even when, as here, the moving party does not have the ultimate burden of persuasion at trial, it has both the initial burden of production on a motion for summary judgment and the burden of establishing that summary judgment is appropriate as a matter of law. See Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1102 (9th Cir. 2000). The moving party may carry its initial burden either by producing affirmative evidence negating an essential element of the nonmoving party's claim, or by showing that the nonmoving party does not have enough evidence to carry its burden of persuasion at trial. Id. at 1103-04.
6
If a moving party fails to carry its initial burden of production, the nonmoving party has no obligation to produce anything, even if the nonmoving party would have the ultimate burden of persuasion at trial. In such a case, the nonmoving party may defeat the motion for summary judgment without producing anything.
7
Id. at 1102-03 (citations omitted); see also Mullins v. Crowell, 228 F.3d 1305, 1313-14 (11th Cir.2000), reh'g and suggestion for reh'g en banc denied by 251 F.3d 165 (11th Cir.2001); Hunter v. Caliber Syst., Inc., 220 F.3d 702, 725-26 (6th Cir.2000).
8
Defendants sought to present evidence negating an essential element of Mr. Trainor's case, the requirement that Apollo be an "employer" for ADA purposes. To do so, defendants contended that "at least several" of its temporary workers were independent contractors rather than employees and therefore could not be counted. Aplt.App. at 16. As defendants recognize, in this circuit a person's status as either an employee or an independent contractor is determined using a hybrid test. See Sizova, 282 F.3d at 1328.
9
Under the hybrid test, the main focus of the court's inquiry is the employer's right to control the "means and manner" of the worker's performance. However, the hybrid test also looks at other factors, including: (1) the kind of occupation at issue, with reference to whether the work usually is done under the direction of a supervisor or is done by a specialist without supervision; (2) the skill required in the particular occupation; (3) whether the employer or the employee furnishes the equipment used and the place of work; (4) the length of time the individual has worked; (5) the method of payment, whether by time or by the job; (6) the manner in which the work relationship is terminated; (7) whether annual leave is afforded; (8) whether the work is an integral part of the business of the employer; (9) whether the worker accumulates retirement benefits; (10) whether the employer pays social security taxes; and (11) the intention of the parties. No single factor is conclusive. Rather, the courts are to look at the totality of the circumstances surrounding the working relationship between the parties.
10
Id. (quoting Lambertsen v. Utah Dep't of Corr., 79 F.3d 1024, 1028 (10th Cir.1996)).
11
To support their argument that some workers were independent contractors under the hybrid test, defendants presented two exhibits — payroll records and Mr. Pilgrim's affidavit. The payroll records consisted of four columns listing the payroll check date for each week of the relevant period, the number of full-time Apollo employees for each week, the number of people hired through temporary employment agencies for each week, and the total number of payroll checks issued each week. In his affidavit, Mr. Pilgrim explained his relationship to Apollo, the work he performed for the corporation, and the payroll records. Mr. Pilgrim stated that Apollo occasionally hired temporary workers, including welders, from personnel services. He said that although he assigned work and supervised employees, he did not supervise welders and they provided their own equipment. Defendants' exhibits did not identify the number of welders Apollo hired, or the weeks during which welders worked, or otherwise identify which temporary workers or how many of them defendants contended were independent contractors in any given week. Moreover, under the hybrid test, Mr. Pilgrim's admission that he assigned and supervised the work of all employees other than welders itself creates a fact issue as to whether all the temporary workers were independent contractors rather than employees.
12
Because Mr. Trainor is the nonmoving party, we must take his factual allegations as true and draw all reasonable inferences from the evidence in his favor. Relying on his personal knowledge of the corporation's operations which he acquired as Apollo's general manager, Mr. Trainor disputed Mr. Pilgrim's allegations regarding Apollo's hiring practices with respect to temporary employees. According to Mr. Trainor, Apollo treated the employees it hired through personnel agencies in the same way it treated its permanent employees. These workers were interviewed and selected personally by either Mr. Trainor or Mr. Pilgrim. Apollo determined their salary and gave that information to the agency, which added a markup that included half of the employee's social security tax. These workers were under the complete control and supervision of Apollo, and were governed by the same work rules and company policies as were the permanent employees. Mr. Trainor specifically disputed Mr. Pilgrim's assertion that Mr. Pilgrim did not supervise welders, stating to the contrary that "Mr. Pilgrim often personally instructed welders as to how to perform each job." Aplt.App. at 44. According to Mr. Trainor, the temporary workers were not hired by the job but were moved from job to job as the need arose. They were paid by the hour, hired for an unspecified, indefinite period, and some were eventually given permanent status. With respect to welders, Mr. Trainor stated:
13
All work performed by temporary employees was performed in buildings owned or provided by Apollo. The statement that welders provided some of their own equipment is true as far as it goes. Welders provided their own toolboxes and helmets, but Apollo provided all the welding equipment and most of the supplies. When welders who were temporary employees were hired as permanent employees, nothing changed with respect to the provision of tools and equipment — permanent employee welders still provided their own toolboxes and helmets and Apollo still provided the welding equipment and supplies.
14
Id. Based on this evidence, Mr. Trainor argued that summary judgment was improper because a fact issue existed as to whether all of Apollo's temporary workers should be considered employees rather than independent contractors for purposes of satisfying the ADA definition of employer. Alternatively, Mr. Trainor moved for a continuance to permit him further discovery.
15
In its first ruling, the district court concluded that the parties had provided "insubstantial evidence to support or controvert" whether Apollo's temporary employees should be considered employees or independent contractors. Id. at 50. The court also stated that it had "insufficient evidence to grant summary judgment to Defendants at this early stage." Id. at 52. It is thus clear that in the court's view, a view with which we agree, defendants had not carried their initial burden to show that no disputed issues of material fact existed, thereby entitling them to judgment as a matter of law. Nonetheless, rather than denying defendants' motion for summary judgment, the district court stayed the motion and granted Mr. Trainor's alternative request for further discovery. Under the summary judgment standards set out above, however, when the moving party fails in its initial burden of production, the nonmoving party has no burden at all and summary judgment should have been denied. While the court's ruling in this regard could be viewed as invited error in light of Mr. Trainor's alternative motion for further discovery, as we discuss below the court subsequently compounded its error and improperly granted summary judgment.
16
In its second order, the district court refused to deem all of Apollo's temporary workers "employees" for ADA purposes. In granting summary judgment for defendants, the court held that Mr. Trainor was required to "demonstrate the existence of an employment relationship between employer and an employee for each working day of a specified number of weeks." Aplt.App. at 112 (emphasis in original). The court ultimately held that Mr. Trainor "failed to meet his burden of proof." Id. at 113. In response to Mr. Trainor's argument that ADA jurisdiction presented a fact issue that should be submitted to a jury, the court stated "[t]he burden is on an ADA plaintiff to prove that the defendant employed the number of persons needed to trigger application of the ADA." Id. at 110. The court apparently believed Mr. Trainor bore this burden on summary judgment because he would be required to bear that burden at trial. In so doing the court erred.
17
As we have discussed, the moving party bears the ultimate burden of establishing its right to summary judgment as a matter of law even when it does not have the ultimate burden of persuasion at trial. We addressed this issue in Lake Hefner Open Space Alliance v. Dole, 871 F.2d 943, 944-45 (10th Cir.1989). In that case, in response to the defendants' motion for summary judgment, the plaintiff rested on its brief and on the administrative record. There, as here, the district court imposed a burden of proof on the plaintiff. We held that the court acted improperly in doing so.
18
When a defendant files a motion for summary judgment, he has to show that there is no genuine issue of material fact and that he is entitled to judgment as a matter of law. The opposing party ... has no "burden of proof," as such; however, in resisting the motion for summary judgment, [the nonmoving party] may not rely on mere allegations, or denials, contained in its pleadings or briefs. Rather, [the nonmoving party] must set forth specific facts showing the presence of a genuine issue of material fact for trial and significant probative evidence supporting the allegations.
19
If [the nonmoving party] had filed a motion for summary judgment, it would have had to show that there was no genuine issue of material fact and that it was entitled to judgment as a matter of law. And, of course, if this case had gone to trial, [the nonmoving party] would have had the plaintiff's usual "burden of proof." But in resisting defendants' motion for summary judgment, [the nonmoving party] only has a "burden," if that be the appropriate word, to identify specific facts posing genuine issues of material fact.
20
Id. at 945 (citations omitted) (emphasis added). Accordingly, we must assess the record to determine whether Mr. Trainor, as the nonmoving party, has shown the presence of a genuine issue of material fact precluding summary judgment. In so doing, we view the evidence in the light most favorable to him and draw all reasonable inferences in his favor.
21
Summary judgment is not proper if a fact issue exists on whether Apollo's temporary workers were in fact Apollo employees. Mr. Trainor's affidavit, when taken as true, is sufficient to create a fact issue as to whether Apollo's temporary employees, including any welders, are employees rather than independent contractors.3 Thus even if we were to assume that defendants carried their initial burden on their motion for summary judgment, Mr. Trainor defeated that motion by setting out evidence which, when viewed most favorably to him, created a factual dispute on the critical issue of whether Apollo had fifteen employees for purposes of ADA jurisdiction. The grant of summary judgment in favor of defendants was therefore improper.
III
22
Because the number of Apollo employees will be a material question in dispute on remand, we must also determine whether Mr. Pilgrim may be counted among them for purposes of the ADA. "In our review of the antidiscrimination laws we must be mindful of their remedial purposes, and liberally interpret their provisions to that end." Wheeler v. Hurdman, 825 F.2d 257, 262 (10th Cir.1987). "Such liberal construction is also to be given to the definition of `employer,'" Owens v. Rush, 636 F.2d 283, 287 (10th Cir.1980) (internal quotation omitted), and the term "employee," see Chavero v. Local 241, 787 F.2d 1154, 1156 (7th Cir.1986) (per curiam).4 The ADA defines an "employee" as "an individual employed by an employer." 42 U.S.C. § 12111(4). An "employer," in turn, is defined as "a person engaged in an industry affecting commerce who has 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year." Id. § 12111(5). The ADA also provides that the term "person" "shall have the same meaning given such term[] in section 2000e [Title VII] of this title." Id. § 12111(7). Section 2000e defines "person" to include, among others, corporations. See 42 U.S.C. § 2000e(a).
23
It is undisputed that Mr. Pilgrim and his wife currently own in equal shares all the stock of Apollo,5 that Mr. Pilgrim performed services for Apollo, and that Apollo paid him a salary for those services. Mr. Pilgrim was thus both an owner of Apollo and a participant in a traditional employment relationship with the corporation. The district court held that it would not be appropriate to classify Mr. Pilgrim as "an owner, proprietor, officer, director, manager, and employee, despite the fact that he performs some of the duties of an employee." Aplt.App. at 51 (emphasis in original). In so doing, the court relied on four cases that we find distinguishable.
24
In State Insurance Fund v. Ace Transportation Inc., 195 F.3d 561, 565 (10th Cir.1999), a suit to recover unpaid worker's compensation premiums, we observed in passing that Oklahoma's worker's compensation system does not consider truck owner/operators as "employees" subject to worker's compensation premiums. We agree with Mr. Trainor that a truck owner/operator is simply not analogous to the working shareholder of a corporation. Moreover, as Mr. Trainor points out, under Oklahoma worker's compensation law a shareholder-employee of a corporation can elect to be covered by worker's compensation insurance. See OKLA. STAT. tit. 85, § 3(8); see also Bowman v. Sportsworld Dev., 837 P.2d 938 (Okla.Ct.App. 1992) (stockholder-employees of corporation may elect to be included in policy).
25
In Serapion v. Martinez, 119 F.3d 982 (1st Cir.1997), the court concluded that a senior or proprietary partner was not an employee of the partnership. The court undertook a factual analysis to determine whether the person "described as a partner actually bears a close enough resemblance to an employee to be afforded the protections of Title VII." Id. at 987. The court looked at ownership of firm assets and liability for firm debts and obligations, as well as the extent to which compensation is based on the firm's profits, enhanced fringe benefits, and policy-making authority. See id. at 990. Even assuming these factors may be relevant to assessing whether a corporate shareholder should also be considered an employee, the differences between a shareholder of a corporation and a partner in a partnership, particularly with respect to liability for the firm's debts and obligations, may well compel a different result when the relevant factors are assessed.
26
In Chavero, 787 F.2d 1154, 1155, the plaintiff brought a Title VII claim against a union local alleging employment discrimination. The court held that the members of the union's executive board of directors were not union "employees" for purposes of Title VII coverage. In so doing, the court concluded that the term "employee" does not include persons "who are no more than directors of a corporation or unpaid, inactive officers." Id. at 1156 (internal quotation omitted). Nevertheless, the court took care to point out that a director "may accept duties that make him also an employee," id. at 1157 (citing EEOC v. First Catholic Slovak Ladies Ass'n, 694 F.2d 1068, 1070 (6th Cir.1982)), and that "the primary consideration is whether an employer-employee relationship exists," id. The court premised its ruling that the directors in that case were not also employees on a determination that the record failed "to establish that the board members perform[ed] traditional employee duties." Id. To the extent that Chavero is relevant, therefore, it supports the conclusion that Mr. Pilgrim is an Apollo employee because he performs traditional employee duties as part of an employment relationship.
27
Finally, in Matinchek v. John Alden Life Insurance Co., 93 F.3d 96 (3d Cir. 1996), the court held that ERISA did not govern an insurance coverage dispute regarding a coverage plan covering only a sole business owner and immediate family members. The court determined that Congress, in defining the terms employer and employee for purposes of ERISA, "did not intend to protect a split-personality business owner whose ego may act as an employee and whose alter-ego may act as an employer threatening to take away his or her own benefits." Id. 101 n. 2. "When the employee and the employer are one and the same, there is little need to regulate plan administration." Id. at 101 (internal quotation omitted) (emphasis in original). The case is irrelevant to determining whether a corporate shareholder who also performs services for the corporation should be considered an employee for purposes of the antidiscrimination laws. In sum, these cases are not persuasive authority for the conclusion that Mr. Pilgrim should not be considered an Apollo employee.
28
On appeal, defendants rely upon cases holding that a partner in a partnership is not an employee under Title VII, contending there is little difference between a shareholder in a closely held corporation and a partner in a partnership. We disagree. Defendants ignore a hallmark distinction between shareholders and partners, and the differing liability each bears for their entity's debts and obligations. Our circuit has clearly differentiated between partners in a partnership and shareholders in a corporation on this ground, among others. In Wheeler, 825 F.2d at 262-76, we dealt at length with the definition of "employee" for Title VII purposes in the context of determining whether a partner should be considered an employee of a partnership. Throughout our discussion we were careful to distinguish between the economic realities of partnerships and those of corporations. We pointed out that while employees do not assume the risks of loss and the liabilities of their employers, partners are liable for partnership debts and obligations. See id. at 274-75. We specifically stated that "the characteristics of general partnership are different from that of a small, voting shareholder/director or officer of a large corporation." Id. at 276. "There may be many aspects of a partner's work environment in a partnership which are indistinguishable from that of a corporate employee. But in general the total bundle of partnership characteristics sufficiently differentiates between the two to remove general partners from the statutory term `employee.'" Id. In keeping with our analysis in Wheeler, we reject defendants' contention that a corporate shareholder should be treated in the same manner as a partner for purposes of assessing "employee" status under the antidiscrimination laws.
29
Defendants also ask us to follow those courts holding that shareholders in professional corporations are not employees of the corporation. The circuits are in some disarray on this issue.
30
Courts have taken two approaches in resolving the question of whether shareholders and directors of professional corporations are employees under federal antidiscrimination law. Under one approach the type of organization is decisive, and individuals working for a professional corporation are considered employees. The other approach examines the actual circumstances to determine whether an individual functions like a partner. Individuals acting like partners will not be classified as employees because partners own and manage a firm.
31
Devine v. Stone, Leyton & Gershman, P.C., 100 F.3d 78, 80 (8th Cir.1996). Courts that focus on the type of organization reflect that:
32
The incorporators of a professional corporation make a deliberate decision to adopt the corporate form for their business in order to avail themselves of important tax, employee benefit, and civil liability advantages. Having freely made the choice to adopt this form of business organization "they should not now be heard" to say that their firm is "essentially a medical partnership," and not a corporation.
33
Wells v. Clackamas Gastroenterology Assocs., 271 F.3d 903, 905 (9th Cir.2001) (quoting Hyland v. New Haven Radiology Assocs., P.C., 794 F.2d 793, 798 (2d Cir. 1986)), cert. granted, ___ U.S. ___, 123 S.Ct. 31, 153 L.Ed.2d 893 (2002).
34
Courts that look to the actual circumstances of the business entity point out that a professional corporation allows doctors, lawyers, and other professionals "to practice their profession as do partners in a partnership while benefitting from certain liability and tax considerations applicable to corporations." Fountain v. Metcalf, Zima & Co., P.A., 925 F.2d 1398, 1399 (11th Cir.1991). These courts focus on factors indicating that the shareholders function as partners and that their relation to the business entity has the indicia of a partnership relationship. See id. at 1401. In so doing, the courts have distinguished between professional corporations and traditional corporations. "The role of a shareholder in a professional corporation is far more analogous to a partner in a partnership than it is to the shareholder of a general corporation." EEOC v. Dowd & Dowd, Ltd., 736 F.2d 1177, 1178 (7th Cir. 1984).
35
Courts addressing the term "employee" in the context of professional corporations have therefore either given conclusive weight to the choice of corporate form, or have disregarded that form because the entity functioned as a partnership. In view of our determination that partnerships are not analogous to corporations, the treatment by the courts of professional corporations is not helpful to defendants. Indeed the very factors those courts rely on to hold that a professional corporation functions as a partnership are the factors this court cited in Wheeler to distinguish partnerships from corporations.6 Given these differences, we are not persuaded cases dealing with professional corporations are an appropriate guide to our present inquiry.
36
The most helpful authorities in addressing whether Mr. Pilgrim is an employee of Apollo are those dealing with the circumstances in which a corporate officer or director is also a corporate employee. The Supreme Court has pointed out "[t]here is nothing inherently inconsistent between the coexistence of a proprietary and an employment relationship." Goldberg v. Whitaker House Co-op., Inc., 366 U.S. 28, 32, 81 S.Ct. 933, 6 L.Ed.2d 100 (1961); see also Wheeler, 825 F.2d at 267 (owners in contexts other than partnerships can also be employees). Courts have generally applied a three-factor test in making this determination, looking to "(1) whether the director has undertaken traditional employee duties; (2) whether the director was regularly employed by a separate entity; and (3) whether the director reported to someone higher in the hierarchy." EEOC v. Johnson & Higgins, Inc., 91 F.3d 1529, 1539 (2d Cir.1996). "[T]he primary consideration is whether an employer-employee relationship exists" in which the director "perform[s] traditional employee duties." Chavero, 787 F.2d at 1157; Walters v. Metro. Educ. Enter., Inc., 519 U.S. 202, 212, 117 S.Ct. 660, 136 L.Ed.2d 644 (1997) ("the ultimate touchstone under § 2000e(b) is whether an employer has employment relationships with 15 or more individuals"); see also Whitaker House Co-op., 366 U.S. at 32, 81 S.Ct. 933 (members in cooperative are also employees when cooperative provided opportunity to work and paid for it); Graves v. Women's Prof. Rodeo Ass'n, Inc., 907 F.2d 71, 72-73 (8th Cir.1990) (members of corporation not employees because they did not receive compensation for services and therefore did not have employment relationship with corporation); Zimmerman v. N. Am. Signal Co., 704 F.2d 347, 351-52 (7th Cir.1983) (corporate officers who were paid for their services and worked for corporation deemed employees, while officers who were unpaid and took no role in corporate daily affairs were not considered employees), overruled on other grounds by Walters v. Metro. Educ. Enter., Inc., 519 U.S. 202, 117 S.Ct. 660, 136 L.Ed.2d 644 (1997); EEOC v. First Catholic Slovak Ladies Ass'n, 694 F.2d 1068, 1070 (6th Cir.1982) (association directors were also employees when they performed traditional employee duties and drew salaries).
37
In this case, when the facts viewed most favorably to Mr. Trainor are assessed under the above three factors, it is clear defendants have failed to establish as a matter of law that Mr. Pilgrim is not an employee of Apollo for purposes of subject matter jurisdiction under the ADA. Mr. Pilgrim's own evidence establishes that he had an employment relationship with the corporation in which he performed services for it and was paid for those services. There is no evidence in the record tending to show that he was regularly employed by any other entity. While it may be true that Mr. Pilgrim did not answer to anyone but himself in performing his services for Apollo, we do not think this factor is dispositive in light of the undisputed evidence of his employment relationship with the company. Accordingly, the district court erred in holding as a matter of law that Mr. Pilgrim was not an employee of Apollo.
38
We REVERSE the grant of summary judgment in favor of defendants and REMAND for further proceedings in light of this opinion.7
Notes:
*
The Honorable Ruggero J. Aldisert, Circuit Judge, United States Court of Appeals for the Third Circuit, sitting by designation
1
Under the ADA, "[t]he term `employer' means a person engaged in an industry affecting commerce who has 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year." 42 U.S.C. § 12111(5)(A)
2
The court comparedZinn v. McKune, 143 F.3d 1353, 1356 (10th Cir.1998), and Lockard v. Pizza Hut, Inc., 162 F.3d 1062, 1069 (10th Cir.1998), and expressed its view that the law in this circuit is unsettled with respect to whether the ADA's fifteen-employee requirement presents a jurisdictional issue. In attempting to clarify this question we begin by pointing out the distinction between ascertaining whether a company falls within the definition of "employer" set out in 42 U.S.C. § 12111(5)(A), and determining whether an employment relationship exists between an employer and a particular employee. While these two inquiries often overlap, they are not necessarily co-extensive. In some cases, the defendant's status as an "employer" within the statutory definition is undisputed and the only question is whether the plaintiff and the defendant have an employment relationship. See, e.g., Sizova v. Nat'l Inst. of Standards & Tech., 282 F.3d 1320, 1328-30 (10th Cir. 2002); Frank v. U.S. West, Inc., 3 F.3d 1357, 1361 (10th Cir.1993). In these cases, establishment of the employment relationship is an element of a plaintiff's prima facie case. See Frank, 3 F.3d at 1361. In the instant case, the existence of an employment relationship between plaintiff and Apollo is undisputed and the only question is whether Apollo is an "employer" within the statutory definition. This inquiry presents a question of subject matter jurisdiction. See Ferroni v. Teamsters Local No. 222, 297 F.3d 1146, 1151 (10th Cir.2002). Confusion arises when, as here, ascertaining whether a defendant falls within the statutory definition requires the court to determine whether that defendant has an employment relationship with the requisite fifteen employees. Because the inquiry nonetheless is directed to whether the defendant falls within the statute, the question is one of subject matter jurisdiction.
3
Mr. Trainor stated that Mr. Pilgrim supervised all aspects of the temporary employees' work, including the work of the welders; that except for the welders' toolboxes and helmets, which both temporary and permanent welders provided for themselves, Apollo supplied the equipment and the facilities; these employees worked for long periods and were paid by the hour rather than by the job; they were governed by the same policies and work rules as the permanent employees; they were an integral part of Apollo's business and their work was a large part of the business operations; Apollo paid at least part of their social security taxes indirectly; and neither temporary nor permanent employees earned retirement benefits at Apollo
4
InWheeler the plaintiff brought claims under Title VII, the Age Discrimination in Employment Act, and the Equal Pay Act. Wheeler, 825 F.2d at 258. In Owens and Chavero the plaintiff sued under Title VII. The definition of "employer" set out in the ADA is identical to that contained in Title VII and the other statutes at issue in Wheeler. Compare 42 U.S.C. § 12111(5)(A)(ADA) with 42 U.S.C. § 2000e(b) (Title VII). Accordingly, this court has applied cases construing the definition of "employer" in Title VII cases to ADA cases. See Butler v. City of Prairie Village, 172 F.3d 736, 744 (10th Cir.1999).
5
Mr. Trainor stated by affidavit that at the time he was employed at Apollo and as late as sometime in 1998 an individual named Genave Rogers owned a third of the company stock. Aplt.App. at 41-42. This disputed fact is irrelevant because our resolution of whether Mr. Pilgrim is an employee does not rest on stock ownership
6
In Oklahoma, for example, shareholders in a professional corporation, as opposed to shareholders generally, are personally liable with respect to the rendering of professional servicesSee OKLA. STAT. tit. 18, § 812.
7
Upon granting defendants' motion for summary judgment on the federal ADA claim, the district court declined to exercise supplemental jurisdiction over the state law claims and dismissed them without prejudice. Our reversal of summary judgment on the federal claim reestablishes federal question jurisdiction and a jurisdictional basis may therefore exist to support supplemental jurisdictionSee Olcott v. Delaware Flood Co., 76 F.3d 1538, 1550 (10th Cir.1996). Accordingly, dismissal of the state law claims is reversed and remanded for further consideration in light of Olcott.
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21 A.3d 1007 (2011)
YELERTON
v.
U.S.
No. 10-CF-611.
District of Columbia Court of Appeals.
May 31, 2011.
DECISION WITHOUT PUBLISHED OPINION
Affirmed.
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644 F.2d 852
Chester Otto HENRIKSEN, Plaintiff-Appellant,v.The Honorable Judge Vernon G. BENTLEY, of the SecondJudicial Circuit, and PhilKrahn, Clerk of theCourt, Second Judicial District In andFor the State ofWyoming,Defendants-Appellees.
No. 79-2143.
United States Court of Appeals,Tenth Circuit.
Argued and Submitted Feb. 19, 1981.Decided March 26, 1981.
Leonard D. Munker, Federal Public Defender, Wichita, Kan., for plaintiff-appellant.
Allen C. Johnson, Senior Asst. Atty. Gen., Cheyenne, Wyo., for defendants-appellees.
Before BARRETT, DOYLE and LOGAN, Circuit Judges.
WILLIAM E. DOYLE, Circuit Judge.
1
Chester Otto Henriksen, a Wyoming state prisoner, seeks review of the dismissal of his cause of action brought pursuant to 42 U.S.C. § 1983, against a state district court judge and clerk, both of the Second Judicial District Court in Albany County, Wyoming.
2
In his complaint, Henriksen alleged that he mailed a certified letter, containing "legal mail" to the state district court clerk's office. This letter was received by the post office and the post office apparently twice notified the clerk's office of the letter. However, the clerk's office failed to pick up the letter and it was subsequently returned to Henriksen. Henriksen then commenced this § 1983 action in the federal district court, claiming that he had been denied access to the courts and seeking damages and equitable relief.
3
The district court granted Henriksen's motion to proceed in forma pauperis, and ordered that the complaint be filed. The court then summarily dismissed the cause of action on the ground that the defendants-appellees enjoyed absolute judicial immunity, and upon the further ground that the action was frivolous and devoid of merit.
4
Henriksen has argued in this court that prisoners have a recognized constitutional right of access to the courts, and that his complaint therefore had merit. He maintains that immunity is a defense which must be raised by the defendants in the first instance.
I.
5
Summary dismissal is appropriate under certain circumstances. 28 U.S.C. § 1915(d). When a motion to proceed in forma pauperis is filed and the poverty affidavit is facially sufficient, the complaint should be filed. Phillips v. Carey, 638 F.2d 207 (10th Cir., 1981); Duhart v. Carlson, 469 F.2d 471 (10th Cir. 1972), cert. denied, 410 U.S. 958, 93 S.Ct. 1431, 35 L.Ed.2d 692 (1973). The complaint is then tested under 28 U.S.C. § 1915(d), and if found to be frivolous, improper or obviously without merit, the case is subject to dismissal. See Phillips v. Carey, supra at 208 and cases cited therein. This court has made clear in numerous cases that a trial court need not require service of the complaint and filing of an answer in cases of this type where on the face of the complaint it clearly appears that the action is frivolous or malicious.
6
The test to be applied in determining whether an in forma pauperis complaint is frivolous has been clearly stated by this court in numerous cases. E. g., Phillips v. Carey, supra; Smart v. Villar, 547 F.2d 112 (10th Cir. 1976). Such a complaint is frivolous if the plaintiff cannot make a rational argument on the law or the facts to support his claim.
7
So tested, dismissal of Henriksen's complaint against the state district court judge was appropriate. The complaint premises the liability of the judge on the allegation that the judge "is responsible for the acts committed by the clerk." (R. 3). The law is clear that liability under 42 U.S.C. § 1983 may not be premised on the doctrine of respondeat superior. Rizzo v. Goode, 423 U.S. 362, 96 S.Ct. 598, 46 L.Ed.2d 561 (1976); Bennett v. Passic, 545 F.2d 1260 (10th Cir. 1976); Kite v. Kelley, 546 F.2d 334 (10th Cir. 1976). An isolated instance of violation of constitutional rights by a subordinate is incapable of rising to an issue regarding the liability of a superior under § 1983. McClelland v. Facteau, 610 F.2d 693 (10th Cir. 1979). Henriksen's complaint contains no allegation which has any tendency to support his contention that the judge is liable under § 1983.
8
Accordingly, the complaint is without merit as to the judge. It was properly dismissed.
9
In light of the result reached above, we need not decide whether absolute judicial immunity also supports dismissal of Henriksen's cause of action against the judge. See Stump v. Sparkman, 435 U.S. 349, 98 S.Ct. 1099, 55 L.Ed.2d 331 (1978); Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967). Nor need we decide whether judicial immunity insulates state judges from injunctive and declaratory relief as well as monetary relief under § 1983 an issue which was recently left open by the Supreme Court. Supreme Court of Virginia v. Consumers Union of the United States, Inc., 446 U.S. 719, 100 S.Ct. 1967, 64 L.Ed.2d 641 (1980).
II.
10
The district court also concluded that the complaint against the state court clerk was frivolous under 28 U.S.C. § 1915(d); that a clerk enjoys the same absolute immunity from suit as does a judge. In light of the stage at which the action was dismissed, the allegations in Henriksen's complaint must be accepted as true. Viewed in this light, we cannot say that no rational argument on the law or the facts can be made to support the allegations of the complaint.
11
Denial of access to the courts violates a recognized constitutional right, and conceivably could be the basis of a suit pursuant to 42 U.S.C. § 1983. Bounds v. Smith, 430 U.S. 817, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977); Silver v. Cormier, 529 F.2d 161 (10th Cir. 1976). Thus, actions which prevent an individual from communicating with a court could constitute denial of access to the court.1
12
This court has not previously addressed the appropriate type of immunity to be afforded to a clerk of a court. However, the considerations which underlie grants of immunity have been stated in several Supreme Court cases. At the outset, it should be noted that immunity is a judicially developed limitation on the protection established by Congress in 42 U.S.C. § 1983. § 1983 provides:
13
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other property proceeding for redress. (emphasis added)
14
The doctrine of official immunity from § 1983 is based on two mutually dependent rationales:
15
(1) the injustice, particularly in the absence of bad faith, of subjecting to liability an officer who is required, by the legal obligations of his position, to exercise discretion;
16
(2) the danger that the threat of such liability would deter his willingness to execute his office with the decisiveness and the judgment required by the public good. Butz v. Economou, 438 U.S. 478, 497, 98 S.Ct. 2894, 2906, 57 L.Ed.2d 895 (1978), quoting Scheuer v. Rhodes, 416 U.S. 232, 240, 94 S.Ct. 1683, 1688, 40 L.Ed.2d 90 (1974).
17
Absolute immunity has been granted sparingly and only in those cases where the public interest in unfettered decision-making outweighs the individual interest in redress pursuant to § 1983.
18
Judges are absolutely immune from civil liability for judicial acts, unless committed in the clear absence of all jurisdiction. Stump v. Sparkman, 435 U.S. 349, 98 S.Ct. 1099, 55 L.Ed.2d 331 (1978); Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967). "(I)t is a general principle of the highest importance to the proper administration of justice that a judicial officer, in exercising the authority vested in him, shall be free to act upon his own convictions, without apprehension of personal consequence to himself." Bradley v. Fisher, 13 Wall 335, 347, 80 U.S. 335, 347, 20 L.Ed. 646 (1872). The same rationale has been invoked to extend absolute immunity to prosecutors from liability for decisions to initiate and prosecute cases. Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976).
19
Although the absolute immunity of judges has limits we need not discuss these limits beyond saying that the immunity does not extend to acts which are outside the jurisdiction of the judge. Stump v. Sparkman, supra at 362, 98 S.Ct. at 1107. The court in Supreme Court of Virginia v. Consumers Union of the United States, supra, suggests that immunity from liability in damages may not bar prospective relief, injunction, for example, against a judge.
20
Immunity which derives from judicial immunity may extend to persons other than a judge where performance of judicial acts or activity as an official aide of the judge is involved. Dennis v. Sparks, --- U.S. ----, 101 S.Ct. 183, 66 L.Ed.2d 185 (1980); see also Gravel v. United States, 408 U.S. 606, 92 S.Ct. 2614, 33 L.Ed.2d 583 (1972). Thus, clerks of courts have been ruled immune to suit under § 1983 when performing "quasi-judicial" duties. E. g., Smith v. Rosenbaum, 460 F.2d 1019 (3rd Cir. 1972) (setting bail pursuant to statute); Denman v. Leedy, 479 F.2d 1097 (6th Cir. 1973). Other courts have held that absolute immunity applies where a court clerk is acting under the command of a court decree or explicit instructions from a judge. Williams v. Wood, 612 F.2d 982 (5th Cir. 1980); Slotnick v. Garfinkle, 632 F.2d 163 (1st Cir. 1980).
21
In most of the cases in which the immunity of various types of public officials has been considered, the Supreme Court has concluded that only a limited or qualified immunity is appropriate. E. g., Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967) (police officers); Wood v. Strickland, 420 U.S. 308, 95 S.Ct. 992, 43 L.Ed.2d 214 (1975) (school board members); Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974). In each case, it is necessary to weigh the nature of the activity involved and the need for unfettered exercise of discretion against the individual interest in protection under § 1983. C. f., G. M. Leasing Corp. v. United States, 560 F.2d 1011 (10th Cir. 1977).
22
The precise scope of the immunity, if any, that should be afforded to a clerk of court can only be determined on a more developed factual record. However, the courts which have considered the question have concluded that clerks are generally entitled to qualified immunity. In McLallen v. Henderson, 492 F.2d 1298 (8th Cir. 1974), the court states that a clerk is entitled to immunity from damages where he "can show that he was acting pursuant to his lawful authority and following in good faith the instructions or rules of the court and was not in derogation of those instructions or rules." 492 F.2d at 1300. See also Williams v. Wood, supra (qualified immunity for entry of order and notification of parties). In McCray v. State of Maryland, 456 F.2d 1 (4th Cir. 1972), the plaintiff prisoner alleged that the negligence of a state court clerk had impeded the filing of a petition for post-conviction review. The court view was that the filing of papers is ministerial and non-discretionary. This precluded a grant of absolute immunity. Finally, even if a clerk is immune from damages for the discharge of certain functions, equitable relief may still be obtained under § 1983. Shipp v. Todd, 568 F.2d 133 (9th Cir. 1978).
23
Where a public official has or may have a defense based on qualified immunity, the burden is on the official to raise the defense and establish his entitlement to immunity. Gomez v. Toledo, 446 U.S. 635, 100 S.Ct. 1920, 64 L.Ed.2d 572 (1980). This is not to say that in every case in which qualified immunity is an issue, a trial on the merits is necessary. Summary disposition consistent with the Federal Rules of Procedure may be appropriate. See Butz v. Economou, supra at 508. However, dismissal of the complaint pursuant to 28 U.S.C. § 1915 is not appropriate in such cases.
24
In the present case the district court allowed the complaint to be filed but quickly dismissed it without hearing. An answer should have been ordered following the issuance and service of process. Further proceedings would depend on the form and scope of the answer.
25
For the reasons set forth above, the judgment of the district court is affirmed in part, reversed in part and remanded for further proceedings in accordance with this opinion.
1
The precise nature of the "legal mail" involved in this case is not clear. The contents of Henriksen's letter may have a bearing on his claim that he was denied access to the courts. See Collins v. Cundy, 603 F.2d 825 (10th Cir. 1979). However, the allegation of interference with "legal mail" is sufficient to prevent dismissal under 28 U.S.C. § 1915(d)
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NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
AUG 04 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 15-16334
Plaintiff - Appellee, D.C. No. 1:15-cv-00072-DKW-BMK
1:13-cr-01065-DKW-12
v.
SUN HWANG, AKA Sunny, MEMORANDUM*
Defendant - Appellant.
Appeal from the United States District Court
for the District of Hawaii
Derrick Kahala Watson, District Judge, Presiding
Argued and Submitted June 14, 2016
Honolulu, Hawaii
Before: THOMAS, Chief Judge and CALLAHAN and MURGUIA, Circuit Judges.
Sun Hwang appeals the district court’s denial of her motion for relief under
28 U.S.C. § 2255. We reverse.
We review a district court’s denial of relief under 28 U.S.C. § 2255 de novo.
United States v. Swisher, 811 F.3d 299, 306 (9th Cir. 2016) (en banc).
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Hwang pled guilty to aiding and abetting an illegal gambling enterprise in
violation of 18 U.S.C. § 1955. Before Hwang pled guilty, her lawyer contacted
two immigration attorneys to determine the immigration consequences of a guilty
plea. One attorney told Hwang’s lawyer that a guilty plea under § 1955 would
invariably result in removal, with no option for discretionary relief. The other
attorney believed that Hwang would be eligible for discretionary relief. Hwang’s
lawyer conveyed both viewpoints to Hwang, but he did not say which viewpoint he
believed to be correct. Rather, in his words, he “never gave Ms. Hwang any
immigration advice in regard to her case.” Hwang pled guilty without a plea
agreement and was later sentenced to three years of probation.
After sentencing, the Department of Homeland Security initiated removal
proceedings. An immigration judge determined that Hwang had been convicted of
an aggravated felony, requiring removal and rendering Hwang ineligible for
discretionary relief. Hwang brought a motion under 28 U.S.C. § 2255 to set aside
her guilty plea, alleging ineffective assistance of counsel under Padilla v.
Kentucky, 559 U.S. 356 (2010). She alleges that she would not have pled guilty if
her lawyer had correctly advised her of the immigration consequences of doing so.
2
I
“Before deciding whether to plead guilty, a defendant is entitled to ‘the
effective assistance of competent counsel.’” Padilla, 559 U.S. at 364 (quoting
McMann v. Richardson, 397 U.S. 759, 771 (1970)). To succeed on an ineffective
assistance of counsel claim, “the defendant must show that counsel’s
representation fell below an objective standard of reasonableness.” Strickland v.
Washington, 466 U.S. 668, 689 (1984). In addition, “[t]he defendant must show
that there is a reasonable probability that, but for counsel’s unprofessional errors,
the result of the proceeding would have been different.” Id. at 694.
When a criminal defendant is not a citizen, attorneys have a duty to inform
their clients of the immigration consequences of a guilty plea. Padilla, 559 U.S. at
368. To comply with the Sixth Amendment, attorneys must “advise a noncitizen
client that pending criminal charges may carry a risk of adverse immigration
consequences” when the immigration “consequences of a particular plea are
unclear or uncertain.” Id. at 369. “But when the deportation consequence is truly
clear . . . the duty to give correct advice is equally clear.” Id.
Here, the immigration consequences of the guilty plea were clear. A
conviction under to 8 U.S.C. § 1955 is defined as an “aggravated felony” pursuant
to 8 U.S.C. § 1101(a)(43)(J). An alien convicted of an aggravated felony is
3
“conclusively presumed” to be removable under immigration law. 8 U.S.C.
§ 1228(c). A noncitizen convicted of an aggravated felony is not eligible for
cancellation of removal. 8 U.S.C. § 1229b(a)(3). Thus, under Padilla, Hwang’s
attorney was obligated to provide her with correct advice regarding the
immigration consequences of her plea. 559 U.S. at 368-69.
Because Hwang was not informed of the immigration consequences of her
plea when those consequences were clear, Hwang did not receive constitutionally
effective assistance of counsel under the requirements set forth in Padilla. As in
Padilla, “the terms of the relevant immigration statute[s] are succinct, clear, and
explicit in defining the removal consequence for [Hwang]’s conviction.” 559 U.S.
at 368. “The consequences of [Hwang’s] plea could easily be determined from
reading the removal statute, [her] deportation was presumptively mandatory, and
[her] counsel’s advice was” not correct. Id. at 369. Therefore, Hwang has
demonstrated that her counsel’s performance was objectively unreasonable. See
Strickland, 466 U.S. at 687-88.
We reject the claim that Hwang’s attorney provided effective assistance by
furnishing Hwang with conflicting advice, some which was correct. When the
immigration consequences of a plea are truly clear, an attorney does not satisfy
4
Padilla by providing the client with a series of conflicting propositions–some true,
others not. Conflicting advice is not correct advice.
II
Hwang has also established that she was prejudiced by her attorney’s
incorrect advice. Hwang explains that, had she been made aware of the deportation
consequences of a guilty plea, she would not have pled guilty. Hwang explains
that she placed a significant emphasis on the immigration consequences of a
conviction: she asked her attorney repeatedly about the immigration consequences
of her case, and she sought further clarity on the effect of a guilty plea by seeking
the advice of immigration specialists. Hwang says that if her attorney had
provided correct advice, she would not have pled guilty. Under our precedent in
United States v. Kwan, this is sufficient to establish prejudice under the second
prong of Strickland. 407 F.3d 1005, 1017-18 (9th Cir. 2005) (determining there
was Strickland prejudice where a noncitizen defendant demonstrated that he placed
a “particular emphasis” on the immigration consequences of a plea), abrogated on
other grounds by Padilla, 559 U.S. 356; see United States v. Chan, 792 F.3d 1151,
1154 (9th Cir. 2015) (concluding that Kwan survives Padilla in relevant part).
5
For the foregoing reasons, we conclude that Hwang has established her
claim of ineffective assistance of counsel under Strickland. Accordingly, we
vacate the conviction and remand to the district court.
REVERSED AND REMANDED.
6
FILED
United States v. Sun Hwang, No. 15-16334
AUG 04 2016
CALLAHAN, Circuit Judge, dissenting: MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
I respectfully dissent. I do not read Padilla v. Kentucky, 559 U.S. 356
(2010), as altering the two-prong standard for measuring ineffective assistance of
counsel set forth in Strickland v. Washington, 466 U.S. 668 (1984). First, the
defendant must show that counsel’s performance was deficient . . . and [s]econd,
the defendant must show that the deficient performance prejudiced the defense.”
Id. at 686.
Hwang’s attorney, not being well-versed in immigration law, sought and
obtained the advice of not one, but two immigration lawyers, and passed their
advice on to Hwang. It is not clear what more counsel should have done.
The Supreme Court instructs that “[j]udical scrutiny of counsel’s
performance must be highly deferential,” we must make “every effort be made to
eliminate the distorting effects of hindsight,” and “judge the reasonableness of
counsel’s challenged conduct on the facts of the particular case, viewed as of the
time of counsel’s conduct.” Id. at 689–90. Properly viewed, Hwang has not
shown that her attorney’s performance was deficient.
Certainly, the Supreme Court in Padilla stated that “when the deportation
consequence is truly clear, as it was in this case, the duty to give correct advice is
equally clear.” 559 U.S. at 369. But I do not read this as creating the equivalent of
strict liability whenever, in hindsight, the deportation consequences are “clear.”
Rather, we must continue to apply the approach set forth in Strickland. We must
first determine whether counsel’s performance was deficient. The clarity of the
immigration consequences is obviously a factor in that determination, but it is
neither inherently compelling nor a substitute for the determination of deficiency.
Here, Hwang’s counsel did not leave her without information. He made sure she
understood that one immigration attorney thought that there were adverse
immigration consequences from pleading guilty, but that another thought she might
be eligible for discretionary relief.
Hwang’s counsel should be complimented for his efforts to provide her with
information from alleged experts in immigration law. The subsequent
determinations that one immigration attorney’s advice was wrong and that the
adverse immigration consequences now seem “clear” do not, in my opinion, render
the criminal defense attorney’s performance deficient. I would affirm the district
court.
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349 Mass. 87 (1965)
207 N.E.2d 16
COMMONWEALTH
vs.
CHARLES E. TRACY.
Supreme Judicial Court of Massachusetts, Suffolk.
November 2, 1964.
April 26, 1965.
Present: WILKINS, C.J., SPALDING, WHITTEMORE, KIRK, & REARDON, JJ.
Frederick W. Harrington, Jr., for the defendant.
Lawrence L. Cameron, Assistant District Attorney, for the Commonwealth.
KIRK, J.
The defendant was tried and found guilty of murder in the first degree of John J. Gallagher. The jury did not recommend that the death sentence not be imposed. G.L.c. 265, § 2. The trial was made subject to G.L.c. 278, §§ 33A-33G, as amended. Sentence of death was imposed, and execution of the sentence has been stayed. G.L.c. 279, § 4. The case is here on the defendant's appeal, which is accompanied by a summary of the record, a transcript of the evidence and the assignment of errors. The alleged errors relate to rulings on evidence and to the denial of motions for directed verdicts.
We approach our consideration of the case having in mind the duty which devolves upon us by G.L.c. 278, § 33E, as amended by St. 1962, c. 453. The broad scope of our responsibility under the statute, as amended, was fully expounded in Commonwealth v. Baker, 346 Mass. 107, 108-109, and need not be repeated.
The gravity of the offence, the sentence imposed, and the discharge of our duty under the statute move us to set out the evidence in detail.
The scene of the alleged crime was the basement of the Kenmore Square office of the National Shawmut Bank of *89 Boston (the bank) located at 542 Commonwealth Avenue, Boston. The bank is on the south side of the avenue, facing north. To the east it abuts upon a commercial building. To the west, there is a parking lot, also used by the bank's "drive-in" customers for whose convenience there are windows on the west side of the building facing the lot. To the rear of the building is an alley. The alley is L-shaped. The long leg of the "L" abuts upon the rear of the bank and upon the rear of adjoining buildings to the east. The short leg of the "L" runs perpendicularly from the west end of the rear of the bank to Newbury Street which runs generally parallel to the alley to the west end of the rear of the bank.
At approximately 4:30 P.M., closing time, on May 24, 1962, one Savage, a guard at the bank, went to his closet located on a landing of the main staircase leading from the main floor to the basement of the bank. The door to the closet, when closed, was flush with the wall of the stairwell. Savage removed his fully loaded (six cartridge) thirty-eight calibre Special Smith & Wesson revolver from the holster attached to his belt, and placed the revolver on the high shelf of the closet and covered it with some laundry and his uniform cap. It was "hidden." He then hung his belt on a hook in the closet, changed to civilian clothing, and left the bank.
At about the same time, between 4:30 P.M. and 4:45 P.M., the assistant manager of the bank adjusted the American District Telegraph Co. (ADT) alarm switch on the main vault and on the night deposit vault to the "on" position. Both vaults are in the basement. Both switches must be operated manually to actuate the alarm. There is no alarm system connected with the exterior doors or windows of the bank. When the assistant manager left the bank, the doors and the windows of the bank were secure. One of the windows, when viewed from the interior of the building, was nine feet above the floor of the ladies' room at the rear of the basement of the building. Viewed from the outside, the lower edge of the window was about a foot above the surface *90 of the L-shaped alley at the rear of the building. The window was visible from the intersection of Newbury Street and the short leg of the "L." The window was three feet high and two feet wide, made of glass interwoven with wire mesh set in a metal frame. When unlocked, it swung open horizontally on a swivel bar across its middle.
The cleaning man, who reported for work at 3:30 P.M., left the bank at 7 P.M. When he left, the premises, both main floor and basement, had been cleaned, the building was secure, and all lights were extinguished except one over the main stairway leading from the first floor to the basement. The door of the closet where the guard kept his gun, clothing, and so forth was closed. The cleaning man did not open it, and never had opened it on, before or since May 24, 1962.
At 2:39 A.M. on May 25, 1962, an alarm from the bank was received at the ADT office on State Street, Boston. An ADT guard, Gillette, armed, and wearing a uniform similar to that of Boston police officers, was immediately dispatched to the bank. Simultaneously, the Boston police were notified. When Gillette arrived at the bank at 2:48 A.M., several Boston police officers were already busy outside the bank. Officer Stanton, proceeding along the parking lot (west) side of the bank, noted lights on the first floor. At the rear of the building, using his flashlight, he saw that the window in the alley which opened into the basement ladies' room was smashed and open. The ladies' room was "well lit." In the meantime, Officers Gallagher (the deceased) and Cesero, who had arrived shortly after Stanton and before Gillette, proceeded together to check the outside of the building. While checking the doors and windows on the parking lot side of the bank, Cesero noticed a shadow moving in one of the teller's windows. Thereafter he saw the reflection of a man "from the neck down"; there was something in the man's right hand. After a few words, Gallagher left Cesero and went around to the front of the bank. Guard Gillette then arrived. He had the keys to the bank. He opened the front door and entered *91 the main floor accompanied by Officers Gallagher, Donelan and Vance. The main floor was searched but no one was found. The party then went to the basement which was a maze of utility rooms, small conference rooms, and cubicles for the use of depositors in the vaults. There were two narrow corridors in the basement, both of which ran northsouth. One was referred to as the "east corridor"; the other as the "west corridor." The named officers searched the east half of the basement, and then proceeded to the steps leading to the door which opens on the alley at the rear of the building. They admitted Officers Madden and Stanton, and re-secured the rear door.
Then some shots rang out; that is, one shot, a very brief pause, and then two or three shots in rapid succession. The sounds came from behind a closed metal sheathed door which separated the place where the officers were standing from the supply room. Officer Gallagher was not with them. Gillette and the Boston officers moved through several rooms and reached the west corridor, at the south end of which there were two doors. On the west side of the corridor a door admitted to the ladies' room; on the east side there was an opening to the supply room. When Gillette and Donelan came to the opening to the supply room, they saw Gallagher lying on his back, his body parallel to the closed metal door. His right leg was "kind of bent up," "flexed," "upright," "raised." At this moment, Gillette was shot in the thigh. The shot came from a recess in the north wall of the supply room, against which were two long cabinets eighteen inches deep. The recess was formed by a space between the cabinets. In the space was a doorway between the supply room and a conference room. Gillette and Donelan then backed up along the west corridor. Officer Stanton saw "a colored man, about six feet two," standing in the doorway of the supply room pointing a gun at him. The man wore a short sleeve sport shirt. He did not appear to be injured in any way. Stanton fired at the man and backed into the ladies' room across the corridor. Officer Vance, standing with Officer Madden in *92 an alcove in the west corridor, saw, at the same time, a "light-skinned, colored male" standing at the door of the supply room with a gun clenched in his hand.
Sergeant Barry then arrived at the bank. He came through the open window in the alley. He conferred with Stanton in the ladies' room. Immediately, Sergeant Barry dropped to one knee and yelled or called out in a loud voice, through the partly opened door, three or four times over a period of ten minutes, with minor variations: "I am Sergeant Barry of the Boston Police. Put your gun out. Give yourself up. We are only interested in the wounded officer." When Sergeant Barry called out these words, he was five or six feet away, measured diagonally, from the opening to the supply room. His words were clearly heard and understood by officers who were at the other end of the west corridor, at least thirty feet away from Sergeant Barry.
During the period that Sergeant Barry was in the ladies' room, the bare arm of a "light skin colored male" appeared four times from the opening to the supply room, with a gun in his hand pointed down the west corridor. The gun was fired at least twice down the corridor. The officers returned the fire every time the hand appeared. The hand and gun were low, near the floor, perhaps a foot above it. The hand and gun appeared again, and the gun was pushed or slid along the floor of the corridor for a distance of approximately six to eight inches. The officers then emerged from their covered positions at the far end of the corridor. The hand thereupon suddenly reappeared from the supply room, snatched up the gun, and fired at the oncoming officers.
A tear gas shell was fired. Detective Cunningham went to the conference room adjoining the supply room. Through the closed door which separated the two rooms he heard Gallagher's voice, with which he was familiar, say, "Come in; please come in." The door was locked. Cunningham kicked open the door, saw Gallagher lying on his back, his right leg up, with gun in hand, pointed at the defendant. *93 Gallagher spoke to Cunningham and then became unconscious. There was a red mark right in the center of his white, regulation police shirt. Gallagher's gun was empty of bullets. The defendant's gun was kicked out of his left hand. The defendant was in a prone position, "lying on his belly"; his body was partly out in the corridor; his head was not touching the floor; his face was up, looking down the corridor. He was wearing a gun belt, with holster, around his waist. All bullets in the gun had been discharged.
Gallagher, Gillette and the defendant were taken to the Boston City Hospital. Lieutenant Donovan of the homicide unit, accompanied by a police stenographer, arrived at the hospital at 4:30 A.M. Donovan was in civilian clothes. After a delay of twenty minutes, he was admitted to a room fourteen by twenty feet in area. The defendant was on a stretcher. The questioning began at 4:55 A.M. Two doctors "and probably a nurse" were in the room. Lieutenant Donovan identified himself to the defendant. The questioning lasted seven or eight minutes. The defendant grunted or groaned two or three times and, when he did, Lieutenant Donovan waited. The questioning in its entirety is set out in the footnote.[1]
*94 Officer Gallagher died at approximately 6 A.M. May 25, 1962. Dr. Luongo, medical examiner, performed the autopsy. There were two wounds of entrance; none of exit. The first wound was three inches below the left nipple. It "was a distant type gun shot wound, without the deposit of powder residue from the muzzle blast of the gun." This bullet, in its course through the body, perforated the aorta, the main blood vessel, so that a massive amount of blood escaped into the body, perforated the liver, stomach and small intestine, and then lodged next to one of the vertebrae. The second bullet entered the right leg, at the level of the knee joint, on the inner side of the knee, passed up the thigh, slithering along above the muscle and lodged near the groin at a point twelve and one-half inches from the point of entrance. Firing tests and comparative microscopic examinations of the two bullets removed from Gallagher's body disclosed that they had come from the bank guard's thirty-eight calibre Special Smith & Wesson revolver, which had been kicked from the defendant's hand in the supply room.
During the defendant's surgery, five bullets were removed from his body. Tests disclosed that three of these had been fired from Gallagher's thirty-eight calibre Colt police revolver. The other two bullets removed from the *95 defendant were too distorted to permit positive identification. Of the three identifiable bullets, one was removed from the defendant's abdomen, one from his left leg, and one from his rectum. Of the two unidentifiable bullets, one was removed from his right wrist and the other from his left leg.
It was Dr. Luongo's opinion that the point of entry and the course of the bullet along Gallagher's thigh was consistent with it having been fired by a man who was standing while Gallagher was flat on his back with his right leg flexed.
The defendant took the stand. His testimony disclosed that he had worked in the vicinity of Kenmore Square for a number of years, that he was very familiar with the area, that for two years prior to May 24, 1962, he had lived at 536 Commonwealth Avenue and that he had used the alley in the rear of the bank a number of times. He had opened a checking account at the bank in April. He knew there was a deposit box somewhere in the bank. He remembered roaming around in the bank. He opened a door and saw a belt and holster with a gun. He had the gun in his hand. He heard someone tell him to throw the gun out, to come out and he would not be hurt. He was lying on his stomach. But he could not let go of the gun. He could not get it out of his hand.
We consider the assignments of error. Of these, assignment 6 has been waived.
There was no error in permitting Officer Donelan to testify that after the gas gun had been fired he heard the "sound of a door being broken." It has long been held that summary descriptions of things, if based on the sensory reactions of men in general and not requiring special learning or experiment, may be admissible as statements of observed facts. A witness "may state his opinion in regard to sounds, their character, from what they proceed, and the direction from which they seem to come." Commonwealth v. Sturtivant, 117 Mass. 122, 133, 137. Commonwealth v. Moore, 323 Mass. 70, 76, 77. Kane v. Fields Corner *96 Grille, Inc. 341 Mass. 640, 647, and cases cited. There was no error (assignment 1).
Assignments 2, 3, 4, 5, and 7 related to the judge's rulings permitting several police officers to testify to what they heard Sergeant Barry call out or yell from the ladies' room. The testimony was admitted de bene. We do not rely on the fact that the defendant made no motion to strike the testimony (see Commonwealth v. Johnson, 199 Mass. 55, 59; Commonwealth v. Sheppard, 313 Mass. 590, 596, and cases cited) since other evidence made the evidence admissible. Sergeant Barry's relative proximity to the defendant and to the officers, as set out in the evidence, could raise in the minds of the jury the strong likelihood that, if the officers heard Barry's words, the defendant heard them also; the fact that the defendant did slide the gun into the corridor, although as a ruse, showed that he heard and understood the words; his testimony on the stand was an admission that he heard and understood the words spoken by Sergeant Barry and is conclusive of the issue. It was for the jury to consider what inference, if any, should be drawn from the defendant's response to Sergeant Barry's words. Commonwealth v. Simpson, 300 Mass. 45, 51. Commonwealth v. Moore, 323 Mass. 70, 77.
Assignments 9, 10, and 11 are based upon the defendant's exceptions to the admission of Sergeant Barry's testimony as to what he did say. These assignments are without merit in view of what we have already said with respect to assignments 2, 3, 4, 5, and 7.
Assignment 8 is based upon the defendant's exception to the admission of Detective Cunningham's testimony that, through the door of the supply room, he heard Officer Gallagher say, "Come in; please come in." The defendant argues that the testimony was inadmissible because there was no showing that the defendant heard Gallagher's words. Whether the defendant heard these words is altogether immaterial. Gallagher's words were a verbal act, an oral signal of distress to his brother officers, and plainly admissible. "[S]uch expressions are the natural and necessary *97 language of emotion, of the existence of which, from the very nature of the case, there can be no other evidence." Bigelow, J., in Bacon v. Charlton, 7 Cush. 581, 586. See Wigmore, Evidence (3d ed.) § 1718.
Assignment 13 concerns a restriction which the judge imposed upon the testimony given by a thirteen year old girl who said that she had a telephone conversation with the defendant during the "late show" on television on the night of May 24, 1962. The question asked was, "And how did he [the defendant] sound to you, Catherine?" The judge permitted the girl to answer, "He sounded funny; he didn't sound right." The judge declined to permit her to testify, as the offer of proof said she would, that she "asked him whether or not he was drunk." The judge was right on the ground, expressly stated, that he found the witness too immature to form an opinion by a telephone conversation whether the defendant was drunk.
Assignment 14 is based on the judge's denial of the defendant's motion for a directed verdict of not guilty of murder in the first degree. The motion was rightly denied. The evidence fully supported the conclusion implicit in the verdict of the jury: That the defendant murdered Officer Gallagher and murdered him with deliberately premeditated malice aforethought as that phrase has been used and applied in this Commonwealth for more than a century. Commonwealth v. Webster, 5 Cush. 295. Commonwealth v. York, 9 Met. 93. Commonwealth v. Tucker, 189 Mass. 457, 487. Commonwealth v. Brooks, 308 Mass. 367, 369, 370.[2]
Specifically, the jury could find on the evidence that the defendant having broken into a building, had armed himself with a deadly weapon. They could find that he was so *98 armed before any police officer, in the performance of his duty, had entered the bank. They could find that he so armed himself with the purpose of using the weapon to prevent his capture or to effect his escape. They could find that he had formed a judgment that the supply room was best adapted to achieve his purpose, in that it was accessible through one open door and had a recess between the large cabinets along the walls, affording concealment to him and observation of movements of others toward him. They could find that, as in the case of the wounding of Gillette, the defendant stationed himself between the cabinets and that, when Officer Gallagher entered the supply room, he deliberately fired the "distant" shot which proved mortal. They could reasonably infer from the evidence that Gallagher advanced, returned the fire with a bullet to the defendant's abdomen and then slumped to the floor on his back near the metal door. They could find that when Gallagher was on his back the defendant with deliberate premeditation fired the bullet which coursed along the inner aspect of Gallagher's right thigh from the knee to the groin. The physical facts warranted the inference that, when the defendant was in the prone position pointing his gun down the west corridor at the other officers, Gallagher, still on his back, fired the bullet which entered the defendant's rectum.
Since the verdict of guilty of murder in the first degree was clearly warranted, it is unnecessary to discuss the denial of the motion for a directed verdict of not guilty of murder in the second degree (assignment 15).
The defendant argues further, however, under assignment 12, that Lieutenant Donovan's testimony of his interview with the defendant at the Boston City Hospital at 4:55 A.M. on May 25, 1962, was inadmissible. He relies upon Escobedo v. Illinois, 378 U.S. 478, decided after the trial of the case. We do not read the Escobedo case as requiring or indicating a reversal of the judgment in the case before us.
The majority opinion in the Escobedo case was careful to point out that the decision was limited to the circumstances *99 of the case. 378 U.S. 478 at 479, 490-491. The aggravating factors with which the court was concerned there (see 378 U.S. 478 at 490-491) are not present in the case at bar. The ascertainment of the defendant's identity required that he be questioned as soon as possible. The whole interview was brief and simple. The defendant was treated with consideration and with an awareness of his physical condition. A violation of the defendant's right to counsel under the Sixth Amendment to the United States Constitution is not shown. Nor did the fact that the defendant made the statements while in a wounded state require their exclusion. See Commonwealth v. Harrison, 342 Mass. 279, 284-285. The testimony concerning the interview was admissible and the defendant's assignment 12 shows no error.
The jury obviously rejected as incredible the defendant's repeated statements at critical points in his testimony that he was "floating" as the result of drinking a grape flavored concoction at his work in the evening of May 24. It is difficult to see how it could be viewed as other than incredible. Commonwealth v. Payne, 307 Mass. 56, 58. We adopt the jury's view.
There was no exception to the judge's charge. It was accurate, complete and fair.
Upon consideration of the whole case we are convinced that the verdict of the jury was eminently just. Commonwealth v. McNeil, 328 Mass. 436, 442.
Judgment affirmed.
WHITTEMORE, J. (dissenting)
The Commonwealth does not contend that Tracy was in the commission or attempted commission of a crime punishable with death or imprisonment for life. G.L.c. 265, § 1. Hence, a finding of deliberate premeditation was necessary for the conviction of murder in the first degree.
1. The interrogation of Tracy at the hospital by Lieutenant Donovan supplied the only direct evidence of the shooting of Officer Gallagher. At the time Tracy was seriously wounded and appeared to be in pain. Five bullets *100 were removed from his body, one each from his abdomen, right wrist and rectum and two from his left leg.
The propriety of the interrogation of Tracy at the time and under the circumstances is not at issue. I agree with the majority that it was appropriate and necessary. But a new construction by the Supreme Court of the United States, made after the trial of Tracy, has, as it appears to me, shown that the examination was inadmissible at the trial. Tracy, in the interrogation, admitted that he fired the gun when an officer who was alone came in after him. This was significant and of course damaging evidence on the issue of premeditation.
Escobedo v. Illinois, 378 U.S. 478, 491, as I read it, shows that admissions obtained from a prime suspect by a process of police interrogation that "lends itself to eliciting incriminating statements" may not be used at his trial if before the examination is begun he is neither informed of his constitutional right to remain silent nor given the opportunity to consult an attorney. If in a given case the accused has full awareness of his right to be silent, the police need not inform him of the right, and, of course, the accused may waive his rights. This construction finds support in holdings and opinions elsewhere. See People v. Dorado, 62 Cal.2d 338, State v. Hall, 88 Idaho, 117, 129-131 (concurring opinion); State v. Neely, 239 Ore. 487; State v. Dufour, R.I., -; [1]Davis v. North Carolina, 339 F.2d 770, 780-783 (4th Cir.) (dissenting opinion); dissenting view of Desmond, C.J., and Fuld, J. in People v. Gunner, 15 N.Y.2d 226, 233. But see Davis v. North Carolina, 339 F.2d 770 (4th Cir.); People v. Hartgraves, 31 Ill.2d 375, 379, cert. den, sub nom. Hartgraves v. Illinois, 380 U.S. 961; Bichell v. State, 235 Md. 395, 399; Bean v. State, 81 Nev. ;[2]People v. Gunner, supra.
The right to remain silent and the duty of the interrogating police to advise the suspect thereof is the basis of the opinion in State v. Neely, 239 Ore. 487. For other cases showing that this Federal constitutional right is applicable *101 to the State, see Malloy v. Hogan, Sheriff, 378 U.S. 1, 6, 8; Fagundes v. United States, 340 F.2d 673, 677 (1st Cir.); Haynes v. Washington, 373 U.S. 503, 510-511; Crooker v. California, 357 U.S. 433, 440. See also Commonwealth v. Beaulieu, 333 Mass. 640, 651 (right is recognized in the Uniform Code of Military Justice).
The right to the advice of counsel where the prime suspect does not know his other relevant rights and is about to be interrogated cannot depend, as I see it, upon whether the suspect happens to ask for counsel. The Escobedo opinion does not state such an arbitrary rule. "[T]he imposition of ... [such a] requirement ... would discriminate against the defendant who does not know his rights." People v. Dorado, 62 Cal.2d 338, 351. "[I]t is settled that where the assistance of counsel is a constitutional requisite, the right to be furnished counsel does not depend on a request." Carnley v. Cochran, Corrections Director, 369 U.S. 506, 513.
There was coercion of Escobedo. There was plainly no coercion of Tracy. But the Escobedo principle does not appear to be founded in coercion. Had that been determinative, the case, semble, would have been decided under the Fourteenth Amendment without reference to the Sixth Amendment. See, for example, Haynes v. Washington, 373 U.S. 503.
Tracy was not informed of his constitutional rights. In his condition, such advice was especially important and no waiver should be presumed.
2. The evidence furnishes no fully satisfactory explanation of the presence of Tracy in the bank building or his conduct there. The testimony of the officers showed that the lights in the basement of the bank were on when the officers arrived. Tracy testified that he had turned on all the switches. There is no suggestion that anyone else could have done so. Gillette found that the alarm switch had been moved from its regular position at the time of closing the bank. The reasonable inference is that Tracy moved the alarm switch in the course of turning the light switches. *102 There is no suggestion that any attempt was made to break in the safe or that Tracy had with him any tools of any kind.
The jury of course could draw the very reasonable inference that Tracy entered the bank to steal money, but the absence of bank robbing tools, and, initially, of a weapon, the turning of switches so that the presence of an intruder was signalled by lights and an alarm, and Tracy's foolhardy conduct with the gun notwithstanding the presence of several officers,[3] suggest the opposite of planning or of forethought and premeditation.
Tracy's own story is in substantial part fantastic and improbable. It could of course have been found to be incredible.[4] By itself it reads like a cock and bull story to escape responsibility for a shocking murder. But in the single aspect in which it is important, that is, premeditation, it must be read with the officers' testimony and with the testimony of other witnesses. Several witnesses testified to having seen or talked with Tracy in the course of the evening and, in substance, that he looked, acted or talked "funny" or "strange" or not "like himself," with "a dead stare" and that he walked "very rigid," "real stiff and straight."
*103 This was an important aspect of the case for the consideration of the jury in determining whether to find Tracy guilty of first degree murder. The testimony tending to show that Tracy's murderous action was impulsive and planless, particularly the testimony of the officers, warranted reference in the charge. That such reference was not made is of course not legal error. Undoubtedly if there had been a request to refer to this testimony the judge would have done so. As the case has come to us, we are not obliged to give the matter any consideration. Commonwealth v. Bellino, 320 Mass. 635, 645-646. But we may do so in connection with the exercise of our extraordinary powers under G.L.c. 278, § 33E.[5]
The judge, in respect of second degree murder, noted that Tracy contended that his mind was blank and that he did nothing of which he was conscious, and charged, rightly, that if Tracy did not know what he was doing he was not guilty of murder, but if he was conscious of what he was doing he was guilty of murder in the second degree. There was no mention of the officers' testimony. Of course, the critical alternatives in respect of first degree murder were conscious premeditated action and conscious unpremeditated action. Tracy's own testimony was that he was aware of what was happening.
Undoubtedly an inference of deliberate premeditation was warranted. But the evidence permitted another inference. To me, in view of the reliable account of the officers of what they observed, it is a strong inference. Hence, I believe that the submission of the case to the jury without a reference thereto warrants notice on this appeal.
3. I would reverse the verdict of murder in the first degree because of the introduction in evidence of the hospital interrogation. Failing in that, and for two additional reasons, *104 I would reduce the verdict to murder in the second degree. These reasons are (1) the striking divergence in the views of courts and judges as to how the Escobedo case should be construed a divergence that can be resolved only by a decision of the Supreme Court of the United States; and (2) the submission of the issue of first degree murder without express reference to the police testimony and the other testimony tending to show impulsive conduct.
NOTES
[1] LIEUTENANT DONOVAN: "What is your name?" A. "Charles Tracy." Q. "Do you have a middle name?" A. "Edmund." Q. "How old are you?" A. "36." Q. "Where do you live?" A. "536 Commonwealth Avenue." Q. "Married?" A. "No." Q. "Who do you live with there?" A. "My mother." Q. "What is her name?" A. "Lydia." Q. "Do you work?" A. "Yes." Q. "Where?" A. "Kenmore Hotel." Q. "What happened this morning?" A. "I don't know." Q. "The officers took you out of the Shawmut Bank?" A. "Yes." Q. "How did you get in there?" A. "I don't know, through a door." Q. "Which door?" A. "The back door." Q. "How did you get in the door?" A. "Just walked through." Q. "Did you break the door open?" A. "No, I didn't." Q. "Was the door open?" A. "Yes." Q. "What did you do when you got inside?" A. "I just sat down." Q. "What did you have with you, did you have anything on you?" A. "A gun." Q. "What kind of a gun?" A. "A .22." Q. "A revolver?" A. "Yes." Q. "Where did you get it?" A. "It was already in there." Q. "Whereabouts was it in there?" A. "On a shelf." Q. "What did you do with it?" A. "Nothing, I fired some shots." Q. "You fired some shots at somebody?" A. "Yes." Q. "How many shots did you fire?" A. "One." Q. "Which gun did you use to fire that shot?" A. ".22." Q. "Who did you fire it at?" A. "I don't know." Q. "Did someone come in after you?" A. "Yes." Q. "Who was that?" A. "An officer." Q. "Was he alone?" A. "Yes." Q. "Is that when you fired the shot?" A. "Yes." Q. "Did you fire it at the officer?" A. "I don't know." Q. "How do you know it was a .22?" A. "It was a short one." Q. "Was the light on in the bank?" A. "Yes." Q. "Who put the lights on?" A. "I don't know." Q. "Was the light on when you got there?" A. "Yes." Q. "Did you go into some room?" A. "Yes." Q. "What part of the bank were you in?" A. "In the inside near the door." Q. "In the rear or front of the bank?" A. "Rear." Q. "Just whereabouts was it, if you know?" A. "On a shelf." Q. "How did you get the belt and holster that you had on when you were brought in here?" A. "That was in the bank." Q. "Why did you put that on you?" A. "Oh, I I don't know." Q. "That belt and holster belonged to a police officer?" A. "No, it don't." Q. "Why did you put it on you?" A. "I don't know." Q. "They found some checks on you." A. "Those were mine." Q. "Did you get them in the bank?" A. "No." Q. "Did you have them with you when you went into the bank?" A. "Yes." Q. "How did you happen to have them on you?" A. "I don't know." Q. "Do you have a checking account in that bank?" A. "Yes, I do." Q. "Do you have anything else to say as to what happened this morning?" A. "No." Q. "Is this statement you have given me been a true statement?" A. "Yes."
[2] "After the exhaustive discussion of this statutory phrase in Commonwealth v. Tucker, 189 Mass. 457, at pages 486-496, it would be superfluous to attempt further definition. We merely quote the summary of the court's conclusions as expressed by the court itself on pages 494 and 495 of that case: `In substance ... while it must be shown that a plan to murder was found after the matter had been made a subject of deliberation and reflection, yet in view of the quickness with which the mind may act, the law cannot set any limit to the time. It may be a matter of days, hours, or even seconds. It is not so much a matter of time as of logical sequence. First the deliberation and premeditation, then the resolution to kill, and lastly the killing in pursuance of the resolution; and all this may occur in a few seconds.'"
[1] 206 Atl.2d 82, 83-85.
[2] 398 P.2d 251.
[3] The testimony of the officers was to the effect that, when Sergeant Barry shouted orders to the intruder to put the gun down and surrender, a gun was slid along the floor from the supply room to the corridor or was dropped to the corridor floor from an arm protruding from the supply room. As the officers proceeded up the corridor toward the supply room, a hand reached out from that room and retrieved the gun which was then fired at the approaching officers.
[4] Tracy testified that, sometime earlier in the evening, a chef at a restaurant on Boylston Street, where Tracy was employed as a broiler cook, gave him what appeared to be a grape flavored soft drink. He immediately craved more; after five or six glasses his mouth and mind became numb, he felt "like ... [he] was floating," he felt "real strange." He described going to two restaurants, taking a cab, going to his apartment, talking with his wife, going out for ice cream, and eventually finding himself in a building (the bank) where he roamed around and turned all the light switches. Throughout this period he felt the same way, "floating" and his "mind ... blank." While in the building he heard voices and became frightened. He opened the door of a locker and saw a gun belt with holster and gun and, being "real scared," he put it on. He started to run upstairs, but hearing loud and angry voices behind him, ran down again and into a little room, still feeling as if he were floating; he climbed to the top shelf in a cabinet, and heard gunfire and the command to throw the gun out and come out. He took hold of the gun and then got hit and fell to the floor and the gun went off several times when bullets hit his hand.
[5] General Laws c. 278, § 33E, as amended by St. 1962, c. 453, provides, in part: "Upon such consideration the court may, if satisfied that the verdict was against the law or the weight of the evidence, or because of newly discovered evidence, or for any other reason that justice may require (a) order a new trial or (b) direct the entry of a verdict of a lesser degree of guilt...."
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569 F.2d 196
FORD MOTOR COMPANY, Petitioner in No. 77-1977,v.UNITED STATES of America and Interstate Commerce Commission,Respondents,Rocky Mountain Motor Tariff Bureau, Inc., Southern MotorCarriers Rate Conference, Inc., Middle AtlanticConference, Intervenors.The NATIONAL INDUSTRIAL TRAFFIC LEAGUE, Petitioner in No. 77-2093,v.UNITED STATES of America and Interstate Commerce Commission,Respondents,Middle Atlantic Conference, Southern Motor Carriers RateConference, Inc., Intervenors.JONES TRANSFER COMPANY, Central Transport, Inc., Earl C.Smith, Inc., Inter-City Trucking Service, Inc., Ogden &Moffett Company, U. S. Truck Company, Inc., and White StarTrucking Inc., Petitioners in No. 77-2095,v.UNITED STATES of America and Interstate Commerce Commission,Respondents.
Nos. 77-1977, 77-2093 and 77-2095.
United States Court of Appeals, Third Circuit.
Argued Dec. 6, 1977.Decided Dec. 29, 1977.
John H. Shenefield, Acting Asst. Atty. Gen., Bruce E. Fein, Atty., Dept. of Justice, Washington, D. C., Mark L. Evans, Gen. Counsel, Frederick W. Read, III, Associate Gen. Counsel, Ellen K. Schall, Atty., I. C. C., Washington, D. C., for the Interstate Commerce Commission and the United States.
David R. Larrouy, Harry Gibson, Ford Motor Co., Dearborn, Mich., Jack R. Turney, Jr., Robert R. Redmon, J. William Cain, Jr., Washington, D. C., for petitioner Ford Motor Co.
1
John F. Donelan, Frederic L. Wood, Renee D. Rysdahl, Donelan, Cleary, Wood & Maser, Washington, D. C., of counsel, Dennis J. Helfman, Detroit, Mich., for the Nat. Industrial Traffic League.
2
William E. Kenworthy, Gerald W. Hess, Denver, Colo., for Rocky Mountain Motor Tariff Bureau, Inc.
3
Robert E. Born, Atlanta, Ga., of counsel, Born & May, P. C., Atlanta, Ga., for Southern Motor Carriers Rate Conference, Inc.
4
Bryce Rea, Jr., Patrick McEligot, Washington, D. C., of counsel, Rea, Cross & Auchincloss, Washington, D. C., for Middle Atlantic Conference.
5
Before ALDISERT and WEIS, Circuit Judges, and CHRISTENSEN, District Judge.*
OPINION OF THE COURT
6
PER CURIAM.
7
Various petitions for review have been consolidated to present the question whether certain orders of the Interstate Commerce Commission in Ex-Parte No. MC-88, Detention of Motor Vehicles Nationwide, 124 M.C.C. 680 (1976); 126 M.C.C. 803 (1977), reflect conclusions that "are rationally supported", United States v. Allegheny-Ludlum Steel Corp., 406 U.S. 742, 749, 92 S.Ct. 1941, 32 L.Ed.2d 453 (1972). Because we are persuaded that there is a rational basis for the ICC conclusions, we will deny the relief sought in the petitions for review.
8
The Ford Motor Company (No. 77-1977) petitioned this court for judicial review of the Commission's reports and orders in Ex-Parte No. MC-88, dated May 25, 1976, June 3, 1977, and September 15, 1977. The National Industrial Traffic League (NITL) (No. 77-2093) and the Jones Transfer Company (No. 77-2095), a group of seven motor common carriers, filed petitions for review in the District of Columbia and the Sixth Circuits, respectively. Both of these petitions were transferred to this court pursuant to 28 U.S.C. § 2112(a). The Rocky Mountain Motor Tariff Bureau, the Middle Atlantic Conference and the Southern Motor Carriers Rate Conference, Inc., have intervened as respondents in the litigation.
9
The orders under attack promulgate uniform nationwide motor truck and trailer detention regulations providing for prearranged scheduling and detention charges for vehicles with and without power. The rules are separate from and independent of the line-haul transportation charges. In general, the rules provide for and define free and chargeable detention time of vehicles with power (trucks and tractors) as well as vehicles without power (trailers). The basic purpose of the rules, according to the ICC, is to discourage undue delay of motor carrier equipment by shippers and their representatives. According to the Commission, non-uniform detention rules, published by all the major rate bureaus and the individual rate carriers, contain numerous, highly specific exceptions which can act as a subterfuge for creating preferences, concessions and rebates.
10
The orders appealed from emanated from lengthy rule-making proceedings that began on June 22, 1973, and culminated in a report and order dated May 25, 1976, a report and order on reconsideration dated June 3, 1977, and an order granting petitions for reconsideration and modification dated September 15, 1977. The Commission rules provide for detention of motor vehicles with and without power and vest in the consignees or consignors of freight the discretion to decide where carriers can detach their power units. The rules define spotting as "the placing of a trailer at a specific site designated by consignor, consignee or other party designated by them, detaching the trailer, and leaving the trailer in full possession of consignor, consignee, or other designated party unattended by carrier's employee and unaccompanied by power unit." § 2(f), 124 M.C.C. at 793. The rules further provide, inter alia, that the consignee or the consignor may designate any site on its premises, including the loading dock, as the place to spot trailers, and may provide "holding yards" on their premises for parking trailers. Additionally, the rules state that when a carrier's line-haul obligation ends, the cost of moving the trailers to the loading dock is the responsibility of the consignee or consignor.
I.
11
Ford and Jones Transport challenge only the orders regulating the detention of trailers. The NITL challenges not only these orders, but also the Commission's findings regarding the charges and the burden of proving responsibility for delay of carrier equipment.
12
Ford argues that the orders were arbitrary, capricious, and not in accordance with law, and that insofar as they restrict the legal line-haul responsibility of the common carrier by motor vehicle, the orders are unsupported by substantial evidence. Jones Transport contends that the Commission acted arbitrarily and capriciously (a) in failing to relate the ban on holding yard operations to any interest of the shipping public in reducing detention of motor vehicles, and in requiring without justification a conversion of carrier operations to inefficient pick up and delivery methods; (b) in attempting to redefine the scope of line-haul motor carrier service without analyzing the function of holding yards in providing such service, the past history and precedents relating to such service, and the historic equities between motor common carriers and other transportation modes; (c) in barring all motor common carrier participation in inbound switching of trailers; and (d) in barring carrier switching operations in the delivery of freight at destination, while allowing switching in the pick up of freight at origin.
13
NITL contends that the ICC abused its discretion by prohibiting motor common carriers from switching loaded trailers from holding yards to unloading facilities as part of their line-haul obligation, arguing that it arbitrarily and capriciously ignored evidence of record which established that trailer pools are mutually beneficial to shippers and carriers and are not a concession to large shippers and, moreover, that the rule requiring common carriers to deliver freight short of the consignees' unloading facilities is inconsistent with applicable law. NITL also contends that the ICC arbitrarily and capriciously established a uniform detention charge without reference to motor carrier costs or the purposes which the charge is intended to serve, and that the shift in the burden of proving responsibility for delay of carrier equipment is inconsistent with the nature and purpose of detention.
II.
14
The starting point for judicial review of the ICC orders is 5 U.S.C. § 706(2) (A): "The reviewing court shall . . . hold unlawful and set aside agency action, findings, and conclusions found to be . . . arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law . . . ." But we do not write on a clean slate in fashioning a construction of what is arbitrary and capricious in the context of reviewing ICC rulemaking functions. The Supreme Court has specifically and definitively addressed this aspect of statutory construction, and has formulated a scope and standard that severely limits the extent of judicial review:
15
The standard of judicial review for actions of the Interstate Commerce Commission in general, Western Paper Makers' Chemical Co. v. United States, 46 S.Ct. 500, 70 L.Ed. 941, 271 U.S. 268 (1926), and for actions taken by the Commission under the authority of the Esch Act in particular, Assigned Car Cases, 274 U.S. 564, 47 S.Ct. 727, 71 L.Ed. 204 (1927), is well established by prior decisions of this Court. We do not weigh the evidence introduced before the Commission; we do not inquire into the wisdom of the regulations that the Commission promulgates, and we inquire into the soundness of the reasoning by which the Commission reaches its conclusions only to ascertain that the latter are rationally supported. In judicially reviewing these particular rules promulgated by the Commission, we must be alert to the differing standard governing review of the Commission's exercise of its rulemaking authority, on the one hand, and that governing its adjudicatory function, on the other:
16
"In the cases cited, the Commission was determining the relative rights of the several carriers in a joint rate. It was making a partition; and it performed a function quasi-judicial in its nature. In the case at bar, the function exercised by the Commission is wholly legislative. Its authority to legislate is limited to establishing a reasonable rule. But in establishing a rule of general application, it is not a condition of its validity that there be adduced evidence of its appropriateness in respect to every railroad to which it will be applicable. In this connection, the Commission, like other legislators, may reason from the particular to the general." Assigned Car Cases, supra, at 583, 47 S.Ct. at 734.
17
United States v. Allegheny-Ludlum Steel Corporation, supra, 406 U.S. at 748-49, 92 S.Ct. at 1946.
18
Were we able to utilize a more expansive notion of what is "arbitrary, capricious, and an abuse of discretion", we might have been receptive to some of the arguments presented by the petitioners. See, e. g., Allegheny-Ludlum Steel Corporation v. United States, 325 F.Supp. 352 (W.D.Pa.1971) (reversed, 406 U.S. 742, 92 S.Ct. 1941, 32 L.Ed.2d 453 (1972)). For it can be said with some confidence that the ICC's discussion of some of the points raised by the petitioners was, at best, laconic. What the three judge court noted in Allegheny-Ludlum Steel, supra, may have special pertinence here: "We are puzzled that a seven-year study by that Commission, which included a fifty-day hearing before an examiner with a record amounting to 6,000 pages, was climaxed by a spartan, one sentence finding . . . ." 325 F.Supp. at 354.
19
Nevertheless, measuring the present petitions against the appropriate standard of judicial review, we conclude that the Commission's findings and conclusions "are rationally supported". And to the extent that evidence was required in the record to support the contested conclusions, we find it sufficient to sustain the exercise of the ICC's rulemaking authority.
20
Accordingly, the several petitions for review will be denied.
*
Honorable A. Sherman Christensen, of the United States District Court for the District of Utah, sitting by designation
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316 F.3d 103
Edward KRUELSKI, Jr., Petitioner-Appellant,v.State of CONNECTICUT SUPERIOR COURT FOR THE JUDICIAL DISTRICT OF DANBURY and Geographical Area # 3 at Danbury, Respondent-Appellee.
Docket No. 01-2394.
United States Court of Appeals, Second Circuit.
Argued: June 18, 2002.
Decided: January 3, 2003.
G. Douglas Nash, State of Connecticut Public Defender Chief of Legal Services, Hamden, CT, appearing for petitioner-appellant.
Robert L. Marconi, Assistant Attorney General, for Richard Blumenthal, Attorney General, New Britain, CT, appearing for respondent-appellee.
Before: CALABRESI, SACK, and B.D. PARKER, Circuit Judges.
Judge SACK concurs in a separate opinion.
CALABRESI, Circuit Judge.
1
Edward Kruelski appeals the district court's (Chatigny, J.) denial of his petition for a writ of habeas corpus. Kruelski argues that the Double Jeopardy Clause of the Fifth Amendment of the United States Constitution foreclosed his continued prosecution after the Connecticut trial court, at the close of evidence, acquitted him based on an erroneous interpretation of the applicable statute of limitations. We affirm the district court's denial of the writ.
I.
2
Edward Kruelski was charged in Connecticut State Superior Court for the Danbury Judicial District with having committed the offense of "offering to make home improvements without being registered," in violation of section 20-427(b)(5) of the Connecticut General Statutes. Before trial, Kruelski filed a Motion to Dismiss claiming that the charge against him was barred by the relevant statute of limitations, section 54-193 of the Connecticut General Statutes. This motion was left undecided by the trial court.
3
In May 1995, the case was tried to a jury. During the trial, Kruelski called to the stand a police officer, who testified that although the arrest warrant was signed by a judge on August 22, 1994, two days short of the one-year statute of limitations, it did not come to the attention of a police officer until late on the afternoon of August 25, one day after the year had run, and was not served until that same night. After the close of evidence, Kruelski moved for acquittal, arguing both that the State of Connecticut had failed to provide sufficient evidence of the elements of the offense charged and that the State had failed to initiate prosecution within the statute of limitations. The trial court rejected Kruelski's adequacy of the evidence argument, finding that "[t]he State has introduced evidence sufficient to sustain a conviction in this prosecution for violation of section 20-427(b)(5) of the General Statutes." But it granted Kruelski's motion for acquittal based on the statute of limitations. The court was not convinced by the State's contention that the issuance of an arrest warrant by a judge of the Superior Court satisfied the statute of limitations, and held instead that there must be proof that the appropriate police department had received the warrant by the statutory deadline.
4
The State appealed to the Connecticut Appellate Court, which reversed the trial court's decision on the statute of limitations. The Appellate Court ruled that in order to meet the requirements of a Connecticut statute of limitations, an arrest warrant need only be issued within the time limitations and then executed without unreasonable delay. It sent the case back for a new trial. State v. Kruelski, 41 Conn.App. 476, 677 A.2d 951 (1996).
5
On remand, Kruelski, relying on the Fifth Amendment's ban on double jeopardy, U.S. Const. amend. V, filed a motion to dismiss the prosecution. Holding that a second trial was permitted under United States v. Scott, 437 U.S. 82, 98 S.Ct. 2187, 57 L.Ed.2d 65 (1978), the trial court denied the motion. Kruelski appealed and the Appellate Court, also relying on Scott, affirmed the trial court's decision. State v. Kruelski, 49 Conn.App. 553, 715 A.2d 796 (1998). Kruelski appealed to the Connecticut Supreme Court, which affirmed the Appellate Court's decision and its reading of Scott. State v. Kruelski, 250 Conn. 1, 737 A.2d 377 (1999).
6
In July 2000, Kruelski filed an application for a writ of habeas corpus based on his double jeopardy argument in the United States District Court for the District of Connecticut. On May 31, 2001, the district court issued a decision denying the petition. Kruelski v. Connecticut Superior Court, 156 F.Supp.2d 185 (D.Conn.2001). The court held that the state trial court's entry of a judgment of acquittal did "not constitute an acquittal barring further prosecution," id. at 188, and that even if it did, the Connecticut Supreme Court's decision was not an unreasonable application of clearly established federal law under 28 U.S.C. § 2254(d)(1), id. at 190. Kruelski appeals this decision.
II.
7
We review de novo a district court's denial of habeas corpus relief. Washington v. Schriver, 255 F.3d 45, 52 (2d Cir.2001); Fama v. Comm'r of Corr. Servs., 235 F.3d 804, 808 (2d Cir.2000); Chalmers v. Mitchell, 73 F.3d 1262, 1266 (2d Cir.1996).
8
The Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA) revised the conditions under which federal courts may grant habeas relief to a person in state custody. 28 U.S.C. § 2254. Among the AEDPA's new conditions is the requirement that an application for a writ of habeas corpus may be granted only if (1) the state decision "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," or (2) the state decision "was based on an unreasonable determination of the facts in light of the evidence presented" to the state court. § 2254(d). The facts in this case are not in dispute. Consequently, the writ may be granted only if the Connecticut Supreme Court's decision was contrary to or an unreasonable application of clearly established federal law. Cf. Williams v. Artuz, 237 F.3d 147, 151-53 (2d Cir.2001).
9
The concurrence argues that because the AEDPA applies, we should abstain from discussing the correct interpretation of Supreme Court precedent and limit ourselves to the question of whether the Connecticut court's interpretation of that precedent was a reasonable one. But where reasonable minds can differ on a constitutional question, either because the Supreme Court has not yet addressed the issue or because it has addressed it in a way that leaves room for interpretation as to the constitutional rule, we often have an obligation to inform state courts what we believe the correct answer to be.
10
Comity, as recognized in the AEDPA, mandates that lower federal courts yield to many state court interpretations of federal law even when such interpretations are wrong, so long as they are reasonable. But just as state courts enjoy a special expertise in matters of state law, by which federal courts often wish to be guided,1 so federal district and circuit courts have a particular knowledge of federal law, which state courts faced with federal questions may want to consult. Given the absence of "reverse" certification from state courts to federal courts of appeals and the minimal likelihood of certiorari to the Supreme Court of the United States,2 the only way state courts can do this, should they want to, is if federal courts state their views of federal law, even when a different view is not unreasonable. For this reason, it is often appropriate in considering a habeas petition under the AEDPA for the federal court to go through two steps: first, the court determines what the correct interpretation of Supreme Court precedent is; second, if the state court's understanding or application of that precedent is determined to be erroneous, the federal court must still ask whether that error was a reasonable one.3
11
The Supreme Court has stated that federal courts should take a similar approach, for similar reasons, when deciding claims of qualified immunity from suit under 42 U.S.C. § 1983, where the question is the reasonableness of the defendant's belief that his or her action was constitutional. Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001) ("This is the process for the law's elaboration from case to case, and it is one reason for our insisting upon turning to the existence or nonexistence of a constitutional right as the first inquiry. The law might be deprived of this explanation were a court simply to skip ahead to the question whether the law clearly established that the officer's conduct was unlawful in the circumstances of the case."); see also Poe v. Leonard, 282 F.3d 123, 133 (2d Cir.2002) ("Were we immediately to decide whether [the defendant's] actions were objectively reasonable, we would fail to provide any guidance to supervisors of future [potential plaintiffs] about what the law requires."). These considerations apply pari ratione to a federal court's consideration of state court decisions pursuant to habeas petitions, as governed by the AEDPA.
12
Under the AEDPA, the result of the first step of the analysis — our conclusions as to the correct interpretation of Supreme Court precedent — will not, of course, be binding on state courts. Mask v. McGinnis, 252 F.3d 85, 90 (2d Cir.2001) (per curiam) (noting that a petitioner cannot win habeas relief solely by demonstrating that the state court unreasonably applied Second Circuit precedent). In fact, what is said in the first step is not binding on federal courts either, since the reasonableness of the state court's application of Supreme Court precedent — the decisive issue under the AEDPA — does not turn on the federal court's view of the correct interpretation of that precedent. Cf. Horne v. Coughlin, 178 F.3d 603, 604 (2d Cir.1999) (petition for rehearing).
13
That the federal court's reading of Supreme Court precedent is dicta does not mean, however, that it is necessarily unreliable. This is not an area in which "the presentation lacks the `concrete adverseness... upon which the court so largely depends for illumination of difficult constitutional questions.'" Id. at 605 (quoting Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962) (discussing standing requirement)). In arguing that a state court's application of Supreme Court precedent was reasonable or unreasonable, the parties must address the merits of their respective readings of that precedent. And to the extent that there is a danger that arguments will be overlooked, it is minimized by the fact that, as the concurrence rightly notes, our decision as to the correct interpretation of Supreme Court precedent will not bind a future panel of our court that is subsequently presented with an overlooked argument.
14
The Supreme Court, though undoubtedly conscious of the dangers of dicta, concluded in Saucier that these dangers were small in comparison to the benefits that guidance would give. As a result, it urged the use of a two-step approach to claims of qualified immunity. We conclude that the same is true in the case of habeas petitions under the AEDPA.
15
The Ninth Circuit, for reasons largely similar to those discussed above, appears to have mandated that appellate courts in that circuit employ a similar two-step approach to habeas petitions under the AEDPA. Tran v. Lindsey, 212 F.3d 1143, 1155 (9th Cir.2000) ("[W]hen analyzing a claim that there has been an unreasonable application of federal law, we must first consider whether the state court erred; only after we have made that determination may we then consider whether any error involved an unreasonable application of controlling law within the meaning of § 2254(d)."). The Fourth Circuit has disagreed and held that federal courts should never venture beyond the reasonableness inquiry. Bell v. Jarvis, 236 F.3d 149, 162 (4th Cir.2000) ("Our charge under the statute is only to determine whether the state court's adjudication of the claims before it was a reasonable one in light of the controlling Supreme Court law."). Both positions appear to us to be extreme. We agree with the Ninth Circuit that in many cases governed by the AEDPA, it is appropriate for federal courts first to determine the correct interpretation of Supreme Court precedent. But we decline to hold that federal courts are required to do so. Such a statement is more useful and hence more appropriate in some circumstances than in others.
16
Again, the Saucier analogy is instructive. While that opinion seems to speak in mandatory terms, we have not so read it. Koch v. Town of Brattleboro, 287 F.3d 162, 166 (2d Cir.2002) ("Although we normally apply this two-step test ... we retain the discretion to refrain from determining whether, under the first step of the test, a constitutional right was violated at all."). Where, for example, the question is likely to come up with some frequency in cases in which qualified immunity is not an issue, then a statement of the law, in dicta, is much less useful. Id.; see also African Trade & Info. Ctr., Inc. v. Abromaitis, 294 F.3d 355, 359-60 (2d Cir.2002) (deciding whether claimed constitutional right was clearly established without first deciding whether it existed); Vega v. Miller, 273 F.3d 460, 468 (2d Cir.2001) (same). Similarly, when the AEDPA question either has come up or is likely to arise directly in federal cases, the use of dicta for the possible guidance of state courts has much less to be said for it.
III.
17
In the case before us, clarification of the underlying issue is likely to prove useful to state courts should they wish to be guided by the lower federal courts. Accordingly, we first discuss what the correct rule is for deciding whether the dismissal, on statute of limitations grounds, of the case against Kruelski triggered the protections of the Double Jeopardy Clause. In other words, we first consider whether or not the Connecticut court's finding that it did not trigger those protections was erroneous. Only after this do we consider whether, even if erroneous, that court's application of Supreme Court precedent was reasonable.
A.
18
Two Supreme Court cases guide our consideration of whether a final disposition favorable to the defendant, which is reached after the close of evidence but before a jury verdict, entails that further prosecution constitutes prohibited double jeopardy. The first, Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978), held that the Double Jeopardy Clause barred retrial after an appellate court, having made an incorrect finding that the prosecution had not submitted sufficient evidence to rebut the defendant's insanity defense, vacated the conviction. Burks contrasted the effect of erroneous terminations based on an insanity defense from equally erroneous terminations based on procedural defects, such as a defective indictment.4 "[R]eversal for trial error, as distinguished from evidentiary insufficiency, does not constitute a decision to the effect that the government has failed to prove its case. As such, it implies nothing with respect to the guilt or innocence of the defendant." 437 U.S. at 15, 98 S.Ct. 2141.
19
The second governing case, decided on the same day as Burks, is United States v. Scott, 437 U.S. 82, 98 S.Ct. 2187, 57 L.Ed.2d 65 (1978). Scott determined that a trial court's dismissal of charges at the close of evidence on the basis of preindictment delay did not trigger the prohibitions of the Double Jeopardy Clause. The Court in Scott distinguished Burks, and its reversal for insufficient evidence to rebut an insanity defense, from dismissals for preindictment delay as follows:
20
The defense of insanity, like the defense of entrapment, arises from the notion that Congress could not have intended criminal punishment for a defendant who has committed all the elements of a proscribed offense where other facts established to the satisfaction of the trier of fact provide a legally adequate justification for otherwise criminal acts. Such a factual finding does necessarily establish the criminal defendant's lack of criminal culpability under the existing law; the fact that the acquittal may result from erroneous evidentiary rulings or erroneous interpretations of governing legal principles affects the accuracy of that determination, but it does not alter its essential character. By contrast, the dismissal of an indictment for preindictment delay represents a legal judgment that a defendant, although criminally culpable, may not be punished because of a supposed constitutional violation.
21
We think that in a case such as this the defendant, by deliberately choosing to seek termination of the proceedings against him on a basis unrelated to factual guilt or innocence of the offense of which he is accused, suffers no injury cognizable under the Double Jeopardy Clause if the Government is permitted to appeal from such a ruling of the trial court in favor of the defendant.
22
437 U.S. at 97-99, 98 S.Ct. 2187 (internal quotation marks, citations and footnotes omitted).
23
Together, Burks and Scott provide pole stars which guide the decision of whether a defendant-favorable termination triggers the protections of the Double Jeopardy Clause. Terminations more akin to insufficiency of evidence to rebut an insanity defense give rise to those protections. Terminations similar to dismissals on the basis of preindictment delay do not.5
24
Two distinctions support the reasoning of Scott and Burks and explain the different outcomes in the cases. Both are implicit in Scott's repeated use of the pregnant phrase "factual guilt or innocence." The first is the distinction between determinations that relate to a defendant's culpability and those that are merely procedural and do not bear on the defendant's blameworthiness. The other is the distinction between questions of fact and questions of law. Scott established that an erroneous decision on a matter of law that does not bear on the defendant's culpability (such as one dealing with preindictment delay) does not trigger the protections of the Double Jeopardy Clause.6 Burks held that a factual determination that does implicate the defendant's culpability (such as a finding of insufficient evidence to rebut the defendant's insanity defense) triggers those protections. The questions that the holdings of those cases do not directly decide are, first, whether an acquitting factual error that does not bear on culpability bars further litigation under the Double Jeopardy Clause and, second, whether an acquitting legal error that does go to the question of blameworthiness precludes such further litigation.
25
As to the first, it is a given that our system affords jury findings of fact considerable deference and finality. Consequently, it would seem that a defendant is protected (perhaps even constitutionally) against relitigation of the factual findings on which any termination is based — even if that decision failed to establish the defendant's nonculpability.7
26
But it would be a mistake to think that only factual determinations trigger the protections of the Double Jeopardy Clause. Contrary to the reading of some commentators,8 this is not the holding of Scott. Of equal or greater importance in the Court's reasoning in that case and in Burks is the question of whether the decision "establish[es] the criminal defendant's lack of criminal culpability under the existing law," Scott, 437 U.S. at 98, 98 S.Ct. 2187, that is, whether it "implies [something] with respect to the guilt or innocence of the defendant," Burks, 437 U.S. at 15, 98 S.Ct. 2141. And in fact, subsequent cases seem to answer the second question left open in Scott by indicating that where a termination based on an erroneous view of the law does go to the defendant's culpability, the Double Jeopardy Clause bars further prosecution. Arizona v. Rumsey, 467 U.S. 203, 104 S.Ct. 2305, 81 L.Ed.2d 164 (1984) (holding that trial court's imposition of a life sentence, based on its incorrect finding that, as a matter of law, robbery did not amount to an aggravating circumstance warranting the death penalty, was an acquittal barring further prosecution); Sanabria v. United States, 437 U.S. 54, 98 S.Ct. 2170, 57 L.Ed.2d 43 (1978) (holding that an erroneous evidentiary ruling, which led to termination for insufficient evidence, constituted an acquittal barring further prosecution).
B.
27
The question before us, therefore, is this: Did the trial court's acquittal on the statute of limitations defense — which was an error of law — mean that the state had tried but failed to prove that Kruelski was culpable for the crimes charged? Since Kruelski was indicted for violating Connecticut criminal law, the proper course in answering this question is to look first to the intent of the Connecticut legislature, as this has been interpreted by Connecticut courts.
28
The Connecticut Supreme Court, in ruling on Kruelski's double jeopardy claim, understood the issue in precisely the way we have described: "[W]e must determine whether the trial court's judgment was based on legal grounds unrelated to a determination of the sufficiency of the evidence regarding the defendant's factual innocence or guilt." 737 A.2d at 380. The Connecticut High Court held that further prosecution was not barred, because under Connecticut law "[a] statute of limitations defense is not a defense that, when proved, negates any element of a charged offense or establishes a legal justification for an otherwise criminal act. Instead, this type of defense `represents a legal judgment that a defendant, although criminally culpable, may not be punished....'" Id. at 382 (quoting Scott, 437 U.S. at 98, 98 S.Ct. 2187). Connecticut, therefore, has determined that the expiration of its one-year statute of limitations governing the misdemeanor of offering to perform home improvements without being registered does not mean that a defendant is not culpable for the violation. It only provides that the defendant can no longer be prosecuted for it.9
29
This was not the only possible decision that the Connecticut Supreme Court could have reached. While statutes of limitations are often "intended to foreclose the potential for inaccuracy and unfairness that stale evidence and dull memories may occasion," id. at 380 (quoting State v. Coleman, 202 Conn. 86, 519 A.2d 1201, 1204 (1987)), this need not be the only purpose they serve. Thus, it would be perfectly reasonable for a legislature to find that some forms of criminal culpability do not endure indefinitely and that after a certain amount of time prosecution is inappropriate, not because of the danger of error but because it would be wrong to punish a defendant for acts done in the distant past, acts as to which blame no longer persisted.10 Where a statute of limitations is based on reasoning of this sort, acquittal on a limitations defense might well be a determination of the defendant's lack of continued culpability and hence might bar further prosecution. The Connecticut Supreme Court's reasonable interpretation of the statute of limitations at issue in this case, however, means that this is not the situation before us.
30
We do not, of course, hold that, whenever a state legislature or court says that the grounds for a defendant-favorable determination do not concern the defendant's culpability, such a statement decides the issue for the purposes of the federal Double Jeopardy Clause. That clause is necessarily governed by federal standards of culpability. This being the case, we doubt whether a state's finding that, say, the insanity defense did not concern the defendant's culpability would be determinative of whether further prosecution was allowed. In this case, however, the Connecticut Supreme Court's conclusion — that the trial court's incorrect finding that the statute of limitations had been exceeded by one day was not a determination that went to Kruelski's culpability — is clearly within the bounds of the permissible under Scott and under Burks.
31
Given the Connecticut Supreme Court's reasonable determination that the trial court's acquittal on the statute of limitations did not bear on the defendant's culpability, its decision is hard to fault under Scott. Certainly the Connecticut ruling was neither contrary to nor an unreasonable application of clearly established federal law, as § 2254(d) requires for a grant of a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a state court.
32
Accordingly, we AFFIRM the district court's judgment denying the writ.
Notes:
1
Such guidance is most frequently obtained by certifying a question of state law to the state's highest courtSee, e.g., Cweklinsky v. Mobil Chemical Co., 297 F.3d 154, 160 (2d Cir.2002) ("[T]he principles of federalism and comity demand that federal courts give a state's highest court the opportunity to determine state law authoritatively, if it wishes to do so."); Allstate Ins. Co. v. Serio, 261 F.3d 143, 152 (2d Cir.2001) ("It is possible ... that under the applicable state law, state courts have more flexibility and broader interpretive power than do the federal courts. In such circumstances, federal courts ought not to deprive the state courts of the opportunity to construe their own statutes, using the interpretive tools, presumptions, and standards they deem proper. For this too would infringe on the sovereign authority of the states."); Israel v. State Farm Mut. Auto. Ins., 239 F.3d 127, 135 (2d Cir.2000) (concluding that "Connecticut has a strong interest in deciding the issues certified rather than having the only precedent on point be that of the federal court, which may be mistaken." (internal quotation marks and alterations omitted)).
2
While there were 7,924 filings to the Supreme Court in the 2001 Term, the Court heard argument in only 88 cases. REHNQUIST, C. J., 2002 Year-End Report on the Federal Judiciary 8 (Jan. 1, 2003)
3
While this two-step approach is appropriate in the federal district courts no less than in the federal courts of appeal, it is notmandatory in either. See infra. It is, moreover, quite understandable if a district court, burdened with a heavy docket, should prefer not to go through such a process and rule directly on the reasonableness of the state court's approach, leaving any future guidance solely to the courts of appeals.
4
The Court fastened onto the example of a defective indictment in order to distinguishBall v. United States, 163 U.S. 662, 16 S.Ct. 1192, 41 L.Ed. 300 (1896). In doing so, Burks also explicitly rejected the approach of an intervening line of cases, which had established the principle that "[a] defendant who requests a new trial as one avenue of relief may be required to stand trial again, even when his conviction was reversed due to failure of proof at the first trial." 437 U.S. at 10, 98 S.Ct. 2141. The Burks Court found that these cases had "not properly construed the [Double Jeopardy] Clause." Id. at 12, 98 S.Ct. 2141.
5
This question does not turn on how the terminating court characterizes its own decision — whether, for example, it uses the word "acquittal," as opposed to "dismissal." "[T]he trial judge's characterization of his own action cannot control the classification of the action."Scott, 437 U.S. at 96, 98 S.Ct. 2187 (quoting United States v. Jorn, 400 U.S. 470, 478 n. 7, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971) (opinion of Harlan, J.)).
6
This remains so even where a legally erroneous decision also depended on factual findings that are themselves immune from relitigation. The question is not whether the terminating decision rested in part on a finding of fact, but whether the error was a factual one or a legal one. In the case before us, therefore, it is immaterial that the trial judge's erroneous decision — that the statute of limitations barred prosecution because there was no proof that the warrant was received by the police department by the statutory deadline — rested in part on an unchallenged jury finding as to when the police first received the warrant. The error was purely legal
7
Cf. U.S. Const. amend. VII (establishing that for most suits at common law, "no fact tried by a jury, shall be otherwise reexamined in any Court of the United States, than according to the rules of the common law"). For an application of this rule, see Gasperini v. Ctr. for Humanities, Inc., 518 U.S. 415, 116 S.Ct. 2211, 135 L.Ed.2d 659 (1996).
8
See, e.g., 15B Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 3919.5, 650-51 (2d ed. 1991) ("[T]hat government appeals are generally available when dismissal rests on a ruling of law sought by the defendant, unmixed with any facts" is a conclusion "cemented by the decision in United States v. Scott."); id. at 670 ("[T]he Scott decision allows [the burden of further trial proceedings] to be imposed if the defendant wins dismissal on a matter of law, not fact.").
9
Other courts have reached similar conclusions with respect to the meanings of statutes of limitationsSee, e.g., Nesbitt v. Hopkins, 907 F.Supp. 1317, 1325 n. 9 (D.Neb.1995); Cox v. State, 585 So.2d 182, 189-92 (Ala. Crim.App.1991); Jackson v. State, 92 Md.App. 304, 608 A.2d 782, 784-87 (1992), disapproved on other grounds, Armstead v. State, 342 Md. 38, 673 A.2d 221, 241 n. 32 (1996).
10
This is how we understand Justice Holmes's statement, in a case concerning the federal crime of concealing assets from a bankruptcy trustee, that "[a] plea to the statute of limitations is a plea to the merits, and... after judgment upon it, it [can] not be reopened in a later prosecution."United States v. Oppenheimer, 242 U.S. 85, 87-88, 37 S.Ct. 68, 61 L.Ed. 161 (1916) (citation omitted). Whether Oppenheimer extends beyond the context of bankruptcy or is still good law as to the meaning of that federal statute of limitations are questions we need not address in this case, in which the issue is how Connecticut reads its statute of limitations.
SACK, Circuit Judge, concurring:
33
The issue before the Court, as my colleagues state, is whether the Connecticut Supreme Court's decision with respect to the second trial of Mr. Kruelski "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," under 28 U.S.C. § 2254(d)(1). See ante at 105. They answer the question in the negative. I fully agree. I think that the majority opinion's discussion of the Supreme Court's decisions in Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978), and United States v. Scott, 437 U.S. 82, 98 S.Ct. 2187, 57 L.Ed.2d 65 (1978), ante at 108-09, amply supports that conclusion. Burks and Scott, the "pole stars" guiding our inquiry, ante at 108-09, embody "clearly established Federal law, as determined by the Supreme Court of the United States." One "reasonable application" of them is to treat as the determinative question for double jeopardy purposes whether the "state had tried but failed to prove that [the defendant] was culpable for the crimes charged." Ante at 110. The majority observes that the Connecticut Supreme Court followed that principle. We must therefore, in my view, affirm the judgment of the district court denying the writ.
34
My colleagues, however, purport to decide not only what a "reasonable application" of Burks and Scott is, but also what the right interpretation of the Double Jeopardy Clause is for these purposes. The point is expertly argued; the argument may be right. But as the majority opinion confirms, there are "commentators" with other views. See ante at 110 n. 8. It seems to me to be entirely unnecessary to the project at hand to decide whether my colleagues, the "commentators," or anyone else* is right with respect to these devilishly difficult double jeopardy questions. The occasion for us to address these issues will come if and when they are squarely presented to us for decision. But for now, the majority's conclusion as to what is right (which, happily, the majority now properly characterizes as dicta, id. at 108) is as binding on the courts of this Circuit and the states within it as is the "holding" on the issue by Messrs. Wright, Miller, and Cooper in their treatise, reported by the majority to take a contrary view. Id. at 110 n. 8.
35
The Connecticut Supreme Court's decision was not "an unreasonable application of clearly established Federal law, as determined by the Supreme Court of the United States." I would have been content thus to answer the only question that seems to me to have been asked.
Notes:
*
For example, the dissenters, in deciding Kruelski's appeal to the Connecticut Supreme Court,Connecticut v. Kruelski, 250 Conn. 1, 737 A.2d 377 (1999), noted that in Connecticut, the statute of limitations is a question of fact submitted to the jury. Id. at 13-14, 737 A.2d at 383 (McDonald, J., dissenting) (citing Connecticut v. Ali, 233 Conn. 403, 416, 660 A.2d 337, 343-44 (1995)). They argued that "the trial court's determination that that defense bars prosecution necessarily evaluates the sufficiency of the state's evidence for conviction." Id. at 14, 737 A.2d 377. They therefore would have found that the Double Jeopardy Clause barred a second trial of Kruelski for the same offense. Kruelski, 250 Conn. at 13-14, 737 A.2d at 383. Had the dissenters' position carried the day, I suspect that we would have found that it, too, was not an "unreasonable application" of Burks and Scott.
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101 F.3d 701
Hicksv.Friederichsen**
NO. 96-30380
United States Court of Appeals,Fifth Circuit.
Oct 24, 1996
Appeal From: E.D.La., No. 96-CV-794-I
1
AFFIRMED.
**
Conference Calendar
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} |
97 Cal.App.2d 747 (1950)
CECIL ABEL, Appellant,
v.
MAURICE O'HEARN, as Administrator etc., Respondent.
Civ. No. 14187.
California Court of Appeals. First Dist., Div. One.
May 26, 1950.
George M. Naus and Ben K. Lerer for Appellant.
Samuel L. Fendel, Sol Silverman and James A. Toner for Respondent.
SCHOTTKY, J. pro tem.
Plaintiff, Cecil Abel, commenced an action against Valerie Bernhard McMahan to recover certain real property in Atherton in San Mateo County, which property, the plaintiff alleged, was conveyed to defendant as his performance under a partnership agreement. Plaintiff further alleged that since defendant had failed to perform her obligation to manufacture and distribute certain "soft" dolls and children's books, said property was held in constructive trust for plaintiff. The original complaint was filed October 26, 1945. An amended complaint was subsequently filed, to which defendant filed an answer and cross-complaint. On July 20, 1947, two days before the day originally set for trial, *749 Mrs. McMahan died, and shortly thereafter a supplemental and second amended complaint was filed which substituted Maurice O'Hearn, administrator of her estate, as defendant and cross-complainant. The case went to trial in September, 1948, and the trial court rendered judgment in favor of defendant. Plaintiff appeals from the whole of said judgment excepting that part decreeing that defendant take nothing by his cross-complaint.
Plaintiff's complaint seeks restitution. It traces $65,400 of the $77,400 paid by plaintiff into the Atherton property as an identified product of the money and seeks restitution under four counts: First, on a charge of fraud; second, on a charge of mutual mistake; third, on a charge of failure of consideration through a continuing and total breach of the obligation to manufacture and sell the soft dolls; and fourth, by reason of the dissolution of partnership through Mrs. McMahan's death, restitution of the land as capital contributed by appellant.
The trial court found as follows:
"2. That on the 2nd day of December, 1944, plaintiff and cross-defendant and Valerie Bernhard McMahan made and entered into a certain Agreement of Limited Parnership, ... by which said plaintiff and cross-defendant acquired from said Valerie Bernhard McMahan, for a valuable consideration, a certain one-third interest in the profits of, and became a limited partner in said copartnership."
"3. That it is not true that the parties to the aforesaid Limited Partnership agreed that plaintiff should contribute, as capital thereto, money in an aggregate of $60,000.00, or in any other amount."
"4. That it is not true that any of the alleged representations, statements or promises set forth in plaintiff's supplemental and second amended complaint were false or fraudulent."
"5. That plaintiff conducted an investigation and obtained advice and counsel with respect to the representations, statements or promises allegedly made by said Valerie Bernhard McMahan."
"6. That the real property situated in San Mateo and particularly described in plaintiff's supplemental and second amended complaint was acquired by Valerie Bernhard McMahan as her sole property with her own funds; and that neither said plaintiff nor the aforesaid co-partnership acquired or has any right, title or interest therein. *750"
"7. That plaintiff and Valerie Bernhard McMahan were not mutually mistaken in believing that the aforesaid real property could be used for manufacture purposes."
"8. That plaintiff knew at all times that said realty could not be used for manufacturing purposes."
"9. That at all times the truth of any representations, statements or promises allegedly made by said Valerie Bernhard McMahan was readily ascertainable by said plaintiff."
"10. That there was ample consideration for the payments made by said plaintiff to Valerie Bernhard McMahan in that (a) for the sum of $60,000.00 plaintiff obtained a one-third interest in the profits of a Limited Partnership and became a limited partner therein, and (b) for the sum of $17,400.00 plaintiff became the creditor of Valerie Bernhard McMahan in the sum of $2,000.00 for money loaned to her to liquidate some of her debts, and received the promissory note of said Valerie Bernhard McMahan in the sum of $15,400 dated January 15, 1945."
"11. That no sums of money were contributed by said plaintiff as capital contributions to the Limited Partnership of plaintiff and Valerie Bernhard McMahan."
"12. That the real property described in plaintiff's supplemental and second amended complaint was conveyed to Valerie Bernhard McMahan as an individual by a deed absolute and unconditional."
"13. That the Limited Partnership agreement entered into by and between plaintiff and Valerie Bernhard McMahan provides that the title to the real property described in plaintiff's supplemental and second amended complaint shall vest in Valerie Bernhard McMahan free and clear of all liens or encumbrances, and contains no provision for any interest in, or use of, said real property by the Limited Partnership."
"14. That no issue is raised by the pleadings herein with respect to plaintiff's right to a dissolution of the Limited Partnership, or for an accounting or for the appointment of a receiver for such purpose, nor is there any claim for any such relief contained in plaintiff's supplemental and second amended complaint."
"15. That no issue is raised by the pleadings herein with respect to plaintiff's possible status as a creditor of the Estate of which defendant is administrator, in that there is neither allegation nor proof of any presentment or filing of any creditor's claim by plaintiff against said Estate."
"16. That the provision of the receipt-agreement dated *751 October 26, 1944 by which plaintiff and cross-defendant was to pay $40,000.00 within thirty days thereafter for an option in the hard dolls is indefinite and uncertain, and said agreement was not signed by said plaintiff and cross- defendant."
Appellant in his 115-page opening brief makes a vigorous and forceful attack upon the sufficiency of the evidence to support the judgment. It is a rule too well established to require the citation of authorities that before an appellate tribunal is justified in reversing a judgment upon the ground of the insufficiency of the evidence it must appear from the record that, accepting the full force of the evidence adduced together with every inference favorable to the prevailing party which may reasonably be drawn therefrom, it still appears that the law precludes the prevailing party from recovering judgment. The evidence must be construed most strongly against the losing party. Every favorable inference and presumption which fairly may be deduced from the evidence should be resolved in favor of the prevailing party. The prevailing party's evidence must ordinarily be accepted as true, and evidence which is contradictory must be disregarded.
Bearing in mind this familiar rule, which, we are constrained to state, too often is overlooked by counsel in arguing conflicting evidence before an appellate court, we shall present a brief summary of the factual situation as shown by the record in this case, and the inferences which may reasonably be drawn therefrom.
Mrs. McMahan was a woman of mature years living in Burlingame. She had designed and manufactured a number of patented "hard" dolls, called "baseball dolls" because they were dressed as baseball players, and had written and had published a series of copyrighted books illustrated with pictures of such dolls. About October, 1944, she was financially handicapped in the marketing these dolls and books and had an idea of manufacturing "soft" dolls--the same as the hard ones but with a soft covering--and selling them as teams of ballplayers together with the books. Plaintiff was introduced to Mrs. McMahan at that time by one William Berger, then her attorney, at her home in Burlingame as someone who had a business in which Berger thought plaintiff might be interested. Plaintiff was the owner of several bars in San Francisco and had other business interests. At that time Mrs. McMahan disclosed that she was about to sell a one-third interest in her hard dolls to two other parties for $150,000, *752 and that she needed $60,000 more "to complete her program" and that for that amount she would sell plaintiff one-third interest in her proposed soft dolls. After several meetings and some investigation of Mrs. McMahan and the potentialities of the doll situation, though never having asked for or seen a soft doll, plaintiff agreed to the purchase of a one-third interest in the soft doll venture, supposedly $35,000 of which was for his interest in the soft doll and $25,000 for his interest in the books, and on that date, October 26, 1944, he paid $10,000 by check to Mrs. McMahan, which she said would be used to pay off loans made to her in the past. Plaintiff then promised to bring, and on the next day did bring, a $7,000 check, $2,000 of which was to be used by Mrs. McMahan to pay off additional past debts and $5,000 as a deposit on the Atherton property involved here and which Mrs. McMahan thought "suitable" for her work. A memorandum was signed on these two dates covering the transactions taking place at that time. On December 1, $5,000 additional was paid by plaintiff to Mrs. McMahan at her request to enable her to get an extension of time from the title company to hold the Atherton property which she contemplated purchasing.
Six drafts of a partnership agreement, which was to embody the rights of the parties, were made by Berger and the next to last one still referred to the figures of $35,000 and $25,000 for plaintiff's interest, respectively, in the soft dolls and books. The agreement finally signed, however, on December 2 or 15, 1944, provided that the only consideration which plaintiff was to give in exchange for the one-third interest was the property here involved. Paragraphs 1 to 4 inclusive of that agreement are as follows:
"(1) The said Second Party shall on January 2nd, 1945, transfer and grant, by grant deed, to the First Party, real property free and clear of all liens or encumbrances, located in San Mateo County, Calif., and as set forth and described in a copy of a deed to be attached hereto and marked exhibit 'A', as and for his interest as hereinafter set forth, in the manufacture and sale of the said soft baseball doll teams and such other soft doll teams as may hereafter be agreed upon, and as and for their interest as hereinafter set forth, in the sale and distribution of the said travel baseball books, together with the expansion thereof."
"(2) That upon the transfer of record, of the aforesaid real property and as aforesaid, by said Second Party to said First Party, a Limited Partnership is hereby formed and in full *753 force and effect, and shall be known and designated under the name of [left blank]"
"(3) The aforesaid First Party shall be the General Partner and the aforesaid Second Party shall be the Limited Partner."
"(4) The said Limited Partner shall receive as his interest as hereinafter set forth, by reason of the granting of the said real property as aforesaid, one (1/3) third, of all net profits, as hereinafter set forth or determined, derived from the manufacture and sale of the said soft ball doll teams, and also one (1/3) third of all net profits, as hereinafter set forth or determined, from the sale and distribution of the said travel baseball books and expansion thereof."
It was explained that the purpose of the alteration in terms was merely to avoid possible income taxes payable by Mrs. McMahan, and that this way it would be an exchange of property for property rather than a capital gain. The transfer would also take place in the year 1945 rather than 1944.
Mrs. McMahan had previously entered into an agreement with a Mr. Adams for the purchase of an 11-acre residential estate in Atherton, on which there were located a large residence, a superintendent's house, a gardener's house, a garage with living quarters, and miscellaneous structures including greenhouses, storage houses and a pumping plant. The purchase price was $65,000 and Mrs. McMahan intended to use the $60,000 obtained from the sale of the one-third interest in the soft dolls and books to pay for the property, but upon the advice of Mr. Berger it was decided to handle the matter so that it would be an exchange of property and thereby avoid possible income taxes by Mrs. McMahan. To that end there were placed in escrow with the title company a deed from Adams to plaintiff and his wife, and also a deed from plaintiff and his wife to Mrs. McMahan. The partnership agreement was also left with the title company to be delivered to plaintiff upon the completion of the transaction, and the deed to Mrs. McMahan was attached to the signed agreement. About December 16, 1944, plaintiff paid to Mr. Berger for Mrs. McMahan an additional $40,000, making plaintiff's total payment to her up to that time the sum of $62,000; and on January 17, 1945, the final payment on the Atherton property was made to the title company by Mr. Berger, and the agreement of partnership and the deed to Mrs. McMahan were delivered from escrow. Plaintiff received the agreement and Mrs. McMahan the deed to the property. She thereupon *754 took possession of the property, moved her furniture and personal property, including dolls and books, from her residence in Burlingame to the residence on the Atherton property. While the documents were still in escrow with the title company, Mrs. McMahan, on January 15, 1945, borrowed an additional $15,400 from plaintiff, giving her promissory note for that sum.
There is a sharp conflict in the evidence as to whether the Atherton property was property of the partnership or the property of Mrs. McMahan alone. The deed was to her as an individual and the agreement nowhere states that it was to become the property of the partnership; in fact, the agreement provides that she was at all times to retain all property. Plaintiff on the appeal contends that it was understood that the Atherton property was to be the property of the partnership and the manufacturing site for the production of the soft dolls. Defendant contends that Mrs. McMahan purchased the Atherton property for her residence; that it was never intended to be, and could not be, used as a manufacturing site because of building and business restrictions of which plaintiff was well aware; that Mrs. McMahan intended the property to be her residence and the place where she would design and perfect the soft dolls; that plaintiff paid $60,000 for a one-third interest in the soft dolls, books and the profits from the limited partnership, and not as a capital contribution to the partnership. The trial court found in accordance with the contentions of defendant, and the attack of plaintiff upon the judgment is based primarily upon the sufficiency of the evidence to support such findings.
After Mrs. McMahan moved into the Atherton property she set up cutting tables for model-making purposes in the so-called "greenhouse" and made inquiries to get proper material for dollmaking; she employed several women to work on the sewing machines to obtain the "precise stitch" on the materials they were using; she rewired the premises to secure a higher voltage to power her portable sewing machines and machines for cutting materials. She brought out from New York an expert dollmaker and she also had her attorney ascertain the extent of the creative work she could do on the premises under the permissive provisions of the town of Atherton ordinances. She also made some inquiry and investigation in the area for a factory site. Her expert dollmaker was unable to obtain the right materials to perfect a soft baseball doll for production and gave up "the idea of trying to substitute *755 for the correct materials." There was testimony that the correct materials were "cotton fabrics, mostly duvetyn" and that due to war conditions such material was not available during 1944 and 1945, and did not become available until 1947. There was also testimony that plaintiff and Mrs. McMahan were "going to temporarily abandon the soft doll idea, and that he was going then directly into the manufacture of the hard dolls." Attorney Berger testified that on April 4, 1945, plaintiff was talking about a manufacturing site and that on April 11, 1945, plaintiff went to Berger's office and discussed with him the matter of "getting a site for the purpose of manufacturing hard dolls and soft dolls ... and paying more money"; also that on September 21, 1945, plaintiff again visited Berger's office, saying "he was looking around at sites with her [Mrs. McMahan]," and indicated that before he put up any more money it should be on conditions that would assure its return to him. Shortly thereafter, on October 26, 1945, plaintiff filed the original complaint in the instant action.
The foregoing is a brief summary of the factual situation. Additional facts will be set forth hereinafter. We rarely have read a record in which there was so much conflicting testimony, and we can well understand the extremely difficult task that confronted the trial judge, upon whom rested the duty and responsibility of weighing this mass of confusing and contradictory testimony. Fortunately for us, we do not have to weigh and evaluate the conflicting testimony as that duty is one exclusively for the trial judge. As an appellate tribunal we are merely concerned in determining whether there is substantial evidence to support the findings of the trial court.
Before discussing the major contentions of appellant, we quote appellant's statement that "although we respectfully disagree with the learned trial judge's finding 4 that none of Mrs. McMahan's 'representations, statements or promises ... were false or fraudulent,' we make no appellate attack upon that finding." This is an admission that the record supports the finding that there was no fraud or misrepresentation on the part of Mrs. McMahan.
[1] The first contention of appellant is that the evidence is insufficient to support Findings 6 and 12, which are in substance as follows: (6) That the Atherton property was acquired by Mrs. McMahan as her sole property with her separate funds and that neither the appellant nor the copartnership acquired or has any interest therein; (12) that said real property *756 was conveyed to Mrs. McMahan as an individual by deed absolute and unconditional. Appellant argues that since the deed was attached to and referred to in the contract providing for the one-third interest in the partnership such deed was conditional and performance was a condition subsequent. Appellant cites the case of Downing v. Rademacher, 133 Cal. 220 [65 P. 385, 85 Am.St.Rep. 160]. In that case, concurrently with a grant deed of mining land to Downing, he gave a written agreement to Rademacher whereunder a promise was made to pay Rademacher a royalty of one-third of the proceeds of mining gold on the land. Subsequently, Downing did not mine the land and contended that the deed to him was not affected by his failure to perform by mining the land. The Supreme Court in ruling against Downing's contention stated, at page 224: "The deed and the agreement constitute one instrument, and must be read as though each referred to the other and expressly incorporated its terms. And, in legal effect, what do they amount to? As between the parties, at all events, there is no such magic in a conveyance of a title in fee which can be used to do an owner out of his property. Under this contract and deed, all Downing acquired was the right to work the mine in his own way, on condition that he deliver to Rademacher one third of the valuable minerals obtained. The conveyance was, in effect, subject to this condition."
Appellant also cites Richter v. Richter, 111 Ind. 456 [12 N.E. 698], where the court said (p. 459): "If from the nature of the acts to be performed by the grantee, and the time required for their performance, it is evidently the intention of the parties that the estate shall be held and enjoyed on condition that the grantee perform the acts specified, then the estate is upon condition. This is especially so when the grantor has reserved no other effectual remedy for the enforcement of the performance on the part of the grantee."
There is no question as to the correctness of the rule of the cases cited by appellant, but it plainly appears in both of those cases that the consideration for the deed was the agreement to perform the service. The difficulty with appellant's position in the instant case is that the court found upon sufficient evidence that for the payment of $60,000 appellant obtained a one-third interest in the profits of a limited partnership, that the real property was acquired by Mrs. McMahan with her own funds, and that the said property was conveyed to Mrs. McMahan as an individual by deed absolute. If we were compelled by the record to conclude that the evidence could *757 be given no other construction than the one given it by appellant, we might agree with appellant's contention. But there is in the record evidence from which it is fairly inferable that appellant paid Mrs. McMahan $60,000 for a one-third interest in the profits of a limited partnership, and that the Atherton property was not intended to and did not become a part of the partnership assets, and therefore the rules enunciated in the cases cited by appellant do not apply.
Appellant argues that the evidence of Berger and a witness, Fry, as to the negotiations between appellant and Mrs. McMahan, including the successive drafts of the contract, was an effort, by contradiction, to destroy the contract provision about the deed in the final draft, and was, therefore, an effort by parol evidence to change the written contract of the parties. But the true consideration for an agreement may always be shown. (Code Civ. Proc., 1962.) The agreement in the instant case, taken as a whole, is not so free from ambiguity as to exclude parol evidence to explain it, for, as stated in the last paragraph of section 1856 of the Code of Civil Procedure, "... this section does not exclude other evidence of the circumstances under which the agreement was made or to which it relates, as defined in section 1860, or to explain an extrinsic ambiguity, or to establish illegality or fraud. The term agreement includes deeds and wills, as well as contracts between parties." And, as stated in section 1860 of the Code of Civil Procedure: "For the proper construction of an instrument the circumstances under which it was made, including the situation of the subject of the instrument, and of the parties to it, may also be shown, so that the judge be placed in the position of those whose language he is to interpret." The following language in Balfour v. Fresno Canal & Irr. Co., 109 Cal. 221 [41 P. 876], at pages 225-226, is applicable: " 'The true interpretation of every instrument being manifestly that which will make the instrument speak the intention of the party at the time it was made, it has always been considered an exception, or perhaps a corollary, to the general rule above stated, that when any doubt arises upon the true sense and meaning of the words themselves, or any difficulty as to their application under the surrounding circumstances, the sense and meaning of the language may be investigated and ascertained by evidence dehors the instrument itself.' (Sandford v. Newark etc. R. R. Co., 37 N.J.L. 1, 3.) For the purpose of determining what the parties intended by the language *758 used, it is competent to show not only the circumstances under which the contract was made, but also to prove that the parties intended and understood the language in the sense contended for; and for that purpose the conversation between and declarations of the parties during the negotiations at and before the time of the execution of the contract may be shown. (Code Civ. Proc., 1860, 1861; Atlanta v. Schmeltzer, 83 Ga. 609 [10 S.E. 543]; Keller v. Webb, 125 Mass. 88; 28 Am.Rep. 209; Long v. Long, 44 Mo.App. 141; Sweat v. Shumway, 102 Mass. 365; 3 Am.Rep. 471.)"
We therefore are unable to agree with appellant's contention that the findings that the Atherton property was acquired by Mrs. McMahan as her sole property with her separate funds and that neither appellant nor the partnership has any interest therein lacks support in the record. There was a finding that there was no fraud or misrepresentation, which finding is not attacked by appellant, and we believe that the general rule, as stated by this court in Borden v. Boyvin, 55 Cal.App.2d 432, at page 436 [130 P.2d 718], is applicable: "It is the rule in this state that a deed unaffected by fraud in its inception conveys title, and is not rendered void or subject to rescission on account of a failure of consideration. What is done after its conveyance has no effect upon its validity where performance is not required as a condition. (Lavely v. Nonemaker, 212 Cal. 380 [298 P. 976]; Lawrence v. Gayetty, supra [78 Cal. 126 (20 P. 382, 12 Am.St.Rep. 29)]; 26 C.J.S. 195, 21; 9 Cal.Jur. 141.) The rule is based upon the idea of the finality of a deed. The remedy for the breach of a personal covenant not amounting to a condition is generally an action for damages. In Johnson v. Clark, 7 Cal.2d 529 [61 P.2d 767], an exception is noticed where the grantee promises to support the grantor; ..."
[2] As his second specification of error appellant contends that the court erred in making only the immaterial finding (10), "That there was ample consideration for the payments made by said plaintiff to Valerie Bernhard McMahan in that (a) for the sum of $60,000.00 plaintiff obtained a one-third interest in the profits of a Limited Partnership and became a limited partner therein, and (b) for the sum of $17,400.00 plaintiff became the creditor of Valerie Bernhard McMahan in the sum of $2,000.00 for money loaned to her to liquidate some of her debts, and received the promissory note of said Valerie Bernhard McMahan in the sum of $15,400.00 dated January 15, 1945," and in not making the material and controlling *759 finding that she never manufactured or sold any soft dolls, that she failed to perform and therefore the consideration failed. Respondent contends that Mrs. McMahan gave exactly what was bargained for, a one-third interest in the proceeds of the manufacture and sale of the soft dolls and books, that the creation of a legal relation is a valid consideration and the courts will not remake for the parties a contract which happens to result in a bad bargain. He further argues that the obligation to manufacture and sell came after the agreement of limited partnership was delivered out of escrow and arises only out of that agreement to form the partnership as a method of combining the interests of the parties and not out of the original arrangement by which appellant became a one-third owner of the proceeds of the manufacture and sale. The latter was an executed contract, he argues, to which the rule providing for the rescission of contracts for failure of consideration does not apply where performance is not required as a condition.
It must be borne in mind that the trial court found that the Atherton property was acquired by Mrs. McMahan with her separate funds and that neither appellant nor the partnership acquired any interest therein, and we have determined that such finding is supported by the record. Finding 10 finds that there was ample consideration for the payments made by appellant to Mrs. McMahan. It is apparent that the trial judge reached the conclusion that the appellant, for the money paid by him to Mrs. McMahan, gained the right to one-third of the profits which would be made from the manufacture and sale of the soft dolls. While it is true that no soft dolls were manufactured, it is fairly inferable from the evidence that Mrs. McMahan made an effort to secure the necessary materials and to secure a site for manufacturing, but that due to shortage of materials and lack of financing she was unable to do so before appellant commenced the action against her. The partnership agreement was between appellant and Mrs. McMahan and it hardly can be held as a matter of law that the entire obligation of proceeding with the manufacturing of the soft dolls rested upon Mrs. McMahan.
While it is true that no soft dolls were ever manufactured, in view of the efforts which the record shows that Mrs. McMahan put forth, considering the difficulties that were encountered by her, we do not believe that it can be held as a matter of law upon the record here that there was a total *760 failure of consideration at the time that the action was commenced by appellant. While no such finding was made by the trial court, we believe it is necessarily included in the portion of finding 10 which states that there was ample consideration for the payments made by appellant to Mrs. McMahan. Appellant proposed no amendments to the findings prepared by respondent and made no objection to them, and while his failure to do so will not cure a failure to find on a material issue, yet appellant may not raise for the first time on appeal the question of uncertainty or that the findings are not sufficiently explicit. (Moore v. Craig, 5 Cal.App.2d 283, 286 [42 P.2d 647].)
[3] Appellant's third major contention is that the evidence is insufficient to support Finding 7 that appellant and Mrs. McMahan were not mutually mistaken in believing that the aforesaid real property could be used for manufacturing purposes.
Appellant quotes from certain portions of the deposition of Mrs. McMahan indicating that she did not know that the commercial activity of manufacturing dolls could not be carried on on the Atherton property until she received a letter from the city attorney. But appellant overlooks the fact that in his deposition, which was introduced in evidence, is testimony that he knew that Atherton was "a restricted district" and that Atherton was "definitely a residence property." There was also testimony of the witnesses Fry and Berger to the effect that appellant knew the Atherton property could not be used for manufacturing. The weight of the conflicting evidence was a matter for the trial judge to determine, and we cannot hold that as a matter of law the evidence was insufficient to support the said finding.
[4] Appellant contends that the trial court erred prejudicially in striking out his Exhibits 22 and 23. These were excerpts from the answer to the original complaint, verified by Mrs. McMahan, and the answer to the first amended complaint, verified by her attorney. These statements were made in Paragraph VI of the answer in reply to an allegation of scienter in support of the appellant's allegation of fraud. They were that Mrs. McMahan "... denies that said estate located in Atherton, San Mateo County, was not a suitable site for said business, save for the ordinances prohibiting said manufacture of which both plaintiff and defendant were equally ignorant and misinformed at the time of the making of said agreement dated December 2, 1944" and that "she did not *761 know and did not learn until April, 1945, that the manufacture of dolls was prohibited by the city ordinances of the City of Atherton, when she was first advised to that effect by a letter from the City Attorney of Atherton." The exhibits were offered by appellant as tending to prove the second count as admissions against interest, and were then admitted by the court. During the submission of the case on trial briefs, however, the court granted respondent's motion to strike them.
The trial court erred in striking out said exhibits, as the statements or admissions of a party made in another pleading in the same action, like any other admissions of a party, are admissible either as admissions against interest or for the purpose of impeaching the testimony of a party who has been a witness. The fact that the pleading in which the purported admission was made has been superseded by a later pleading and the further fact that the issues in the action are determined by the final pleadings do not change the rule as to the admissibility of such pleading containing the admission. The true rule is clearly stated in Miller v. Lee, 66 Cal.App.2d 778, at page 785 [153 P.2d 190], as follows: "The court did not err in its rulings on the admission of evidence. Appellants complain particularly of the ruling permitting the introduction in evidence of the amendments to the answer to the first amended complaint, claiming that these amendments were superseded by later pleadings. Appellants testified at the trial that they had nothing to do with the issuance of the criminal complaint and knew nothing about it. In their verified amendments to the answer to the first amended complaint appellants admitted that they had consulted a lawyer before Lee swore to the criminal complaint, giving him the facts in detail in such manner as to indicate their purpose to have plaintiff arrested. These amendments were clearly admissible not only as containing admissions by appellants but also for the purpose of impeaching their testimony."
However, as we have hereinbefore pointed out, there is ample evidence in the record to support a finding that appellant was aware of the fact that a manufacturing business could not be carried on in Atherton, and there is also evidence that Mrs. McMahan was aware of restrictions existing. In view of this evidence and of the other findings made by the court, we do not believe that the error of the court in striking out the exhibits was prejudicial error, as it is difficult to believe that appellant could have believed that a manufacturing plant of *762 the magnitude contemplated by him could have been constructed and operated in the exclusive residential town of Atherton.
[5a] Appellant's final contention is that the trial court erred in failing to make any finding with respect to or consequent upon dissolution of the partnership. Appellant states that this contention is "alternative" and "need not be reached if" appellant is "held entitled to restitution under any one of" his other contentions. Finding 14, which appellant contends "is not a finding at all but simply a refusal to find," is as follows: "That no issue is raised by the pleadings herein with respect to plaintiff's right to a dissolution of the Limited Partnership, or for an accounting or for the appointment of a receiver for such purpose, nor is there any claim for any such relief contained in plaintiff's supplemental and second amended complaint."
Appellant argues that the fourth count of the amended and supplemental complaint is purely a partnership dissolution count and that the fact of dissolution through the death of Mrs. McMahan stands admitted by the pleadings. Appellant asserts that dissolution having occurred, only the matter of liquidation is left, and in the liquidation appellant is clearly entitled to the Atherton land.
[6] While it is ordinarily true that the death of a partner causes the dissolution of a partnership (Corp. Code, 15031), yet if the partnership agreement so provides, the business may be continued after the death of a member (20 Cal.Jur. 794, 93; Thompson v. Gibb, 1 Cal.Unrep. 173). [5b] Here the agreement provided that in the event of the death of the general partner (Mrs. McMahan) "prior to the dissolution of the said Limited Partnership, the said Limited Partnership shall continue ... and the heirs, executors, trustees or assigns of the said General Partner, shall be vested with all of the rights, benefits and privileges of the said General Partner."
The complaint filed by appellant, as stated in appellant's brief, sought restitution of the Atherton property under four counts. We are unable to agree with appellant's contention that Count IV is purely a partnership dissolution count. It does not allege the dissolution of the partnership nor does the prayer of the complaint seek such dissolution. After re-alleging the allegations of the first count it alleges that the sole contribution to the partnership consisted of the money contributed by appellant, that the Atherton property was purchased with said money, and that the respondent administrator took possession *763 of the property upon Mrs. McMahan's death and has since detained same from appellant. We believe that the trial court correctly determined that no issue was raised by the pleadings with respect to appellant's right to a dissolution of the limited partnership.
In view of the foregoing, the judgment is affirmed.
Peters, P. J., and Bray, J., concurred.
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368 P.2d 960 (1962)
William Jesse WHITE, Appellant (Defendant and Cross-Complainant below),
v.
The WYOMING NATIONAL BANK OF CASPER, as Executor of the Estate of Jesse M. White, Deceased, Appellee (Plaintiff below),
Mrs. Lena Chapman, Mrs. Theresa Kurpies, (Defendants below),
Father Flanagan's Boys' Home and St. Joseph's Orphanage, Appellees (Defendants below).
No. 3044.
Supreme Court of Wyoming.
February 21, 1962.
Donald E. Jones, Torrington, and R. Jerry Hand, Casper, for appellant.
Richard A. Tobin, Casper, and Joseph F. Maier, Torrington, for appellees.
Before BLUME, C.J., and PARKER, HARNSBERGER and McINTYRE, JJ.
Mr. Justice PARKER delivered the opinion of the court.
The executor of the estate of Jessie M. White, deceased, brought an action against the several beneficiaries under her will, seeking by declaratory judgment to determine its authority to sell certain property for a price less than that mentioned by the testatrix in a provision for the sale.
There is no dispute about the facts. The will, dated March 26, 1960, consisted of four typewritten pages, apparently drafted by the testatrix herself. The first of its five sections directed debts and expenses to be *961 paid out of the estate, the second nominated the executor and authorized the sale of the estate property, the third and fourth nominated the attorney and trustee, respectively, and the fifth, quite lengthy, contained a provision regarding the sale of the hotel property but related principally to a trust fund to be established for the benefit of William Jesse White, her son, with a provision that the balance go to Theresa Kurpies and Lena Chapman or the survivor at the time of her son's death and if neither survived that the balance be paid to Father Flanagan's Boys' Home at Boys Town, Nebraska, and St. Joseph's Orphanage at Torrington, Wyoming, share and share alike.
The two portions of the will principally emphasized by the litigants were:
"I NOMINATE, CONSTITUTE, AND APPOINT. WYOMING NATIONAL BANK, AS EXECUTOR, OF MY ESTATE, AND THAT THEY BE ENPOURED [sic] TO SELL AND DISPOSE OF ALL REAL AND MIXED PROPERTY, OR INTEREST THEREIN, OF WHICH I MAY BE SEIZED OR POSSESSED OR TO WHICH I MAY BE IN ANY MANNER ENTITLED OR IN WHICH I MAY BE [sic] INTEREST AT THE TIME OF MY DEATH."
"I HEREBY DIRECT MY EXECUTOR TO SELL AS SOON AFTER MY DEATH. AS IS PRACTICAL MY HOTEL PROPERTY AS DESCRIBED. AMERICAN HOTEL 244 SOUTH CENTER, STREET CASPER WYOMING, NATRONA COUNTY. LOTS NINETEEN AND TWENTY. BLOCK TWO. FOR ONE HUNDRED AND FIFTY THOUSAND DOLLARS ($150.000.) AND ALL MONEY FROM SAID SALE IS TO BE PUT IN THIS SAID TRUST FUND."
The evidence developed the fact that the American Hotel property, which had been appraised for some $60,000, was comprised of a downstairs portion, rented to various business institutions for some $600 per month, and an upstairs hotel portion, which the executor had been unable to operate profitably; that the executor had advertised this property for sale but had received only one bid of $61,250; that the other property in the estate amounted to approximately $70,000; and that the estate should net after expenses about $100,000. It was also disclosed that deceased had listed the hotel property at different times before her death, once at $85,000, and another time for $100,000.
The trial court, after stating jurisdictional requisites, found that the executor was authorized to sell the hotel property and was not restricted in the sale to the price of $150,000 but might sell at such price and upon such terms as it could obtain in accordance with Wyoming laws governing the sale of real property from decedents' estates.
William Jesse White, son of deceased, has appealed, contending that the general powers granted to the executor by the testatrix must yield to specific directions, that the language of the quoted portion of paragraph five is clear and must be construed as written, that the word "direct" is mandatory, that to allow the sale of the property for less than the mentioned $150,000 would be an unauthorized rewriting of the will, and that the directions as to the manner of selling the real property are binding upon the executor.
Appellant to support his first point cites In re Lendecke's Estate, 79 Wyo. 27, 329 P.2d 819, 822, for the rule that where there is an inconsistency between a general and a specific provision in a will the latter will prevail regardless of the order in which it stands but especially if the specific follows the general. While this is a correct statement of law, it is not applicable in the present situation, at least to the exclusion of correlative principles such as were implicit from the decision in the Lendecke case. If there are clauses in a will which are apparently inconsistent and repugnant, the court *962 should, if possible, harmonize them so as to give effect to each in accordance with the general intention of the testator as appears from the language of the entire will and in the light of the circumstances surrounding its execution.
Appellant next argues that the direction of the will to sell the hotel property for $150,000 is clear and definite and insists that such words as were there employed must be given their usual and customary meaning. He cites Koezly v. Koezly, 31 Misc. 397, 65 N.Y.S. 613. In that case one clause of the will provided, 65 N.Y.S. at 614:
"`If my said wife does not desire to care for the house as aforesaid, the same may be sold by her, as my executrix, but for a sum not less than twenty-eight thousand (28,000) dollars beyond incumbrances; and the proceeds, representing the equity in the said house, shall be kept as a trust fund * * *.'"
A portion of the court's opinion is quoted by counsel as being persuasive in the instant matter, 65 N.Y.S. at 615:
"There is no ambiguity here, and, even if the testator had an exaggerated idea of the fee value of the property, we cannot on that account make a new will for him. It is, in my opinion, clear from the language which he employed that the testator intended that the property, if sold, should produce, as the proceeds of the equity, the sum of at least $28,000."
Several factors distinguish the Koezly case from the one at bar. There the executrix was permitted, but not directed, to sell the property, the limitation as to price was positive in the use of the words "not less than," and the principal question before the court concerned the meaning of the words "beyond incumbrances," so that no determination in that case dealt with the problem before us more than peripherally. Under the circumstances, the Koezly decision could scarcely be considered as precedent.
Appellant maintains that the word "direct" must be construed as mandatory, at least prima facie, but cites only the most general encyclopedic authority for the contention. Appellees, conceding that testatrix directed that the hotel property be sold for $150,000, argue that from the face of the instrument it is clear that such expression was merely precatory and inserted as a guide for the executor without being a restriction on the power of sale. They rely on Ford v. Ford, 70 Wis. 19, 33 N.W. 188, 5 Am.St.Rep. 117, wherein a will provided, 33 N.W. at 190:
"`(4) I direct that all properties in Schedule A, attached to this instrument, and bearing my signature, shall be converted, as soon as practicable after my decease, into good rentable "inside" property in Kansas City, Mo., at schedule prices, or as much better as may be.'"
The court in holding that the stated prices were not mandatory said, 33 N.W. at 197:
"* * * He directs, in effect, that the several pieces of land mentioned shall be so converted as soon as practicable after his death. Is such purpose to be frustrated merely by adding `at schedule prices, or as much better as may be?' On the contrary, were not those words added as a guide to his executor, or for the purpose of stimulating purchasers to pay a larger price? * * *"
The same will was construed in Ford v. Ford, 80 Mich. 42, 44 N.W. 1057, 1060, with a like result, the court saying:
"* * * we are satisfied that it was the intention of the testator, as indicated by the terms of the will, to give to his executor the absolute power to sell and convey the Michigan lands, and this without condition or limitation; the words * * * `at schedule prices, or as much better as may be,' only being used by him as advisory to the executor to obtain the best possible price. * * *"
*963 We think the Ford cases constitute persuasive authority that when an executor is directed to sell property as soon as "practical" a provision as to the price which is to be received is precatory.
Appellant contends that nowhere in the will did the testatrix authorize the executor to sell the property for less than $150,000 and insists any contention to the contrary is only a surmise, supposition, or inference. As is reflected in other authorities cited by appellant, the court must look to the intention of the testatrix as found from the context of the entire will. A consideration of the will as a whole indicates that testatrix was interested in having her property sold, in the payment of certain minor bequests, in the establishment of a trust fund from which her son would receive certain specific payments per month which could not in any way be alienated or made subject to charge, and that the balance, if any, upon the son's death go over to certain named beneficiaries. These appear to have been her primary intentions, and to that end she directed that the hotel property be sold as soon as practical. Under such circumstances, the insertion of an amount could not reasonably be interpreted as mandatory.
It is asserted that the executor has no free reign as to the manner in which he sells real property, that the power to sell must be granted by statute or by the will and that the executor is obligated to comply strictly with the directions as to the manner of selling. In that connection, appellant quotes § 2-283, W.S. 1957, emphasizing that if directions are given in a will as to the mode of selling or the property to be sold they must be observed. Here the question relates not to the mode of selling but to the amount to be received, and consequently, the statute is of no assistance.
Affirmed.
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United States Court of Appeals
For the Eighth Circuit
___________________________
No. 17-3802
___________________________
United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Martin Arreola Zavala
lllllllllllllllllllllDefendant - Appellant
____________
Appeal from United States District Court
for the Northern District of Iowa - Waterloo
____________
Submitted: November 12, 2018
Filed: January 15, 2018
[Unpublished]
____________
Before COLLOTON, SHEPHERD, and STRAS, Circuit Judges.
____________
PER CURIAM.
Martin Arreola Zavala pleaded guilty to conspiracy to distribute
methamphetamine and received a 324-month prison sentence, which was at the
bottom of his advisory Sentencing Guidelines range. He challenges two parts of
his Guidelines calculation: the findings on the type and quantity of drugs he sold
and the denial of a two-level reduction in his offense level for acceptance of
responsibility. Because we conclude that the district court1 did not clearly err in
either set of findings, we affirm.
Under the Guidelines, the sentencing range for drug crimes depends in part
on the quantity of drugs sold. See U.S.S.G. § 2D1.1(a)(5), (c). For crimes
involving methamphetamine, the Guidelines also recommend a harsher punishment
if the substance sold was “ice,” an especially pure form of the drug. See id.
§ 2D1.1(c) & n.(C).
The drug type and quantity were disputed issues at Arreola Zavala’s
sentencing. The presentence investigation report stated that Arreola Zavala sold
8,748 grams of ice to five people, resulting in a base offense level of 38. See id.
§ 2D1.1(c)(1). Arreola Zavala disagreed with the calculation and denied selling
any drugs to three of the five buyers. Under his view, his base offense level should
have been 34, which would have resulted in a lower overall sentencing range. See
id. § 2D1.1(c)(3).
Following an evidentiary hearing, the district court found that the sales in
question involved nothing but ice, that the quantity sold was close to the report’s
estimate, and that his base offense level was 38. The court further found that
Arreola Zavala’s challenge to the drug quantity had been “frivolous[],” so it
declined to adopt an acceptance-of-responsibility reduction. See id. § 3E1.1(a).
We review a district court’s drug-type and drug-quantity findings for clear
error, “applying [a] preponderance-of-the-evidence standard.” United States v.
Walker, 688 F.3d 416, 420 (8th Cir. 2012) (citation omitted). At the evidentiary
hearing, the three people to whom Arreola Zavala denied selling drugs testified
about the amount of ice that he had sold to them. The court relied on their
testimony to overrule Arreola Zavala’s objections to the presentence investigation
report. As we have held, firsthand testimony of this kind can serve as the basis for
1
The Honorable Linda R. Reade, United States District Judge for the Northern
District of Iowa.
-2-
drug-type and drug-quantity findings at sentencing, so neither finding here was
clearly erroneous. See id. at 423–25 (upholding a drug-type finding that was based
in large part on the testimony of several buyers); United States v. Plancarte-
Vazquez, 450 F.3d 848, 852–53 (8th Cir. 2006) (affirming a drug-quantity finding
that was supported only by the testimony of a co-conspirator).
Nor did the district court clearly err when it found that Arreola Zavala had
failed to accept “responsibility by frivolously contesting relevant conduct,
specifically as it relates to drug quantity.” See U.S.S.G. § 3E1.1 cmt. n.1(A)
(2016) (“[A] defendant who falsely denies, or frivolously contests, relevant
conduct that the court determines to be true has acted in a manner inconsistent with
acceptance of responsibility . . . .”); see also United States v. Jones, 539 F.3d 895,
897 (8th Cir. 2008) (reviewing an acceptance-of-responsibility finding for clear
error). At sentencing, Arreola Zavala did not just quibble with the amounts of ice
he had sold to the three buyers. Rather, in his objections to the presentence
investigation report, he denied selling anything to them at all.
This position directly contradicted his testimony at an earlier change-of-plea
hearing, at which he admitted selling drugs to two of the three buyers. The court
was entitled to view Arreola Zavala’s attempts to recant, in the face of testimony
from the buyers confirming the sales, as demonstrating that he had not truly
accepted responsibility for his crimes. Cf. United States v. Annis, 446 F.3d 852,
857–58 (8th Cir. 2006) (upholding the district court’s decision to deny an
acceptance-of-responsibility reduction to a defendant who pleaded guilty but then
tried to exclude his own earlier statement about the quantity of drugs
manufactured).
We accordingly affirm the judgment of the district court.
______________________________
-3-
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UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued June 14, 2006
Decided June 27, 2006
Before
Hon. WILLIAM J. BAUER, Circuit Judge
Hon. DANIEL A. MANION, Circuit Judge
Hon. DIANE S. SYKES, Circuit Judge
No. 05-1453
Appeal from the United States
WILLIE LASLEY, District Court for the
Plaintiff-Appellant, Southern District of Illinois.
v. No. 03 C 313
GEORGE C. WELBORN, et al., James L. Foreman,
Defendants-Appellees. Judge.
ORDER
Willie Lasley, a former Illinois inmate, filed a pro se complaint under
42 U.S.C. § 1983 claiming that officials at Tamms Correctional Center denied him
access to the courts and adequate medical care, interfered with his mail, and
confiscated his belongings in retaliation for filing grievances. After eighteen
months the district court finally screened his complaint, see 28 U.S.C. § 1915A, held
that it is frivolous and fails to state a claim on which relief can be granted, and
dismissed it with prejudice. More than ten days after entry of judgment, Lasley
filed a “motion for reconsideration,” arguing that his complaint is sufficient to give
the defendants notice of his claims. Given the timing of the motion, the court
correctly characterized it as one under Federal Rule of Civil Procedure 60(b).
Easley v. Kirmsee, 382 F.3d 693, 696 n.2 (7th Cir. 2004); Talano v. Nw. Med.
Faculty Found., 273 F.3d 757, 762 (7th Cir. 2001). And, since the motion did not
No. 05-1453 Page 2
raise any of the limited grounds for which Rule 60(b) provides relief, the court
denied it. Lasley’s present appeal is limited to a review of that denial.
Through newly retained counsel, Lasley now argues that he was entitled to
relief under Rule 60(b)(4) because, in his view, the order dismissing his complaint is
“void.” Section 1915A does not authorize the dismissal, he argues, because that
screening provision requires a court to evaluate a complaint “as soon as practicable
after docketing,” see 28 U.S.C. § 1915A(a), and here the court waited eighteen
months to do so. As the complaint was never served on the prison officials, they did
not participate in this appeal.
Counsel conceded during oral argument that Lasley’s Rule 60(b) motion
challenged only the merits of the dismissal and did not raise his present contention
that the dismissal is void. Nevertheless, counsel asserted, a voidness argument can
be raised at any time, in any court. Lasley has pointed to no authority, and we have
found none, for this position. On the contrary, because his Rule 60(b) motion did
not argue that the dismissal was void, he is precluded from now basing error on
that contention. See Swaim v. Moltan Co., 73 F.3d 711, 717 (7th Cir. 1996) (stating
that denial of Rule 60(b) motion is reviewed only on grounds raised in motion); In
Re Worldwide Web Sys., Inc. v. Feltman, 328 F.3d 1291, 1301 (11th Cir. 2003)
(explaining that appellant waived argument under Rule 60(b)(4) that judgment was
void for lack of service by omitting that argument from his Rule 60(b) motion).
Even had Lasley preserved the argument, however, we would reject it. Because
Lasley was proceeding in forma pauperis, the court was required to “dismiss the
case at any time” upon determining that his complaint was frivolous or failed to
state a claim. See 28 U.S.C. § 1915(e)(2)(B)(i), (ii); DeWalt v. Carter, 224 F.3d 607,
611 (7th Cir. 2000). Thus, while § 1915A includes no explicit time limit (and we
have found no case suggesting that there is one), it does not matter because
§ 1915(e)(2) authorized the action taken by the district court. See Gladney v.
Pendleton Corr. Facility, 302 F.3d 773, 775 (7th Cir. 2002) (stating that dismissal
for frivolousness under § 1915(e)(2)(B)(i) precludes future litigation of same claim).
AFFIRMED.
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611 F.2d 577
22 Fair Empl.Prac.Cas. 51, 22 Empl. Prac.Dec. P 30,629Patricia DAVIS, etc., Plaintiff-Appellant,v.JACKSON COUNTY PORT AUTHORITY and Donald Inkship,Defendants-Appellees.
No. 77-2708.
United States Court of Appeals,Fifth Circuit.
Feb. 8, 1980.
John L. Walker, Philip Brookins, Jackson, Miss., Curtis L. Hays, Moss Point, Miss., for plaintiff-appellant.
Raymond L. Brown, Pascagoula, Miss., for defendants-appellees.
Appeal from the United States District Court for the Southern District of Mississippi.
Before JONES, BROWN and RUBIN, Circuit Judges.
ALVIN B. RUBIN, Circuit Judge:
1
Seeking relief under Title VII, the Equal Employment Opportunity Act, 42 U.S.C. § 2000e-2, and under 42 U.S.C. § 1981, Ms. Patricia Davis, a black woman who applied for a clerical job with the Jackson County Port Authority, contends she was discriminated against when the Port Authority, without even interviewing her, hired as receptionists two white women who applied after she did and whose qualifications were inferior to or no better than hers. She appeals the trial judge's conclusion that, while she made out a prima facie case of racial discrimination, the defendant successfully articulated a legitimate, nondiscriminatory reason for her rejection.
2
Accepting the experienced trial judge's fact findings, we differ with his conclusion. The Port Authority's statement of the reasons for its action was not sufficient, even if accepted by the trier of fact, as it was, to constitute a legitimate, nondiscriminatory reason not to consider Ms. Davis for employment. We therefore reverse the judgment and remand for a determination of the amount of back pay and other relief due her.
3
We take the facts from the trial judge's findings. On March 21, 1975, Ms. Davis applied for "clerical or other work available for women" at the main office of the Jackson County Port Authority. She filled out an application form, which showed that she possessed extensive secretarial and clerical education and work experience. In the space containing the words "Salary Desired," Ms. Davis inserted "$200 wk." When she handed in her completed application, a member of the office staff reviewed it in Ms. Davis' presence and told her that she would be asked to report later for an interview. Nonetheless, the Port Authority office manager never interviewed Ms. Davis.
4
Ms. Davis telephoned the Port Authority office several times to ask about vacancies and each time was informed that none existed. In the meantime, two white females, who had applied after Ms. Davis, were hired as receptionists although neither had better qualifications than Ms. Davis. One had filled in the "Salary Desired" space with "Minimum" while the other had left it blank, and both were hired at a salary of $102.35 per week. Ms. Davis was never offered the opportunity to accept the job at this salary.
5
Until October 1975, several months after Ms. Davis filed her complaint with the Equal Employment Opportunity Commission, the Port Authority had never employed a black person other than as a laborer. That month the Port Authority hired a black female to work as a receptionist in one of its branch offices. No black person has ever worked in an office position in the main office although a black branch office receptionist was offered, and refused, a position there.
6
The trial judge concluded that Ms. Davis had made out a prima facie facie case of discrimination in accordance with the criteria set forth in McDonnell Douglas Corp. v. Green, 1973, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668, 677. This finding was abundantly supported by the evidence, and, indeed, there was no appeal from it.
7
When such a prima facie case is shown, the burden shifts to the employer to show that what appears to be discrimination was not in fact invidious because of the existence of a legitimate, nondiscriminatory reason for its action. McDonnell Douglas Corp. v. Green, 411 U.S. at 802-03, 93 S.Ct. at 1824, 36 L.Ed.2d at 677-78. See also Board of Trustees of Keene State College v. Sweeney, 1978, 439 U.S. 24, 99 S.Ct. 295, 58 L.Ed.2d 216; Furnco Construction Corp. v. Waters, 1978, 438 U.S. 567, 98 S.Ct. 2943, 57 L.Ed.2d 957.
8
The principal reason advanced for not hiring Ms. Davis was that the job paid only $102.35 a week, and she had stated on her application that she wished to earn $200 a week. In light of the facts in the record Ms. Davis' qualifications, her repeated inquiries, the failure to interview her, the failure to employ any black person to do clerical work the mere completion of an application indicating that an applicant desires to be paid more than the employer has in mind is not a legitimate reason to decline to interview a well qualified applicant and to find out whether she is willing to work for the authorized salary.
9
There was another reason, professedly secondary, that was accepted by the district court as "playing a part" in the decision not to hire Ms. Davis. Accepting the hotly disputed facts as they were found by the district court, some time after the office manager recommended rejection of Ms. Davis, his superior, the Port Authority Director, heard a rumor that criminal charges had been filed against her for selling a controlled substance to a narcotics agent. This rumor was later corroborated by a newspaper article, although the findings are not clear whether the article (dated April 10, 1975) came to the director's attention before or after the decision was made to hire the first white applicant (who started work on April 14, 1975). However, it is evident that the charges played no part in the office manager's initial rejection of Ms. Davis.
10
It is unnecessary for us to evaluate the various disputes concerning the evidentiary basis for these conclusions. Although the office manager did not testify, the Port Authority Director did. His testimony was contradictory and in some respects, on cross-examination, not helpful to the defendant. After he left the stand, the court admitted testimony he had given earlier in another hearing on the basis that an intervening illness had caused him to have intermittent lapses of memory. Accepting the district judge's evaluation of the testimony, and both the profession by the Port Authority and the court's finding that the criminal charge was a secondary consideration, we conclude that, at the time the decision was made by the office manager to reject Ms. Davis without so much as an interview or a telephone call, the defendant discriminated against her on the basis of her race.
11
Ms. Davis is entitled to receive back pay under 42 U.S.C. § 2000e-5(g). However, had Ms. Davis been offered a job and accepted it, her sentence of three years' probation after suspension of three years in prison for the drug offense might or might not have resulted in her discharge. This issue was not raised below, and no findings were made concerning it. If, in the same circumstances, a white employee would have been discharged, and it is established, that, once the offense was known, Ms. Davis also would have been discharged, then a valid reason for her constructive discharge at that later date might exist. In that case, the court should award her back pay only for the period of time she would have been employed, taking into account any procedures required by state law antecedent to her termination. If, on the other hand, a white clerical worker would nonetheless have been retained, or it is shown that, for some other reason, Ms. Davis would not have been discharged, her back pay should cover the full period she was deprived of employment minus possible interim earnings.
12
Ms. Davis also sought an injunction against discriminatory practices and attorney's fees. The injunction should be issued, 42 U.S.C. § 2000e-5(g), and a reasonable amount should be awarded for attorney's fees, 42 U.S.C. § 2000e-5(k), including services rendered on this appeal and following remand.
13
The judgment dismissing the suit is REVERSED and the case is REMANDED for further proceedings consistent with this opinion.
JONES, Circuit Judge, dissenting:
14
The qualifications of the appellant were, as the majority has stressed, much better than the qualifications of those who were hired. Perhaps her qualifications were such as to permit her to fill a job which paid the amount she required. I believe that the findings of the district court are supported by substantial evidence and that its judgment should be affirmed.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 16-2060
___________
JOSEPH R. FILBERT,
Appellant
v.
WESTMORELAND COUNTY PRISON
____________________________________
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Civil Action No. 13-cv-00156)
District Judge: Honorable Cynthia R. Eddy
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
January 3, 2017
Before: SHWARTZ, COWEN and FUENTES, Circuit Judges
(Opinion filed: January 4, 2017)
___________
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.
Joseph R. Filbert appeals from the District Court’s dismissal of his complaint for
failure to prosecute under Federal Rule of Civil Procedure 41(b). For the following
reasons, we will affirm the District Court’s dismissal of the case.
I.
Because we write primarily for the parties, who are familiar with the background
of this case, we discuss that background only briefly. In January 2013, Filbert filed a pro
se complaint, which appeared to state a claim under the Americans with Disabilities Act
against Westmoreland County Prison (“Westmoreland”). On June 18, 2014, pursuant to
28 U.S.C. §§ 1915(e) and 1915A(a), the District Court 1 sua sponte dismissed the
complaint for failure to state a claim. Filbert was granted leave to amend his complaint
to provide sufficient facts to support his claims and to specify the offending actions taken
by any particular defendant.
In June 2014, Filbert filed an amended complaint and subsequent “Amendment to
Civil Action.” 2 Filbert next filed a motion to appoint counsel, which was denied. In
August and September 2014, Filbert made two additional requests for counsel. Shortly
thereafter, Westmoreland moved to dismiss for failure to state a claim, and the District
Court stayed the case pending issues related to Filbert’s mental competency. 3 In October
1
Both parties consented to a Magistrate Judge’s jurisdiction over this matter.
2
In his amended complaint, Filbert sought relief under the Americans with Disabilities
Act, 42 U.S.C. § 1983, and the Rehabilitation Act, for conduct that appeared to occur in
January 2012.
3
The District Court noted that Filbert also had a criminal matter pending before the
Honorable Mark R. Hornak in the Western District of Pennsylvania, in which the Court
2
2014, the District Court directed the Clerk to request counsel for Filbert, and
subsequently received four declinations of representation.
On August 7, 2015, Filbert was released from prison but failed to notify the
District Court of a forwarding address. On October 23, 2015, Westmoreland filed a
Petition for Rule to Show Cause why the case should not be dismissed. On October 26,
2015, the District Court issued a Show Cause Order advising Filbert that he had to file on
or before November 30, 2015, a response to the Order as to why the case should not be
dismissed for failure to prosecute. Filbert was advised that failure to comply with the
order would result in the dismissal of his complaint for failure to prosecute. Copies of
the order were mailed to Filbert at two separate addresses, one of which was returned
“Return to Sender, Not Deliverable as Addressed, Unable to Forward,” the other with the
notation “Released to U.S. Marshals.”
On December 8, 2015, Filbert filed a response to the Show Cause Order stating
that he had been released on August 7, 2015, that he had been receiving care from a
psychiatrist/psychotherapist since his release, and that he “was getting adjusted from
being newly in public in society.” That same day, Westmoreland filed another motion to
dismiss for failure to prosecute. The District Court ordered Filbert to respond on or
before January 4, 2016, and warned that failure to respond would result in the motion’s
being decided without the benefit of his response. He was also ordered to inform the
had found good cause to require a psychiatric/psychological examination of Filbert,
including an evaluation of his mental competency for further proceedings in the criminal
matter.
3
District Court whether he intended to pursue two other lawsuits 4 that he had pending with
the District Court.
On January 4, 2016, Filbert responded, stating simply that he “has sufficient
evidence to provide to indicate violations of his Federal Protected rights.” The District
Court consolidated Filbert’s three cases and ordered him to file one consolidated
amended complaint on or before February 10, 2016. Filbert failed to do so and, on
March 2, 2016, Westmoreland renewed its motion to dismiss for lack of prosecution.
Filbert was ordered to respond by March 18, 2016, and again warned that failure to do so
would result in his action being dismissed for lack of prosecution. On March 17, 2016,
Filbert filed a response which was in essence another motion for appointment of counsel.
The District Court denied the request, explaining that it had attempted to find counsel for
Filbert, that four attorneys had declined to represent him, and that he had been found
competent to participate in his criminal proceedings. Filbert did not respond to the
renewed motion to dismiss, nor did he file a consolidated amended complaint. By order
entered on April 5, 2016, the District Court dismissed Filbert’s complaint pursuant to
Federal Rule of Civil Procedure 41(b). This timely appeal followed.
II.
We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. We review a
district court’s order dismissing an action for failure to prosecute under Federal Rule of
Civil Procedure 41(b) for abuse of discretion. See In re Asbestos Prods. Liab. Litig. (No.
4
Filbert’s two subsequently filed actions, 14-cv-00623 and 14-cv-00634, also appear to
allege his rights were violated while he was a prisoner at Westmoreland County Prison.
4
VI), 718 F.3d 236, 243 (3d Cir. 2013). Before a district court enters such a dismissal
under Rule 41(b), it must weigh six factors: “(1) the extent of the party’s personal
responsibility; (2) the prejudice to the adversary caused by the failure to meet scheduling
orders and respond to discovery; (3) a history of dilatoriness; (4) whether the conduct of
the party or the attorney was willful or in bad faith; (5) the effectiveness of sanctions
other than dismissal, which entails an analysis of alternative sanctions; and (6) the
meritoriousness of the claim or defense.” Poulis v. State Farm Fire & Cas. Co., 747 F.2d
863, 868 (3d Cir. 1984). No one factor is dispositive, and not all of the Poulis factors
need to be satisfied before dismissing a complaint. See In re Asbestos Prods. Liab. Litig.,
718 F.3d at 246.
We agree with District Court that these factors favored dismissal. There is no
indication in the record that Filbert failed to receive the orders directing him to file a
consolidated amended complaint by February 10, 2016, and directing him to respond to
the motion to dismiss by March 18, 2016. Filbert instead filed a “response” in the form
of another motion for counsel. Moreover, Filbert’s failure to respond to the District
Court’s orders and his repeated motions for counsel indicate that Filbert did not intend to
proceed with his case in the absence of appointed counsel. Because Filbert was able to
file four separate motions for appointment of counsel in the District Court and a fairly
detailed reply brief in this Court, which attempts to address many of the issues he failed
to expand upon below, we conclude that Filbert was aware and able to respond to the
District Court’s orders without the assistance of counsel, but willfully not to. Thus, the
District Court was left with no other alternative than to dismiss Filbert’s case. See
5
Emerson v. Thiel College, 296 F.3d 184, 191 (3d Cir. 2002) (finding no alternative
sanctions existed because monetary sanctions, including attorneys’ fees, “would not be an
effective alternative” for appellant proceeding in forma pauperis).
Because Filbert was given multiple opportunities to comply with the District
Court’s orders, we conclude that the District Court did not abuse its discretion in
dismissing the case as a sanction for Filbert’s failure to prosecute. 5
III.
For the foregoing reasons, and for the reasons set forth by the District Court, we
will affirm the order dismissing the case pursuant to Rule 41(b). Filbert’s motion to file a
supplemental appendix, construed as a motion to expand the record, is denied.
5
On appeal, Filbert appears to be challenging the District Court’s denial of his repeated
requests for counsel. We note that the District Court made at least four overtures to
potential pro bono counsel, to no avail. Moreover, nothing in the record indicates that
Filbert could meet the standard for appointed counsel. See, e.g., Tabron v. Grace, 6 F.3d
147, 155 (3d Cir. 1993) (noting that before court is justified in granting counsel, it must
appear that plaintiff’s claims have some merit). Thus, the District Court did not abuse its
discretion in denying Filbert’s motions for appointment of counsel.
6
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297 S.W.3d 145 (2009)
STATE of Missouri, Respondent,
v.
Kenneth BAILEY, Appellant.
No. ED 92441.
Missouri Court of Appeals, Eastern District, Division Three.
November 10, 2009.
Chris Koster, Attorney General, Mary H. Moore, Assistant Attorney General, Jefferson City, MO, for Respondent.
Ellen H. Flottman, Columbia, MO, for Appellant.
Before GLENN NORTON, P.J., MARY K. HOFF, J. and LAWRENCE E. MOONEY, J.
ORDER
PER CURIAM.
Kenneth Bailey appeals the judgment entered upon a jury verdict convicting him of possession of a prohibited article in the Missouri Department of Corrections. We find that the trial court did not err in denying Bailey's motion to suppress and admitting Bailey's statement regarding ownership of the items found in his cell and in sentencing Bailey as a prior and persistent offender.
An extended opinion would have no precedential value. We have, however, provided the parties a memorandum setting forth the reasons for our decision. The judgment of the trial court is affirmed under Rule 30.25(b).
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960 A.2d 745 (2008)
197 N.J. 13
STATE
v.
HAMMOND.
C-421 September Term 2008, 63,298.
Supreme Court of New Jersey.
November 19, 2008.
Petition for certification. Denied.
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556 F.3d 857 (2009)
UNITED STATES of America, Appellee,
v.
Daniel Edward CVIJANOVICH, Appellant.
Nos. 08-1203, 08-1204.
United States Court of Appeals, Eighth Circuit.
Submitted: November 13, 2008.
Filed: February 25, 2009.
*859 Benjamin Eugene Thomas, argued, Fargo, ND, for appellant.
Brett M. Shasky, AUSA, argued, Fargo, ND, for appellee.
Before WOLLMAN, BEAM, and BENTON, Circuit Judges.
WOLLMAN, Circuit Judge.
Daniel Edward Cvijanovich appeals from the denial of his motion to dismiss the indictment, his conviction on one count of making threats against the President, a violation of 18 U.S.C. § 871, and the denial of his motion for acquittal or new trial. We affirm.
I.
On May 31, 2006, Cvijanovich pleaded guilty to three counts of damage to government property and one count of threatening to assault a federal official. According to the plea agreement, on three occasions in 2001, Cvijanovich entered the lobby of the Federal Building in Fargo, North Dakota, and threw a rock through the pane of glass that separates the public area from the secure portion of the building. He attached to each rock a note addressed to the Federal Bureau of Investigation, which is housed in the Federal Building. Cvijanovich admitted that one of the notes was a threat against the FBI. The district court sentenced Cvijanovich to twelve months' imprisonment and three years' supervised release.
At the time the plea agreement was executed, the government knew about certain threats that Cvijanovich allegedly made against President George W. Bush during the President's visit to Fargo on February 2 and 3, 2005. Specifically, the government had information that Cvijanovich was in the parking lot of the venue where the President was speaking, that he was armed with a gun, and that he was considering an assassination attempt. The government agreed not to prosecute Cvijanovich for conduct related to that incident unless it discovered that the defendant's threatening conduct "materially exceed[ed]" what the government knew on May 26, 2006.
While Cvijanovich was incarcerated on the vandalism related charges, he allegedly made statements about killing the President to his fellow inmates, Kyle White, Robby Aldrich, and Gary Zinck, Jr. Special Agent John Kelly of the United States Secret Service investigated the matter and interviewed White, Aldrich, and Zinck. Based on Agent Kelly's investigation, Cvijanovich was charged with three counts of *860 threats against the President, one count for the statements allegedly made to each witness. He was eventually convicted of Count One, which was based on statements made to White:
In or about November 2006, . . . Daniel Edward Cvijanovich knowingly and willfully made a threat to take the life of the President of the United States, substantially as follows:
While Daniel Edward Cvijanovich was an inmate at Stutsman County Jail, Jamestown, North Dakota, he stated his intention to kill the President to a fellow inmate, Kyle White, indicating, "All I want to do is kill the President and will not stop until the President is dead. I will continue to try to kill President Bush if he is still the President when I get out of jail. I will travel to any location in my next attempt to kill the President. I know people who can provide me with another gun. I will try to shoot the President in the forehead. I want to kill the President so I will be famous.";
[i]n violation of Title 18, United States Code, Section 871.
Before trial, Cvijanovich moved to dismiss the indictment and to suppress the testimony of White, Aldrich, and Zinck. Cvijanovich argued that the terms of the plea agreement barred the government from prosecuting the crime and from presenting the witnesses's testimony. The district court[1] denied the motion to dismiss, concluding that the plea agreement did not prohibit the prosecution of Cvijanovich for new threats against the President and that the "materially exceeds" provision in the plea agreement did not apply because the threats were not restatements of the February 2005 threats.
The district court determined that any statements Cvijanovich made to White, Aldrich, and Zinck in November 2006 would be admissible at trial, including references to earlier threats against the President. Other evidence of threatening statements, journal entries, or conduct that occurred prior to May 26, 2006, however, would be suppressed in accordance with the plea agreement. The district court ruled that statements or journal entries made after that date might be relevant and thus would not be suppressed categorically.
Before the trial commenced, the government notified Cvijanovich of its intent to introduce evidence of other crimes, wrongs, or acts in accordance with Federal Rule of Evidence 404(b). Specifically, the government sought to introduce evidence of Cvijanovich's prior convictions and certain journal entries that Cvijanovich wrote while incarcerated, some of which referred to his February 2005 threats against the President. The government argued that the entries were admissible because they showed intent, among other things.
After the first day of trial, the parties argued the evidentiary issue before the district court. Because Cvijanovich's prior conviction was mentioned in his opening statement, the district court ruled that the conviction and plea agreement were admissible. The district court heard arguments on each of the journal entries, and ruled that the following entries were relevant, that the probative value outweighed the prejudicial effect, and that they would be admissible after redaction:
It's not that I'm shallow, it's that I'm uppity. That's maybe the best explanation for the anger that led me here. The huge discrepancy between who I *861 felt myself to be and who I wanted to be. If I weren't a natural member of the upper caste, the alphas, then by god, I would set myself apart from, above, the whole herd, with criminality ... a rampage, an assassination, . . . Even a rock through government glass followed by manipulation of subsequent media coverage.
I try not to entertain any ill will for anyone anymore, am trying to let go of all personal grudges and to not hate political figures to the point of denying their basic humanity (is George W. Bush a psychopath? I don't think so. He deserves to die, but he is in the end a human being).
At trial, the government presented four witnesses: White, Aldrich, Zinck, and Agent Kelly. Agent Kelly testified about how the Secret Service generally handles threats and about his investigation into Cvijanovich's alleged threats. He said that all threats are taken seriously, and that after a threat has been made, the Secret Service talks to witnesses and conducts a background check on the individual who allegedly made the threat. The investigation continues until the Secret Service is satisfied that the individual is not a danger to the President. In the case of repeated threats, the individual is placed at a higher classification level because "we have seen that these people are serious and they will continue on their path until their goal is accomplished, their goal being to assassinate a political figure." Agent Kelly testified that Cvijanovich was placed at the highest classification level and that "we've got a disturbed individual who was going to try to assassinate the President of the United States."
White testified that he shared a cell with Cvijanovich in Stutsman County Jail and that they discussed their convictions. White described what Cvijanovich said about his February 2005 threats and his plans to kill the President upon release from prison. According to White, Cvijanovich wanted to kill the President because "he wanted to be famous and because basically he didn't like what the President was doing, sending soldiers over to Iraq. . . . He said when he gets out he plans on still killing the President." White testified that they discussed Cvijanovich's plans several times, including how he would get a gun and where he would shoot the President. On direct examination, White stated that even though he believed Cvijanovich intended to kill the President, he did not report the threats. He later testified, however, that he realized that Cvijanovich was serious after describing the jailhouse conversations to Agent Kelly.
White was serving time for assault during his incarceration with Cvijanovich. White has a lengthy criminal history, and he testified regarding his prior convictions, several of which involved dishonesty and deceit. White also wrote letters to Agent Kelly and an Assistant U.S. Attorney seeking a sentence reduction for his assistance in the case, and three of those letters were entered into evidence. Defense counsel vigorously cross-examined White and described him as a "convicted liar" in closing arguments.
The jury was instructed that Cvijanovich was "not on trial for any prior threats that are not acts alleged in the Indictment" and that evidence of any statements or conduct before November 2006 "was merely offered to establish the context in which the witnesses heard the threats alleged in the indictment." The jury was further instructed regarding the burden of proof, the elements of the crime, the definition of threat, and the intent required to knowingly or willfully make a threat. The jury returned a verdict of guilty as to Count Onethe statements made to Whiteand not guilty as to Counts Two and Three, the *862 statements allegedly made to Aldrich and Zinck.
Cvijanovich timely moved for a judgment of acquittal and for a new trial, challenging the sufficiency and credibility of White's testimony. The district court denied both motions and later sentenced Cvijanovich to nineteen months' imprisonment and three years' supervised release.
II.
On appeal, Cvijanovich argues that the district court erred in denying his motion to dismiss the indictment and his motion for judgment of acquittal or a new trial. Cvijanovich also contends that the district court abused its discretion in admitting evidence of his prior threats against the President and his journal entries. Finally, Cvijanovich argues that he is entitled to a new trial because the government elicited opinion testimony from Agent Kelly regarding whether Cvijanovich's statements constituted a threat.
A.
Cvijanovich argues that the district court should have dismissed the indictment against him because it violated the terms of his May 2006 plea agreement. Cvijanovich claims that his alleged threats against the President were mere reiterations of his February 2005 conduct and thus the plea agreement barred the government from prosecuting the counts charged in the indictment. Cvijanovich also contends that the information provided by White, Aldrich, and Zinck did not "materially exceed" the information the government possessed as of the date of the plea agreement.
We review de novo the district court's denial of a motion to dismiss the indictment. United States v. Howell, 531 F.3d 621, 622 (8th Cir.2008). "Issues concerning the interpretation and enforcement of a plea agreement are reviewed de novo." United States v. Paton, 535 F.3d 829, 835 (8th Cir.2008) (internal quotations omitted). We apply contract principles to analyze and interpret plea agreements, but a plea agreement "is not simply a contract between two parties. It necessarily implicates the integrity of the criminal justice system and requires the courts to exercise judicial authority in considering the plea agreement." United States v. Norris, 486 F.3d 1045, 1048 (8th Cir.2007) (en banc) (internal quotations omitted).
The relevant paragraph of the plea agreement states:
[T]he United States will not prosecute the defendant in the District of North Dakota for any conduct concerning any alleged statements, actions or threats to the President of the United States occurring on February 2 and 3, 2005. However, . . . in the event it is discovered that the defendant's conduct in regards to threats or threatening conduct towards the President of the United States materially exceeds what is presently known to the United States, then the United States will be released from this particular commitment.
The conduct alleged in the indictment falls outside the scope of the plea agreement. In return for his guilty plea to charges related to the vandalism of the Federal Building, the government agreed not to prosecute Cvijanovich for crimes related to his February 2005 threatening conduct towards the President. The indictment, however, charged Cvijanovich with making new, specific threats to kill the President upon his release from incarceration. As alleged in the indictment, Cvijanovich's November 2006 statements were not reiterations of the February 2005 threats, but rather were prospective threats that the plea agreement did not contemplate. Furthermore, the district court correctly concluded that the "materially exceeds" provision of the plea agreement *863 did not apply because the government did not charge Cvijanovich based on his conduct related to the February 2005 incident. Accordingly, the government did not violate the terms of the plea agreement when it charged Cvijanovich with three counts of threats against the President based on his November 2006 statements, and we affirm the district court's denial of the motion to dismiss the indictment.
B.
Cvijanovich argues that the district court erred in denying his motion for judgment of acquittal or new trial because the evidence does not permit the conclusion that Cvijanovich's statements amounted to a threat, as defined in 18 U.S.C. § 871. We review the district court's denial of a motion for judgment of acquittal in the light most favorable to the government, granting the government the benefit of all inferences that reasonably may be drawn from the evidence. United States v. Floyd, 458 F.3d 844, 847 (8th Cir.2006); United States v. Whitfield, 31 F.3d 747, 749 (8th Cir.1994); see also United States v. Frederickson, 601 F.2d 1358, 1362 (8th Cir.1979). We reverse only if no reasonable jury could have concluded beyond a reasonable doubt that the defendant was guilty of the charged offense. Floyd, 458 F.3d at 847; Whitfield, 31 F.3d at 749.
Section 871 makes it a crime to knowingly and willfully make a threat "to take the life of, to kidnap, or to inflict bodily harm upon the President of the United States." The government must establish "that the defendant appreciated the threatening nature of his statement and intended at least to convey the impression that the threat was a serious one. . . . The proof of such intention must turn upon the circumstances under which the statement was made." Frederickson, 601 F.2d at 1363 (quoting Rogers v. United States, 422 U.S. 35, 46, 95 S.Ct. 2091, 45 L.Ed.2d 1 (1975) (Marshall, J., concurring)) (internal quotations omitted). In analyzing threats under § 871, the jury must decide whether "a reasonable recipient, familiar with the context of the communication, would interpret it as a threat." United States v. Bellrichard, 994 F.2d 1318, 1323-24 (8th Cir.1993) (internal quotations omitted).
Taking the evidence in the light most favorable to the government, we conclude that a reasonable jury could have found Cvijanovich guilty of threats against the President, as charged in Count One. The government presented evidence regarding the context and circumstances in which the statements were allegedly made. White gave inconsistent testimony regarding when he formed a belief that Cvijanovich's threats were serious, but the jury had ample evidence to conclude that a reasonable person would interpret the statement alleged in Count One as a threat. As the district court properly noted, Cvijanovich's argument is not so much that the evidence is lacking, but that White's testimony lacked credibility. "It is the sole province of the jury to weigh the credibility of a witness," United States v. Martinez, 958 F.2d 217, 218 (8th Cir. 1992), and here, the jury was well aware of White's extensive criminal history and other deceptive acts, his cooperation with the government, and his desire for a sentence reduction. The district court thus did not err in denying the motion for acquittal.
Similarly, we affirm the district court's denial of Cvijanovich's motion for new trial. We find no "clear and manifest abuse of discretion" in the district court's ruling, and Cvijanovich has not shown that the evidence at trial weighed "so heavily against the verdict that a miscarriage of justice occurred." See United States v. Howard, 413 F.3d 861, 864 (8th Cir.2005) *864 (affirming the district court's denial of motions for acquittal and new trial).
C.
Cvijanovich argues that his journal entries and the testimony related to his February 2005 threats should have been excluded pursuant to Federal Rule of Evidence 404(b). Evidence of prior bad acts is admissible when it is "(1) relevant to a material issue; (2) similar in kind and close in time to the crime charged; (3) supported by sufficient evidence; and (4) such that its probative value is not outweighed by any prejudicial impact." United States v. Ruiz-Estrada, 312 F.3d 398, 403 (8th Cir.2002); see also Frederickson, 601 F.2d at 1365. We review the district court's 404(b) evidentiary rulings for abuse of discretion, and we reverse "only when such evidence clearly had no bearing on the case and was introduced solely to prove the defendant's propensity to commit criminal acts." Ruiz-Estrada, 312 F.3d at 403.
Cvijanovich argues that the journal entries and testimony regarding his February 2005 threatening conduct tended to prove only his criminal disposition and as such, should have been excluded. We disagree. The evidence of prior bad acts provided some context for the indicted conduct and was relevant to show Cvijanovich's intent and the seriousness of the threats.
The district court ruled that references to the February 2005 threats would be admissible only to the extent that Cvijanovich referred to the prior incidents in his November 2006 statements. Moreover, the disputed evidence was similar to and close in time to the November 2006 threatening statements. Cvijanovich does not challenge the sufficiency of the 404(b) evidence, other than White's credibility, and he has not shown that any prejudice from the admission of this evidence outweighed its probative value. The district court instructed the jury that Cvijanovich was charged only with the acts alleged in the indictment and that evidence regarding prior threats could only be considered on the issues of Cvijanovich's motive, intent, preparation, plan, knowledge, or absence of mistake or accident. Accordingly, we conclude that the district court did not abuse its discretion in admitting the evidence.
We have also considered Cvijanovich's argument that admitting the above-described evidence violated the terms of the plea agreement. Having concluded that the government did not "prosecute the defendant. . . for any conduct concerning any alleged statements, actions or threats to the President of the United States occurring on February 2 and 3, 2005," we find this argument to be without merit.
D.
Cvijanovich's final argument is that his case should be remanded for a new trial because Agent Kelly's testimony included prejudicial opinion testimony. Because Cvijanovich did not object on this basis below, we review for plain error.[2] Under plain error review, we reverse only if there has been (1) an error, (2) that is plain, and (3) that affects substantial rights. United States v. Rice, 449 F.3d 887, 894 (8th Cir.2006); see also United States v. Olano, 507 U.S. 725, 732-36, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). For a plain error to affect Cvijanovich's substantial rights, it must be prejudicial. Rice, 449 F.3d at 894. Cvijanovich must prove that his rights were prejudiced, a requirement that normally can be met only by *865 showing that the alleged error affected the outcome of the case. Id.
Citing United States v. Hanna, 293 F.3d 1080 (9th Cir.2002), Cvijanovich argues that Agent Kelly's testimony that Cvijanovich had been placed at the highest classification level and that "we've got a disturbed individual who was going to try to assassinate the President of the United States" may have led the jurors to conclude that they should defer to his opinion. In Hanna, three Secret Service agents and one police commander testified regarding their expertise in protecting public officials and in assessing whether a particular person constitutes a threat to the President. Id. at 1085. Over defense counsel's objections, all four law enforcement officials testified that the defendant's writings constituted a threat. Id. At one point, the district court endorsed an agent's testimony stating, "I would like the witness to point out . . . what in these exhibits he as an expert in threat assessment considers significant just so the jury knows that they are." Id. In Hanna, the jury was called upon to decide "whether a reasonable person in Hanna's position would foresee that his communications would be perceived by those to whom he communicated as serious expressions of intent to harm the President." Id. at 1086. The Ninth Circuit concluded that the district court abused its discretion and that Hanna was entitled to a new trial because "[t]he testimony, along with the district court's approval of it, posed a significant danger of misleading the jury into believing that it should judge Hanna's letters from the perspective of a highly trained Secret Service agent instead of from the perspective of an average, reasonable person." Id. at 1086-87.
Even if we assume that the admission of the disputed testimony constituted plain error, Cvijanovich has not shown that it affected his substantial rights. Agent Kelly's testimony was not as outcome determinative as that in Hanna. Agent Kelly was neither offered or endorsed as an expert, nor did his testimony receive the judicial imprimatur that occurred in Hanna. Moreover, the jury was instructed to apply the reasonable person standard; that is, that a threat must cause apprehension in a reasonable person and that a reasonable person would have foreseen that the statement would be interpreted as a serious intention to harm the President. Applying these instructions, the jury found Cvijanovich guilty of Count One and not guilty of Counts Two and Three. Had the jurors deferred to Agent Kelly's testimony, they likely would have convicted Cvijanovich on all three counts. Given the record we have before us, Cvijanovich cannot show that the alleged error affected the outcome of his case.
Conclusion
The district court's orders denying the motion to dismiss and the motion for acquittal or new trial are affirmed, as is the judgment of conviction.
NOTES
[1] The Honorable Ralph R. Erickson, United States District Judge for the District of North Dakota.
[2] Defense counsel objected to Kelly's testimony on the grounds that it lacked foundation and that it was beyond the scope of the question. Both objections were sustained.
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235 N.W.2d 848 (1975)
Stanley L. SORENSON, et al., Plaintiffs,
v.
SAFETY FLATE, INC., et al., Defendants,
Jack P. Hennessy Company and Three Star Sales Corporation, Respondents,
Standard Oil, a Division of American Oil Company, Appellant.
No. 45236.
Supreme Court of Minnesota.
December 5, 1975.
*849 Alderson, Catherwood, Ondov & Leonard, and Gary E. Leonard, Austin, for appellant.
Lasley, Gaughan, Reid & Stich, and Robert T. Stich, Minneapolis, for respondents.
Heard before OTIS, PETERSON, and SCOTT, JJ., and considered and decided by the court en banc.
SCOTT, Justice.
This is an appeal by defendant Standard Oil from a dismissal of its cross-claim to recover attorneys fees from codefendants Jack P. Hennessy Company and Three Star Sales Corporation in a personal injury-products liability case. On May 24, 1972, plaintiff Stanley L. Sorenson and the Hartford Accident and Indemnity Company (intervenor) obtained a judgment for breach of express warranty against Jack P. Hennessy Company, Three Star Sales Corporation, and Standard Oil, a division of American Oil Company. Plaintiff also obtained a judgment against Safety Flate, Inc., and Standard Metal Products Company. All defendants cross-claimed against each other. On June 5, 1972, the trial court granted the cross-claim for indemnity asserted by Jack P. Hennessy Company and Three Star Sales Corporation against Safety Flate, Inc., and Standard Metal Products Company. The trial court also granted the cross-claim for indemnity asserted by Standard Oil against all other defendants. All other cross-claims were dismissed. On August 31, 1972, the trial court entered its order denying defendant Standard Metal Products Company's amended alternative motion for new trial, judgment notwithstanding the verdict, or an amended order for judgment. Defendant Standard Metal Products Company appealed from that order and the judgment entered on September 20, 1972. This court ruled on that appeal in Sorenson v. Safety Flate, Inc., 298 Minn. 353, 216 N.W.2d 859 (1974). Standard Oil's cross-claim for attorneys fees and expenses against Jack P. Hennessy Company and Three Star Sales Corporation was dismissed with prejudice on May 31, 1974, by the district court. Defendant Standard Oil appeals *850 from that order and the judgment entered thereon.
The issues presented are as follows:
1. Is a purchaser entitled to recover attorneys fees and expenses from a seller where plaintiff claims a breach of identical express warranties by both purchaser and seller?
2. Does a contract for indemnity against claims based on negligence of seller-indemnitor entitle purchaser-indemnitee to recover attorneys fees and expenses from seller in an action where plaintiff claims a breach of express warranty by purchaser?
3. Does failure by defendant to tender defense to codefendant preclude recovery for attorneys fees in a cross-claim brought by defendant for indemnity?
The facts of this case are set out in detail in Sorenson v. Safety Flate, Inc., supra. Plaintiff Sorenson was injured when a ring retainer known as a "Safety Flater" blew off the rim of a tire he was inflating while employed at Jay's Truck Stop in Albert Lea, Minnesota. The device was manufactured by Safety Flate, Inc., and Standard Metal Products Company. Jack P. Hennessy Company, an Illinois corporation, which later merged with Three Star Sales Corporation, also an Illinois corporation, distributed the ring retainer. (Hereinafter these corporations will be referred to as Hennessy-Three Star.) Standard Oil purchased a "Safety Flater" from Hennessy-Three Star and sold the device to Jay's Truck Stop, Sorenson's employer. The contract between Standard Oil and Hennessy-Three Star contained the following terms:
"DEFECTIVE MATERIAL:
* * * * * *
"Seller warrants that the merchandise sold by Seller to Buyer hereunder will be of merchantable quality; will conform to applicable specifications, drawings, or descriptions furnished by Buyer; will be free from defects in material and workmanship; and will be sufficient and fit for the purposes intended by Buyer. Buyer's approval of designs furnished by Seller shall not relieve Seller of its obligations under this paragraph. The warranties of Seller, together with its service guarantees, shall run to Buyer and its jobbers, dealers, and customers. In addition, Seller shall indemnify and hold Buyer and its employees, jobbers and dealers harmless from and against any and all claims, suits, judgments, or expenses, including attorneys' fees, which are grounded or based wholly or partially upon alleged negligence or actual negligence in the formulation or manufacture of any merchandise sold by the Seller to Buyer hereunder, or upon any alleged defect or actual defect in the merchandise, or upon a claim that the merchandise was not of merchantable quality or that it was not fit for the purposes for which it was intended." (Italics supplied.)
In selling the "Safety Flater" to Jay's Truck Stop, Standard Oil presented a flyer printed by Hennessy-Three Star containing an express warranty, and provided to Standard Oil by Hennessy-Three Star.
After incurring injury from the ring retainer, Sorenson brought an action against the various defendants alleging negligence, breach of implied warranties, strict liability, and, as to defendants Standard Oil Company and Hennessy-Three Star, breach of express warranty in the sale to Jay's Truck Stop.
The various defendants in interposing the cross-claims sought indemnity and contribution from each of the other defendants. Among these cross-claims was a claim asserted by defendant Standard Oil against Hennessy-Three Star for indemnity and attorneys fees and expenses. Standard Oil provided its own defense to all claims brought against it and did not tender defense to defendant Hennessy-Three Star at any time. The trial court awarded indemnity *851 to defendant Standard Oil against Hennessy-Three Star with respect to verdicts in favor of plaintiffs under common-law indemnity.
In Sorenson v. Safety Flate, Inc., supra, this court compared the nature of the obligations to plaintiff breached by defendants Standard Oil and Hennessy-Three Star. Discussing the breach of express warranty by Standard Oil, this court stated:
"One of the purchasers of Safety Flaters from Hennessy-Three Star was defendant Standard Oil, a division of American Oil Company. Standard Oil in turn sold the device directly to users. In making its sales presentation to Standard Oil, Hennessy-Three Star used a descriptive printed `flyer' which they had prepared, illustrating and describing the Safety Flater. The flyer contained the following language:
`Whether you change one or fifty tires a day the danger of exploding lock rings always exists. Everyone knows the damage or serious injury that may occur. It only has to happen once. THE THREE STAR SAFETY FLATER will protect your man and enable you to meet insurance underwriters specifications for safety.'
The flyer also depicted alternative ways of protecting oneself while changing a truck tire, but suggested that the Safety Flater was the preferable method. No test of the Safety Flater was ever made by either Hennessy-Three Star or Standard Oil.
"Plaintiff's employer, who had purchased the Safety Flater for use in his service station, testified that he had seen and relied upon the flyer prior to his purchase of the Safety Flater from Standard Oil. He said he did not know where the flyer came from, but assumed that it had been provided by Standard Oil." 298 Minn. 355, 216 N.W.2d 861.
This court further noted:
"While a written express warranty was prepared and circulated by the distributors in this case, thereby placing them in a position of some active participation beyond merely selling the product, it essentially did nothing more than reiterate the guarantees already encompassed within the implied warranties which accompany any product produced by a manufacturer, i. e., that the product is fit for the ordinary purposes for which such goods are to be used." 298 Minn. 360, 216 N.W.2d 863.
Because the acts of Standard Oil were found to be secondary to those of Hennessy-Three Star, this court affirmed an order granting indemnity to Standard Oil for damages incurred by plaintiff. No issue was raised in that case regarding attorneys fees.
1. The rule in Minnesota regarding the award of attorneys fees in an indemnity case was stated in Fidelity & Cas. Co. v. Northwestern Tel. Exch. Co., 140 Minn. 229, 233, 167 N.W. 800, 802 (1918), where the Minnesota court recited the holding of Inhabitants of Westfield v. Mayo, 122 Mass. 100, 23 Am.Rep. 292 (1877):
"`If a party is obliged to defend against the act of another, against whom he has a remedy over, and defends solely and exclusively the act of such other party, and is compelled to defend no misfeasance of his own, he may notify such party of the pendency of the suit and may call upon him to defend it; if he fails to defend, then, if liable over, he is liable not only for the amount of damages recovered, but for all reasonable and necessary expenses incurred in such defense.' Only in such case is there a right to recover such expenses."
Defendant Standard Oil argues that its position in seeking attorneys fees and expenses is similar to the fact situation in the case of O'Connell v. Jackson, 273 Minn. 91, 140 N.W.2d 65 (1966). In O'Connell, defendant Jackson made a false express warranty to defendant Decker which Decker in *852 turn transmitted to plaintiff. The court found that Jackson's act of misrepresentation was the sole cause of plaintiff's entire loss. The court noted that "in defending the action Decker was defending only charges based upon Jackson's original breach of warranty." 273 Minn. 97, 140 N.W.2d 69. The O'Connell case is unlike the present situation, however, in that there is no question of responsibility for misrepresentation in this case. There is no false warranty which was repeated by a second defendant who did not know the statements were false. In O'Connell, moreover, Decker tendered defense of the case to Jackson, a point which will be discussed below. The question in the present case is whether the breach of obligations to plaintiff made by defendant Standard Oil is a sufficiently separate act from that of defendant Hennessy-Three Star to justify a denial of attorneys fees.
The O'Connell case was cited by this court in the case of Farr v. Armstrong Rubber Co., 288 Minn. 83, 179 N.W.2d 64 (1970), in which several plaintiffs sued Armstrong Rubber Company and Elmer N. Olson Company for personal injuries resulting from the blowout of a tire. Armstrong was found liable on the basis of strict liability and negligent failure to warn. Olson was found liable to plaintiff either on the grounds of breach of implied warranty or strict liability in tort. The court noted that Olson's liability stemmed "solely from its passive role as the retailer of a defective product furnished to it by the manufacturer." Nevertheless, the court held:
"In cases where a party seeking indemnity has been required to defend claims arising out of another's wrongful conduct and also to defend accusations which encompass his separate wrongful acts, the court may properly disallow attorney's fees in indemnity action." 288 Minn. 97, 179 N.W.2d 72.
In the present case, Standard Oil is defending against a claim involving its own breach of express warranty. This court found that the express warranty made by Standard Oil was identical to that made by Hennessy-Three Star in Sorenson v. Safety Flate, Inc., supra. The Farr case makes it clear, however, that the mere reiteration of a warranty can be a sufficiently independent wrongful act to justify a denial of attorneys fees even if the warranty involved is only a warranty implied by law. Minn.St. 336.2-314(2)(c).
2. As noted above, defendant Standard Oil purchased the "Safety Flater" from Hennessy-Three Star subject to an indemnity contract. Such contracts have been upheld in Minnesota and are to be given "a fair construction that will accomplish its stated purpose." N. P. Ry. Co. v. Thornton Bros. Co., 206 Minn. 193, 196, 288 N.W. 226, 227 (1939). The question in this case is whether plaintiff's claim against Standard Oil is within the language of the contract. Standard Oil argues that the action was "grounded or based [wholly] or partially upon alleged negligence or actual negligence in the formulation and manufacture of any merchandise" sold by Hennessy-Three Star to Standard Oil. The indemnity clause relied upon by Standard Oil, however, appears in the contract under the heading "DEFECTIVE MATERIAL"; thus, the section contemplates a claim against Standard Oil for defective material, workmanship, manufacture, or design. Because the clause makes no explicit reference to indemnification for breach of express warranty, the contract cannot be found to include indemnity for attorneys fees resulting from Standard Oil's own act of giving an express warranty to a buyer.
3. The trial court found that under the rule of Fidelity & Cas. Co. v. Northwestern Tel. Exch. Co., supra, tender of defense is required as a condition precedent to obtaining indemnification for attorneys fees. Defendant Standard Oil argues in part that this obligation should be excused on the basis of the holding in Singer v. *853 Dorr, 272 F.Supp. 931 (E.D.La.1967). The Singer case involved a suit for wrongful death resulting from an accident on a barge. Defendant barge owners were confronted with an assertion by the tug owner that there can be no recovery of attorneys fees unless the barge owners tendered defense of the action to the tug owner. The court held:
"* * * Although it is true that in many of the shipowner-stevedore cases, including Caswell [Caswell v. Koninklyke Nederlandsche Stoomboat Maalschappy, D.C., 205 F.Supp. 295] (Strachan [Strachan Shipping Co. v. Koninklyke Nederlandsche Stoomboat Maalschappy, 5th Cir., 324 F.2d 746]), supra, the shipowner does tender the defense, we cannot see that the tender is critical. * * * It may well be, of course, that if the third-party defendant offers to defend against the plaintiff's claim, and that offer is rejected by the defendant, there can be no recovery of attorneys' fees, since the expense could have been avoided at no cost to the original defendant in those circumstances. * * * But the third-party defendant should not be allowed to oppose the claim against him and then later be heard to imply that he would have accepted the defense to plaintiff's claim had it been tenderedfor the third-party defendant to assume the defense, it would have to admit, for purposes of the third-party claim, its liability to defendant. Thus, rather than insist on a formal tender of the defense, we think it fair to consider the third-party claim and request for attorneys' fees as an implied invitation to the third-party defendant to admit its liability on the third-party claim and to offer to defend against the plaintiff's claim, and conclude that the third-party claim, in and of itself, without a formal tender of the defense, is sufficient action by the defendant to permit its recovery of attorneys' fees. Expressed differently, the burden is on the third-party defendant to offer to defend (or to accept a tender of the defense if made) in order to avoid imposition of liability for attorneys' fees, and not on the defendant to tender the defense in order to recover attorneys' fees. Here, not only was there no offer to defend, but Dorr also actively pursued its own cross claim against the barge interests." 272 F.Supp. 936.
It is important to note, however, that the Singer court determined that, on the facts of that case, it was fair to construe the third-party claim and request for attorneys fees as an "implied invitation to the third-party defendant * * * to offer to defend." No such invitation can be implied in the present case where Standard Oil insisted on its own defense. Hennessy-Three Star was never given an opportunity to control the litigation, nor could Hennessy-Three Star have minimized or avoided the attorneys fees incurred by Standard Oil. Much of the litigation expense incurred by Standard Oil, moreover, was spent in suing to establish a contract of indemnity. While this is not a determining feature, since such a suit is usually brought by a separate action and not combined in one suit as here, it still would present an inseparable item of questionable expense if Standard Oil were to prevail. See, Abbey v. Farmers Ins. Exch., 281 Minn. 113, 160 N.W.2d 709 (1968), where attorneys fees were held not recoverable.
Defendant Standard Oil also asserts that tender of defense is not a prerequisite to recovery of attorneys fees pursuant to a contract for indemnity where the contract contains no such requirement. In view of the determination above that indemnity in this situation is outside the scope of the contract between Standard Oil and Hennessy-Three Star, it is unnecessary to reach this issue. We therefore hold that Standard Oil is not entitled to attorneys fees and expenses either under common-law or contractual indemnity. The trial court is affirmed.
Affirmed.
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614 P.2d 79 (1980)
Robert Walter MOLAN, Appellant,
v.
The STATE of Oklahoma, Appellee.
No. F-79-604.
Court of Criminal Appeals of Oklahoma.
July 11, 1980.
David W. Carter, Lawton, for appellant.
Jan Eric Cartwright, Atty. Gen., Timothy S. Frets, Asst. Atty. Gen., for appellee.
*80 OPINION
BUSSEY, Judge:
Robert Walter Molan, defendant, was convicted of Robbery With Firearms in the District Court of Comanche County, Case No. CRF-78-670. Punishment was fixed at nine (9) years' imprisonment. The only questions raised on appeal relate to the defendant's arrest, which he argues was illegal. We affirm.
On June 21, 1978, a robbery was committed outside the city limits of Medicine Park, Oklahoma. Because it was the closest law enforcement agency, the Police Department in Medicine Park was called, and the police chief and an officer went to investigate the robbery. After a few questions at the scene of the crime, the two officers, the victim and an eyewitness went in search of the robbers. (The witness had supplied a description and the license tag number of the felons' vehicle.) They found the automobile they were seeking at a campground in the Wichita Mountains Federal Wildlife Refuge. Three men were walking away from the vehicle. After calling the Comanche County Sheriff's Department, the Medicine Park Police Chief arrested the three men. A few minutes later, a Comanche County Deputy arrived and rearrested the three men.
In his first assignment of error, the defendant contends that his detention by the Medicine Park Police Chief was an illegal arrest. The State concedes that the Chief was outside his jurisdiction, but argues that he was in fresh pursuit of a felon, which would legitimate the arrest. However, the idea of fresh pursuit requires that an officer begin the chase in his or her own jurisdiction and continue it until the person is caught. In the present case, the crime, as well as the arrest, occurred outside the jurisdiction of the Medicine Park officers. So fresh pursuit will not justify the arrest.
Nevertheless, this Court holds that the arrest was justified. Title 22 O.S. 1971, § 202, provides that a private person may make an arrest when a felony has been committed and when the person making the arrest has reasonable cause to believe that the person arrested committed that crime. This Court has held that a law enforcement officer outside his jurisdiction may make a citizen's arrest. Moran v. State, 95 Okl.Cr. 6, 237 P.2d 920 (1951). Title 22 O.S. 1971, § 205, requires that a private citizen making an arrest must either take the person arrested before a magistrate or deliver him to a peace officer; and that is what happened in the present case. The Medicine Park officers, acting as responsible private citizens, searched for and found those persons who, as they had probable cause to believe, had committed the armed robbery. They immediately summoned the county sheriff and detained the men until a deputy arrived. Everything that happened was in accordance with statute.
Since all the occupants of the car were arrested, the deputy sheriff ordered the car impounded and inventoried its contents. The defendant, arguing from the assumption that his arrest was illegal, contends that the inventory constituted an illegal search. But since the arrest was legal, this second assignment of error is without foundation.
The judgment and sentence are accordingly AFFIRMED. For a discussion of the State's jurisdiction over the Wichita Mountains Wildlife Refuge, see State v. Cline, Okl.Cr., 322 P.2d 208 (1958).
*81 CORNISH, P.J., concurs.
BRETT, J., concurs in results.
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526 So.2d 513 (1988)
Dallas Ray SCHEXNIDER, Plaintiff-Appellee,
v.
Louie McGUILL and Lafayette Insurance Company, Defendants-Appellants.
No. 87-258.
Court of Appeal of Louisiana, Third Circuit.
June 10, 1988.
*514 Morgan, McClain & Savoy, Robert E. Morgan, Lake Charles, for plaintiff-appellee.
Terry E. Johnson, Woodley, Barnett, etc., E.E. Woodley, Lake Charles, for defendants-appellants.
Before FORET, LABORDE, JJ., and REGGIE[*], J. Pro Tem.
REGGIE, Judge Pro Tem.
We are asked to decide in this appeal whether the lower court correctly concluded that defendant McGuill's punch to plaintiff's face was unintentional for purposes of determining the scope of the coverage of McGuill's Homeowner's Policy which he obtained from Lafayette Insurance Company. Based upon our review of the facts and relevant law in this area, we are of the opinion that the decision by the lower court was not clearly erroneous. We accordingly affirm.
FACTS
On November 30, 1984, Dallas Ray Schexnider (plaintiff) entered Brownie's Lounge in Iowa, Louisiana to meet Gail McGee, a Brownie's employee, to obtain a ride home. While plaintiff was waiting for Ms. McGee to get off of work, defendant Louie McGuill, a long time friend, entered Brownie's and sat down next to plaintiff at the bar.
During the course of conversation between the plaintiff and defendant McGuill about the possibility of going into business together, the defendant struck plaintiff with one quick jab to what he believed to be plaintiff's jaw. Plaintiff fell to the ground and suffered several broken bones in his cheek. He later was required to undergo surgery to correct the damage to his face and missed a considerable amount of time from work.
Plaintiff sued defendant McGuill and defendant's homeowner insurer, Lafayette Insurance Company (Insurance Company), seeking to recover damages for his injuries. The Insurance Company defended on the basis of an Intended Injury exclusion in McGuill's homeowner's policy.
At trial, the parties presented conflicting testimony regarding events leading up to the blow. Based upon his first-hand observation of the witnesses, the lower court resolved the conflict by concluding "[t]hat the blow was not for defensive purposes since no threatening gesture had been made by [P]laintiff and it is unreasonable to believe that the blow was without any reason whatsoever."
Nevertheless, the lower court appeared to give considerable weight to defendant McGuill's testimony (1) that he did not draw back his arm to swing at plaintiff; (2) that the blow resulted from his arm moving perhaps 12 inches; (3) that he believed immediately afterward that he had hit plaintiff on the jaw; and (4) that defendant's conduct after the incident did not signify an intention to cause plaintiff the injuries he suffered. The lower court thus concluded that the blow was unpremeditated and that "the injuries sustained by [P]laintiff were neither expected nor intended by McGuill. This [D]efendant acted reflexively and without a conscious or deliberate intent to strike a blow and without a belief that his uncontrolled reaction would cause injury."
Because defendant did not intend, nor expect, the massive injuries suffered by plaintiff, the lower court held that the Insurance Company's Intentional Injury Exclusion did not bar plaintiff's claim and that the defendants were liable in solido for the damages suffered by plaintiff. Defendant Insurance Company appeals from the judgment.
OPINION
The lower court's decision that the actions of defendant McGuill caused plaintiff's injury was not appealed by McGuill and therefore is not before us. The only *515 issue before us is whether the lower court correctly concluded that the injuries suffered by plaintiff were not the result of an intentional act by McGuill for purposes of the Intentional Acts Exclusion in defendant McGuill's homeowner's policy with defendant Insurance Company. If the exclusion does not apply to defendant McGuill's actions in this case, then defendant Insurance Company is liable with McGuill in solido for the injuries sustained by plaintiff.
The lower court had the opportunity to examine the witnesses and the evidence in this case first-hand and made its factual findings of McGuill's intent based upon such examination. The factual findings of the court are entitled to great deference and will only be overturned if they are clearly erroneous. Canter v. Koehring Company, 283 So.2d 716 (La.1973); Bertrand v. Aetna Casualty & Surety Company, 306 So.2d 343 (La.App. 3 Cir.1975), writ denied, 310 So.2d 641 (La.1975). We have carefully examined the record and find no clear error in the lower court's factual determinations.
We then turn to the lower court's conclusion that as a matter of law the Intentional Injury Exclusion in McGuill's policy does not exclude coverage for the injuries suffered by plaintiff in this case and that the Insurance Company thus is liable with McGuill in solido for damages suffered by plaintiff as a result of those injuries. Based upon our analysis of the relevant case law, we affirm the decision of the lower court.
There is a distinction in the law of this state between an intentional act and an intentional injury. In Rambin v. Wood, 355 So.2d 561 (La.App. 3 Cir.1978), this Court concluded that while the defendant intentionally pushed plaintiff while he was riding a tractor, causing plaintiff to fall, the injuries suffered by plaintiff were neither expected nor intended by the defendant. Thus, the intentional exclusion in the applicable insurance policy did not bar the claim.
Similarly, in Kling v. Collins, 407 So.2d 478 (La.App. 1 Cir.1981), our brethren in the First Circuit also drew such a distinction. The defendant in that case became involved in an argument in his home with the plaintiff and pushed the plaintiff out of the door. Plaintiff fell and suffered a wrist injury. The First Circuit affirmed the trial court's finding that the defendant intended to force the plaintiff to leave, but did not intend to injure her. The Kling court thus held that the exclusionary clause should apply only when the act is of such a nature that the injury must necessarily be expected.
Moreover, in Pique v. Saia, 450 So.2d 654 (La.1984), the Louisiana Supreme Court stated that an injury is intentional for purposes of denying coverage under a policy exclusion similar to the one in defendant McGuill's homeowner's policy "only when the person who acts either consciously desires the physical result of his act, whatever the likelihood of that result happening from his conduct; or knows that that result is substantially certain to follow from his conduct, whatever his desire may be as to the result." Pique, 450 So.2d at 655. See: W. Prosser, Law of Torts Section 8 (4th Ed.1971); Restatement (Second) of Torts, American Law Institute Section 8A (1965).
We do not disagree with the conclusions by the lower court in the instant case that the massive cheek-bone injuries sustained by plaintiff were not intended by defendant, who punched plaintiff with a short, unpremeditated jab to what he thought was his jaw. While we certainly do not condone defendant's actions and would have agreed with the lower court's decision were it before us on appeal that defendant McGuill is liable for plaintiff's injuries, we nevertheless believe that McGuill's actions were not of the intentional sort that are intended to be excluded by his homeowner's policy.
This is not a case, such as Guilbeau v. Roger, 443 So.2d 773 (La.App. 3 Cir.1983), writ denied 446 So.2d 1224 (La.1984), where the defendant hit plaintiff a second and more forceful time and we found that she intended seriously to injure plaintiff. Nor is this a case like Hebert v. Burton, 432 So.2d 1109 (La.App. 3 Cir.1983), where the trial judge determined as a factual matter, and this Court affirmed, that the defendant *516 made a totally unprovoked attack on plaintiff such that any reasonable person would expect to cause substantial injury.
This is a case involving two friends, where one punched the other, perhaps after a verbal insult, and the scope of the injury to plaintiff far exceeded what any reasonable person would expect from a jab intended for the jaw. As the lower court held, perhaps "plaintiff moved as the blow was being delivered...." We may never know. But what was adduced at trial, and what we do not disturb here on appeal, is the lower court's finding that defendant McGuill "acted reflexively and without a conscious or deliberate intent to strike a blow and without a belief that his uncontrolled action would cause injury."
For the reasons assigned, the judgment of the trial court is affirmed at defendants-appellants' costs.
AFFIRMED.
FORET, Judge, dissenting.
I have great difficulty, and in fact cannot agree that McGuill's act was unintentional. I believe that when McGuill punched Schexnider in the face, he intended to inflict pain and injury. Otherwise, why would he strike him? McGuill did not strike the plaintiff in self-defense; there is no particular allegation that plaintiff provoked McGuill, other than the testimony that plaintiff spit on McGuill, which apparently the trial court chose to disbelieve. If the trial court had believed that Schexnider had spit on McGuill, that may have been more of a reason to hold the way it did. In fact, the record shows that McGuill indicated to the barmaid, just before he struck plaintiff, that he was about to teach Schexnider a lesson. I believe that the cases cited by the majority to sustain the position do not go quite as far as what we're doing here. Indeed, if we sustain this trial court judgment, I can't conceive of what set of facts could constitute an intentional act such as to fall within the exclusionary clause of an insurance policy.
Here, the defendant set out to strike the plaintiff in the face, and he did so with such violent force as to fracture several bones in plaintiff's face and knock him off the bar stool onto the floor, unconscious. Even after the incident, his comments to the barmaid, and possibly others, certainly indicate that McGuill was in a violent frame of mind when he struck the plaintiff and even thereafter.
The majority apparently feels that the recent Supreme Court case of Caudle v. Betts, 512 So.2d 389 (La.1987), the latest expression by the Louisiana Supreme Court on intentional torts, is not applicable to the case at bar. Perhaps it isn't, because in Caudle the issue of intentional tort was raised in the context of a worker's compensation related scenario, whereas the issue in this case is intentional tort definition under the exclusionary clause of the defendant's homeowners liability insurance policy. But, considering the letter and spirit of Caudle, I simply cannot distinguish the two cases. I believe that the rationale of Caudle does apply in the instant case. The defendant intended to strike, did strike the plaintiff, and did intend to cause the plaintiff to suffer such a contact, which clearly was a battery. There is no question that the touching was offensive to the plaintiff. At page 392, Caudle states: "The defendant's liability for the resulting harm extends, as in most other cases of intentional torts, to consequences which the defendant did not intend, and could not reasonably have foreseen,...." (Citations omitted.)
I think the rationale of Caudle fits this case like the proverbial glove. The defendant committed an intentional tort, a battery upon the plaintiff, causing damage, and he is responsible for the damage caused even if it could not have reasonably been foreseen. Therefore, the intentional tort exclusionary clause in defendant's insurance policy definitely is applicable.
I respectfully dissent.
NOTES
[*] Judge Edmund M. Reggie, Retired, participated in this decision as Judge Pro Tempore by appointment of the Louisiana Supreme Court.
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608 F.2d 1130
UNITED STATES of America ex rel. Marlene SWIMLEY, Petitioner-Appellant,v.Charlotte NESBITT, Warden of Dwight Correctional Center,Respondent-Appellee.
No. 79-1206.
United States Court of Appeals,Seventh Circuit.
Argued Oct. 2, 1979.Decided Nov. 2, 1979.
Louis Carbonaro, Chicago, Ill., for petitioner-appellant.
Thomas E. Holum, Asst. Atty. Gen., Chicago, Ill., for respondent-appellee.
Before CUMMINGS, PELL and BAUER, Circuit Judges.
BAUER, Circuit Judge.
1
The petitioner, Marlene Swimley, was convicted of solicitation to commit murder in violation of Ill.Rev.Stat. ch. 38, § 8-1 by a Cook County jury. Her conviction was affirmed by the Illinois Appellate Court. People v. Swimley, 57 Ill.App.3d 116, 14 Ill.Dec. 608, 372 N.E.2d 887, Cert. denied, 439 U.S. 911, 99 S.Ct. 281, 58 L.Ed.2d 257 (1978). The petitioner then sought a writ of habeas corpus in federal district court. From the denial of her petition, she appeals. We affirm.
2
The evidence at trial showed that the petitioner requested an undercover investigator, Joseph Saladino, to murder her husband. The jury heard the testimony of Mr. Saladino as well as tape recordings of the encounter between him and the petitioner.1 Illinois law requires that to be guilty of solicitation, a person must request or encourage another to commit a crime with the intent that the crime be committed. The jury was so instructed. See Illinois Pattern Jury Instruction Criminal 6.01 (1968) (hereinafter cited as IPI-Criminal). In order to establish that the petitioner did intend to bring about her husband's murder, the state, in addition to presenting the testimony of the investigator and the tapes, called as witnesses Kevin Senne and John DeSpain. Both young men testified to plans they had made with the petitioner to find a "hit man" to take care of her husband. Senne admitted on the stand that he had received immunity from prosecution and that he would not have testified otherwise. Whether DeSpain had received immunity as well is unclear, but cross-examination revealed that he had received benefits from the state in return for his testimony. The petitioner testified in her own defense, denied the stories of Senne and DeSpain, and attempted to put an innocent construction on her conversation with investigator Saladino.
3
Petitioner tendered proposed jury instructions on the testimony of immunized witnesses and accomplices. The instructions tendered followed verbatim those suggested in 1 E. Devitt & C. Blackmar, Federal Jury Practice and Instructions § 12.022 and § 12.043 (2d ed. 1970). The trial judge, however, refused to give the tendered instructions. Nor did the court instruct the jury specifically on the testimony of accomplices and the care with which their testimony should be considered, although the Illinois Pattern Jury Instructions contain an instruction on the subject.4 Instead the trial judge gave the jury an instruction on the evaluation of the credibility of witnesses in general terms.5 The jury returned a verdict of guilty. Petitioner received a sentence of three to nine years imprisonment. The Illinois appellate court held that the trial court's refusal to give the instructions requested was not error. 57 Ill.App.3d at 130-31, 372 N.E.2d at 897-98, 14 Ill.Dec. at 618-619.
4
The sole issue before the federal district court and before this court is whether the failure of the state trial judge to give some kind of cautionary instruction on the testimony of accomplices or immunized witnesses6 violated the petitioner's due process right to a fair trial. A federal court in a habeas corpus action is limited in its search for error to those of constitutional magnitude. 28 U.S.C. § 2254.
5
The burden of demonstrating that an erroneous instruction was so prejudicial that it will support a collateral attack on the constitutional validity of a state court's judgment is even greater than the showing required to establish plain error on direct appeal. The question in such a collateral proceeding is "whether the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process," Cupp v. Naughten, 414 U.S. (141), at 147 (94 S.Ct. 396, 38 L.Ed.2d 368), not merely whether ". . . the instruction is undesirable, erroneous, or even 'universally condemned,' " Id., at 146, (94 S.Ct. 396).
6
Henderson v. Kibbe, 431 U.S. 145, 154, 97 S.Ct. 1730, 1736-1737, 52 L.Ed.2d 203 (1977). In those cases in which the Supreme Court has reviewed the instructions given in state criminal trials, it has confined its inquiry to determining whether the jury was properly instructed on the government's burden of proving every element of the crime charged beyond a reasonable doubt, See Sandstrom v. Montana, --- U.S. ----, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979), Henderson v. Kibbe, 431 U.S. 145, 97 S.Ct. 1730, 52 L.Ed.2d 203 (1977), Cupp v. Naughten, 414 U.S. 141, 94 S.Ct. 396, 38 L.Ed.2d 368 (1973), or another " 'principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental,' " Id. at 149-50, 94 S.Ct. at 402 (quoting Snyder v. Massachusetts, 291 U.S. 97, 105, 54 S.Ct. 330, 78 L.Ed. 674 (1934)). See, e. g., Taylor v. Kentucky, 436 U.S. 478, 485, 98 S.Ct. 1930, 1935, 56 L.Ed.2d 468 (1978) (jury should be instructed on the presumption of innocence to insure that it bases its verdict "solely on the basis of the evidence introduced at trial, and not on grounds of official suspicion, indictment, continued custody, or other circumstances not adduced as proof at trial"). Compare Kentucky v. Whorton, 441 U.S. 786, 99 S.Ct. 2088, 60 L.Ed.2d 640 (1979) (Taylor does not create a per se constitutional rule; whether failure to instruct on presumption of innocence violates constitutional right to a fair trial depends upon the totality of the circumstances). Moreover, one convicted of a crime in state court has a particularly heavy burden of establishing a constitutional violation where, as here, she complains not that the state court gave an erroneous instruction, but that it omitted to give a permissible instruction. Henderson v. Kibbe, 431 U.S. at 155, 97 S.Ct. 1730.
7
The petitioner, relying on a number of federal appellate court decisions reviewing federal criminal convictions, contends that cautionary instructions on accomplices and immunized witnesses have become so well-established as to be constitutionally required in appropriate cases in both state and federal criminal trials. At least one federal court of appeals has rejected this argument, Grieco v. Meachum, 533 F.2d 713 (1st Cir.), Cert. denied, 429 U.S. 858, 97 S.Ct. 158, 50 L.Ed.2d 135 (1976),7 and a review of the federal decisions reveals that they are properly understood as exercises of the federal appellate courts' supervisory power over proceedings in trial courts, not decisions vindicating constitutional rights. See generally 17 A.L.R. Fed. 249 (1973).
8
The justification for cautionary instructions on particular types of witnesses is easy to understand.
9
The use of informers, accessories, accomplices, false friends, or any of the other betrayals which are "dirty business" may raise serious questions of credibility. To the extent that they do, a defendant is entitled to broad latitude to probe credibility by cross-examination and to have the issues submitted to the jury with careful instructions.
10
On Lee v. United States, 343 U.S. 747, 757, 72 S.Ct. 967, 973-974, 96 L.Ed. 1270 (1952). When the government calls "the accused accomplice . . . to testify against the defendant(,) (c)ommon sense would suggest that he often has (an) interest in lying in favor of the prosecution . . . ." Washington v. Texas, 388 U.S. 14, 22, 87 S.Ct. 1920, 1925, 18 L.Ed.2d 1019 (1967). Thus, in most cases, accomplice instructions "represent no more than a commonsense recognition that an accomplice may have a special interest in testifying, thus casting doubt upon his veracity." Cool v. United States, 409 U.S. 100, 103, 93 S.Ct. 354, 357, 34 L.Ed.2d 335 (1972).
11
Even though "(a)ccomplice instructions have long been in use and have been repeatedly approved," Id., the federal courts of appeals have not reached unanimity on the circumstances in which the trial judge should or must give such an instruction and on when the failure to do so will warrant a reversal. Judge Learned Hand in widely quoted dictum once remarked:
12
The warning is never an absolute necessity. It is usually desirable to give it; in close cases it may turn the scale; but it is at most merely a part of the general conduct of the trial, over which the judge's powers are discretionary, like his control over cross-examination, or his comments on the evidence. If he thinks it unnecessary at least when, as here, the guilt is plain he may properly refuse to give it.
13
United States v. Becker, 62 F.2d 1007, 1009 (2d Cir. 1933). See also United States v. Bucur, 194 F.2d 297, 305 (7th Cir. 1952) ("Although such an instruction is 'better practice,' it is not error to refuse to give it"). Although it is doubtful that such a broad statement accurately reflects current federal practice,8 it illustrates that cautionary instructions such as those requested by the petitioner cannot be regarded as "so rooted in the traditions and conscience of our people as to be ranked as fundamental." Snyder v. Massachusetts, 291 U.S. 97, 105, 54 S.Ct. 330, 332, 78 L.Ed. 674 (1934).
14
The petitioner has not briefed the status of cautionary instructions on the testimony of accomplices and immunized witnesses in the state courts, but it is doubtful that such instructions are universally or widely required. See Grieco v. Meachum, 533 F.2d 713, 720 (1st Cir.), Cert. denied, 429 U.S. 858, 97 S.Ct. 158, 50 L.Ed.2d 135 (1976) (Massachusetts does not require accomplice instruction). The Illinois Pattern Jury Instructions for criminal cases do not contain an immunized witness instruction and the committee note to the accomplice instruction indicates that the committee was "sharply divided" on whether that instruction was necessary at all. See IPI-Criminal at p. 31. A significant minority of the committee apparently believed that the credibility of an accomplice was best left to cross-examination of the witness and argument to the jury. This is certainly a defensible view, particularly in those jurisdictions which, unlike the federal system, sharply restrict the trial judge's ability to comment on the evidence. Although under Illinois law the giving of an accomplice instruction is preferred, See People v. Gleitsmann, 361 Ill. 165, 197 N.E. 557 (1935), the failure of the trial court to give one in cases such as this has been held not to be reversible error. People v. Parks, 65 Ill.2d 132, 2 Ill.Dec. 320, 357 N.E.2d 487 (1976).
15
The United States Supreme Court has recognized the "essential difference between instructing a jury on the care with which it should scrutinize certain evidence in determining how much weight to accord it and instructing a jury" on the government's burden of proof. Cool v. United States, 409 U.S. at 104, 93 S.Ct. at 357. Defects in instructions of the latter variety may give rise to constitutional error; defects of the former kind ordinarily do not. As the Supreme Court has noted, the cautionary instructions on accomplices and others of doubtful veracity reflect the common sense recognition of the credibility problems associated with these kinds of witnesses. Members of a jury do not leave their common sense behind them when they enter the jury room. It would seem that the jury would ordinarily be cognizant of such factors bearing on credibility with or without special cautionary instructions.
16
The petitioner cannot reasonably contend that the failure of the state judge to give a cautionary instruction misled the jury about the state's heavy burden of proof. The petitioner's argument that fundamental fairness required the giving of cautionary instructions is similarly without merit. The jury sitting in judgment of the petitioner was instructed that it was the sole judge of the credibility of the witnesses and the weight of their testimony. See note 5 Supra. No critical factual issue was withdrawn from the jurors' consideration. The petitioner has failed to allege any violation of her constitutional rights. The trial court's judgment dismissing the petition is, therefore, affirmed.
17
AFFIRMED.
1
The tape recordings revealed the following exchange:
JOSEPH SALADINO: I understand that you want to see me.
MARLENE SWIMLEY: Yeah, You're a friend of Tom Mangione's right. Ah, my oldest one talked to Tom, and ah you said something about it could be done over there.
JOSEPH SALADINO: It can be arranged. What is it exactly do you want, you know, what's, who is it. What's it about?
MARLENE SWIMLEY: Well, it's my husband.
JOSEPH SALADINO: And?
MARLENE SWIMLEY: What do you mean?
JOSEPH SALADINO: All I got, was I was supposed to contact you. In relation to what? But what is it? You want him what?
MARLENE SWIMLEY: You know, kind of evaporated.
JOSEPH SALADINO: What do you mean? What do you mean evaporated?
MARLENE SWIMLEY: Well, you know, gone.
JOSEPH SALADINO: Do you mean murder?
MARLENE SWIMLEY: Yeah.
57
Ill.App.3d at 122, 372 N.E.2d at 892, 14 Ill.Dec. at 613
2
Section 12.02, entitled "Testimony of Informer Interested Witness," provides:
The testimony of an informer who provides evidence against a defendant for pay, or for immunity from punishment, or for personal advantage or vindication, must be examined and weighed by the jury with greater care than the testimony of an ordinary witness. The jury must determine whether the informer's testimony has been affected by interest, or by prejudice against defendant.
3
Section 12.04, entitled "Testimony of Accomplice," provides:
An accomplice is one who unites with another person in the commission of a crime, voluntarily and with common intent. An accomplice does not become incompetent as a witness because of participation in the crime charged. On the contrary, the testimony of an accomplice alone, if believed by the jury, may be of sufficient weight to sustain a verdict of guilty, even though not corroborated or supported by other evidence. However, the jury should keep in mind that such testimony is always to be received with caution and weighed with great care.
You should never convict a defendant upon the unsupported testimony of an alleged accomplice, unless you believe that unsupported testimony beyond a reasonable doubt.
4
An accomplice witness is one who testifies that he was involved in the commission of a crime with the defendant. The testimony of an accomplice witness is subject to suspicion, and should be considered by you with caution. It should be carefully examined in light of the other evidence in the case
(IPI-Criminal 3.17).
5
You are the sole judges of the credibility of the witnesses and of the weight to be given to the testimony of each of them. In considering the testimony of any witness, you may take into account his ability and opportunity to observe, his memory, his manner while testifying, any interest, bias or prejudice he may have, and the reasonableness of his testimony considered in the light of all the evidence in the case
You should judge the testimony of a defendant in the same manner as you judge the testimony of any other witness.
(IPI-Criminal 1.02).
6
The petitioner has intimated that due process required that the jury be instructed on both types of witnesses. Since the positions of Senne and DeSpain were virtually identical, however, even under federal standards it would appear that she was entitled to only one instruction. United States v. Rucker, 586 F.2d 899, 904 (2d Cir. 1978); United States v. Morgan, 555 F.2d 238, 242-43 (9th Cir. 1977); United States v. Curry, 512 F.2d 1299, 1303 (4th Cir.), Cert. denied, 423 U.S. 832, 96 S.Ct. 55, 46 L.Ed.2d 50 (1975); United States v. Gonzales, 491 F.2d 1202, 1207-08 (5th Cir. 1974)
7
While the (state) court, in our opinion ill-advisedly, did not give a "close scrutiny" instruction as to accomplice testimony, See United States v. House, 471 F.2d 886, 888 (1st Cir. 1973), we recognize that Massachusetts law does not require it. We cannot find constitutional error here
533 F.2d at 721. See also United States v. Nolte, 440 F.2d 1124, 1126-27 (5th Cir.), Cert. denied, 404 U.S. 862, 92 S.Ct. 49, 30 L.Ed.2d 106 (1971) (rejecting defendant's objection to an accomplice instruction when the accomplice had testified as a defense witness):
(T)he trial judge's decision whether to give the instruction is not a matter requiring constitutional scrutiny. . . . Whether an accomplice testifies for the prosecution or, as here, for the defense, it is within the trial judge's discretion to instruct the jury to accept an accomplice's testimony with caution.
8
See generally McMillen v. United States, 386 F.2d 29 (1st Cir. 1967), Cert. denied, 390 U.S. 1031, 88 S.Ct. 1424, 20 L.Ed.2d 288 (1968) (reviewing cases and reversing conviction for "plain error" in failing to give instruction Sua sponte ); United States v. Leonard, 161 U.S.App.D.C. 36, 41, 494 F.2d 955, 960 (D.C.Cir. 1974) ("it is better practice for a district court Sua sponte to caution the jury concerning an accomplice's testimony, and . . . it is reversible error to refuse to give a requested accomplice instruction"); United States v. Wasko, 473 F.2d 1282 (7th Cir. 1973) (reversing conviction). See also United States v. Lee, 165 U.S.App.D.C. 50, 506 F.2d 111 (D.C.Cir. 1974), cert. denied, 421 U.S. 1002, 95 S.Ct. 2403, 44 L.Ed.2d 670 (1975)
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35 So.3d 29 (2008)
GAYLE ALLEN ET AL.
v.
ROBIN BOLAR ET AL.
No. 2080162.
Court of Civil Appeals of Alabama.
November 18, 2008.
Decision of the Alabama Court of Civil Appeal Without Published Opinion Transferred to Sup. Ct. for lack of subject-matter jurisdiction.
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688 F.2d 826
U. S.v.Rossano
81-2115
UNITED STATES COURT OF APPEALS Third Circuit
5/14/82
1
E.D.Pa.
AFFIRMED
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127 U.S. 494 (1888)
FREEDMAN'S SAVING AND TRUST COMPANY
v.
SHEPHERD.
SHEPHERD
v.
THOMPSON.
Nos. 230, 256.
Supreme Court of United States.
Argued April 17, 18, 1888.
Decided April 30, 1888.
APPEALS FROM THE SUPREME COURT OF THE DISTRICT OF COLUMBIA.
*500 Mr. William H. Mattingly for Shepherd. Mr. A.C. Bradley was with him on the brief.
Mr. Enoch Totten for the Freedman's Savings and Trust Company.
Mr. H.H. Wells and Mr. Martin F. Morris for Thompson.
MR. JUSTICE HARLAN, after stating the case, delivered the opinion of the court.
What rights did the Trust Company acquire, under Bradley's deed, in respect to the income or rents of the mortgaged property, accruing after the execution of that instrument? This is the principal question presented for our consideration, and will be first examined.
In Gillman v. Ill. & Miss. Tel. Co., 91 U.S. 603, 616, the question was as to the disposition of certain earnings of a railroad, accruing after a decree of foreclosure and sale, and before the purchaser at the sale was let into possession. The first, in point of time, of the mortgages conveying the property to secure the company's bonds, provided, among other things, that it might remain in possession and operate the road, enjoying the revenues thereof, until default occurred in paying the interest or the principal of its bonds at maturity; and if such default continued six months, or if the company failed to set apart, deposit, and apply certain moneys, as required by the mortgage, then the trustees might, and it should be their duty, to enter upon and take possession of and, by agents, operate the mortgaged property. The second mortgage contained substantially the same provisions. After the decree of foreclosure and sale was passed, a judgment creditor of the company, proceeding under the local law, garnished, in the hands of the company's agents at its various stations, moneys received by them from the operation of the road, the company *501 having been permitted to remain in possession up to the time of the sale under the decree. The trustees in the mortgage claimed that these moneys should be applied in payment of the balance remaining unpaid on their mortgage bonds. This claim was denied. The court following the previous case of Galveston Railroad v. Cowdrey, 11 Wall. 459 said: "It would have been competent for the court in limine, upon a proper showing, to appoint a receiver and clothe him with the duty of taking charge of the road and receiving its earnings, within such limit of time as it might see fit to prescribe. It might have done the same thing subsequently, during the progress of the suit. When the final decree was made, a receiver might have been appointed, and required to receive all the income and earnings until the sale was made and confirmed, and possession delivered over to the vendee. Nothing of this kind was done. There was simply a decree of sale. The decree was wholly silent as to the possession and earnings in the meantime. It follows that neither, during that period, was in any wise affected by the action of the court." Again: "It is clearly implied in these mortgages that the railroad company should hold possession and receive the earnings until the mortgagees should take possession, or the proper judicial authority should interpose. Possession draws after it the right to receive and apply the income. Without this the road could not be operated, and no profit could be made... . If the mortgagees were not satisfied, they had the remedy in their own hands, and could, at any moment, invoke the aid of the law, or interpose themselves without it. They did neither."
In American Bridge Co. v. Heidlebach, 94 U.S. 798, 800, the mortgage included the rents, issues and profits of the mortgaged property, so far as it was necessary to keep it in repair, and pledged such rents, issues and profits to the payment of the interest on the mortgage bonds as it matured, and to the creation of a sinking fund for the redemption and payment of the principal. In the event of a continuous default for six months in meeting the interest, the trustees, upon the written request of the holders of one-half of the outstanding bonds, were authorized to take possession of the mortgaged *502 premises, and receive all rents and claims due and to become due to the company. In a contest between the trustees and a judgment creditor, as to which was entitled to certain moneys in the hands of the mortgagor, the decision was in favor of the creditor, the court saying: "In this case, upon the default which occurred, the mortgagees had the option to take personal possession of the mortgaged premises, or to file a bill, have a receiver appointed, and possession delivered to him. In either case, the income would thereafter have been theirs. Until one or the other was done, the mortgagor, as Lord Mansfield said in Chinnery v. Black, 3 Doug. 390, was `owner to all the world, and entitled to all the profit made.'"
In Kountze v. Omaha Hotel Co., 107 U.S. 378, 392, it was held that a bond given on appeal with supersedeas, from a final decree of foreclosure and sale, did not cover rents and profits, or the use and detention of the property, pending the appeal. The court said that "in the case of a mortgage, the land is in the nature of a pledge; and it is only the land itself the specific thing which is pledged. The rents and profits are not pledged; they belong to the tenant in possession, whether the mortgagor or a third person claiming under him... . The taking of the rents and profits prior to the sale does not injure the mortgagee, for the simple reason that they do not belong to him... . But perception of rents and profits is the mortgagor's right until a final determination of the right to sell, and a sale made accordingly."
It is, of course, competent for the parties to provide, in the mortgage, for the payment of rents and profits to the mortgagee, while the mortgagor remains in possession. But when the mortgage contains no such provision, and even where the income is expressly pledged as security for the mortgage debt, with the right in the mortgagee to take possession upon the failure of the mortgagor to perform the conditions of the mortgage, the general rule is that the mortgagee is not entitled to the rents and profits of the mortgaged premises until he takes actual possession, or until possession is taken, in his behalf, by a receiver, Teal v. Walker, 111 U.S. 242; Grant v. Phnix Life Ins. Co., 121 U.S. 105, 117; or until, in proper *503 form, he demands and is refused possession. Dow v. Memphis Railroad Co., 124 U.S. 652, 654. See also Sage v. Memphis and Little Rock Railroad Co., 125 U.S. 361.
The principles announced in these cases are decisive against the claim of the Trust Company to the rents of the property represented by the two drafts delivered by the United States to Wilson. Bradley's deed pledged the property, not the rents accruing therefrom, as security for the payment of his notes. It is true, it provides, generally, that the mortgagor may remain in possession and receive rents and profits, until there is default upon his part. But the only effect of that provision was to open the way to compel him to submit to a sale and thereby lose possession. The deed did not give the mortgagee or the trustees the right, immediately upon such default, to take possession and appropriate the rents of the property. It only gave the trustees authority, when such default occurred, to sell upon short notice, and, in that way, oust the mortgagor, and suspend his right to further appropriate the income of the property. Even if the deed had expressly pledged the income as security for the debts named, the mortgagor, according to the doctrines of the cases cited, would have been entitled to the income, until, at least, possession was demanded under the deed; or until his possession was disturbed by a sale under the deed of trust or, in advance of a sale, by having a receiver appointed for the benefit of the mortgagee. As was said in Kountze v. Omaha Hotel Co., 107 U.S. 395, "courts of equity always have the power where the debtor is insolvent, and the mortgaged property is an insufficient security for the debt, and there is good cause to believe that it will be wasted or deteriorated in the hands of the mortgagor, as by cutting of timber, suffering dilapidation, etc., to take charge of the property, by means of a receiver, and preserve not only the corpus, but the rents and profits, for the satisfaction of the debt. When justice requires this course to be pursued, and it is resorted to by the mortgagee, it will give him ample protection."
In the present case, it appears that prior to the time fixed for the sale under Bradley's deed of trust, and before the Trust Company filed its cross-bill asking, among other things, for a *504 receiver of the rents of the mortgaged property, Bradley and Shepherd, with the consent of Shepherd's trustees, had pledged the rents of the property as security for Thompson's debts. As Bradley's deed of trust did not pledge the rents as security for his notes to the Trust Company, the pledge of such rents by himself and Shepherd, his assignee, for Thompson's benefit, did not violate any right secured to it; for, as we have shown, until a sale was had, pursuant to the deed of trust, and possession taken under such sale, it had no right, by the terms of the deed, to take the income of the trust property. So that, if a receiver had been appointed immediately upon the filing, October 25, 1877, of the cross-bill of the Trust Company, and if all the rents represented by the two drafts of $1800 and $3475 had been collected by the receiver, they would still, in virtue of the assignment of June 21, 1877, by Bradley and Shepherd, have belonged to Thompson, as between him and the Trust Company; unless, as contended, the transfer by Bradley to Shepherd of the lease to the United States, and their assignment for the benefit of Thompson, are absolutely void, for every purpose, and as to everybody, under the provisions of the statutes relating to the transfer and assignment of contracts with, or claims against, the United States.
It is insisted by the Trust Company that the transfer by Bradley to Shepherd of the lease of June 6, 1873, was void under § 3737 of the Revised Statutes, which provides: "No contract or order, or any interest therein, shall be transferred by the party to whom such contract or order is given to any other party, and any such transfer shall cause the annulment of the contract or order transferred so far as the United States are concerned. All rights of action, however, for any breach of such contract by the contracting parties are reserved to the United States."
This provision was brought forward from an act of Congress, approved July 17, 1862, entitled "An act to define the pay and emoluments of certain officers of the army, and for other purposes." 12 Stat. 594, 596. In the original act it immediately followed a section providing "that all contracts made for, or orders given for the purchase of goods or supplies *505 by any department of the government, shall be promptly reported to Congress by the proper head of such department, if Congress shall at the time be in session, and if not in session, said reports shall be made at the commencement of the next ensuing session." We are of opinion that, whatever may be the scope and effect of § 3737, it does not embrace a lease of real estate to be used for public purposes, under which the lessor is not required to perform any service for the government, and has nothing to do, in respect to the lease, except to receive from time to time the rent agreed to be paid. The assignment of such a lease is not within the mischief which Congress intended to prevent. Although a lease, such as Bradley made, is a "contract," in the broadest sense of that word, we are not prepared to hold that it is of the class of contracts, the transfer of which or of any interest therein is prohibited by § 3737.
It is also contended that the assignment made on June 21, 1877, by Bradley and Shepherd is void under § 3477 of the Revised Statutes, which provides that "all transfers and assignments made of any claim upon the United States, or of any part of it or share thereof, or interest therein, whether absolute or conditional, and whatever may be the consideration therefor, and all powers of attorney, orders, or other authorities for receiving payment of any such claim or any part or share thereof, shall be absolutely null and void, unless they are freely made and executed in the presence of at least two attesting witnesses, after the allowance of such a claim, the ascertainment of the amount due, and the issuing of a warrant for the payment thereof."
This court has frequently had occasion to construe this section. United States v. Gillis, 95 U.S. 407; Erwin v. United States, 97 U.S. 392; Spofford v. Kirk, 97 U.S. 484; Goodman v. Niblack, 102 U.S. 556; Bailey v. United States, 109 U.S. 432; St. Paul &c. Railroad v. United States, 112 U.S. 733; Hobbs v. McLean, 117 U.S. 567. Undoubtedly, the lease made by Bradley to the United States created, in his favor what, in some sense, was a "claim upon the United States" for each year's rent as it fell due. And, if the statute *506 embraces a claim of such a character, there could not have been any valid transfer or assignment of it in advance of its allowance, which could have been made the basis of a suit by the assignee against the United States, or which would compel the government to recognize the transfer or assignment. It is, perhaps, also true that, under some circumstances, the assignor, before the allowance of the claim and the issuing of the warrant, may disregard such an assignment altogether.
But when the government ascertained the amount of rent due under Bradley's lease, and, with his consent, allowed the same to him for the use of Shepherd, for the use of Taylor, Bacon, and Cross, trustees, we perceive nothing in the words or the policy of the statute preventing Thompson from asserting his rights either against the parties or any of them, named in the warrants issued by the government, or against the Trust Company, the mortgagee of the premises. The object of the statute, as was said in Bailey v. United States, 109 U.S. 432, was to protect the government and not the claimant, and to prevent frauds upon the Treasury; and that "an effectual means to that end was to authorize the officers of the government to disregard any assignment or transfer of the claim, or any power of attorney to collect it, unless made or executed after the allowance of the claim, the ascertainment of the amount due thereon, and the issuing of the warrant for the payment thereof." Here, the officers of the government chose to recognize the assignment, and of their action neither Bradley nor Shepherd, nor Shepherd's trustees, can rightfully complain. The government is acquitted of any liability in respect to the claim for rent, for its officers have acted in conformity with the directions, not only of the original claimant, but of his assignee, Shepherd, and of Shepherd's trustees. The simple question is, whether the money received from the government shall be diverted from the purpose to which Bradley, Shepherd, and Shepherd's trustees agreed in writing that it should be devoted, namely, to the payment of the debts Thompson holds against Shepherd. This question must be answered in the negative; and in so adjudging we do not contravene the letter or the spirit of the statute relating to the assignment of claims upon the United States.
*507 It only remains to say a word in reference to that part of the decree giving to Shepherd's trustees the rent which Bradley, as receiver, collected. We have already shown that Bradley, not having pledged the income of the property to the Trust Company, could pledge it as security for debts held against him by other creditors. After executing the deed of 1873, he conveyed the premises to Shepherd, and also assigned to him the benefit of the lease made to the government. Shepherd included the premises in his deed to Taylor and others of November 15, 1876, and expressly agreed that the rents, issues, and profits therefrom should be applied in payment of the debts named in that deed. The right of those trustees to the rents, issues, and profits which accrued before any sale under Bradley's deed to the Trust Company, and prior to actual possession being taken under such sale, was, consequently, superior to any that company had. That right could not be defeated by anything the company did, whether by means of a receiver or otherwise. Whether the money in the hands of the receiver belonged to Thompson rather than to Shepherd's trustees is a question not before us, since Thompson has not appealed from the decree.
Upon the whole case, we are of opinion that there is no error in the decree to the prejudice of either of the appellants, and it is, in all respects,
Affirmed.
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Order Michigan Supreme Court
Lansing, Michigan
November 21, 2011 Robert P. Young, Jr.,
Chief Justice
143470 Michael F. Cavanagh
Marilyn Kelly
Stephen J. Markman
Diane M. Hathaway
Mary Beth Kelly
JANE DOE, Brian K. Zahra,
Plaintiff-Appellee, Justices
v SC: 143470
COA: 294692; 294715; 294994
Washtenaw CC: 08-000018-NO
ANN ARBOR PUBLIC SCHOOLS,
BRUCE GLAZIER, and WALEED SAMAHA,
Defendants-Appellants,
and
DLS SERVICES, INC., ROLAND SMITH,
ERIC RUTLEY, and ROBERT GALARDI,
Defendants.
_________________________________________/
On order of the Court, the application for leave to appeal the June 21, 2011
judgment of the Court of Appeals is considered, and it is DENIED, because we are not
persuaded that the question presented should be reviewed by this Court.
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.
November 21, 2011 _________________________________________
p1114 Clerk
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162 N.J. Super. 225 (1978)
392 A.2d 640
SANDSON'S BAKERY, PLAINTIFF,
v.
BEULAH GLOVER, DEFENDANT.
Superior Court of New Jersey, Law Division.
Decided June 21, 1978.
Mr. Robert P. Clark for plaintiff (Messrs. Clark, Gertler & Hanna, attorneys).
Mr. Angelo P. DiCamillo for defendant (Messrs. Riley & DiCamillo, P.A., attorneys).
STEEDLE, J.S.C.
On or about April 19, 1975 defendant, while driving an automobile, allegedly collided with the electrical service of plaintiff's bakery, causing plaintiff's business to be disrupted. Plaintiff was reimbursed for losses *226 suffered as a result of the accident by its own insurer, Allstate Insurance Company. Subsequent to the date of the accident defendant's insurer, Maryland Insurance Company, became insolvent. This action was instituted by plaintiff for the purpose of allowing its insurer, Allstate, to pursue its right of subrogation against defendant. Defendant now moves for summary judgment pursuant to the New Jersey Property-Liability Insurance Guaranty Association Act, which prohibits subrogation claims against the Assocation. N.J.S.A. 17:30A-5(d).
In order to grant a motion for summary judgment the court must determine that no genuine issue as to a material fact exists. Judson v. People's Bank & Trust Co. of Westfield, 17 N.J. 67 (1954). The pleadings and briefs submitted by the parties to this action do not raise any genuine issue as to a material fact.
The sole issue for determination is whether N.J.S.A. 17:30A-5(d) prohibits an insurance company from exercising its right of subrogation against a defendant directly when the defendant's insurer has become insolvent.
N.J.S.A. 17:30A-5(d) provides that "`covered claim' shall not include any amount due any reinsurer, insurer, insurance pool or underwriting association * * *."
Plaintiff correctly points out that this section does not specifically prohibit subrogation against an individual defendant. Nevertheless, N.J.S.A. 17:30A-5 does not specifically permit subrogation against an individual defendant whose insurer has become insolvent subsequent to the time of the accident. Rather, this section does no more than define what class of claims are "covered claims" within the meaning of the act.
It is clear that the intention of the Legislature, when enacting this act, was to provide protection from insolvent insurers not only to innocent injured third parties, such as plaintiff, but also to those insured by an insurer that becomes insolvent. N.J.S.A. 17:30A-2(a) entitled, "Purpose," states that "The purpose of this Act is to provide a mechanism *227 for the payment of covered claims under certain insurance policies, * * * to avoid financial loss to claimants or policyholders because of the insolvency of an insurer * * * and to provide an association to assess the cost of such protection among insurers." (Emphasis added). Further, N.J.S.A. 17:30A-4(a) states that "This Act shall be liberally construed to effect the purpose under section 2 which shall constitute an aid and guide to interpretation."
It is clear, after reading all sections of the act together, that it is the intent of the statute to prohibit subrogation claims against an insured of an insolvent company as well as the Association itself. Therefore, no subrogation claim may lie against the individual defendant, Beulah Glover.
Accordingly, the motion of the individual defendant for summary judgment is granted.
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 98-4227
BEVERLY FORDE, a/k/a Margaret
Hescott, a/k/a Cynthia Taylor,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Claude M. Hilton, Chief District Judge.
(CR-92-429-A)
Submitted: October 13, 1998
Decided: November 17, 1998
Before MICHAEL and MOTZ, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.
_________________________________________________________________
Dismissed in part and affirmed in part by unpublished per curiam
opinion.
_________________________________________________________________
COUNSEL
Cheryl J. Sturm, Westtown, Pennsylvania, for Appellant. Helen F.
Fahey, United States Attorney, Thomas H. McQuillan, Assistant
United States Attorney, Alexandria, Virginia, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Beverly Forde seeks to appeal from the district court's order deny-
ing her motion filed under 28 U.S.C.A. § 2255 (West 1994 & Supp.
1998) and her motion for a downward departure. We have reviewed
the record and the district court's opinion and find no reversible error.
Therefore, we deny a certificate of appealability and dismiss the
appeal in part and affirm in part.
Following a jury trial, Beverly Forde was convicted of conspiracy
to possess with intent to distribute cocaine in violation of 21 U.S.C.
§ 846 (1994), and of conducting a continuing criminal enterprise
(CCE) in violation of 21 U.S.C. § 848 (1994), and sentenced to life
imprisonment. On direct appeal, this Court affirmed Forde's CCE
conviction but vacated her conspiracy conviction as violating the
Double Jeopardy Clause. See United States v. Forde, No. 93-5197,
1993 WL 341083, at *1 (4th Cir. Sept. 8, 1993) (unpublished).
Because the length of Forde's sentence of imprisonment had not
changed by vacating the conspiracy conviction, we did not remand
the case for resentencing.
Forde subsequently filed a combined motion to vacate, set aside,
or correct her sentence pursuant to § 2255 and a motion to modify her
sentence pursuant to 18 U.S.C. § 3582(c)(2) (1994). In her § 2255
motion, Forde raised various ineffective assistance of counsel claims
and a Fifth Amendment claim. In her § 3582 motion, Forde moved for
a reduction in sentence based on Amendment 505 of the United States
Sentencing Guidelines (USSG or "Guidelines"), which would reduce
Forde's base offense level from 42 to 38.1
_________________________________________________________________
1 After Forde was sentenced and her conviction was affirmed amend-
ment 505 to USSG § 2D1.1(c) was adopted. See United States Sentenc-
ing Guidelines Manual (USSG) App. C, amend. 505 (Nov. 1, 1994). It
2
In its memorandum opinion dated August 29, 1997, the district
court denied Forde's § 2255 motion on the merits, but granted her
§ 3582 motion holding that she was entitled to be resentenced pursu-
ant to Amendment 505 of the Guidelines. In its order accompanying
the memorandum opinion the district court expressly denied Forde's
§ 2255 motion, but failed to mention its disposition of her § 3582
motion.
Prior to resentencing pursuant to § 3582(c)(2), Forde filed a motion
for a downward departure in her sentence from the applicable guide-
line range. At resentencing, on February 27, 1998, the court held that
based on Amendment 505 of the Guidelines, Forde was entitled to a
reduction in her base offense level from 40 to 38, and thus, sentenced
her to 360 months to life imprisonment. However, the court denied
her request for a downward departure.
On March 5, 1998, Forde filed a notice of appeal from "the final
order entered in the above captioned matters on February 27, 1998."
However, on appeal she raises issues with respect to both the district
court's February 27, 1998, order denying her request for a downward
departure and the district court's August 29, 1997 order denying her
§ 2255 motion.
Forde filed her notice of appeal on March 5, 1998, nearly six
months after the court entered its order denying her§ 2255 relief.
Under Fed. R. App. P. 4(a)(5), a notice of appeal must be filed with
the clerk of the district court within 60 days after the entry of the
order appealed. See Browder v. Director, Dep't of Corrections, 434
U.S. 257, 264 (1978) (quoting United States v. Robinson, 361 U.S.
220, 229 (1996)). The time limits of Fed. R. App. P. 4(a) are "manda-
tory and jurisdictional." Id.
Forde contends that the district court's August 29, 1997, order was
not a final, appealable order because the § 3582(c)(2) segment of her
_________________________________________________________________
gives a court authority to modify a sentence under§ 3582(c)(2), see
USSG § 1B1.10(a), and sets the upper limit of the Drug Quantity Table
in § 2D1.1 at level 38. Id. The amendment was made retroactive by the
Sentencing Commission. See USSG § 1B1.10(c).
3
§ 2255 motion was granted and resentencing was ordered. Although
Forde filed one motion seeking relief under both§ 2255 and
§ 3582(c)(2), the district court treated her§ 2255 motion wholly sepa-
rate from her § 3582 motion. The district court's August 29, 1997,
order explicitly denied Forde's § 2255 motion. Therefore, we find that
it was a final appealable order and her appeal was untimely.2
Forde also appeals from the court's denial of her motion for a
downward departure at resentencing. She contends that she is entitled
to a downward departure because of the collateral consequences of
her status as a deportable alien, her willingness to stipulate to her
alienage and deportability, and her post-sentencing rehabilitative
efforts.
A § 3582(c)(2) resentencing is a not a de novo resentencing pro-
ceeding, but merely a form of limited remand. United States v.
Cothran, 106 F.3d 1560, 1562 (11th Cir. 1997) (holding that
"§ 3582(c)(2) and related sentencing guidelines do not contemplate a
full de novo resentencing"); United States v. Torres, 99 F.3d 360, 361
(10th Cir. 1996), cert. denied, 65 U.S.L.W. 3630 (U.S. Mar. 17, 1997)
(No. 96-7743). "In determining the amended guideline range under
. . . [USSG § 1B1.10(b)], the court shall substitute only the [retroac-
tive] amendment[ ] . . . for the corresponding guideline provisions that
were applied when the defendant was sentenced. All other guideline
application decisions remain unaffected." USSG§ 1B1.10, comment.
(n.2) (Nov. 1, 1994). We therefore find that the district court should
have declined to re-examine whether a downward departure was war-
ranted at resentencing.
Accordingly, we deny a certificate of appealability and dismiss the
appeal as to the § 2255 claims and affirm the denial of Forde's motion
for downward departures in sentencing. We dispense with oral argu-
ment because the facts and legal contentions are adequately presented
in the materials before the court and argument would not aid in the
decisional process.
DISMISSED IN PART; AFFIRMED IN PART
_________________________________________________________________
2 Alternatively, we find that Forde failed to make a "substantial show-
ing of the denial of a constitutional right" on her § 2255 claims, and
therefore, is not entitled to a certificate of appealability. 28 U.S.C.
§ 2253(c)(1), (2) (1994).
4
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Fourth Court of Appeals
San Antonio, Texas
May 1, 2020
No. 04-20-00153-CV
REVCAP, LLC,
Appellant
v.
Charles J. TROIS,
Appellee
From the 37th Judicial District Court, Bexar County, Texas
Trial Court No. 2019-CI-23887
Honorable Norma Gonzales, Judge Presiding
ORDER
Appellee’s brief is due on May 4, 2020. See TEX. R. APP. P. 38.6(b). Before the due
date, Appellee filed an unopposed motion to extend the brief due date to May 7, 2020.
Appellee’s motion is GRANTED. The brief is due on May 7, 2020.
_________________________________
Patricia O. Alvarez, Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said
court on this 1st day of May, 2020.
__________________________________
Michael A. Cruz,
Clerk of Court
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872 F.2d 1031
Unpublished DispositionNOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.William Allan WRIGHT, Plaintiff-Appellant,v.JEFFERSON COUNTY POLICE DEPARTMENT, Edgar Helm, WalterTangle, Officer, John Spellman, Officer, Commonwealth'sAttorney, Jefferson County, David L. Armstrong, Delores HillPregliasco, David Stengel, Attorney General, State ofKentucky, Penny Warren, Richard Greathouse, Coroner, GeorgeRiggs, Estate of Debra Anderson, Lenore Anderson, RichardAnderson, Jackie Theis, Vickie Johns, Sarah Marie Eddy,Margaret Fisher, Janet Gibson, Vince Gibson, Barry Bingham,Jr., Harvey Diamond, Dr., Emergency Medical Associates, JohnAbell, Olga Peers, Defendants-Appellees.
No. 88-5916.
United States Court of Appeals, Sixth Circuit.
March 29, 1989.
Before BOYCE F. MARTIN, Jr., KRUPANSKY and MILBURN, Circuit Judges.
ORDER
1
This case has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination of the briefs and record, this panel unanimously agrees that oral argument is not needed. Fed.R.App.P. 34(a).
2
Plaintiff filed this civil rights action under 42 U.S.C. Secs. 1983 and 1985 alleging the named defendants caused him to be wrongfully convicted of various Kentucky felonies in 1982. The district court found the complaint to be time barred and dismissed it as frivolous under 28 U.S.C. Sec. 1915(d). The instant appeal followed the denial of a motion for rehearing. Plaintiff filed a brief pro se.
3
Upon consideration we find that, regardless of the limitations of action issue, the complaint is meritless. The defendants were either immune from monetary damages or were not said to have committed a cognizable constitutional tort. Plaintiff's complaint is yet another attempt to collaterally attack the underlying Kentucky state court conviction following his unsuccessful effort to obtain federal habeas corpus relief. Plaintiff's attempt to state a claim for a continuing constitutional violation separate from his criminal conviction was without merit. McCune v. City of Grand Rapids, 842 F.2d 903, 905-6 (6th Cir.1988).
4
Accordingly, the district court's judgment is affirmed. Rule 9(b)(5), Rules of the Sixth Circuit.
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IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. AP-76,244
EX PARTE BENJAMINE JOHN SPENCER, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
IN CAUSE NO. W87-96524-T(A) FROM THE
283RD JUDICIAL DISTRICT COURT OF DALLAS COUNTY
Meyers, J., delivered the opinion of the Court in which Keller, P.J., and
Price, Womack, Johnson, Hervey, and Cochran, JJ., joined. Price, J., filed a
concurring opinion in which Hervey and Cochran, JJ., joined. Keasler, J.,
concurred.
O P I N I O N
Applicant, Benjamine (1) John Spencer, was convicted of murder and sentenced to 35
years' confinement. He filed a motion for new trial, which was granted. On retrial, he
was convicted of aggravated robbery and sentenced to life in prison. The conviction was
affirmed on appeal. Spencer v. State, No. 05-88-00397-CR (Tex. App.-Dallas May 3,
1989) (not designated for publication). Applicant filed an application for writ of habeas
corpus claiming that he is actually innocent, that trial counsel rendered ineffective
assistance, and that the State violated Brady v. Maryland, 373 U.S. 83 (1963), and
Mooney v. Holohan, 294 U.S. 103 (1935).
The trial court held an evidentiary hearing and recommended that we grant relief.
We remanded the case to the trial court for additional findings and conclusions. After
receiving the trial court's findings and conclusions, we filed and set this case for
submission and ordered the parties to brief whether Applicant properly raised a free-standing actual innocence claim, whether the evidence he relies on is newly discovered or
newly available, whether we should consider advances in science and technology when
determining whether evidence is newly discovered or newly available, and whether
Applicant has shown by clear and convincing evidence that no reasonable juror would
have convicted him in light of the new evidence. Relief is denied.
BACKGROUND At around 10:45 p.m. on March 22, 1987, police received a call that a man was
lying face down in the street. When they arrived, they found the victim, Jeffrey Young,
unconscious and bleeding. He was taken to the hospital, where he died. It was later
determined that he died from severe skull fractures that were a result of multiple blows to
the head. Less than two hours after the victim was found in the street, police received a
call about a BMW parked in a nearby alley. They quickly ascertained that the car
belonged to the victim.
Two days later, a witness, Gladys Oliver, went to the police station to tell what she
had seen in the alley that night and also to give the police the names of others who may
have seen something. She had heard that the police were accusing another man named
Spencer, Van Mitchell Spencer, of stealing the BMW, and she wanted to inform them that
it was Applicant, Benjamine John Spencer, whom she had seen getting out of the car.
Based on the information from Oliver and the other witnesses, Applicant and his co-defendant, Nathan Robert Mitchell, were arrested the next day.
Several eyewitnesses who lived in the area where the victim and his car were
found testified at Applicant's trial. Charles Stewart testified that he saw the victim get
pushed out of the car, saw the car pull into the alley, and saw Applicant get out of the
passenger's side of the car and Mitchell get out of the driver's side. He saw Applicant
jump Gladys Oliver's fence and go through her back yard. He testified about the lighting
conditions in the alley, including that there was a streetlight in the alley and a light in the
back of one of the houses that backed up to the alley. He also stated that the lights inside
the car came on when the doors opened, and he recognized Applicant and Mitchell.
Donald Merritt testified that he saw a white man lying in the street struggling to
breathe and with blood on his head. Merritt stayed at the scene until paramedics arrived.
He later saw the BMW in the alley and saw Applicant's co-defendant standing by the car.
He said he could see clearly because there was a streetlight nearby.
The alley where the BMW was found was behind Gladys Oliver's house. She
testified that she saw the BMW stopped behind her neighbor's house and saw Applicant
get out of the passenger's side of the car and Mitchell get out of the driver's side. She
said she saw Applicant go through one neighbor's yard and knock on another neighbor's
door. Oliver stated that there was a streetlight in the alley and a large light in the back of
her neighbor's house that lit her yard. She claimed that when she went to the front of her
house, she saw Applicant's car parked in the street, but it was gone about 15 minutes
later. She did not tell the police this the day after the offense when they went door-to-door asking questions, but two days later she went to the police station to tell them what
she had seen and claimed that she was afraid for her life.
Jimmie Cotton testified that he was in his kitchen cooking dinner when he saw the
BMW pull into the alley. He noticed the BMW because it was not the sort of car he
usually saw in the neighborhood. He said that when the car doors opened, a light came
on, and he saw Applicant get out of the passenger side. Cotton saw Applicant climb the
fence around Gladys Oliver's yard and later saw him get into his own car and drive away.
Cotton testified that he could see everything in the alley because there was a streetlight
just behind his house and his neighbor had a porch light on.
Danny Edwards was one of Applicant's cellmates. Edwards informed police that
Applicant told him about the crime. He testified that Applicant said he hit the victim in
the head with a gun, put him in the back seat of the car, hit him a couple more times while
they were driving, and then kicked him from the car. Edwards said that Applicant
planned to take the car to a chop shop.
Applicant offered testimony at trial that, on the night of the offense, he drove
Ramona Williams and her friend to church. He said he spent the rest of the evening with
Ramona's sister, Christie, first at her house and then at the park, and that Ramona saw
Applicant's car at the park at around 11 p.m. when she was returning home from church.
A jury found Applicant guilty of murder in 1987, and after his motion for a new
trial was granted, a separate jury found him guilty of aggravated robbery in 1988. His co-defendant, Mitchell, was also found guilty based on much of the same eyewitness
testimony that was raised in both of Applicant's trials.
APPLICANT'S WRIT OF HABEAS CORPUS
Applicant raises the following issues in his application for writ of habeas corpus:
(1) The State failed to disclose evidence in violation of Brady v. Maryland,
373 U.S. 83 (1963);
(2) The State knowingly relied on perjured testimony in violation of Mooney v. Holohan, 294 U.S. 103 (1935);
(3) Trial counsel rendered ineffective assistance; and
(4) Applicant is actually innocent.
Applicant states that his trial was "constitutionally deficient." He claims that
Edwards' testimony was perjured and that he testified falsely in exchange for a reduced
sentence. He also claims that Edwards recanted his testimony in 2002. Applicant asserts
that it was Michael Hubbard who probably committed the murder. Hubbard told friends
that he had committed the crime and that two men had already been arrested for it.
Applicant claims that Hubbard had knowledge of items that were stolen from the victim
that had not been publicly disclosed. Applicant says that the police had information
related to Hubbard's involvement in the crime, but they failed to investigate.
At the writ hearing, Applicant presented testimony that Hubbard's friend, Kelvin
Johnson, was the cellmate of Applicant's co-defendant, Mitchell. After Mitchell
attempted suicide in jail, Johnson told him that he knew who had committed the offense
for which Mitchell had been arrested. Police contacted Johnson, and he informed the
detective that Hubbard had told him about "this white dude that had been killed in west
Dallas." Johnson told the officer that Hubbard admitted to stealing the man's car and
putting him in the trunk. Hubbard told Johnson that the man fell out of the trunk and hit
his head and that is how he died. The officer drafted an affidavit of Johnson's statement,
but Johnson refused to sign it. At the writ hearing, Johnson said that he had been mad at
Hubbard at the time the police took the affidavit because Hubbard had turned him in for a
series of aggravated robberies that they had committed together, but he said the reasons
why he refused to sign the affidavit were his concern for Hubbard's mother and that he
did not want Hubbard to get the death penalty.
Ferrell Scott also testified at the writ hearing. Scott claimed that Hubbard told him
that he had robbed a man outside of an office building, took his BMW, put him in the
trunk, and drove him to west Dallas. Hubbard told Scott that while he was driving, he
noticed that the trunk of the car was open, so he abandoned the car in an alley. Scott
helped Hubbard sell a Seiko watch that he claimed was stolen from the victim. After
Scott met Applicant in prison, he claimed that he told his attorney and the police that
Hubbard had committed the offense for which Applicant had been charged. Applicant
complains that his trial counsel was ineffective for failing to argue at trial that Hubbard
had committed the crime.
The defense also called Dr. Michel, a forensic visual science expert, to testify at
the writ hearing. Dr. Michel's expert testimony was that the eyewitnesses could not have
seen the face of the person exiting the BMW because of darkness, distance, and
movement. Specifically, Dr. Michel testified that Cotton would not have been able to
make a facial identification of a person jumping a fence 113 feet away from him. He also
stated that Stewart was so far from the BMW that he would not be able to make a facial
identification even in daylight, and Oliver could not have made a facial identification of a
person exiting the passenger side of the BMW because her window was 123 feet away
from the car. Applicant says that the State's expert agreed that with the distance and
lighting conditions, Oliver would not have been able to identify facial features of the
individuals exiting the car. Applicant's argument is that it was physically impossible for
the eyewitnesses to make a facial identification.
Oliver and Cotton testified at the writ hearing and reiterated their testimony from
Applicant's trials. Eyewitness Stewart died before the writ hearing.
FINDINGS AND CONCLUSIONS OF THE TRIAL COURT
After the habeas hearing, the trial court entered 300 findings of fact and
conclusions of law, summarized as follows:
Finding no merit to Applicant's Brady, ineffective assistance, and knowing use of
false testimony claims, the trial court recommended that relief be denied on these
grounds.
The trial court found that the only evidence inculpating Applicant at trial consisted
of the testimony by Danny Edwards that Applicant confessed to the crime while he was in
jail and the testimony of the eyewitnesses who saw Applicant exit the victim's BMW;
there was no physical evidence presented by the State connecting Applicant to the crime.
The trial court concluded "that none of Danny Edwards' testimony was credible and,
when viewed in the light most favorable to the State, was inadmissible hearsay."
The court determined that Danny Edwards's testimony that he did not speak
directly with Applicant was newly discovered evidence, as was the testimony of Kelvin
Johnson regarding Hubbard's confession to the abduction and robbery of Jeffrey Young.
The court found that Hubbard's confession was more consistent with the facts of the
offense than the testimony given by Danny Edwards, and it stated that "between the
unsigned Affidavit in Fact provided by Kelvin Johnson and the signed statement by
Danny Edwards, on their face, the Johnson statement is more consistent with the actual
facts of the murder and therefore more credible."
Applicant's habeas evidence also includes expert testimony that the now
developed field of forensic visual science conclusively establishes that it was physically
impossible for the purported eyewitnesses to make the identification that they claimed.
Regarding the expert testimony, the court found that at the time of the trial in 1987,
"the evidence generated by the application of forensic visual science was unavailable and
undiscoverable." Based on the testimony of the expert, the court found "that Cotton did
not actually see the face of the person exiting the BMW," that "Cotton was not able to
make an identification of the person he claimed to have seen at that point," and that
Cotton was not a credible witness and was not worthy of belief. The court also found
"that Stewart was so far from the BMW that even in daylight it would take super human
[sic] abilities to make a facial identification" and "that it was not possible for Charles
Stewart to see well enough to make facial identifications of any persons exiting the
BMW." Similarly, the court found "that it was not possible for Gladys Oliver to see well
enough to make facial identifications of any persons exiting the BMW," and Gladys
Oliver was not a credible witness and was not worthy of belief. The court determined
"that the identification testimony given by Jimmy Cotton, Charles Stewart, and Gladys
Oliver was not truthful" and that "it was physically impossible for Jimmy Cotton, Charles
Stewart, and Gladys Oliver to make facial identification of a person exiting the BMW on
March 22, 1987."
Finally, the court determined that, "[i]n the instant case, after considering the
newly discovered evidence consisting of the expert testimony of Dr. Paul Michel that the
three eye witnesses could not have seen what they testified to, the only remaining
evidence of Applicant's guilt is the testimony of Danny Edwards which was at best
inadmissible hearsay. Thus, there remains no evidence of Applicant's guilt." As a result,
the court concluded that "Applicant has carried his burden of production and persuasion
and the writ should issue." The court recommended that relief be granted on the grounds
of actual innocence.
STATE'S RESPONSE
The State responds that Applicant did not properly raise a free-standing actual
innocence claim; that the evidence is not newly discovered; and that advances in
technology should be considered, but only when the advances are reliable and are able to
test the evidence as it existed at the time of the crime.
The State claims that Applicant has not shown by clear and convincing evidence
that no reasonable juror would have convicted him in light of newly discovered evidence.
Based on Schlup, (2) Applicant claims that constitutional errors "probably resulted in the
conviction of a man who is actually innocent." The State says that Applicant does not
directly raise an actual innocence claim. The State claims that, even if Applicant did
properly raise an actual innocence claim, he is not entitled to relief under Schlup or
Herrera. (3) It is not a Schlup claim because, according to the trial court's findings and
conclusions, there was no Brady violation, the State did not knowingly use false
testimony, and counsel was not ineffective; therefore, Applicant has not proven that there
was constitutional error at his trial. And the State argues that, even if we consider the
issues raised by Applicant to be newly discovered evidence, he is not entitled to relief
under Herrera because the evidence does not show that he is actually innocent.
Second, the State says that Applicant does not present newly discovered evidence.
The State claims that the only affidavit from Danny Edwards that was not available and
known to Applicant at the time of the trial was his 2002 affidavit, which he later said
contained untrue statements. And the 2002 affidavit is contradicted by his trial testimony
and by his 2005 affidavit. The State argues that this evidence does not show that it is
"'probable that the verdict would be different' as required by Elizondo, 947 S.W.2d at
209." (4)
The State disagrees with the trial court's conclusion that the testimony of Kelvin
Johnson is newly discovered evidence. The State argues that this evidence was known to
defense counsel before Applicant's trial. Defense counsel had an affidavit in which
Johnson stated that Michael Hubbard admitted to committing the offense. However,
counsel also knew that Johnson had recanted this statement and had failed a polygraph
given to him to test the validity of his claim regarding Hubbard. The State asserts that
Johnson's knowledge of specific facts about the crime likely came from Applicant's co-defendant, who shared a cell with Johnson, and not from Hubbard, who Johnson claimed
told him about the offense. Because this is not newly discovered evidence and is not
credible, it cannot be considered as evidence supporting Applicant's claim of actual
innocence.
The State argues that Applicant has not shown by clear and convincing evidence
that Dr. Michel's report is true and would have caused a different result at trial. The
lighting conditions and the distance of the witnesses was known at the time of trial, and
defense counsel was able to point out that witnesses would have had a difficult time
identifying the defendant in the alley. Thus, even if an expert was not available at the
time of the trial to testify about possible problems with illumination, the expert's report
and testimony should not be considered newly discovered evidence. The fact that the
witnesses were at a certain distance and under certain lighting conditions was known at
the time of trial and was presented to the jury for their consideration.
The State agrees that advances in science and technology should be considered
when determining whether evidence is newly discovered or newly available. However,
since not all advances have the same reliability, the weight to be given the advances must
be considered on a case-by-case basis. In this case, little weight should be given because
the expert's report could not be based on the conditions at the time of the offense, forcing
the expert to make too many assumptions. The State argues that since the evidence is not
the same as it existed at the time of the offense, it cannot be treated the same way DNA is.
All of these assumptions cannot overcome the testimony of witnesses who said they had
enough light to see Applicant get out of the victim's car.
The State filed an objection to the trial court's findings and conclusions, claiming
that the court does not address the issue of laches and that the court recommends relief on
a ground that was not properly raised in the application or proven by the evidence. The
State claims that Kelvin Johnson's evidence was known to defense counsel before
Applicant's 1998 trial; thus it is not newly discovered. The State argues that the
eyewitnesses were credible and that three separate juries believed their testimony-juries
in each of Applicant's two trials and his co-defendant's trial. The State notes that the
judge at the habeas hearing was not at the trial and was not able to judge the credibility of
the eyewitness testimony at trial. The State asserts that Applicant's expert failed to take
into consideration that Gladys Oliver was very familiar with Applicant as she had known
him and his family for years and had even seen him earlier on the day of the offense, and
that eyewitness Stewart had also known Applicant for several years and was able to
recognize him when he saw him get out of the victim's car in the alley.
The State argues that the only new evidence is the report by the expert. The State
says,
Rather than comparing the old inculpatory evidence with the new evidence,
the trial court seems to have simply declared that none of the State's
witnesses are credible because Applicant's expert says they could not have
seen what they saw. After rejecting all of the State's evidence, the court
then determined that only the new evidence is left, so Applicant must be
actually innocent. The State submits that when a true comparison of the old
and the new evidence is made, a rational trier of fact would give much more
credence to the testimony of three eyewitnesses who were at the scene of
the crime twenty years ago, and who knew and recognized Applicant, as
compared to a lighting expert who reviewed the scene sixteen years later
and based his opinions on incorrect and incomplete assumptions.
REMAND
We remanded the case to the trial court for additional findings and conclusions.
Specifically, we asked the trial court to determine what methods were used by the expert
and whether these methods were available at the time of Applicant's trial. We also
requested further findings regarding Danny Edwards's testimony, including whether he
made a plea agreement with the State after meeting Applicant in prison, whether Edwards
had filed any pretrial motions on Applicant's behalf, and whether there was evidence to
support Edwards's claim that Applicant had sanded his fingerprints. Finally, we asked
the trial court to enter findings regarding Applicant's claim of ineffective assistance of
counsel and the State's claim of laches.
In response to our remand, Applicant states that Dr. Michel analyzed the
"illumination and visibility" to evaluate the validity of the eyewitness accounts and
determined that all the witnesses had three constraints: distance, low levels of
illumination, and time limitations. The expert concluded that witness Cotton had the
additional constraint of "adaptation to daylight levels of illumination while viewing a
dark environment" and reflection from the light in his kitchen. Dr. Michel considered
only distance, darkness, and motion-"the ability of us as human beings with our sensory
organs for light which are our eyes to discern things." He claimed that he did not
consider eyewitness familiarity with the Applicant because that was "the soft science of
recognition, memory, cognition and fitting in what makes sense." He said, "I have stayed
away from that because my opinion is because there was no basis to believe that the
eyeballs could have discerned seeing clearly, that the opinions given by the witnesses
were something over in the soft science area of memory, cognition, expectation, things of
this nature." And, the fact that the witnesses knew Applicant "does not change the
eyeball's ability to resolve an image and send it back to the brain."
Both the State and Applicant agreed that the expert's methods were not widely
known at the time of trial and that forensic visual science was not available or recognized
in the late 1980's.
On remand, the trial court found that Dr. Michel relied on the application of the
physiology of the eye to issues of visual identification, a forensic application of optometry
which evaluates what a person could or could not see under a given set of circumstances
and that such forensic visual science evidence was unavailable and undiscoverable at the
time of Applicant's trial. The court concluded that the State waived its right to challenge
the admissibility of forensic visual science and of Dr. Michel as an expert. Additionally,
because the expert had read the trial testimony of the eyewitnesses prior to visiting the
scene, the court determined that the fact that the identifications were not stranger-on-
stranger would not have changed the expert's opinion.
The court found no evidence that Edwards met Applicant, so it could not
determine whether Edwards made a plea agreement after meeting Applicant in prison.
The court also found no evidence supporting Edwards's testimony that Applicant had
sanded his fingerprints or that Edwards had filed pre-trial motions on Applicant's behalf.
The court concluded that trial counsel was not ineffective for failing to attempt to
impeach Edwards regarding his plea agreement and used sound trial strategy for not
eliciting testimony showing that Van Mitchell Spencer had been ruled out as a suspect.
The court concluded that the State's issue of laches is moot in this case.
CASELAW An applicant may raise either a Herrera-type or Schlup-type claim of actual
innocence. Schlup v. Delo, 513 U.S. 298 (1995); Herrera v. Collins, 506 U.S. 390
(1993). The Herrera-type is a bare innocence claim that is based solely on newly
discovered evidence. In Herrera, the Supreme Court instructed us to consider both the
new evidence and the trial evidence and determine whether the new facts unquestionably
establish the applicant's innocence. Applicants are required to meet a higher threshold to
obtain relief because, when the trial has been constitutionally error free, the conviction is
entitled to the utmost respect.
In a Schlup-type claim, innocence is tied to a showing of constitutional error at
trial. An applicant must show that the constitutional error probably resulted in the
conviction of one who was actually innocent. Thus, a Schlup claim here depends on the
validity of the Brady and ineffective assistance claims.
We were presented with a Herrera-type claim in Ex parte Elizondo, 947 S.W.2d
202 (Tex. Crim. App. 1996). We held that "our job is not to review the jury's verdict but
to decide whether the newly discovered evidence would have convinced the jury of
applicant's innocence." Id. at 207. If the new evidence unquestionably establishes
innocence, then it must be compared to the old inculpatory evidence that was offered at
trial to determine whether a rational trier of fact would acquit the applicant based on the
comparison of the new and old testimony. Id. at 206. We stated:
Of course, any person who has once been finally convicted in a fair trial
should not be permitted to wage, and we do not permit him to wage, a
collateral attack on that conviction without making an exceedingly
persuasive case that he is actually innocent. It is thus entirely reasonable to
insist, and we continue to insist, that an applicant for habeas relief based on
a claim of actual innocence must 'demonstrate that the newly discovered
evidence, if true, creates a doubt as to the efficacy of the verdict sufficient
to undermine confidence in the verdict and that it is probable that the
verdict would be different [on retrial].'
Id. (citing State ex rel. Holmes v. Court of Appeals, 885 S.W.2d 389 (Tex. Crim. App.
1994)).
In Ex parte Franklin, 72 S.W.3d 671 (Tex. Crim. App. 2002), we held that when
we are presented with a Herrera-type claim based on newly discovered evidence, our first
consideration is whether the evidence presented constitutes affirmative evidence of
innocence, and only if that is provided will we move on to a determination of whether
Applicant can prove by clear and convincing evidence that no reasonable juror would
have convicted him in light of the newly discovered evidence. Franklin, 72 S.W.3d at
678.
ANALYSIS
Applicant initially raised a Schlup-type claim that constitutional errors probably
resulted in the conviction of a man who is actually innocent. Applicant alleged a Brady
violation, knowing use of false testimony, and ineffective assistance of counsel.
However, the record supports the trial court's recommendation that relief be denied on
each of these grounds. This leaves us with a bare innocence claim based on newly
discovered evidence. Applicant must show that the evidence he is presenting is newly
available or newly discovered and that the new evidence unquestionably establishes his
innocence. Only if this is shown are we called upon to compare the new evidence with
the evidence at trial in order to determine whether Applicant has shown by clear and
convincing evidence that no reasonable juror would have convicted him in light of the
new evidence.
First, while the science of forensic visual testing may be new, the evidence
Applicant relies on is not newly discovered or newly available. Shortly after the 1987
offense, investigators were able to observe the scene from the vantage point of the
eyewitnesses while the conditions were similar to the way they were the night of the
offense. The evidence gathered by investigators for both the State and the defense was
presented to the jury. The issues of lighting, distance, and the witnesses' ability to
identify Applicant were raised at trial. The jury heard the evidence regarding the
streetlight in the alley, the light in the back of one of the houses, and the light in the car,
as well as the defendant's evidence about how far away each witness was from the car.
Three separate juries chose to believe the witnesses. Applicant's expert observed the
scene many years later, in 2003, when the conditions from the night of the offense were
unable to be replicated. For example, Gladys Oliver's house had been torn down, there
were new windows and a new fence at Cotton's house, a new shed had been built, the
lighting was different, tree growth had changed after 16 years, and there was no way to
ascertain exactly where in the alley the car had been on the night of the offense. Based on
this, the expert determined that it was physically impossible for the witnesses to see the
face of the person exiting the car.
We agree with the State that not all scientific advances can be treated equally.
While we have considered advances in science when determining whether certain
evidence, such as DNA, is newly discovered or newly available, the evidence presented
by Applicant is not the sort of evidence that is capable of being preserved and tested at a
later date. Forensic visual science may be new, but there is no way for the forensic visual
expert to test the conditions as they existed at the time of the offense because there is no
way to replicate the lighting conditions.
We will consider advances in science and technology when determining whether
evidence is newly discovered or newly available, but only if the evidence being tested is
the same as it was at the time of the offense. Thus, the science or the method of testing
can be new, but the evidence must be able to be tested in the same state as it was at the
time of the offense.
Applicant says that "scientific evidence establishes the wrongfulness" of his
conviction. However, an expert report saying that it was too dark and the car was too far
away for the eyewitnesses to have seen Applicant does not affirmatively establish his
innocence. All it does is attempt to discredit the witnesses who stated that they saw
Applicant get out of the victim's car.
The trial court concluded that the expert's report did discredit the eyewitnesses,
leaving only the testimony of Applicant's cellmate, Edwards, to support the jury's verdict.
And, the trial court found Edwards's testimony not to be credible. The record, however,
does not support this finding. The trial court said that Johnson's statement is more
consistent with the facts of the murder and is more credible than the statement by
Edwards. But Johnson said the victim fell out of the trunk of the car and died, which is
inconsistent with the cause of death and the eyewitness testimony that the victim was
pushed out of the car. (5) Edwards said that Applicant beat the victim repeatedly and kicked
him out of the car, which is consistent with Stewart's testimony that he saw the victim get
pushed out of the car and with the determination that the cause of death was multiple
blows to the head. We also note that the eyewitnesses reported seeing two people exiting
the car, while the version of the crime told by Johnson and Scott involved only one
person-Hubbard. Despite the expert's report that the eyewitnesses were unable to make a
facial recognition of the people they saw in the alley, we are confident that they would
have been able to discern whether it was one or two people, which further weakens the
credibility of Johnson's and Scott's statements.
Even if we determined that the evidence here was new, it does not unquestionably
establish Applicant's innocence. Applicant has not met threshold elucidated in Franklin.
CONCLUSION
The evidence standing alone is not dispositive of Applicant's claim of innocence.
Franklin, 72 S.W.3d at 678. Because Applicant has not offered evidence that goes
toward affirmatively proving his innocence, relief is denied.
Meyers, J.
Delivered: April 20, 2011
Publish
1. Applicant's name has been spelled both "Benjamin" and "Benjamine" in court
documents. Because Applicant himself spells it "Benjamine," that is the spelling we will use.
2. Schlup v. Delo, 513 U.S. 298 (1995).
3. Herrera v. Collins, 506 U.S. 390 (1993).
4. Ex parte Elizondo, 947 S.W.2d 202 (Tex. Crim. App. 1996).
5. The trial court found that when the victim's BMW was in the alley, Stewart was too far
from the car to identify Applicant, but the court did not rule on Stewart's testimony that he had
seen the victim being pushed out of the car. Stewart did not testify at the writ hearing.
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833 F.2d 1008
U.S.v.Cline*
NO. 87-3158
United States Court of Appeals,Fifth Circuit.
NOV 02, 1987
1
Appeal From: M.D.La.
2
AFFIRMED.
*
Fed.R.App.P. 34(a); 5th Cir.R. 34.2
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Hampton v Universal Dental (2016 NY Slip Op 04361)
Hampton v Universal Dental
2016 NY Slip Op 04361
Decided on June 7, 2016
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on June 7, 2016
Friedman, J.P., Renwick, Andrias, Gische, Webber, JJ.
1406 805088/12 590378/13
[*1]Kyle Hampton, Plaintiff-Respondent,
vUniversal Dental, et al., Defendants, Sol Stolzenberg, D.M.D., P.C. doing business as Toothsavers, Defendant-Appellant.
Laurence R. Danziger, D.M.D., P.C., doing business as Universal Dental, Third-Party Plaintiff, Sol S. Stolzenberg, D.M.D., P.C., doing business as Toothsavers sued herein as Sol Stolzenberg, D.M.D., doing business as Toothsavers, Third-Party Plaintiff-Appellant,
David Cohen, etc., et al., Third Party-Defendants.
Gordon & Silber, P.C., New York (Steven H. Mutz of counsel), for appellant.
Joel M. Kotick, New York, for respondent.
Order, Supreme Court, New York County (Alice Schlesinger, J.), entered June 10, 2015, which, to the extent appealed from as limited by the briefs and appealable, denied the motion of defendant/third-party plaintiff Sol S. Stolzenberg, D.M.D., P.C., d/b/a Toothsavers (Toothsavers NY) motion for summary judgment dismissing the complaint as against it, unanimously reversed, on the law, the motion is granted, with leave for plaintiff to amend the pleadings to name the proper entity, without costs.
The motion court correctly found that questions of fact existed regarding the relationship between Toothsavers NY and defendants David Cohen, as executor of the estate of Morton Cohen, D.D.S., and Morton Cohen, PA (Toothsavers NJ) (see Fields v Seavey Org., 258 AD2d 414, 415 [1st Dept 1999]). Further, questions of fact exist as to whether Toothsavers NY is vicariously liable for the malpractice of Toothsavers NJ, if any, based upon a theory of agency by estoppel, also known as ostensible agency. Evidence exists indicating that plaintiff reasonably believed that the orthodontic treatment provided to him was by Toothsavers NY, albeit in a satellite New Jersey office, rather than on referral to a different practice altogether (see Welch v Scheinfeld, 21 AD3d 802, 808 [1st Dept 2005], citing Hannon v Siegel-Cooper Co., 167 NY 244 [1901]; see also Sarivola v Brookdale Hosp. & Med. Ctr., 204 AD2d 245, 245-246 [1st Dept 1994], lv denied 85 NY2d 805 [1995]). Notably, only one dental chart was kept for plaintiff, with notations made on it without respect to whether treatment was being rendered by Toothsavers NY or Toothsavers NJ. Plaintiff testified that he was angry at having to travel to [*2]New Jersey, but felt he had no choice since he had paid in advance for his orthodontic treatment at Toothsavers NY. Plaintiff was given a business card by Toothsavers NY listing both addresses under the name "Toothsavers," without any indication that the two were separate practices.
Similarly, Toothsavers NY is not entitled to summary judgment under the independent contractor defense as to those individual dentists who performed orthodontic work upon plaintiff. Plaintiff did not seek out any of the orthodontists Toothsavers NY claims were independent contractors. Rather, he went to the practice based upon a newspaper advertisement for "Toothsavers," and could not even recall the full names of most of the individuals who treated him. And Toothsavers NY's position that plaintiff's claim that Dr. Stolzenberg, D.M.D., P.C.'s purchase of Toothsavers NY from its prior owner, a dentist who had lost his license, was somehow fraudulent or a sham does not warrant dismissal on the doctrine of estoppel. To hold otherwise would permit Dr. Stolzenberg to benefit from his alleged fraudulent acts.
Toothsavers NY's arguments regarding punitive damages are academic, as they prevailed on that point below and thus are not an aggrieved party (CPLR 5511; T.D. v New York State Off. of Mental Health, 91 NY2d 860, 862 [1997]). Plaintiff did not file a cross appeal and we decline plaintiffs' suggestion to review this issue sua sponte.
In light of the confusing record, while Toothsavers NY's argument that dismissal is warranted because plaintiff named and served an incorrect entity, Sol S. Stolzenberg, D.M.D., d/b/a Toothsavers, rather than his eponymous professional corporation d/b/a Toothsavers, may have some merit, we grant leave to plaintiff to serve and amend the pleadings to reflect the proper entity; we note the lack of any showing of prejudice.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: JUNE 7, 2016
CLERK
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FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED BROTHERHOOD OF No. 12-36049
CARPENTERS AND JOINERS OF
AMERICA; SOUTHWEST REGIONAL D.C. No.
COUNCIL OF CARPENTERS; 2:12-cv-00109-
SOUTHWEST CARPENTERS JATC; TOR
PACIFIC NORTHWEST REGIONAL
COUNCIL OF CARPENTERS;
WASHINGTON STATE UBC JATC; OPINION
NORTHEAST CARPENTERS REGIONAL
COUNCIL OF CARPENTERS;
CARPENTERS AND CARPENTERS
DISTRICT COUNCIL OF GREATER ST.
LOUIS AND VICINITY; LARRY
GOULD; WILLIAM CLAYTON;
JORDAN TRUMAN; BUTCH PARKER;
SCOTT FLANNERY; RICHARD
BURWELL; EMANUEL LEE; PAUL
LEDYARD; JOSEPH EDNEY; WILLIE
MARSHALL; JOHN LAKE; ROGER
JOHNSON; BRIAN THOMPSON;
CHARLES MCWILLIAMS; BILLY
COOLEY; SHERYL HOLLIS; BOOKER
STANDERFER; BOB SCOTT; JOE
BACA,
Plaintiffs-Appellants,
v.
2 CARPENTERS V. BUILDING TRADES
BUILDING AND CONSTRUCTION
TRADES DEP’T, AFL-CIO; JAMES
WILLIAMS; RON AULT; DAVID
MOLNAA,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of Washington
Thomas O. Rice, District Judge, Presiding
Argued and Submitted
May 12, 2014—Seattle, Washington
Filed October 28, 2014
Before: Diarmuid F. O’Scannlain, Andrew J. Kleinfeld,
and Marsha S. Berzon, Circuit Judges.
Opinion by Judge O’Scannlain
CARPENTERS V. BUILDING TRADES 3
SUMMARY*
RICO / Labor Law
The panel affirmed the dismissal of an action brought
under RICO and the Labor Management Reporting and
Disclosure Act by the United Brotherhood of Carpenters and
Joiners of America, a labor union, against the Building and
Construction Trades Department, AFL-CIO, an umbrella
labor organization representing unions and individuals in the
construction industry.
The Carpenters, together with subordinate labor
organizations and individual members, alleged that the
Building Trades conducted a campaign of intense economic
pressure, as well as acts of vandalism and threats of force, to
persuade the Carpenters to reaffiliate with the Building
Trades and pay dues to it.
The panel held that the Carpenters failed to state a civil
RICO claim because it did not plausibly allege any predicate
acts, or racketeering activity, under either the Hobbs Act or
state extortion law. The panel held that the Hobbs Act is not
violated, and a “claim of right” defense is not defeated, based
on unwanted or subjectively valueless services in the context
of an economic pressure campaign. The panel also held that
the Carpenters did not adequately allege that the Building
Trades, its agents, or its coconspirators used violence or force
against the union or its members.
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
4 CARPENTERS V. BUILDING TRADES
The panel held that the Carpenters failed to state a claim
that officers of the Building Trades violated the LMRDA by
orchestrating the termination of an affiliation agreement
between the Carpenters and the Metal Trades Department,
AFL-CIO, another labor organization, because Carpenters
members were not expelled from the Metal Trades as a
disciplinary action.
The panel held that the district court did not abuse its
discretion by denying leave to amend the complaint.
COUNSEL
Craig D. Singer, Williams & Connolly LLP, Washington,
DC, argued the cause and filed the briefs for the plaintiffs-
appellants. With him on the briefs were Charles Davant IV,
Williams & Connolly LLP, Washington, DC, Daniel M.
Shanley, DeCarlo & Shanley, Los Angeles, CA, and G.
Robert Blakey (Of Counsel), William J. and K. O’Neill
Professor of Law, Notre Dame Law School, Notre Dame, IN.
Leon Dayan, Bredhoff & Kaiser, PLLC, Washington, DC,
argued the cause and filed the brief for the defendants-
appellees. With him on the brief were Abigail V. Carter,
Joshua B. Shiffrin, Matthew Stark Rubin, and Laurence Gold,
Bredhoff & Kaiser, PLLC, Washington, DC.
CARPENTERS V. BUILDING TRADES 5
OPINION
O’SCANNLAIN, Circuit Judge:
We must decide whether a labor union’s use of economic
pressure is extortion under the Racketeer Influenced and
Corrupt Organizations Act.
I
The Building and Construction Trades Department, AFL-
CIO, (“Building Trades”) is an umbrella labor organization
representing unions and individuals in the construction
industry. Subordinate labor unions pay the Building Trades
per capita monthly fees and must comply with the Building
Trades’ rules. The United Brotherhood of Carpenters and
Joiners of America (“Carpenters”) is no longer affiliated with
the Building Trades because it believes that the Building
Trades’ services are “unrequested, unwanted and
unnecessary” and that its rules are “stale, outdated and
anticompetitive.”1
This case concerns the “Push-Back-Carpenters
Campaign,” a campaign of (at least) intense economic
pressure orchestrated by the Building Trades to force the
Carpenters into paying what it calls “monthly bloated per
capita payments in perpetuity,” that is, into reaffiliating with
the Building Trades and paying dues. Allegations of
“economic pressure” include: promoting a 2008 AFL-CIO
1
As we are reviewing a dismissal under Federal Rule of Civil Procedure
12(b)(6), we accept as true the complaint’s well-pleaded factual
allegations. E.g., OSU Student Alliance v. Ray, 699 F.3d 1053, 1061 (9th
Cir. 2012).
6 CARPENTERS V. BUILDING TRADES
resolution authorizing the AFL-CIO to charter a union to
compete with the Carpenters; the organization of a “Unity
Rally” in St. Louis; repeated public criticism of the
Carpenters on websites and in other publications; filing
frivolous regulatory claims against the Carpenters; stealing
confidential information; forcing the Carpenters’ Seattle legal
counsel to terminate its relationship with the Carpenters; and
orchestrating the June 2011 termination of an affiliation
agreement (the “Solidarity Agreement”) between the
Carpenters and the Metal Trades Department, AFL-CIO.
The Carpenters’ complaint also alleges acts of vandalism
and threats of force, such as: vandalism of Carpenters’ job
sites and property; death threats against Carpenters’ officials
and representatives; threats of violence at Pier 66 in Seattle;
and the public dissemination of video footage of a violent
attack on Carpenters’ members.
Although the Carpenters have not acceded to the Building
Trades’ demands, they allegedly have suffered significant
harm, including: “lost members and dues, lost or reduced
promotion, contractual and/or membership recruitment
opportunities, lost job opportunities, positions and work
assignments, loss of confidential information, increased costs
due to the termination of contractual relations with its
attorneys, and substantial and irreparable loss of goodwill.”
The Carpenters, together with six subordinate labor
organizations and nineteen individual members, sued the
Building Trades and three of its officers and agents: James
Williams, Ron Ault, and David Molnaa.2 The Carpenters
2
Two other individuals named as defendants, Mark Ayers and Ed Hill,
were voluntarily dismissed.
CARPENTERS V. BUILDING TRADES 7
alleged nine claims, four under the Racketeer Influenced and
Corrupt Organizations Act’s private cause of action (“civil
RICO”), 18 U.S.C. § 1964(c), one under the Labor
Management Reporting and Disclosure Act (“LMRDA”),
29 U.S.C. § 411(a)(5), and four under state law.
Concluding that the Carpenters failed to allege proximate
causation or any predicate acts and also failed to join a
necessary defendant to obtain injunctive relief under the
LMRDA, the district court dismissed all of the Carpenters’
federal claims. See Fed. R. Civ. P. 12(b)(6). The court also
declined to exercise supplemental jurisdiction over the state
claims. Finally, although the Carpenters had not previously
amended their complaint, the court declined to grant leave to
amend on the ground of futility. The Carpenters timely
appealed.
II
RICO provides a private cause of action for “[a]ny person
injured in his business or property by reason of a violation of
[18 U.S.C. § 1962].” 18 U.S.C. § 1964(c). Subsections
1962(a) through (c) prohibit certain “pattern[s] of
racketeering activity” in relation to an “enterprise.”
Subsection 1964(d) makes it illegal to conspire to violate
subsections (a), (b), and (c) of section 1962.
“The elements of a civil RICO claim are as follows:
(1) conduct (2) of an enterprise (3) through a pattern (4) of
racketeering activity (known as ‘predicate acts’) (5) causing
injury to plaintiff’s business or property.” Living Designs,
Inc. v. E.I. Dupont de Nemours & Co., 431 F.3d 353, 361 (9th
Cir. 2005) (internal quotation marks and citation omitted).
“[R]acketeering activity” includes, inter alia, “any act which
8 CARPENTERS V. BUILDING TRADES
is indictable” under the Hobbs Act, 18 U.S.C. § 1951, or “any
act or threat involving . . . extortion, . . . which is chargeable
under State law.” 18 U.S.C. § 1961(1)(A), (B).
The primary issue in this appeal is whether the Carpenters
plausibly alleged any predicate acts, under either the Hobbs
Act or state extortion law.
A
“Extortion” under the Hobbs Act, “means the obtaining of
property from another, with his consent, induced by wrongful
use of actual or threatened force, violence, or fear, or under
color of official right.” 18 U.S.C. § 1951(b)(2). The
Carpenters’ complaint alleges that the Building Trades
applied intense economic pressure in an effort to force them
to surrender their money and submit to Building Trades
control.
Fear, in the context of the Hobbs Act, can include fear of
economic loss. See, e.g., Levitt v. Yelp! Inc., No. 11-17676,
2014 WL 4290615, at *8 (9th Cir. Sept. 2, 2014); United
States v. Greger, 716 F.2d 1275, 1278–79 (9th Cir. 1983);
Rennell v. Rowe, 635 F.3d 1008, 1012 (7th Cir. 2011);
Brokerage Concepts, Inc. v. U.S. Healthcare, Inc., 140 F.3d
494, 522 (3d Cir. 1998) (“The term ‘fear’ includes the fear of
economic loss.”). But “there is nothing inherently wrongful
about the use of economic fear to obtain property.” United
States v. Sturm, 870 F.2d 769, 773 (1st Cir. 1989). “[T]he
fear of economic loss is a driving force of our economy that
plays an important role in many legitimate business
transactions.” Brokerage Concepts, Inc., 140 F.3d at 523.
Courts must therefore differentiate between legitimate use of
economic fear—hard bargaining—and wrongful use of such
CARPENTERS V. BUILDING TRADES 9
fear—extortion. See, e.g., George Lussier Enters., Inc. v.
Subaru of New England, Inc., 393 F.3d 36, 50 (1st Cir. 2004).
“Distinguishing between hard bargaining and extortion can be
difficult.” Rennell, 635 F.3d at 1011.
For guidance, courts have turned to United States v.
Enmons, 410 U.S. 396 (1973). See, e.g., Rennell, 635 F.3d at
1011; Brokerage Concepts, Inc., 140 F.3d at 522. In Enmons,
the Court held that a defendant violates the Hobbs Act only
“where the obtaining of the property would itself be
‘wrongful’ because the alleged extortionist has no lawful
claim to that property. 410 U.S. at 400. Defending against an
accusation of extortion “based on a lawful claim to the
property obtained has been dubbed the ‘claim of right’
defense to extortion.” Brokerage Concepts, Inc., 140 F.3d at
522.
Where violence or violent threats are concerned, the claim
of right defense is strictly limited to employer-union labor
disputes. United States v. Daane, 475 F.3d 1114, 1119–20
(9th Cir. 2007); see also Brokerage Concepts, Inc., 140 F.3d
at 523 & n.21 (collecting cases). But courts have recognized
a claim of right defense where property is obtained through
the use of fear of economic loss, which is not “‘inherently’
wrongful.” Id. at 523; see also, e.g., United States v. Vigil,
523 F.3d 1258, 1262–63 (10th Cir. 2008). “Fear of economic
loss is not an inherently wrongful means; however, when
employed to achieve a wrongful purpose, its ‘use’ is
wrongful.” United States v. Clemente, 640 F.2d 1069, 1077
(2d Cir. 1981).
Thus, following Enmons, using fear of economic loss to
obtain personal payoffs or payments for “imposed, unwanted,
superfluous and fictitious services,” 410 U.S. at 400, may
10 CARPENTERS V. BUILDING TRADES
well be extortionate. See, e.g., Vigil, 523 F.3d at 1265
(finding extortion where government official used economic
pressure to obtain personal payoff by imposing unwanted
employee who was unwilling to work). In either case, the
transaction used to obtain the property of another may be
illegitimate and the use of economic pressure may be
wrongful.
1
Even where the Push-Back-Carpenters Campaign
involved legitimate means, such as chartering competing
unions, it was still extortionate, according to the Carpenters,
because it was directed toward a wrongful end—coercing the
Carpenters into accepting “stale, outdated and
anticompetitive” services that “are unrequested, unwanted
and unnecessary.”
The Carpenters’ complaint does not plausibly allege that
the Building Trades demanded any sort of personal payoffs.
See, e.g., Gregor, 716 F.2d at 1278–79; Clemente, 640 F.2d
at 1073. Instead, it contends that the Building Trades’
services are unwanted and would provide nothing of value to
the Carpenters. But none of the cases cited by the Carpenters
allows a Hobbs Act conviction based on unwanted or
subjectively valueless services in the context of an economic
pressure campaign.
A claim of right defense will not protect someone who
obtains the property of another in return for “imposed,
unwanted, superfluous and fictitious” services. Enmons,
410 U.S. at 400 (emphasis added) (citing United States v.
Kemble, 198 F.2d 889 (3d Cir. 1952)). Fear cannot be used
to force an “employer to pay wages for an additional worker
CARPENTERS V. BUILDING TRADES 11
to do exactly what another worker [is] already being paid to
do.” Viacom Int’l, Inc. v. Icahn, 747 F. Supp. 205, 212
(S.D.N.Y. 1990) (citing Kemble, 198 F.2d 889).
So in Vigil, the case the Carpenters rely upon most
heavily, the Tenth Circuit affirmed a Hobbs Act extortion
conviction where the victim was required to “hire a specific
and unwanted individual at the price she sets.” 523 F.3d at
1265. Vigil, the New Mexico State Treasurer, insisted that
the victim hire an unnecessary employee because he, Vigil,
owed the potential employee’s husband money. Id. at 1261.
Even though the prospective employee “did not want to work
for the compensation,” Vigil tried to coerce the victim into
paying her 40% of the gross income from a government
contract. See id. at 1262. Not only were her services
“unwanted” but “the compensation was intended as personal
payoff to [Vigil’s] former associate . . . rather than to achieve
a legitimate objective.” Id. at 1265. That was extortion,
according to the court.3 But, unlike Vigil, there is no
plausible allegation here that any Building Trades official
sought a “personal payoff,” or misappropriated a
governmental position.
More fundamentally, a claim of right defense cannot be
defeated by a contention that a particular transaction has no
“subjective” or “idiosyncratic” value. See, e.g., Viacom Int’l,
747 F. Supp. at 212 n.7 (noting that a forced transaction was
extortionate where “[n]othing of objective value transferred
to the plaintiff” (emphasis added)). Otherwise any plaintiff
could bring a civil RICO claim based on a bare allegation that
whatever service or good he received in return for his
property was of no subjective value. However little value the
3
We need not and do not decide whether Vigil was correctly decided.
12 CARPENTERS V. BUILDING TRADES
Carpenters thinks the Building Trades might provide, its
services are not the equivalent of Christopher Moltisanti’s
“no show” construction job. See The Sopranos: Episode 402,
No Show (HBO).
2
The Push-Back-Carpenters Campaign was also
extortionate, according to the Carpenters, because it used
wrongful means, such as filing frivolous regulatory claims, or
misusing confidential membership information. The
Carpenters’ argument relies on a frequently cited passage in
Viacom International, where the district court distinguished
hard bargaining from extortion by noting that, in the latter,
the victim “has a pre-existing entitlement to pursue his
business interests free of the fear he is quelling by receiving
value in return for transferring property to the defendant.”
747 F. Supp. at 213. Because the Carpenters had a legal right
to be free from frivolous regulatory claims or misused
confidential information, it maintains, the Building Trades’
conduct was extortionate. Under that approach, any
economic pressure campaign that includes tortious conduct,
for example, would be a predicate offense to civil RICO,
regardless of whether the alleged tortfeasor demanded
payment to refrain from harming the victim.
As the Building Trades contends, use of economic
pressure is wrongful if the victim “had a pre-existing right to
the purported consideration being offered by the defendant as
an inducement to enter into the transaction.” If so, “there is
no legitimacy to the proposed transaction.” For example, in
Rennell, the defendant terminated a joint venture and gave his
former partner a take-it-or-nothing offer of 8% of what he
owed. 635 F.3d at 1009, 1013. Still, the defendant had a
CARPENTERS V. BUILDING TRADES 13
claim of right to his former partner’s interest in the joint
venture: he had a right to terminate the venture agreement.
Id. at 1012–13. And even if the defendant breached the
parties’ contracts or “acted in violation of the general duty of
good faith and fair dealing,” he did not forfeit his claim of
right defense. Id. at 1014. Such claims “should be pursued
through state-law theories of contract and, perhaps, tort—not
civil RICO.” Id.
Clearer still is Brokerage Concepts, Inc., where an HMO
required a pharmacy to use its subsidiary as a third-party
provider if the pharmacy wanted access to the HMO’s
provider network. 140 F.3d at 525. If the HMO had been
legally compelled to grant access to its network, the
pharmacy “would have had a legal entitlement to be a
member of the provider network and thus to be free of the
fear that it would be excluded from that network.” Id. at 526.
But as the HMO was not legally compelled to grant access, its
use of economic pressure was not wrongful.
In both of those cases, the decisive question was whether
the victim had a pre-existing statutory or contractual right to
the consideration offered by the defendant in return for the
victim’s property. If so, the resulting transaction would have
been an illegitimate sham, and potentially a “wrongful” goal
to pursue.
But none of the cases cited by the Carpenters involves an
economic pressure campaign declared “wrongful” because it
happened to include, incidentally, tortious conduct or simple
breach of contract. For those cases to be on point, the
14 CARPENTERS V. BUILDING TRADES
Carpenters would need to have a statutory or contractual right
to the services the Building Trades offers, which it does not.4
We recently held that a lawyer’s threat to a engage
potential witness to “do ‘whatever it is we need her to do,’
including impeding the investigation, lying to [an]
investigating Assistant U.S. Attorney . . . , and repeating
those lies to the grand jury” was “unlawful, and therefore
clearly wrongful under the circumstances.” United States v.
Villalobos, 748 F.3d 953, 955, 957 (9th Cir. 2014).
Villalobos did not, however, hold that conduct must be
characterized as wrongful if it involves a breach of duty
derived from contract or tort law in the course of pursuing a
legitimate transaction. The proper remedy for such a breach
is a claim under state law. And the Carpenters’ complaint
does not allege a violation of the Hobbs Act through the use
of economic fear merely because the Building Trades might
have committed some tort or breached some contract as part
of the Push-Back-Carpenters Campaign.
4
In addition to being unsupported by precedent, the Carpenters’
argument invites us to declare extortionate under the Hobbs Act any
economic pressure campaign involving, no matter how incidentally, any
violation of state law. Such a declaration would transform innumerable
state crimes and torts into federal crimes. But the Supreme Court has
reminded us just recently that we should refrain from interpreting federal
statutes to “‘alter sensitive federal-state relationships’” by “convert[ing]
an astonishing amount of ‘traditionally local criminal conduct’ into ‘a
matter for federal enforcement.’” Bond v. United States, 134 S. Ct. 2077,
2091 (2014) (quoting United States v. Bass, 404 U.S. 336, at 349–50
(1971)).
CARPENTERS V. BUILDING TRADES 15
B
By contrast, use of “actual or threatened force or violence
to obtain property” is “inherently wrongful” and not subject
to a claim of right defense. Daane, 475 F.3d at 1119–20
(quoting United States v. Sturm, 870 F.2d 769, 772–73 (1st
Cir. 1989)). The question, therefore, is whether the
Carpenters adequately alleged that the Building Trades, its
agents, or its coconspirators used violence or force against the
Carpenters or its members.
1
The Carpenters’ brief points to three factual allegations
that the Building Trades or a named defendant personally
threatened violence.
First, it asserts that “the Building Trades and Williams
publicly disseminated video footage of a violent attack o[n]
Carpenters’ members, accompanied by a written warning that
similar violence would ensue.” But the Building Trades did
not “publicly disseminate” the video. Instead, the Building
Trades disseminated a news release that mentioned a video
had “surfaced” on YouTube, but did not embed the video or
include a link. And the news release did not describe a
violent attack on the Carpenters, but a brawl that started when
one of the Carpenters “grab[bed] an Iron Worker.” The
release does not contain a warning of similar violence, just
the phrases “[c]raft unions are not taking this struggle lying
down,” and “the building trades unions turned out in force.”
Second, the Carpenters’ brief mentions materials on a
website that “direct and encourage violence.” Again, this
overstates the complaint, which describes one potentially
16 CARPENTERS V. BUILDING TRADES
troubling statement in an interview posted on the website:
“Defendant Ayers called the Carpenters ‘a cancer that is
spreading’ that needed to be confronted by ‘the kind of
powerful response you would expect when a burglar is caught
stealing something of value.’”
Finally, the brief describes “speeches containing anti-
Carpenters threats and incitements . . . to take violent
actions.” Hill said the Building Trades would do “whatever
it takes to protect our members”; Ayers called for a “united”
stand, warned that Building Trades members were “being
threatened all around the nation,” and declared that “[t]his
problem didn’t start in St. Louis, but by God it needs to end
in St. Louis”; and Williams noted a “line in the sand” and
explained “[a]fter today, there’s no going back.” Perhaps
recognizing that none of these statements sounds like a call
for violence, the complaint reiterates that each, “[i]n the
context of the past violence, . . . mean[t] to threaten and use
physical violence and force.”
In some contexts, such statements could constitute threats
of violence actionable under civil RICO5—the Carpenters’
brief cites no remotely comparable case, see Daane, 475 F.3d
at 1116–19—but not plausibly in this context. Prior to the
statements, the complaint alleges precisely one act of
vandalism by unnamed “Defendants’ agents,” and two
emailed “veiled death threats” against a Carpenters’ officer,
5
The Building Trades notes that holding such comments actionable
under civil RICO would raise significant First Amendment concerns. See
NAACP v. Claiborne Hardware Co., 458 U.S. 886, 900 n.28, 928 (1982)
(holding that Charles Evers’s statement at a rally, “that any ‘uncle toms’
who broke the boycott would ‘have their necks broken’ by their own
people,” was protected speech).
CARPENTERS V. BUILDING TRADES 17
without specifying how the individuals named as Defendants’
“agents” were connected to the Building Trades. The
complaint’s interpretation of the emails relies, in turn, on
“prior and contemporaneous violent vandalism,” but includes
only the one example—anonymous vandalism not connected
to the Building Trades.
The Carpenters’ complaint does not plausibly allege that
any defendant used threats of violence to obtain the
Carpenters’ property.
2
The Carpenters’ complaint also ties the Building Trades
to threats and violence by non-parties, whom it labels
coconspirators with and agents of the Building Trades.
Even in a complaint, formulaic recitations and
“conclusory statement[s]” will not suffice to allege
conspiracy plausibly. Kendall v. Visa U.S.A., Inc., 518 F.3d
1042, 1048 (9th Cir. 2008). A complaint must “answer the
basic questions: who, did what, to whom (or with whom),
where, and when?” Id. Bare assertions of “agreement,” id.
at 1047 (quoting Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 557 (2007)), or identifications of particular persons as
“coconspirators,” id. at 1050, will not suffice.
The Carpenters’ complaint recites several “actions”
“undertaken . . . as part of, and in furtherance of, the unlawful
conspiracy,” but identifies the actors, if at all, merely as
“Defendants’ agents.” As to the actors who are actually
named, the complaint simply refers to them as “co-
conspirators,” who had “agreed to act, and w[ere] acting, on
behalf of the Defendants.” No detailed facts are alleged.
18 CARPENTERS V. BUILDING TRADES
Such rote recitations do not render plausible that the non-
parties conspired with the Building Trades or agreed with the
Building Trades to commit or threaten violence.6
Despite the Carpenters’ thorough briefing, its allegations
of agency boil down to three facts: First, the perpetrators of
various violent actions, most of whom are unnamed, are
labeled “Defendants’ agents.” But a mere label cannot
demonstrate an agency relationship. Second, subordinate
union members followed Defendants’ directions by engaging
in threats and violence. But those “directions,” described
above, simply did not amount to instructions to commit
violence. And in any case, the violent acts either predate the
Defendants’ statements, or postdate them by over a year.
Third, the Building Trades blessed and encouraged the
violence by disseminating a YouTube video. But, as
described above, the Building Trades’ news release hardly
amounts to blessing and encouraging violence.7
The Carpenters’ formulaic and conclusory allegations of
conspiracy and agency do not suggest plausibly that the
6
Terrence O’Sullivan, who made some of the most troubling statements
in the record—asking the Unity Rally audience “if anyone had any
rope?”—is identified in the complaint as a member of the Building
Trades’ Governing Board of Presidents. Even if he were a coconspirator,
holding his statements actionable would raise First Amendment concerns.
See supra, note 5.
7
The Carpenters’ RICO case statement alleges that Mark Keffler, during
a phone call with a Carpenters representative, threatened that “a lot of
pissed off people out there . . . will start killing [Carpenters] soon.” But
Keffler is merely labeled “Defendants’ agent,” with no supporting factual
assertions concerning his connection, if any, to the defendants.
CARPENTERS V. BUILDING TRADES 19
Building Trades or any named defendant attempted to acquire
the Carpenters’ property through violence or threats.
C
Even if the Carpenters failed to allege extortion under the
Hobbs Act, it argues that it has alleged “RICO predicate
offenses under twelve States’ extortion statutes.” For
example, some states do not provide a claim of right defense
to the use of fear to obtain a victim’s property, and others
prohibit threats of reputational harm. Boiled down, the
Carpenters’ brief suggests that any conduct criminalized
under any state’s “extortion” statute is a proper RICO
predicate offense.
This argument repeats the error of an argument rejected
long ago in United States v. Nardello, 393 U.S. 286 (1969),
which concerned the meaning of “extortion” in the Travel
Act, 18 U.S.C. § 1952. Nardello argued that the Act
encompassed only conduct labeled “extortion” by a state
statute, but not identical conduct labeled “blackmail,” for
example. Nardello, 393 U.S. at 293–94. Rejecting the
argument that the meaning of extortion was tethered to the
state statute, the Court held that the Act referred to conduct
“generically classified as extortionate,” that is to say,
“obtaining something of value from another with his consent
induced by the wrongful use of force, fear, or threats.” Id. at
290.
The same generic definition of extortion applies under
§ 1961(1)(A). Scheidler v. Nat’l Org. for Women, Inc.,
537 U.S. 393, 409 (2003). The Carpenters would expand that
definition to include any conduct labeled “extortion” under
any state statute. The district court correctly rejected that
20 CARPENTERS V. BUILDING TRADES
argument. Even if a state labels particular conduct extortion,
“it cannot qualify as a predicate offense for a RICO suit
unless it is capable of being generically classified as
extortionate.” Wilkie v. Robbins, 551 U.S. 537, 567 (2007)
(internal quotation marks and citation omitted). Whether
under the Hobbs Act or under the generic definition, use of
fear must be “wrongful” to be extortionate.8
In addition, the Carpenters’ brief contends that the
“generic definition of extortion, in contrast to the Hobbs Act,
does not require a showing that the defendant lacked a claim
of right to the property in question.” It labels the existence of
a claim of right an “affirmative defense” and cites United
States v. Velasquez-Bosque for the proposition that “[t]he
availability of an affirmative defense is not relevant to the
categorical analysis.” 601 F.3d 955, 963 (9th Cir. 2010)
(declaring irrelevant that California’s carjacking statute does
not permit a claim of right defense, whereas generic robbery
does). But whether the defendant had a legitimate claim to
the property obtained by use of economic fear, although
called a “claim of right” defense, is not actually an
“affirmative defense” in this context. Instead, it is an
interpretation of what “wrongful use of fear”—an element of
both Hobbs Act and generic extortion—means. See, e.g.,
Brokerage Concepts, Inc., 140 F.3d at 523. Thus, even if a
state criminalized the use of economic fear to achieve a
8
Regardless of whether such reasoning defies the canon against
superfluity, as the Carpenters’ brief asserts, it is compelled by Supreme
Court precedent. And, moreover, the rule against redundancy does not
require the Carpenters’ conclusion. If every state were to adopt the Hobbs
Act wholesale as its law criminalizing extortion, Congress’s choice of the
disjunctive would become “superfluous” by necessity.
CARPENTERS V. BUILDING TRADES 21
legitimate end,9 the state offense would not equal generic
extortion.
That leaves, as possible allegations of generic extortion in
violation of state law, the Building Trades’ alleged threats of
personal reputational harm to the Carpenters. See Nardello,
393 U.S. at 295–96 (attempt to obtain money by threatening
to “expose alleged homosexual conduct” fit within generic
extortion). The Carpenters’ brief does not cite any particular
portion of the record where the Building Trades threatened
and inflicted reputational harm, and our review of the
Carpenters’ complaint does not reveal any such plausible
allegations. See Levitt, 2014 WL 4290615, at *9 (noting that
a “claim of reputational harm” must be connected with “a
specific allegation of wrongful conduct”).
III
Nineteen Carpenters’ members allege that officers Ault,
Williams, and Molnaa violated the LMRDA “by directing the
unlawful suspension or expulsion of the Carpenters and the
Individual Plaintiffs through the revocation of the Solidarity
Agreements” without written charges or a hearing. On
9
None of the cases cited by the Carpenters concern extortion by fear of
economic loss. All concern fear of threatened violence, for which there
is no claim of right defense, except in a specific labor context, under the
Hobbs Act. See Gomez v. Garcia, 81 F.3d 95, 96 (9th Cir. 1996) (holding
no claim of right defense for threat with a gun); Rael v. Sullivan, 918 F.2d
874, 875 (10th Cir. 1990) (holding no claim of right defense for threat to
“kick [victim’s] ass”); State v. Logan, 29 So. 336 (La. 1901) (holding no
claim of right defense for threat to kill); Pierce v. Commonwealth, 138
S.E. 2d 28, 31–32 (Va. 1964) (holding no claim of right defense for threat
from loaded pistol).
22 CARPENTERS V. BUILDING TRADES
appeal, they argue that such automatic expulsions are
unlawful.
Under the heading “Safeguards against improper
disciplinary action,” LMRDA § 101(a)(5) provides that:
No member of any labor organization may be
fined, suspended, expelled, or otherwise
disciplined except for nonpayment of dues by
such organization or by any officer thereof
unless such member has been (A) served with
written specific charges; (B) given a
reasonable time to prepare his defense;
(C) afforded a full and fair hearing.
29 U.S.C. § 411(a)(5) (emphasis added).
The Carpenters’ members were not expelled from the
Metal Trades as a disciplinary action. See Merriam-
Webster’s Collegiate Dictionary 356 (11th ed. 2005)
(defining “to discipline” as “to punish or penalize for the sake
of discipline”); Black’s Law Dictionary 531 (9th ed. 2009)
(defining “discipline” as “[p]unishment intended to correct or
instruct; esp., a sanction or penalty imposed after an official
finding of misconduct”). Both the text and immediate context
of section 101(a)(5) suggest that automatic expulsion without
written charges and a full hearing is only a violation where
the expulsion is disciplinary. First, the phrase “otherwise
disciplined” limits the reach of the first three verbs—“fined,
suspended, expelled”—to disciplinary actions, a limitation
that is also implied by the heading. See, e.g., Ram v. INS,
243 F.3d 510, 514 & n.3 (9th Cir. 2001) (noting that a
section’s heading may be useful in interpreting its meaning).
Second, such procedural protections make little sense where
CARPENTERS V. BUILDING TRADES 23
an expulsion is not a disciplinary action, but the result of a
dissolved affiliation agreement between competing labor
unions.
Furthermore, the cases cited by the Carpenters concern
disciplinary expulsions and are, therefore, not on point. See,
e.g., Myers v. Affiliated Prop. Craftsmen Local No. 44,
667 F.2d 817, 821 (9th Cir. 1982). If the Carpenters’
members were correct under the statute, then either
termination of such affiliation agreements would become
practically impossible or the “full and fair hearing[s]”
guaranteed by the statute would become a farce. Neither
result is required by the statute or the case law.
IV
Although the Carpenters did not request leave to amend
its complaint, it contends on appeal that the district court
abused its discretion by denying such leave.
Whether to grant leave to amend is committed to the
sound discretion of the district court. Foman v. Davis,
371 U.S. 178, 182 (1962). “[W]e first look,” therefore, “to
whether the trial court identified and applied the correct legal
rule . . . . Second, we look to whether the trial court’s
resolution . . . resulted from a factual finding that was
illogical, implausible, or without support in inferences that
may be drawn from the facts in the record.” United States v.
Hinkson, 585 F.3d 1247, 1263 (9th Cir. 2009) (en banc).
The district court identified and applied the correct legal
rule. It recognized our repeated admonition that “a district
court should grant leave to amend even if no request to
amend the pleading was made, unless it determines that the
24 CARPENTERS V. BUILDING TRADES
pleading could not possibly be cured by the allegation of
other facts.” Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir.
2000) (en banc) (quoting Doe v. United States, 58 F.3d 494,
497 (9th Cir. 1995)). And it properly cited the five factors to
be considered “in assessing the propriety of leave to
amend—bad faith, undue delay, prejudice to the opposing
party, futility of amendment, and whether the plaintiff has
previously amended the complaint.” United States v.
Corinthian Colleges, 655 F.3d 984, 995 (9th Cir. 2011).
Nonetheless, the court declined to grant leave to amend as
futile. Specifically, it noted the exhaustive length of the
Carpenters’ complaint and explained that it could not
“conceive of any new facts that could possibly cure the
pleading.”
We are unable to say that the district court’s finding is
illogical, implausible, or without support in the record. In
fact, it is quite reasonable to suppose that the Carpenters’
“sprawling 246-page” complaint contained all of the key facts
supporting its claims against the Building Trades. The
Carpenters’ brief suggests it could have cured the pleading’s
failure to allege an agency relationship between the Building
Trades and those individuals who committed violent and
threatening acts. But neither the brief nor counsel’s oral
argument has suggested specific facts that might have cured
such deficiency.
V
We conclude that the Carpenters’ complaint fails to state
a claim under civil RICO or the LMRDA against the Building
CARPENTERS V. BUILDING TRADES 25
Trades, and that the district court did not abuse its discretion
in denying leave to amend.
AFFIRMED.
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******************************************************
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STATE OF CONNECTICUT v. DAQUAN HOLMES
(AC 38395)
Lavine, Keller and West, Js.
Argued May 10—officially released October 18, 2016
(Appeal from Superior Court, judicial district of New
London, geographical area number twenty-one,
Jongbloed, J.)
Cameron R. Dorman, assigned counsel, for the appel-
late (defendant).
Stephen M. Carney, senior assistant state’s attorney,
with whom, on the brief, was Michael L. Regan, state’s
attorney, for the appellee (state).
Opinion
WEST, J. The defendant, Daquan Holmes, appeals
from the judgment of conviction, rendered after a jury
trial, of murder in violation of General Statutes § 53a-
54a1 and criminal attempt to commit murder in violation
of General Statutes §§ 53a-492 and 53a-54a. On appeal,
the defendant claims that (1) the trial court abused its
discretion in denying his motion for a new trial, (2) the
prosecutor engaged in prosecutorial impropriety, and
(3) even if his due process rights were not violated,
this court should exercise its supervisory powers and
set aside his conviction due to deliberate prosecutorial
impropriety. We affirm the judgment of the trial court.
The jury reasonably could have found the following
facts. In the early morning hours of May 21, 2011, Maria
Fluker was outside of Chacer’s bar (bar), located on
Franklin Street in Norwich, with her boyfriend, the
defendant. A man asked Fluker for a cigarette, which
angered the defendant. An argument began involving
twenty to thirty people, including the defendant. During
the argument, the defendant yelled, ‘‘get my gun.’’
The owner of the bar, Geoffrey Chase, who observed
the altercation, heard yelling about guns and knives; he
said that he had specifically heard someone say, ‘‘I’m
going to get my gun.’’ Chase called 911 and reported
that there were about twenty people outside his bar
yelling about guns and knives. Meanwhile, Roberta
Karr, a friend of the defendant, was in her apartment
across the street from the bar when she heard the distur-
bance. In response, she went outside to pull the defen-
dant away from the crowd and into her apartment. The
defendant, however, ran back toward the crowd, where
he encountered William Long, who had been inside the
bar. Karr got into a vehicle driven by Fluker, and they
headed toward the defendant. The defendant, his
brother, Ronald Holmes, and Long got into the car.
The group drove to Long’s residence and Long went
inside. When he reemerged, he had a gun. Upon getting
back in the car, Long handed the gun to the defendant.
The group then drove to the area of Boswell Avenue
and Franklin Street, where Joseph Cadet and Johnny
Amy were walking across the street. Long and the defen-
dant got out of the car and began yelling. Cadet and
Amy continued to walk and informed the two men that
they had the wrong guys.
Shots were fired in the direction of Amy and Cadet,
and the defendant was seen holding the gun. Amy fell
to the pavement, and Cadet ran away from the defen-
dant and Long. When the defendant and Long returned
to the car, the defendant was holding the gun. Fluker
then drove to Mystic, and while in route, Karr saw Long
throw the gun from the car. The group rented a room at
a hotel in Mystic, where Crystal Smith, Long’s girlfriend,
arrived after receiving a phone call from Ronald
Holmes.
Scott Dupointe, an officer with the Norwich Police
Department, was stationed in the area of the shooting
and was parked on Franklin Avenue when he heard six
to eight gunshots and immediately drove in the direction
of the shots. Upon reaching the intersection of Boswell
Avenue and Franklin Street, he found Cadet kneeling
over Amy. At 2:37 a.m., Dupointe called dispatch to
report that he heard gunshots and had arrived at the
scene. After radioing dispatch about the situation,
Dupointe drove down Boswell Avenue in search of the
car Cadet described as the vehicle in which the defen-
dant and Long had fled the scene. Unable to locate the
vehicle, Dupointe returned to the scene.
Amy was transported to the hospital, but he was later
pronounced dead. Following an autopsy, the medical
examiner determined the cause of death to be a gunshot
wound to the head. The scene of the shooting was
processed and several defects located in an adjacent
building were consistent with gunfire. Several .22 cali-
ber shell casings and a .22 caliber live round were also
found in the vicinity. On the basis of a statement made
by Karr, the police recovered a Ruger .22 caliber, semi-
automatic pistol that was consistent with having fired
the bullets recovered at the crime scene. Upon search-
ing Long’s residence, police also located a .22 caliber
hollow point round that was the same type located at
the scene of the shooting. The bullet was consistent
with the ammunition typically associated with the
recovered pistol. In addition, the police seized a surveil-
lance video from a nearby Laundromat that showed
Cadet and Amy walking together, Amy falling to the
ground, and Cadet running away and then returning to
assist Amy.
A warrant was issued nationwide for the defendant’s
arrest, and he was arrested in New York on October 19,
2011. He was brought back to Connecticut and charged
with murder in violation of § 53a-54a and criminal
attempt to commit murder in violation of §§ 53a-49 and
53a-54a. Following a jury trial, the defendant was con-
victed of both counts. The court subsequently denied
the defendant’s motion for a new trial and sentenced
the defendant to fifty-four years of incarceration. This
appeal followed. Additional relevant facts will be set
forth as necessary.
I
The defendant first claims that the court abused its
discretion in denying his motion for a new trial. In his
motion for a new trial, the defendant argued that
‘‘[t]here was insufficient evidence to support the jury’s
finding inasmuch as the defendant demonstrated
through scientific evidence and various times of day
within the state’s evidence that the allegations offered
by the state could not have happened.’’ On appeal, the
defendant argues that the verdict was based on physi-
cally impossible conclusions that he and his cohorts
could have left the bar, driven to Long’s residence, and
then driven to the scene of the shooting in the allotted
time.3 The defendant alternatively acknowledges, how-
ever, that he could have been at the scene of the shoot-
ing, but only if Karr and Fluker lied about the events
that occurred from the time that Long left the bar to
the time of the shooting, and he further argues that the
facts demonstrate that the testimony of both Karr and
Fluker was intentionally untrue, which rendered their
testimony unreliable and untrustworthy.
We begin our analysis by setting forth our standard
of review and the relevant law. ‘‘[T]he proper appellate
standard of review when considering the action of a
trial court granting or denying a . . . motion for a new
trial . . . [is] the abuse of discretion standard. . . . In
determining whether there has been an abuse of discre-
tion, 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. . . . We do not . . . determine whether a con-
clusion different from the one reached could have been
reached. . . . A verdict must stand if it is one that a
jury reasonably could have returned and the trial court
has accepted.’’ Bolmer v. McKulsky, 74 Conn. App. 499,
510, 812 A.2d 869, cert. denied, 262 Conn. 954, 818 A.2d
780 (2003).
When evaluating a physical impossibility claim, ‘‘[a]
verdict should be set aside [w]here testimony is . . .
in conflict with indisputable physical facts, the facts
demonstrate that testimony is either intentionally or
unintentionally untrue, and leave no real question of
conflict of evidence for the jury concerning which rea-
sonable minds could reasonably differ. . . . Scientific
evidence is relevant to a determination of what is physi-
cally impossible.’’ (Citation omitted; internal quotation
marks omitted.) State v. Vazquez, 119 Conn. App. 249,
254, 987 A.2d 1063 (2010).
The defendant set forth the following timeline. Chase
called 911 at 2:25 a.m. to report the argument occurring
outside of the bar. The bar’s surveillance video shows
Chase making this call at 2:25 a.m. The surveillance
video also shows Long exiting the bar at 2:28 a.m. to
join the defendant outside. The surveillance video from
the Laundromat first shows Cadet and Amy walking
away, and then Amy falling to the ground and Cadet
running away at approximately 3:32 a.m. At 2:37 a.m.
Dupointe called dispatch to report that he heard gunfire.
The defendant contends that the time stamp on the
Laundromat surveillance video was exactly one hour
off, and asserts that the time on the video should have
been 2:32 a.m. The defendant argues that based upon
the evidence, ‘‘the time elapsed between Long leaving
the bar and the earliest time the defendant could have
arrived at the scene of the shooting was just under
five and a half minutes.’’ The defendant claims that the
evidence shows that it would have taken the defendant
between nine and thirteen minutes to get to the scene
of the shooting, and therefore, he could not have been
at the scene when the victim was shot. The state con-
tends that the defendant offered no evidence to support
his claim that the Laundromat video was exactly one
hour off, and further asserts that the Laundromat video
was less than an hour off. The state bases that argument
on the fact that Dupointe called in to dispatch that shots
were fired at 2:37 a.m., and contends that it is unlikely
that it would have taken Dupointe five minutes to make
the call that shots had been fired.
The defendant cannot prevail on this physical impos-
sibility argument. First, the jury was free to credit or
discredit any of the time stamps on the surveillance
videos, leaving enough time for the defendant to have
shot the victim. The 911 call made by Chase corrobo-
rated the time stamp on the bar surveillance video.
Therefore, the jury, as the fact finder, was free to credit
the bar surveillance video time stamp as being in general
conformity with the actual time because in the video
one can see Chase dialing 911, and the time on the
video at that moment is proximate to the time of the
call. The defendant offered no evidence in support of
the assertion that the Laundromat surveillance video
time stamp was exactly one hour off, and the ambulance
dispatch report indicated that the dispatch call from
Dupointe was received at 2:37 a.m. Thus, given the fact
that Dupointe testified that he was just down the road
from the scene when he heard the gunshots and that
he called in to dispatch upon arriving on scene, the jury
was free to infer that the Laundromat video was less
than an hour off, and, therefore, that it was not physi-
cally impossible for the defendant to have been at the
scene when the victim was shot.
The defendant relies on Fluker and Karr’s credibility
to support his argument that it was physically impossi-
ble for him to arrive at the scene of the shooting in the
allotted time, however, he alternatively acknowledges
that ‘‘he could have been at the scene of the shooting,
but only if Karr and Fluker lied about the events that
occurred from the time that Long left the bar to the
time of the shooting.’’ The defendant seems to also be
arguing that the court abused its discretion in denying
his motion for a new trial because the state’s witnesses
were so lacking in credibility that his conviction consti-
tuted a miscarriage of justice. We are not persuaded.
This court has established that ‘‘[i]n evaluating evi-
dence, the [finder] of fact is not required to accept as
dispositive those inferences that are consistent with
the defendant’s innocence. . . . The [finder of fact]
may draw whatever inferences from the evidence or
facts established by the evidence it deems to be reason-
able and logical. . . . Finally, it is beyond question that
the trier of fact . . . the jury, is the arbiter of credibil-
ity. This court does not sit as an additional juror to
reconsider the evidence or the credibility of the wit-
nesses. . . . Whether [a witness’] testimony [is] believ-
able [is] a question solely for the jury. It is . . . the
absolute right and responsibility of the jury to weigh
conflicting evidence and to determine the credibility
of the witnesses.’’ (Citation omitted; internal quotation
marks omitted.) State v. Vazquez, 119 Conn. App. 249,
255, 987 A.2d 1063, 1068 (2010).
The defendant claims that the facts demonstrate that
the testimony of both Karr and Fluker was intentionally
untrue, which rendered their testimony completely
unreliable and untrustworthy, particularly with respect
to the events that occurred from the time Long left
the bar up to, and including, the time of the shooting.
Although it is true that Karr and Fluker admitted to
falsehoods contained in their initial statements to the
police, the jury was free to make credibility determina-
tions and to believe whatever testimony it found credi-
ble. See State v. Vazquez, supra, 119 Conn. App. 255.
In denying the defendant’s motion for a new trial, the
court indicated that it ‘‘[found] that the evidence was
sufficient to permit the jury reasonably to find the defen-
dant guilty beyond a reasonable doubt on each of the
two counts’’ and noted that ‘‘defense counsel ably
argued that there was reasonable doubt based on the
scientific evidence as well as the time frame of the
events and the jury rejected those arguments.’’ Accord-
ingly, the court did not abuse its discretion in declining
to grant the defendant’s motion for a new trial.
II
The defendant next claims that his due process rights
were violated as a result of improper remarks made by
the prosecutor during the questioning of a witness and
during closing arguments. The state argues that none
of the prosecutor’s questions or remarks were
improper. We agree with the state and conclude that the
prosecutor’s questioning of the witness and his remarks
during closing argument were proper, and, therefore,
did not deprive the defendant of his right to a fair trial.
‘‘In analyzing claims of prosecutorial impropriety, we
engage in a two step analytical process. . . . The two
steps are separate and distinct. . . . We first examine
whether prosecutorial impropriety occurred. . . . Sec-
ond, if an impropriety exists, we then examine whether
it deprived the defendant of his due process right to a
fair trial. . . . If we conclude that prosecutorial impro-
priety has occurred, we then must determine, by
applying the six factors enumerated in [State v. Wil-
liams, 204 Conn. 523, 540, 529 A.2d 653 (1987)], whether
the entire trial was so infected with unfairness so as
to deprive the defendant of his due process right to a fair
trial. . . . These factors include the extent to which
the impropriety was invited by defense conduct, the
severity of the impropriety, the frequency of the impro-
priety, the centrality of the impropriety to the critical
issues in the case, the effectiveness of the curative
measures adopted and the strength of the state’s case.’’
(Citations omitted; internal quotation marks omitted.)
State v. Pascal, 109 Conn. App. 55, 67, 950 A.2d 566,
cert. denied, 289 Conn. 917, 957 A.2d 880 (2008).
‘‘[W]hen a defendant raises on appeal a claim that
improper remarks by the prosecutor deprived the defen-
dant of his constitutional right to a fair trial, the burden
is on the defendant to show, not only that the remarks
were improper, but also that, considered in the light of
the whole trial, the improprieties were so egregious
that they amounted to a denial of due process.’’ (Internal
quotation marks omitted.) State v. Maner, 147 Conn.
App. 761, 783, 83 A.3d 1182, cert. denied, 311 Conn. 935,
88 A.3d 550 (2014). Moreover, ‘‘[w]hen reviewing the
propriety of a prosecutor’s statements, we do not scruti-
nize each individual comment in a vacuum but, rather,
review the comments complained of in the context of
the entire trial.’’ (Citation omitted; internal quotation
marks omitted.) State v. Felix R., 319 Conn. 1, 9, 124
A.3d 871 (2015). ‘‘Because [some of] the claimed prose-
cutorial [improprieties] occurred during closing argu-
ments, we advance the following legal principles.
[P]rosecutorial [impropriety] of a constitutional magni-
tude can occur in the course of closing arguments
. . . . In determining whether such [an impropriety]
has occurred, the reviewing court must give due defer-
ence to the fact that [c]ounsel must be allowed a gener-
ous latitude in argument, as the limits of legitimate
argument and fair comment cannot be determined pre-
cisely by rule and line, and something must be allowed
for the zeal of counsel in the heat of argument. . . .
Thus, as the state’s advocate, a prosecutor may argue
the state’s case forcefully, [provided the argument is]
fair and based upon the facts in evidence and the reason-
able inferences to be drawn therefrom.’’ (Internal quota-
tion marks omitted.) State v. Ross, 151 Conn. App. 687,
693–94 A.3d 1208 (2014).
A
The defendant first claims that the prosecutor
improperly questioned Smith on direct examination and
redirect. Specifically, he argues that ‘‘the prosecutor
repeatedly attempted to elicit from [Smith] a highly
prejudicial extrajudicial statement made by Long, who
did not testify, and through improper questioning of
the witness effectively made known the substance of
that statement to the jury—all in violation of multiple
trial court orders . . . .’’
The following transpired during Smith’s testimony
and is relevant to the resolution of the defendant’s
claim. Smith testified that, after receiving a phone call
from Ronald Holmes, she went to a hotel in Mystic. She
further testified that Long, Fluker, Karr, Ronald Holmes,
and the defendant were in the hotel room. The prosecu-
tor asked about the atmosphere in the room and
according to Smith, ‘‘[e]verybody looked a little stressed
out.’’ The prosecutor then asked what happened next,
and Smith replied, ‘‘[Long] looked at [the defendant]
and said,’’ at which point defense counsel objected, and
the prosecutor withdrew his question. The prosecutor
then asked Smith, ‘‘Mr. Long said something; that’s a
yes or no,’’ and Smith responded, ‘‘[y]es.’’
Next, the prosecutor asked Smith, ‘‘[d]id the defen-
dant say something in response to what Mr. Long said?’’
Smith responded, ‘‘[h]e did.’’ The prosecutor asked her
what the defendant said and Smith replied, ‘‘[n]iggas
disrespect, niggas get spanked.’’ The prosecutor then
asked Smith, ‘‘[w]hat did Mr. Long say that caused that
reaction?’’ Smith replied, ‘‘[h]e said,’’ at which point
defense counsel objected. The prosecutor argued that
Long’s statement would explain the defendant’s subse-
quent statement, but the court ruled that he could ask a
question that would not elicit the out-of-court statement
made by Long. The prosecutor then asked Smith, ‘‘what
caused [the defendant] to say that?’’ Smith replied, ‘‘Wil-
liam Long said,’’ at which point defense counsel again
objected. The court sustained the objection.
Later, on direct examination, the prosecutor asked
Smith, ‘‘what do you know which would cause there
to be fear of the police?’’ and Smith stated, ‘‘I know the
statement that [the defendant] made.’’ The prosecutor
then asked, ‘‘[w]as there any other statement that made
you think that the police might come?’’ Smith replied,
‘‘[y]es.’’ The prosecutor asked her what statement that
was, and Smith responded, ‘‘Long made a statement,’’
at which point defense counsel objected, but the court
allowed her answer to stand. The prosecutor then asked
Smith, ‘‘what was it that made there a concern that the
police might come?’’ Smith replied, ‘‘[h]e said—Long,’’
at which point defense counsel objected again, and the
court heard counsel outside the presence of the jury.
Defense counsel argued that the prosecutor’s conduct
was bordering on bad faith for continuously attempting
to get Long’s statement into evidence, and the prosecu-
tor argued that Long’s statement was necessary to place
the defendant’s statement into context. The court sus-
tained defense counsel’s objection and stated that the
prosecutor could ask the witness about the defendant’s
statement without eliciting Long’s hearsay statement.
Once the jury returned, the prosecutor asked Smith
what the defendant’s statement meant, and she
responded, ‘‘[i]t means if someone disrespects him, then
he’ll kill them.’’ The prosecutor followed up by asking,
‘‘[t]his is a yes or no; did Mr. Long say anything before
that statement was made that made you think that?’’
Smith answered, ‘‘[y]es.’’
On cross-examination, defense counsel asked Smith,
‘‘[a]s far as you know, William Long could have shot
[the victim] right?’’ Smith responded, ‘‘[a]s far as I know,
except for what I,’’ at which point defense counsel inter-
rupted her and continued with another question, to
which the prosecutor objected, saying Smith did not
get to finish her answer. The court allowed her to finish
her answer, and she stated, ‘‘[a]s far as I know, except
for what I was told in the [hotel] room.’’ Defense counsel
continued questioning her about whether Long could
have shot the victim, and Smith continuously was
prompted to state what she heard Long say in the hotel
room. The prosecutor again objected when defense
counsel continued interrupting Smith’s answers,
arguing that she should be allowed to answer fully, and
the court ruled that defense counsel needed to allow
her to answer the questions asked. Defense counsel
then prefaced that he was asking yes or no questions
and asked Smith, ‘‘you can’t tell us anything about who
shot that boy in the street on May 21, right?’’ The prose-
cutor objected, and the court ruled that Smith could
answer. Smith replied, ‘‘I did hear in the hotel room
who shot the man in the street.’’
On redirect examination, the prosecutor asked Smith,
‘‘[d]o you know who shot the man in Norwich?’’ Smith
responded, ‘‘I was told who shot the man in Norwich.’’
The prosecutor then asked her, ‘‘[w]ho told you who
shot the man in Norwich?’’ Smith replied, ‘‘William
Long.’’ Next, the prosecutor asked Smith, ‘‘[w]as [the
defendant] present . . . when William Long told you
who shot the man in Norwich?’’ Smith responded,
‘‘[y]es.’’ The prosecutor then asked what Long said to
her, and defense counsel asserted another hearsay
objection, which was sustained.
The defendant contends that the prosecutor made
seven attempts to elicit testimony from Smith regarding
a highly prejudicial statement made by Long that impli-
cated the defendant. The defendant argues that through-
out the attempts, the prosecutor defied two explicit
court rulings that ordered the prosecutor to ask ques-
tions that did not elicit the statement made by Long.
The state maintains that the prosecutor had a good faith
basis for pursuing his line of questioning each time he
returned to the subject of Long’s statement to the
defendant.
The content of Long’s statement was not elicited from
Smith, nor was it included in the prosecutor’s inquiries
to Smith. Although the court sustained defense coun-
sel’s various hearsay objections during the prosecutor’s
questioning of Smith, the court never admonished the
prosecutor or ordered him to move on to a different
subject, which would be expected if the prosecutor’s
questioning was in fact so egregious as claimed. We
agree with the state that simply posing an objectionable
question does not amount to an actionable impropriety.
See State v. Garcia, 7 Conn. App. 367, 374, 509 A.2d 31
(1986) (‘‘Often, during the course of a trial, objection-
able questions are asked, objections are sustained, and
the trial goes on. The due administration of justice
would be ill served if every time an objectionable ques-
tion were asked the case would be subject to a mis-
trial.’’). Furthermore, it is important to note that many
responses from Smith, harmful to the defense, were
elicited by defense counsel on cross-examination. It
was during cross-examination of Smith that defense
counsel posed the question, ‘‘[a]s far as you know, Wil-
liam Long could have shot [the victim], right?’’ Smith
responded by stating, ‘‘[a]s far as I know . . . except
for what I was told in the [hotel] room.’’ Smith’s
response was interrupted by defense counsel asking
another question, to which the prosecutor objected,
arguing that Smith did not have a chance to fully answer,
and the court allowed Smith to finish her answer. It
was also on cross-examination that Smith indicated that
she ‘‘did hear in the hotel room who shot the man in
the street.’’
Moreover, the prosecutor’s questioning on redirect
examination was invited by the court’s ruling that Smith
would be subject to redirect examination in response to
the prosecutor’s objection regarding defense counsel’s
not allowing her to answer. In addition, defense coun-
sel’s suggestions that the defendant’s statement in the
hotel room was in reference to a card game and that
Smith did not know who killed the victim invited the
prosecutor to inquire further into those subjects. Signifi-
cantly, defense counsel did not move to strike Smith’s
answer after the court allowed her to finish it. There-
fore, pursuant to our review of the record, we conclude
that the prosecutor’s questions were attributable to vig-
orous advocacy as opposed to impropriety.
B
The defendant also argues that the prosecutor made
improper remarks during closing arguments. Specifi-
cally, the defendant contends that ‘‘the prosecutor mis-
characterized evidence in his closing argument to the
jury.’’
‘‘[T]he prosecutor may argue the state’s case force-
fully, [provided the argument is] fair and based upon
the facts in evidence and the reasonable inferences to
be drawn therefrom. . . . [W]e must give the jury the
credit of being able to differentiate between argument
on the evidence and attempts to persuade them to draw
inferences in the state’s favor, on one hand, and
improper unsworn testimony, with the suggestion of
secret knowledge, on the other hand. The state’s attor-
ney should not be put in the rhetorical straightjacket
of always using the passive voice, or continually empha-
sizing that he is simply saying I submit to you that this
is what the evidence shows, or the like.’’ (Citations
omitted; internal quotation marks omitted.) State v.
Franklin, 162 Conn. App. 78, 101, 129 A.3d 770 (2015),
cert. denied, 321 Conn. 905, 138 A.3d 281 (2016).
The defendant argues that the prosecutor made the
following improper statements during direct and rebut-
tal closing arguments, and contends that the statements
were unsupported by the record and mischaracterized
the evidence: (1) ‘‘The video on the Laundromat says
the body fell at 3:32:43; simply not accurate’’; (2) ‘‘When
[the defendant] gets back in the car, [Karr] says that
she sees [the defendant] holding the gun’’; (3) ‘‘[The
defendant] is arguing; [Fluker] says the argument is
about the fact that an individual, we would suggest the
evidence might show that that individual is Cornelius
Wingate’’; (4) ‘‘You can see that on the video, the phone
call is made, the hand gestures, and Long does in fact
exit the bar just like Fluker says.’’
The first statement that the defendant challenges
regarding the inaccuracy of the Laundromat surveil-
lance video is conceded by the defendant, given that
the defendant’s claim regarding physical impossibility
is premised on the fact that the Laundromat video was
exactly one hour off; in other words, that the time on the
video was not in fact accurate. The second challenged
statement, that Karr said she saw the defendant with
the gun after he got back into the car, was a proper
representation of Karr’s testimony.4 Although the state
agrees with the defendant that at an earlier point in her
testimony, when asked whether Long held the gun the
entire time in the car, Karr responded, ‘‘yea,’’ the state
maintains that Karr appeared to be referring to the time
period prior to the shooting, during which the group
was searching for the individual with whom the defen-
dant had an argument.
The third statement that the defendant challenges
regarding the prosecutor’s suggestion that Wingate may
have been the individual with whom the defendant got
into a fight, was also proper, as it raised a possible
inference based on the evidence in the record. Wingate
testified that he had engaged in an argument outside of
the bar, during which he was stabbed. He also identified
Long, a man he knew from prison, as one of the individu-
als he was arguing with, as well as another man and a
woman. According to Fluker’s testimony, in the hotel
room ‘‘Long said something about stabbing somebody,
cutting them.’’ Additionally, Wingate was wearing a red
shirt the night of the shooting, which was seized by the
police and introduced into evidence. The victim was
wearing a red shirt when he was shot, which also was
introduced into evidence. These facts, together with
Cadet’s testimony that he told the two men that encoun-
tered him and the victim in the street that they had the
wrong guys, was enough to permit the inference that
the shooter mistook the victim for Wingate. Finally, the
prosecutor’s description of the bar video, specifically
his reference to hand gestures, was supported by both
the video itself and Fluker’s testimony that Long left
the bar because ‘‘[the defendant’s brother] Ron flagged
him to come outside.’’ Accordingly, on the basis of our
thorough review of the record, we conclude that no
prosecutorial impropriety occurred during the prosecu-
tor’s closing arguments because his arguments were
predicated on evidence produced during the trial.
III
The defendant also claims that this court should exer-
cise its supervisory powers and set aside his conviction
due to deliberate prosecutorial impropriety. We decline
that request.
‘‘[I]n considering claims of prosecutorial [impropri-
ety], we apply a due process analysis and consider
whether the defendant was deprived of a fair trial. . . .
A different standard is applied, however, when the claim
involves deliberate prosecutorial [impropriety] during
trial which violates express court rulings . . . . When
such an allegation has been made, we must determine
whether the challenged argument was unduly offensive
to the maintenance of a sound judicial process. . . . If
we answer that question in the affirmative, we may
invoke our supervisory powers to reverse the defen-
dant’s conviction. . . . In determining whether the use
of our supervisory powers to reverse a conviction is
appropriate, we consider whether the effect of the chal-
lenged remark was to undermine the authority of the
trial court’s ruling . . . . We also consider the degree
of prejudice suffered by the defendant as a result of
the remark. . . .
‘‘Our Supreme Court . . . has urged a cautionary
approach in this regard, noting that [r]eversal of a con-
viction under our supervisory powers . . . should not
be undertaken without balancing all of the interests
involved: the extent of prejudice to the defendant; the
emotional trauma to the victims or others likely to result
from reliving their experiences at a new trial; the practi-
cal problems of memory loss and unavailability of wit-
nesses after much time has elapsed; and the availability
of other sanctions for such [impropriety]. . . .
‘‘In State v. Ubaldi, 190 Conn. 559, 462 A.2d 1001,
cert. denied, 464 U.S. 916, 104 S. Ct. 280, 78 L. Ed.
2d 259 (1983), our Supreme Court first enunciated the
principles relevant to claims of deliberate prosecutorial
impropriety in violation of a trial court’s ruling. Our
Supreme Court held that, where such impropriety has
occurred, an appellate court may exercise its inherent
supervisory authority over the administration of justice
to defend the integrity of the judicial system. . . . The
court blatantly rejected the argument that it could upset
a criminal conviction on account of prosecutorial
impropriety only where such conduct had deprived the
defendant of his constitutional right to a fair trial. . . .
Instead, the court recognized that, given the proper
circumstances and regardless of whether deliberate
impropriety deprived a defendant of a fair trial, the
drastic step of upsetting a criminal conviction might be
necessary to deter conduct undermining the integrity of
the judicial system. . . . Thus, after weighing relevant
considerations, the court placed a primacy upon its
responsibility for the enforcement of court rules in pros-
ecutorial [impropriety] cases and for preventing
assaults on the integrity of the tribunal. . . . The court
reasoned that it had an obligation to deter purposeful
impropriety and concluded that reversal in cases involv-
ing such deliberate conduct may be warranted even
where a new trial is not constitutionally mandated. . . .
Hence, the touchstone of our analysis in a claim of this
nature is not the fairness of the trial but the existence of
[impropriety] that deliberately circumvents trial court
rulings.’’ (Internal quotation marks omitted.) State v.
Reynolds, 118 Conn. App. 278, 296–98, 983 A.2d 874
(2009), cert. denied, 294 Conn. 933, 987 A.2d 1029
(2010).
The defendant maintains that the prosecutor engaged
in impropriety based on his ‘‘repeated noncompliance
with the trial court’s explicit and unambiguous order’’
and ‘‘his flippant response to the trial court when the
defendant objected to the repeated attempts to get
Long’s statement before the jury.’’ We disagree.
Although the defendant contends that the court’s order
was explicit and unambiguous, the only statement of
the court that the defendant references in his appellate
brief is the court’s statement, ‘‘Well, hold on. If you
wish to be heard further, maybe this is something that
should be done outside of the presence of the jury.’’
The defendant also cites the prosecutor’s response to
that inquiry in which he stated, ‘‘It’s the court’s pleasure;
I don’t mind doing it in front of them.’’ The statement
by the court on which the defendant relies as an explicit
order seems to be phrased as a suggestion or even
a question posed to the prosecutor. Furthermore, as
previously noted, the court did not expressly forbid the
prosecutor from continuing on his line of questioning
with respect to Long’s statement to the defendant, but,
rather, the court sustained various hearsay objections
that defense counsel made throughout the prosecutor’s
examination of the witness. Moreover, as previously
discussed, the court did not admonish the prosecutor
or reprimand him in any other way. Accordingly, it
cannot be said that the prosecutor defied an order of
the court. We thus decline to exercise our supervisory
powers as there is no basis to do so.
The judgment is affirmed.
In this opinion the other judges concurred.
1
General Statutes § 53a-54a (a) provides in relevant part: ‘‘A person is
guilty of murder when, with intent to cause the death of another person,
he causes the death of such person or of a third person . . . .’’
2
General Statutes § 53a-49 (a) provides in relevant part: ‘‘A person is
guilty of an attempt to commit a crime if, acting with the kind of mental
state required for commission of the crime, he: (1) Intentionally engages in
conduct which would constitute the crime if attendant circumstances were
as he believes them to be . . . .’’
3
The state argues that the defendant’s claim is unpreserved because he
is not challenging the court’s denial of his motion based on the overall
sufficiency of the state’s evidence, but, rather, he is arguing that his motion
should have been granted because it was physically impossible for the
defendant to have been at the scene at the time of the shooting and that
Fluker and Karr were not credible witnesses. We conclude, however, that
the defendant sufficiently preserved this claim in his motion for a new trial
in which he contended that ‘‘[t]here was insufficient evidence to support
the jury’s finding inasmuch as the defendant demonstrated through scientific
evidence and the various times of the day within the state’s evidence that
the allegations offered by the state could not have happened.’’
4
On direct examination of Karr by the prosecutor the following
exchange occurred:
‘‘Q. After the man fell and the men are back in the car, did you see [the
defendant] with the gun?
‘‘A. In the backseat, yeah. . . .
‘‘Q. Did [the defendant] have the gun when he got back in the car?
‘‘A. I believe so, yeah.
‘‘Q. Is that a yes?
‘‘A. Yes. . . .
‘‘Q. When you saw the body fall, could you, in that immediate time, see
one of the men with a gun?
‘‘A. When they got back in the car, yeah, [the defendant] had the gun.
‘‘Q. [The defendant] had the gun when he got back in the car?
‘‘A. Mm-hmm.’’
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[Cite as Kidz Bop L.L.C. v. Broadhead, 2015-Ohio-3744.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
KIDZ BOP LLC, : APPEAL NO. C-140686
TRIAL NO. A-1207241
Plaintiff-Appellee, :
O P I N I O N.
vs. :
PAUL BROADHEAD, JR., :
Defendant-Appellant, :
and :
PB&K MEDIA, LLC, et al., :
Defendants. :
Civil Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: September 16, 2015
Buckley King LPA and Jeffrey R. Teeters, for Plaintiff-Appellee,
McHard & Associates, PLLC, and P. Manion Anderson, and Droder & Miller Co.,
L.P.A., and Christopher J. Wise, for Defendant-Appellant.
Please note: this case has been removed from the accelerated calendar.
OHIO FIRST DISTRICT COURT OF APPEALS
F ISCHER , Judge.
{¶1} Defendant-appellant Paul Broadhead, Jr., appeals from the trial
court’s decision overruling his Civ.R. 60(B) motion for relief from judgment. We
find no merit in his sole assignment of error, and we affirm the trial court’s
judgment.
{¶2} The record shows that on September 14, 2012, Kidz Bop filed a
complaint for breach of contract and fraud against Broadhead and two other
defendants. On May 31, 2013, Broadhead’s counsel filed a motion to withdraw
stating that he had Broadhead’s “informed consent” to withdraw on the ground that
Broadhead was “unable to meet [his] financial obligations.” The trial court did not
immediately rule on the motion due to discovery disputes.
{¶3} Before the trial court ruled on the motion to withdraw, Kidz Bop filed a
motion for summary judgment. Subsequently, the trial court granted the motion to
withdraw and ordered counsel to advise Broadhead that he could represent himself,
but that he would be “bound by the same rules of conduct as counsel.”
{¶4} On July 17, 2013, Broadhead failed to appear for a deposition and for a
status conference that the trial court had ordered him to attend. He also failed to
respond to Kidz Bop’s motion for summary judgment even though the court had
extended the deadline.
{¶5} On August 29, 2013, Broadhead appeared for a hearing on Kidz Bop’s
motion for summary judgment. He claimed that he had no knowledge of the motion
because he had been in Central America doing humanitarian work. The trial court
found that his claim that he did not know about the motion was disingenuous.
Nevertheless, the court allowed him to respond out of time and supplement the
2
OHIO FIRST DISTRICT COURT OF APPEALS
record. In response, Broadhead sent two emails to the trial court which were not
appropriate evidentiary materials under Civ.R. 56(C).
{¶6} The trial court granted Kidz Bop’s motion for summary judgment.
Broadhead did not appeal that judgment, and Kidz Bop began collection efforts. He
did not comply with a subpoena served on him for a judgment-debtor examination.
He obtained counsel, and a new date for the examination was set. But counsel later
stated that Broadhead would not attend the examination.
{¶7} On September 15, 2014, Broadhead filed a Civ.R. 60(B) motion for
relief from judgment. He contended that he did not respond to the motion for
summary judgment because he did not know about the motion, and that, as a pro se
litigant, he was unaware of the proper procedure to respond to the motion.
{¶8} The trial court overruled the motion, finding that Broadhead had failed
to establish excusable neglect. As to his claim that he did not know about the
summary-judgment motion, the trial court stated, “[T]he record in this case presents
a contrary picture, suggesting that his testimony that he had no knowledge of a
motion for summary judgment is not true.” The court further stated that “to say he
did not have notice of what was required was disingenuous at best. The court
explained to him what he needed to do, and as a pro se litigant he is held to the same
standard as an attorney.” This appeal followed.
{¶9} In his sole assignment of error, Broadhead contends that the trial
court erred in overruling his motion. He argues that he proved he was entitled to
relief under Civ.R. 60(B), including establishing the grounds under both Civ.R.
60(B)(1) and Civ.R. 60(B)(5). This assignment of error is not well taken.
{¶10} To prevail on a Civ.R. 60(B) motion for relief from judgment, the
moving party bears the burden to demonstrate that (1) the party has a meritorious
3
OHIO FIRST DISTRICT COURT OF APPEALS
defense or claim to present if relief is granted; (2) the party is entitled to relief under
one of the grounds stated in Civ.R. 60(B)(1) through (5); and (3) the motion is timely
made. GTE Automatic Elec., Inc. v. ARC Industries, Inc., 47 Ohio St.2d 146, 351
N.E.2d 113 (1976), paragraph two of the syllabus; Kell v. Verderber, 1st Dist.
Hamilton No. C-120665, 2013-Ohio-4223, ¶ 35. The decision whether to grant relief
from judgment lies within the trial court’s discretion. Rose Chevrolet, Inc. v. Adams,
36 Ohio St.3d 17, 20, 520 N.E.2d 564 (1988); Kell at ¶ 35.
{¶11} Broadhead relies on Civ.R. 60(B)(1), which allows a court to grant
relief from judgment on the grounds of “mistake, inadvertence, surprise or excusable
neglect.” Courts have defined excusable neglect in the negative, stating that a party’s
inaction is not excusable neglect when it shows “a complete disregard for the judicial
system” or when the party’s conduct falls substantially below what is reasonable
under the circumstances. State ex rel. Jackson v. Ohio Adult Parole Auth., 140 Ohio
St.3d 23, 2014-Ohio-2353, 14 N.E.3d 1003, ¶ 23-25; Heard v. Dubose, 1st Dist.
Hamilton No. C-060265, 2007-Ohio-551, ¶ 19.
{¶12} The trial court did not abuse its discretion in determining that
Broadhead had failed to show excusable neglect. See State ex rel. Jackson at ¶ 22.
Broadhead argues that his counsel withdrew, that he was acting pro se, and that he
was unaware of the procedure to be followed to oppose the motion for summary
judgment.
{¶13} Pro se litigants are bound by the same rules and procedures as those
litigants who retain counsel. Parallel Homes, LLC v. Stephens, 1st Dist. Hamilton
No. C-130292, 2014-Ohio-840, ¶ 15. A pro se litigant’s lack of knowledge of proper
legal procedure does not constitute excusable neglect. Sunshine Ltd. v. Kidztown
Early Learning Ctr., 8th Dist. Cuyahoga No. 98879, 2013-Ohio-2092, ¶ 15. Courts
generally do not permit pro se litigants who are careless or unfamiliar with the legal
4
OHIO FIRST DISTRICT COURT OF APPEALS
system to use Civ.R. 60(B)(1) to obtain relief from judgment. DJL, Inc. v.
Massingille, 8th Dist. Cuyahoga No. 96644, 2011-Ohio-6281, ¶ 24.
{¶14} Broadhead chose to proceed pro se. The trial court warned Broadhead
that he would be bound by the same rules as counsel. “The court need not act as a
pro se litigant’s counsel.” Washington v. St. Paul Fire & Marine Ins. Co., 6th Dist.
Lucas No. L-88-306, 1989 Ohio App. LEXIS 3818, *4 (Oct. 6, 1989). This case
demonstrates that it is rarely wise for litigants to represent themselves and shows the
importance of competent counsel even in civil cases. See generally Faretta v.
California, 422 U.S. 806, 832-835, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975).
{¶15} Further, the record shows that Broadhead’s conduct was not solely the
result of unfamiliarity with the legal system. As the trial court noted, he was less
than candid with the trial court on several occasions. The record shows that his
failure to respond to the motion for summary judgment was not reasonable under
the circumstances, and therefore, did not constitute excusable neglect.
{¶16} Broadhead also contends that he was entitled to relief from judgment
under Civ.R. 60(B)(5), the “catch-all” provision. But the grounds for invoking that
provision must be substantial, and it cannot be used as a substitute for any of the
more specific provisions of Civ.R. 60(B). Caruso-Ciresi, Inc. v. Lohman, 5 Ohio
St.3d 64, 448 N.E.2d 1365 (1983), paragraphs one and two of the syllabus; Kell, 1st
Dist. Hamilton No. C-120665, 2013-Ohio-4223, at ¶ 36. Public policy favors the
finality of judgments, and this case does not present the exceptional circumstances
necessary to afford relief from judgment under Civ.R. 60(B)(5). See Said v. Admr.,
Ohio Bureau of Workers’ Comp., 1st Dist. Hamilton Nos. C-130355 and C-130360,
2014-Ohio-841, ¶ 15.
{¶17} Broadhead is using his Civ.R. 60(B) motion to collaterally attack the
trial court’s decision granting summary judgment in favor of Kidz Bop. He should
have appealed that decision, and he cannot use a Civ.R. 60(B) motion as a substitute
5
OHIO FIRST DISTRICT COURT OF APPEALS
for a timely appeal. See Doe v. Trumbull Cty. Children Servs. Bd., 28 Ohio St.3d
128, 502 N.E.2d 605 (1986), paragraph two of the syllabus; Internatl. Lottery v.
Kerouac, 102 Ohio App.3d 660, 668, 657 N.E.2d 820 (1st Dist.1995). Consequently,
we overrule Broadhead’s assignment of error and affirm the trial court’s judgment.
Judgment affirmed.
H ENDON , P.J., and D E W INE , J., concur.
Please note:
The court has recorded its own entry this date.
6
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NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
STATE OF FLORIDA, )
)
Appellant, )
)
v. ) Case No. 2D16-5322
)
KEVIN RATLIFF, )
)
Appellee. )
___________________________________)
Opinion filed July 19, 2019.
Appeal from the Circuit Court for Pinellas
County; William H. Burgess, III, Judge.
Ashley Moody, Attorney General,
Tallahassee, and Kiersten E. Jensen,
Assistant Attorney General, Tampa,
for Appellant.
Howard L. Dimmig, II, Public Defender,
and Maureen E. Surber, Assistant Public
Defender, Bartow, for Appellee.
ON REMAND FROM THE SUPREME COURT OF FLORIDA
PER CURIAM.
This case is before the court on remand from the Supreme Court of
Florida, which quashed this court's opinion and remanded for reconsideration in light of
Franklin v. State, 258 So. 3d 1239 (Fla. 2018), and State v. Michel, 257 So. 3d 3 (Fla.
2018), cert. denied, 139 S. Ct. 1401 (2019). See State v. Ratliff, No. SC17-2037, 2019
WL 1983467, at *1 (Fla. May 3, 2019). We reverse.
The State appeals a postconviction order declaring unconstitutional two
life sentences for the crimes of first-degree murder and attempted first-degree murder
committed by Kevin Ratliff when he was a juvenile. The postconviction court granted
relief under Miller v. Alabama, 567 U.S. 460 (2012), and Graham v. Florida, 560 U.S. 48
(2010), as interpreted in Atwell v. State, 197 So. 3d 1040 (Fla. 2016). However, in
Franklin and Michel, the supreme court concluded that Atwell was wrongly decided.
Franklin, 258 So. 3d at 1241; Michel, 257 So. 3d at 6-7. Because Ratliff is eligible for
parole, his life sentences are not unconstitutional under Miller and Graham. See
Franklin, 258 So. 3d at 1241; Michel, 257 So. 3d at 6. We therefore reverse the
postconviction court's order.
Reversed.
NORTHCUTT, SILBERMAN, and MORRIS, JJ., Concur.
-2-
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838 F.2d 1222Unpublished Disposition
NOTICE: Federal Circuit Local Rule 47.8(b) states that opinions and orders which are designated as not citable as precedent shall not be employed or cited as precedent. This does not preclude assertion of issues of claim preclusion, issue preclusion, judicial estoppel, law of the case or the like based on a decision of the Court rendered in a nonprecedential opinion or order.CLEAN-TEX A/S, Plaintiff-Appellant,v.KLEEN-TEX INDUSTRIES, INC., Defendant/Cross-Appellant.
Nos. 87-1323, 87-1342.
United States Court of Appeals, Federal Circuit.
Jan. 19, 1988.
Before ARCHER, Circuit Judge, BALDWIN, Senior Circuit Judge, and MAYER, Circuit Judge.
ARCHER, Circuit Judge.
DECISION
1
The judgment of the United States District Court for the Northern District of Georgia finding that Kleen-Tex Industries, Inc. (Kleen-Tex) did not infringe U.S. Patent No. 4,439,475 ('475 patent) is affirmed. The denial of attorney fees to Kleen-Tex under 325 U.S.C. Sec. 285 (1982) is also affirmed.
OPINION
2
Clean-Tex A/S (Clean-Tex), the assignee of the '475 patent to Lang, sued Kleen-Tex for infringement of that patent. The claims of the '475 patent are directed toward a floor mat or carpet with a rubber backing that has a plurality of perforations, which are defined in independent claim 1 as being "normally closed and ... opened upon the application of a pressing force on the face side." Dependent claim 2 recites that the "perforations are formed to have a valve function." This structure permits water to escape when the mat is placed in a centrifugal contractor during the laundering process.
3
The district court found that Kleen-Tex markets floor mats with a rubber backing that also has small perforations to enable fluid to escape during laundering.
I. Literal Infringement
4
The district court construed the claims in the '475 patent as being limited to "rubber backed mats with a plurality of perforations which remain physically closed when in their normal plane position of use but physically open upon the application of a pressing force." The court found that the Kleen-Tex mats "have perforations that are normally closed and do not behave like valves;" rather such perforations are "permanently open and do not permit the passage of water under normal conditions of use because of the surface tension of the water." Accordingly the court held that the Kleen-Tex mats do not literally infringe the '475 patent.
5
The district court's construction of the claims is reviewable on appeal as a matter of law. Its findings on infringement are factual determinations and will not be disturbed on appeal unless shown to be clearly erroneous. (Palumbo v. Don-Joy Co., 762 F.2d 969, 974, 226 USPQ 5, 7-8 (Fed.Cir.1985).
6
Here the meaning of the phrase "normally closed ... and opened" was in controversy. The district court properly looked to the prosecution history to interpret this phrase. During the prosecution, original claim 10 of the '475 patent was rejected on the basis that it would have been obvious to form perforations that are "liquid permeable when subjected to a force and ... otherwise liquid impermeable by liquids." In response to this rejection the original claims were cancelled and new claims were added resulting in the elimination of the recitation liquid "permeable"/"impermeable" in favor of the "normally closed ... and opened" recitation. Thus, "normally closed ... opened" was distinguished from, or was more narrow than, the permeable/impermeable recitation. Further, in its request for reexamination, Clean-Tex argued in distinguishing previously uncited patents that all of the claims of the '475 patent, including claim 1, described perforations which "function as valves." We cannot say that the district court's finding that the phrase "normally closed ... opened" in claim 1 means physically closed and opened is erroneous.
7
Clean-Tex argues that the district court erred in construing claim 1 because in concluding that a physical opening and closing is claimed, the court, in effect, determined that the openings function as valves. The functioning as valves recitation appears in claim 2 and, according to Clean-Tex, it may not properly be read into claim 1. While we agree that limitations may not be read from one claim into another, D.M.I., Inc. v. Deere & Co., 755 F.2d 1570, 1574, 225 USPQ 236, 239 (Fed.Cir.1985), the district court did not do so in this case. The mere fact that two claims, properly construed, may be substantially identical does not mean that limitations have been read from one claim into another. Frequently, the claims of a patent may claim the same invention in different words. Tandon Corp. v. U.S. International Trade Commission, 831 F.2d 1017, 1023, 4 USPQ2d 1283, 1288 (Fed.Cir.1987).
II. Doctrine of Equivalents
8
The district court properly recognized that, when literal infringement is not found, the doctrine of equivalents comes into play. Under the three pronged analysis from Graver Tank & Mfg. Co. v. Linde Air Products Co., 339 U.S. 605, 608-09, 85 USPQ 328, 330 (1950), it must be determined whether the accused device performs substantially the same function, in substantially the same way to achieve substantially the same result as the patented invention.
9
The district court found that Kleen-Tex mats do not infringe the claimed mats under the doctrine of equivalents, because they do not function in substantially the same manner. In its analysis, the court properly looked to the prosecution history to determine the scope of the equivalents to which the claimed mats were entitled. Locite Corp. v. Ultraseal Ltd., 781 F.2d 861, 870, 228 USPQ 90, 96 (Fed.Cir.1986) ("prosecution history estoppel will not allow the patentee to recapture through equivalence certain coverage given up during prosecution"). Based on the prosecution history, the district court held that Clean-Tex could not broaden the scope of its claims to include mats having perforations which do not physically open and close. Whether two devices function as equivalents is a factual inquiry, Raytheon Co. v. Roper Corp., 724 F.2d 951, 961 220 USPQ 592, 600 (Fed.Cir.1983), and the district court's determination in this regard is not clearly erroneous.
III. Attorney's Fees
10
In its cross-appeal, Kleen-Tex contends that the case should be remanded because the trial court erred in failing to consider the question of attorney fees within the context of Clean-Text's alleged lack of candor in dealing with the Patent and Trademark Office. The district court in denying attorney fees under 35 U.S.C. Sec. 285 (1982) explicitly stated that it did not find "the extraordinary misconduct necessary to justify an award of attorney's fees." In order to prevail on its cross appeal, Kleen-Tex must establish that the district court was clearly erroneous in finding this not to be an exceptional case. Reactive Metals and Alloys Corp. v. ESM, Inc., 769 F.2d 1578, 1582, 226 USPQ 821, 824 (Fed.Cir.1985). Kleen-Tex has not demonstrated that such finding was clearly erroneous, having only referred generally to "lack of candor." Generalized allegations are insufficient to permit us to disturb the district court's findings.
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888 F.2d 1385Unpublished Disposition
NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.Ty'ree CRAWFORD, Petitioner-Appellant,v.WARDEN, MARYLAND PENITENTIARY, Respondent-Appellee.
No. 89-6511.
United States Court of Appeals, Fourth Circuit.
Submitted Sept. 15, 1989.Decided Oct. 10, 1989.
Ty'ree Crawford, appellant pro se.
Valerie Johnston Smith, John S. Bainbridge, Jr., John Joseph Curran, Jr., Office of the Attorney General of Maryland, for appellee.
PER CURIAM:
1
Ty'ree Crawford seeks to appeal the district court's order refusing habeas corpus relief pursuant to 28 U.S.C. Sec. 2254. Our review of the record and the district court's opinion discloses that this appeal is without merit. Accordingly, we deny a certificate of probable cause to appeal and dismiss the appeal on the reasoning of the district court. Crawford v. Warden, CA-87-1004-K (D.Md. Dec. 8, 1988). 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.
2
DISMISSED.
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787 F.Supp. 970 (1992)
Bret TANBERG, Plaintiff,
v.
The WELD COUNTY SHERIFF, Defendant.
Civ. A. No. 91-B-248.
United States District Court, D. Colorado.
March 18, 1992.
*971 Lynn L. Palma, Denver, Colo., Michael Travis Isbell, Lambda Legal Defense and Educ. Fund, Inc., New York City, for plaintiff.
Thomas Lyons, Cathy H. Greer, Hall & Evans, Denver, Colo., Bruce T. Barker, Asst. County Atty., Greeley, Colo., for defendant.
MEMORANDUM OPINION AND ORDER
BABCOCK, District Judge.
I. INTRODUCTION
This is an action filed under the Federal Rehabilitation Act (29 U.S.C. § 794 (1988)) (the Act). Federal question jurisdiction exists under 28 U.S.C. § 1331 (1980). Defendant Weld County Sheriff's Department (the Department) moves for partial summary judgment regarding compensatory damages. Plaintiff Bret Tanberg (Tanberg) moves for summary judgment on liability, to remove the use of the pseudonym, and for a protective order. I will deny the Department's motion for partial summary *972 judgment because compensatory damages are available for Tanberg's claim under the Act. Also, because there are disputed material facts surrounding the Department's reasons for terminating Tanberg, I will deny his motion for summary judgment. I will grant in part and deny in part Tanberg's remaining procedural motions.
Tanberg was a volunteer reserve deputy for the Department from May 1988 until he was discharged on February 16, 1990. Tanberg alleges that he was discharged because he tested positive for the Human Immunodeficiency Virus (HIV). He asserts claims against the Department under the Federal Rehabilitation Act and Colorado's anti-discrimination employment laws (§ 24-34-402 10B C.R.S. (1988 Repl.Vol.)). In addition to reinstatement and injunctive relief calling for the implementation of an AIDS education and awareness program at the Department, Tanberg seeks compensatory damages for loss of employment opportunities, emotional distress, and pain and suffering.
II. THE DEPARTMENT'S MOTION FOR SUMMARY JUDGMENT ON COMPENSATORY DAMAGES
The Department contends that compensatory damages are unavailable under the Act. Although the Act does not specify whether a claimant can recover compensatory damages, it provides that the remedies available under Title VI of the Civil Rights Act of 1964 (42 U.S.C. § 2000d et seq.) (Title VI) shall be available to any person aggrieved under the Act. 29 U.S.C. § 794a(a)(2) (1978). No remedies, however, are specified under Title VI.
Franklin v. Gwinnett County Public Schools, ___ U.S. ___, 112 S.Ct. 1028, 117 L.Ed.2d 208 (1992) provides dispositive analysis for determining whether compensatory damages are obtainable under the Act. Franklin holds that compensatory damages are available to a claimant under Title IX of the Education Amendments of 1972, 20 U.S.C. §§ 1681-1688 (Title IX). Title IX, like the Act and Title VI, is silent as to the remedies available to a claimant.
In determining what remedies are available under Title IX, the Court began its analysis with the deeply rooted presumption that "where legal rights have been invaded, and a federal statute provides for a general right to sue for such invasion", all appropriate remedies are available to a claimant unless Congress expressly indicates otherwise. Franklin, ___ U.S. at ___, 112 S.Ct. at 1033. After concluding that Congress has not expressly forbidden compensatory damages in Title IX actions, the Court held that compensatory damages are available for a Title IX violation. Franklin, ___ U.S. at ___, 112 S.Ct. at 1036.
Once the Court determined that compensatory damages are available under Title IX, it analyzed whether they are an appropriate remedy. Compensatory damages were held to be appropriate in Franklin because the sexual harassment alleged was an intentional act of discrimination under Title IX and compensatory damages are appropriate to redress intentional acts of discrimination. Franklin, ___ U.S. at ___, 112 S.Ct. at 1037. The Court also noted that "[u]nder ordinary convention, the proper inquiry would be whether monetary damages provided an adequate remedy, and if not, whether equitable remedies would be appropriate." Franklin, ___ U.S. at ___, 112 S.Ct. at 1038. The Court concluded that monetary damages were appropriate because the equitable remedies of backpay and prospective relief would not redress adequately the sexual harassment suffered by the plaintiff. Franklin, ___ U.S. at ___, 112 S.Ct. at 1038.
Here, as in Franklin, Tanberg's claim arises under a federal statute that does not specify the relief obtainable. However, because Tanberg has a right to sue under the Act for the discrimination alleged, any appropriate remedy, including compensatory damages, is available to "make good the wrong done". Franklin, ___ U.S. at ___, 112 S.Ct. at 1033. Furthermore, Congress has not expressly disallowed compensatory damages under the Act. It is thus clear that compensatory damages are not prohibited here.
*973 The issue then is whether compensatory damages are an appropriate remedy in this case. I conclude that they are appropriate.
The Franklin Court held that compensatory damages were appropriate to redress the plaintiff's injuries because the sexual harassment alleged there was an act of intentional discrimination under Title IX. See Franklin, ___ U.S. at ___, 112 S.Ct. at 1037. Tanberg stated at oral argument that he is prepared to prove the Department intentionally discriminated against him because of his HIV status. Consequently, as in Franklin, compensatory damages are obtainable if Tanberg proves intentional discrimination under the Act.
The adequacy of compensatory damages is also considered before appraising the sufficiency of equitable remedies. Franklin, ___ U.S. at ___, 112 S.Ct. at 1038. Money damages would be adequate to compensate Tanberg for the alleged loss of professional opportunity, mental anguish, pain, and suffering he allegedly experienced as a result of the claimed violation of the Act.
Moreover, without limiting Tanberg to compensatory damages alone, money damages tend to redress his alleged discrimination better than the equitable remedies he seeks. At oral argument Tanberg stated that reinstatement may not be feasible because of his deteriorating physical condition. Nor is Tanberg's request that the Department implement an AIDS awareness and education program a better remedy than compensatory damages. Although such programs may be beneficial to society, any added awareness or knowledge about AIDS within the Department fostered by such an awareness program would not remedy Tanberg's claimed injuries because he no longer works for the Department. Therefore, the money damages Tanberg seeks are appropriate to redress the wrong alleged here.
Finally, allowing Tanberg to recover compensatory damages is consistent with the following 1986 amendment to the Civil Rights Act of 1964:
(1) A State shall not be immune under the Eleventh Amendment of the Constitution of the United States from suit in Federal court for a violation of Section 794 of Title 29 ...
(2) In a suit against a State for a violation of a statute referred to in paragraph (1), remedies (including remedies both at law and in equity) are available for such a violation to the same extent as such remedies are available for such a violation in the suit against any public or private entity other than a State.
42 U.S.C. § 2000d-7 (1986) (emphasis added).
The concurring opinion in Franklin interprets these subsections as implicitly acknowledging that damages are available under the 1964 Civil Rights Act. Franklin, ___ U.S. at ___, 112 S.Ct. at 1038 (Scalia, J., concurring). Because remedies under the Act are governed by this provision, it follows that compensatory damages are available here.
I conclude that because Congress has not expressly prohibited compensatory damages under the Act and because compensatory damages are an appropriate remedy to redress the intentional violation alleged here, Tanberg's claim for compensatory damages will stand. Therefore, the Department's motion for partial summary judgment is denied.
III. TANBERG'S MOTION FOR SUMMARY JUDGMENT ON LIABILITY
A. Summary judgment standards
Summary judgment shall be granted if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R.Civ.P. 56(c). Where, as here, a plaintiff moves for summary judgment it bears the following burden:
If the moving party will bear the burden of persuasion at trial, that party must support its motion with credible evidenceusing any of the materials specified in Rule 56(c) that would entitle it to a directed verdict if not controverted at trial.... Such an affirmative showing shifts the burden of production to the *974 party opposing the motion and requires that party ... to produce evidentiary materials that demonstrate the existence of a "genuine fact" for trial.
Anderson v. Department of Mental Health & Human Services, 907 F.2d 936, 947 (10th Cir.1990) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 331, 106 S.Ct. 2548, 2557, 91 L.Ed.2d 265 (1986) (White, J. concurring) (emphasis in original)).
B. Federal Rehabilitation Act
Tanberg asserts that there are no controverted facts and he is entitled to judgment as a matter of law on his claim under the Act and Colorado's anti-discrimination laws. To the contrary, except for the question of federal financial assistance, the Department has demonstrated that genuine issues of material fact remain for trial.
Under the Act it is unlawful to exclude any otherwise qualified handicapped person, as defined in 29 U.S.C. § 706(8), from participating in any program or activity receiving federal financial assistance solely because of handicap. 29 U.S.C. § 794(a). To prove a claim under the Act, a plaintiff must first show that he is otherwise qualified for the position despite his handicap but was rejected under circumstances giving rise to an inference of rejection based solely on his handicap. Pushkin v. Regents of University of Colorado, 658 F.2d 1372, 1387 (10th Cir.1981). Once a plaintiff satisfies this burden, a defendant has the burden of proving that the plaintiff was not an otherwise qualified handicapped person or rejection from the program for reasons other than his handicap. Pushkin, 658 F.2d at 1387. If a defendant satisfies this burden, then a claimant has the burden of going forward with rebuttal evidence showing that the defendant's reasons for rejecting plaintiff are based on misconceptions or unfounded factual conclusions and the reasons articulated for the rejection, other than the handicap, encompass unjustified consideration of the handicap itself. Pushkin, 658 F.2d at 1387.
C. Federal Financial Assistance
The Department's contention to the contrary notwithstanding, I conclude that it receives federal financial assistance and, therefore, is subject to the Act. The Act prohibits "any program or activity receiving federal financial assistance" from discriminating against people with handicaps. 29 U.S.C. § 794(a). As a department or instrumentality of a state or local government, the Department is a program or activity under the Act. 29 U.S.C. § 794(b)(1)(A).
If any part of the Department receives federal financial assistance, the whole entity is deemed to be a program receiving federal financial assistance under 29 U.S.C. § 794(b). Furthermore, such federal assistance can be passed to the Department through a state or local government. 29 U.S.C. § 794(b)(1)(B). The Department's comprehensive annual financial reports show that it received federal grants from 1988 through 1990. (Don Warden Depo. at 29:6-16; 52:12-54:24.) This evidence is uncontroverted and, thus, suffices to establish as a matter of law that the Department is a program receiving federal financial assistance.
Furthermore, contrary to the Department's contentions, these grants are not compensation from the federal government for services rendered. If a program receives federal funds as compensation, then it is not a federally assisted program under the Act. DeVargas v. Mason & Hanger-Silas Mason Co., Inc., 911 F.2d 1377, 1382 (10th Cir.1990), cert. denied, ___ U.S. ___, 111 S.Ct. 799, 112 L.Ed.2d 860 (1991). A program, however, is covered by the civil rights laws if the federal government intended to subsidize the program. DeVargas, 911 F.2d at 1382. Here the federal government is not purchasing law enforcement services from the Department. Rather, these grants are subsidies.
D. Liability
The Weld County sheriff, undersheriff, and a lieutenant in the Department testified that Tanberg was discharged because he abused his position for personal *975 gain on three occasions and because the manner in which he disclosed his HIV condition caused disruptions within the Department. (Undersheriff Dill Depo. 97:14-100:12, 115:25-116:19.) The first incident relates to a car accident involving Tanberg. Tanberg allegedly filed a harassment complaint against the other driver and sought to use the resources of the Department to investigate the accident to exert pressure on the other driver to settle the personal injury suit. (Dill Depo. 118:19-120:10.) Second, Tanberg allegedly wore his uniform when confronting an individual about payment for a car accident. (Dill Depo. 120:11-121:24; Sheriff Jordan Depo. 58:18-61:10.) Third, Tanberg allegedly did not pay for boarding his dog at a veterinarian's office. He supposedly told the veterinarian that he was participating in an undercover operation for the Department and did not have to pay for boarding his dog. (Dill Depo. 101:25-102:6, 122:11-124:12; Jordan Depo. 19:2-20:3; Lt. Malcom Depo. 58:11-59:19.) Finally, the Department contends that Tanberg used poor judgment in revealing his HIV condition. The Department argues that this disclosure caused disruptions within the Department. (Jordan Depo. 28:1-25, 36:9-37:20; Malcom Depo. 56:8-15.)
Tanberg argues that the non-discriminatory reasons recited by the Department for his discharge are unfounded or based on misconceptions. However, at this summary judgment stage, these deposition supported reasons are sufficient to create a genuine issue as to whether Tanberg was terminated solely because of his handicap. Summary judgment is thus inappropriate on Tanberg's claim under both the Act and Colorado's anti-discrimination laws.
IV. TANBERG'S PROCEDURAL MOTIONS
Tanberg's motion to remove the use of the pseudonym, unopposed by the Department, is granted. Additionally, he seeks a protective order preventing the Department's lawyers from contacting his relatives and personal acquaintances. The Department asserts that their testimony as to Tanberg's mental state and physical condition is relevant to the issue of compensatory damages. Also, there is no evidence that the Department is harassing these prospective witnesses. Because these prospective witnesses may possess relevant, admissible information the Department may continue to contact them for proper purposes.
Tanberg's request, however, that the Department maintain confidentiality of these prospective witnesses' identities is well taken. Accordingly, Tanberg's motion for a protective order is denied to the extent it restrains the Department from contacting prospective witnesses for proper purposes. The motion for protective order is granted to the extent that the Department is restrained from revealing the identities of Tanberg's relatives, former wife, and personal acquaintances.
Accordingly, IT IS ORDERED that:
(1) The Department's February 18, 1992 motion for partial summary judgment IS DENIED;
(2) Tanberg's February 27, 1992 motion for summary judgment, superseding and replacing his February 18, 1992 motion for summary judgment, IS DENIED;
(3) Tanberg's March 13, 1992 motion to remove the use of the pseudonym IS GRANTED; and
(4) Tanberg's March 13, 1992 motion for a protective order IS DENIED IN PART AND GRANTED IN PART.
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172 P.3d 305 (2007)
216 Or. App. 337
RECHT
v.
PARKS AND RECREATION DEPT.
Court of Appeals of Oregon.
November 28, 2007.
Affirmed Without Opinion.
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433 N.W.2d 441 (1988)
Thomas C. HANSING and Thomas C. Hansing on Behalf of himself and all other shareholders of Ben Enterprises, Inc., Appellant,
v.
Bryan McGROARTY, et al., Gary Lego, Respondents,
James Martineau, et al., Defendants,
Ben Enterprises, Inc., Respondent.
No. C5-88-1999.
Court of Appeals of Minnesota.
December 20, 1988.
Petition for Review Denied January 25, 1989.
Jerrold Hartke, So. St. Paul, for appellant.
Gregory A. Fontaine, Minneapolis, for McGroarty, et al.
David A. Brandell, Eden Prairie, for Lego.
*442 William Mullin, Maslon, Edelman, Borman & Brand, Minneapolis, for Martineau, et al.
Wellington Tully, Jr., Minneapolis, for Ben Enterprises, Inc.
Considered at Special Term and decided by WOZNIAK, C.J., and NIERENGARTEN and SHORT, JJ., without oral argument.
SPECIAL TERM OPINION
WOZNIAK, Chief Judge.
FACTS
Appellant's counsel failed to file a note of issue within one year after the summons and complaint in this matter was filed with the trial court, and the case was dismissed by order in May 1987. An appeal was first taken to this court from the order for dismissal, but the proper appeal was from a judgment of dismissal, and we rejected the appeal in August 1987. Months later, appellant's counsel moved the trial court for entry of a judgment. This appeal, from the resulting June 20, 1988 judgment, was served on the last day permitted for appeal from the judgment.
Defendants Martineau and Lindquist & Vennum move to dismiss because they were not served with the appeal papers. Appellant concedes the lack of service, but moves for leave to serve the defendants now, more than two months after the appeal time expired.
DECISION
An appeal may be taken from a final judgment within 90 days after its entry. Minn.R.Civ.App.P. 104.01. The 90th day from June 20, 1988, when a judgment of dismissal was finally entered in this case, was Sunday, September 18, 1988. Because the final day of the appeal period fell on a Sunday, appellant had until Monday, September 19 to perfect the appeal. See Minn. R.Civ.App.P. 126.01; Minn.R.Civ.P. 6.01.
An appeal is
made by filing a notice of appeal with the clerk of the appellate courts. The notice shall contain:
(a) proof of service on the adverse party or parties;
(b) proof of service on the clerk of the trial court in which the judgment or order appealed from is entered or filed;
(c) a statement specifying and describing the judgment or order from which the appeal is taken;
(d) the names, addresses, and telephone numbers of opposing counsel and the parties they represent.
Minn.R.Civ.App.P. 103.01, subd. 1. The notice of appeal filed in this case did not include proof of timely service upon Martineau and Lindquist & Vennum.
Previously, service alone upon adverse parties initiated an appeal, even in the absence of filing with the Clerk of the Appellate Courts. However, timely service on adverse parties has long been jurisdictional. As the 1983 Comment to Rule 103.01 indicates, a notice of appeal now must be served and filed "in order to vest jurisdiction in the Court of Appeals." This court may relieve a party of other errors in the handling of an appeal, provided the party first "files and serves a notice of appeal[.]" Minn.R.Civ.App.P. 103.01, subd. 2 (emphasis added).
Where an appellant fails "to serve respondent with notice of his appeal within the 90 day limit" for appeal from a judgment, "this court has no jurisdiction to consider the matter." Petersen v. Petersen, 352 N.W.2d 797, 797 (Minn.Ct.App. 1984). We may not, as appellant requests, extend the time for appeal. Minn.R.Civ. App.P. 126.02.
While the entire appeal need not be dismissed, our review is limited to issues arising between appellant Hansing and those parties who were timely and properly served with notice of this appeal. Thayer v. Duffy, 240 Minn. 234, 255, 63 N.W.2d 28, 40 (1954). That portion of the appeal which relates to Martineau and Lindquist & Vennum must be dismissed.
*443 Motion to dismiss portion of appeal granted.
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COURT OF APPEALS FOR THE
FIRST DISTRICT OF TEXAS AT HOUSTON
ORDER ON MOTION
Cause number: 01-15-00857-CR
Style: Justin Daren Buxton v. The State of Texas
Date motion filed*: January 20, 2016
Type of motion: First Motion for Extension of Time to File Appellant’s Brief
Party filing motion: Appellant
Document to be filed: Appellant’s Brief
Is appeal accelerated? No.
If motion to extend time:
Original due date: December 31, 2015
Number of extensions granted: 0 Current Due Date: December 31, 2015
Date Requested: April 18, 2016 (109 days from due date)
Ordered that motion is:
Granted in part
If document is to be filed, document due: March 30, 2016.
No further extensions of time will be granted.
Denied
Dismissed (e.g., want of jurisdiction, moot)
Other: _____________________________________
Because appellant’s counsel states that she needs additional time to file appellant’s
brief in this appeal since she has been counsel on an unrelated death penalty case with
a January 20, 2016 execution date and counsel on another capital murder case with a
January 19, 2016 hearing date, her first extension is granted in part for 90 days, but
no further extensions will be granted given the length of the extension. See TEX. R.
APP. P. 10.5(b)(1)(C), 38.6(d). Accordingly, if appellant’s brief is not filed by March
30, 2016, the Court may abate this appeal for a late-brief hearing. See id. 38.8(b)(2).
Judge’s signature: /s/ Evelyn V. Keyes
Date: February 2, 2016
November 7, 2008 Revision
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100 F.Supp.2d 198 (2000)
INTERCARGO INSURANCE CO., Plaintiff,
v.
CONTAINER INNOVATIONS, INC., Defendant.
Container Innovations, Inc., Third-Party Plaintiff,
v.
M/V CAROLINA, her engines, boilers, etc.; Navieras NPR, Inc., Panalpina, Inc.; Old Dominion Freight Line, Inc.; M/V Sea Racer, her engines, boilers, etc., Navylloyd AG; Puerto Rico Freight Systems, Inc.; St. John's Terminal Operating Co., Ltd.; Carribean Maritime Services, Ltd.; and John Does "A Through Z", Third-Party Defendants.
No. 99 Civ. 1158 (JSR).
United States District Court, S.D. New York.
May 22, 2000.
*199 James J. Ruddy, Badiak, Will & Maloof, New York City, for Plaintiff.
David Loh, Nicoletti, Hornig, Campise & Sweeney, New York City, for Defendants.
MEMORANDUM ORDER
RAKOFF, District Judge.
Factually, this case concerns damage to two crates of telecommunication replacement parts shipped from New York to Antigua. Legally, it concerns yet another nuance in the interpretation of the much-litigated liability limitation provision of the United States Carriage of Goods at Sea Act ("COGSA"), 46 U.S.C.App. § 1304(5).
Following discovery, plaintiff and defendant each moved for summary judgment.[1] After review of the parties' written submissions and oral arguments, the Court, in a telephone conference held December 6, 1999, informed counsel that defendant's motion would be granted and plaintiff's motion denied in a written opinion to follow. With apologies to counsel for the delay in the follow-up, the Court hereby confirms those rulings and herewith states the reasons therefor.
The pertinent facts, either undisputed or taken most favorably to plaintiffs, are as follows:
In or around early 1998, a company called Tecore, Inc., which owned the telecommunication parts here at issue, see Pl. 56.1 Stmts. ¶ 3; Def. 56.1 Stmts. ¶ 1, contracted with Panalpina, Inc., a large freight forwarder, to arrange the shipment of the parts from New York to Antigua. See Def. 56.1 Stmts. ¶ 2. Panalpina, as Tecore's agent, then arranged for another freight forwarder, defendant Container Innovations, Inc. ("Container"), to consolidate the shipment with other cargo and arrange for its actual delivery. See Aff. of Mark Carrerra ¶¶ 2, 7, 9; Panalpina Decl. at ¶ 6. Panalpina inquired about Container's rates for insuring the parts, but decided instead to have the shipment insured by plaintiff, Intercargo Insurance Co. ("Intercargo"). See Def. 56.1 Stmt. ¶¶ 5-9, 11.
On March 13, 1998, Container received the shipment and issued a bill of lading for 3 crates, 1 skid, and 6 rolls or 10 "packages" in all to be delivered to Observer Communications in St. John's, Antigua. See Pl. 56.1 Stmt. ¶¶ 1-4; Pl.Ex. 3 (Bill of Lading); Def. Amended Response to Pl. *200 56.1 Stmts. ¶ 4. The goods arrived in Antigua on March 31, 1998, and were released the next day for pickup by the consignee (Observer) or the consignee's agent. See Third Party Def. Mem. of Law at 1; Padilla Decl. Ex. 7. The parts remained at the Antigua Port Authority until April 21, 1998, at which point they were picked up by Nesbitt Trucking. See Third Party Def. Mem. of Law at 1; Padilla Decl. Exs. 9-10. At that point, two crates were found to be damaged. See Third Party Def. Mem. of Law at 1; Padilla Decl. Exs. 9-10.[2]
Intercargo, as insurer of the goods, thereupon arranged for the damaged crates to be inspected by a technical consultant, who found that the "8 Channel Base Station" in one of the damaged crates was damaged beyond repair but that the "24 Channel Base Station" in the other damaged crate had suffered only minor damage. See Pl. 56.1 Stmt ¶¶ 7-8; Pl.Ex. 8. Based on this assessment, Intercargo paid Tecore $42,093.64 after application of the deductible and salvage costs. See Pl. 56.1 Stmt. ¶ 10; Pl.Ex. 9. Intercargo then brought the present action against Container to recover the amount paid to Tecore. Container responded by claiming, inter alia, that under COGSA its liability is limited to $500 per package (here $1,000 since two of the packages were damaged).
COGSA "applies ex proprio vigore to all contracts for carriage of goods by sea between the ports of the United States and the ports of foreign countries." Nippon Fire & Marine Insurance Co. v. M.V. Tourcoing, 167 F.3d 99, 100 (2d Cir.1999) (per curiam). The provision of COGSA here pertinent states that:
Neither the carrier nor the ship shall in any event be or become liable for any loss or damage to or in connection with the transportation of goods in an amount exceeding $500 per package ... or in case of goods not shipped in packages, per customary freight unit ... unless the nature and value of such goods have been declared by the shipper before shipment and inserted in the bill of lading. This declaration, if embodied in the bill of lading shall be prima facie evidence, but shall not be conclusive on the carrier.
By agreement between the carrier, master, or agent of the carrier, and the shipper another maximum amount than that mentioned in this paragraph may be fixed: Provided, That such maximum shall not be less than the figure above named. In no event shall the carrier be liable for more than the amount of damage actually sustained.
46 U.S.C.App. 1304(5).[3] Container is considered a "carrier" for the purposes of COGSA. See M. Prusman Ltd. v. MV Nathanel, 670 F.Supp. 1141, 1143 (S.D.N.Y.1987). Thus, if COGSA's above-quoted liability provision is here applicable, the $500-per-package limit serves both as a lower limit to liability and as a presumptive ceiling to liability.
COGSA's $500 per package limit does not apply, however, unless the shipper is given a "fair opportunity" to declare a higher value, pay the corresponding ad valorem rate, and thereby obtain the increased coverage that COGSA permits. See, e.g. Nippon Fire & Marine, 167 F.3d at 101; General Electric v. MV Nedlloyd, 817 F.2d 1022, 1028-29 (2d Cir.1987). "[P]rima facie evidence of that opportunity is established when it can be gleaned from the language contained in the bill of lading." *201 General Elec., 817 F.2d at 1029. If this prima facie showing is made, the burden then shifts to the shipper to show that a fair opportunity did not in fact exist. See id.
As summarized by Judge Mukasey in Royal Insurance Co. v. M.V. ACX RUBY, 97 Civ. 3710(MBM), 1998 WL 524899 (S.D.N.Y.1998):
The Second Circuit has not adopted rigid rules for determining when a bill of lading provides prima facie evidence of fair opportunity. However, the Circuit has held that a bill of lading is sufficient when it (1) explicitly incorporates COGSA's provisions and (2) provides a space for declaring excess value.... [S]ubsequent cases from this District have gone one step further, and held that the second element a space for declaring higher value is not an absolute requirement. ... However, in each of these cases, the bill of lading explicitly incorporated COGSA and specifically stated that the shipper would have to declare excess value in order to avoid COGSA's liability limitations. Thus, it appears safe to say that, at a bare minimum, a bill of lading must explicitly incorporate COGSA's provisions or refer in some way to the $500 per package limitation in order to constitute prima facie evidence of fair opportunity.
Id. at *3.
In this regard, Container's bill of lading here in issue, see Pl.Ex. 4; Bill of Lading, attached to Aff. of David Y. Loh in Further Support of Def. Motion for Summary Judgment, states as follows:
In consideration of the rate charged for carriage being dependent on the value of the goods and being based upon an agreed valuation of not more than five hundred ($500.00) dollars per shipment, unless a greater value is declared at the time of shipment and an additional charge of one (1%) percent thereof paid, the shipper or owner of the goods agrees that Carrier shall not be liable in any event for more than the value so declared, nor unless a greater value is declared, for more than $500.00, or more than the actual value if same is less than $500.00. Neither any oral declaration nor statement of value for Governmental or Custom purposes nor the presentation of invoices for use in foreign customs, collection of C.O.D. amounts ir other purposes, nor the declaration of value for insurance, nor instructions to the Carrier to insure, shall be deemed an [sic] declaration of value, nor shall such offering supplement or amend or alter in any way the liability of carrier for the agreed value at time of shipment and on which the charge for transportation is based.
The bill of lading also provides a space for the shipper to write in the extra declared value if the shipper is willing to pay the additional charge.
With one exception, this reasonably states the liability limitations of COGSA and provides the shipper with a fair opportunity to declare a higher value and obtain insurance thereof if it pays an additional one percent of the excess value. The exception is that Container's bill of lading mistakenly states that the $500 limit is per "shipment" rather than per "package." Plaintiff argues that this mistake eliminates any limitation whatever. Cf. Leather's Best, Inc. v. S.S. Mormaclynx, 451 F.2d 800, 815-16 (2d Cir.1971); David Crystal, Inc. v. Cunard S.S. Co., 339 F.2d 295, 298-99 (2d Cir.1964). The relevant provision of COGSA, however, 46 U.S.C.App. § 1303(8), states as follows:
Any clause, covenant, or agreement in a contract of carriage relieving the carrier or the ship from liability for loss or damage to or in connection with the goods, arising from negligence, fault, or failure in the duties and obligations provided in this section, or lessening such liability otherwise than as provided in this chapter, shall be null and void and of no effect.
*202 The plain meaning of this language is to nullify private attempts to go below the COGSA $500-per-package limit, but not to eliminate the statutory limit. As stated by the Court of Appeals, "the mere attempt to limit liability at a level lower than permitted by COGSA does not serve to strip a carrier of the COGSA limit." Binladen BSB Landscaping v. MV Nedlloyd Rotterdam, 759 F.2d 1006, 1007, n. 12 (2d Cir. 1985); see also Vision Air Flight Service v. MV National Pride, 155 F.3d 1165, 1169-70 (9th Cir.1998) (finding that if a carrier misstates the COGSA provisions and does not invoke COGSA itself, but provides notice of limited liability, "that does not void the limitation of liability provision altogether and render COGSA inapplicable. Rather COGSA's limitation of $500 per `package' or `customary freight unit' simply applies to each package or customary freight unit, properly defined.")
Nor does the mistaken limitation to $500-per-shipment rather than $500-per-package in any way undercut the fair opportunity that the bill of lading otherwise provides to obtain higher coverage for an additional charge. Indeed, if anything, the mistaken reduction in the statutory limitation gives the customer an added incentive to seek additional liability coverage.
In the face of defendant's showing, plaintiff has not offered material evidence to rebut the presumption of fair opportunity. The shipper's agent, Panalpina, one of the largest freight forwarders in the world, is a sophisticated party that was "familiar with all international statutes and regulations governing the transportation of goods both within the U.S. and overseas." Panalpina Decl. at ¶ 2. In this very case, Panalpina, on behalf of Tecore, initially investigated whether or not to purchase the additional insurance proffered by Container but decided instead to purchase additional insurance from Intercargo. See Def. 56.1 Stmt. ¶¶ 5-9, 11; Panalpina Decl. at 8-11. Consequently, there is every reason to believe that Panalpina, as Tecore's agent, had knowledge of COGSA's actual liability limitation, and there is no evidence whatever to the contrary. See, e.g., Vision Air, 155 F.3d at 1169; Aetna Insurance Co. v. M/V Lash Italia, 858 F.2d 190, 193 (4th Cir.1988); Union Carbide v. M/V Michele, 764 F.Supp. 783, 786 (S.D.N.Y.1990); cf. Royal Insurance, 1998 WL 524899, at *5 (declining to consider the sophistication of the shipper in assessing the prima facie showing of fair opportunity, but suggesting that it might be an appropriate factor in rebutting the assumption of fair opportunity once the prima facie showing has been made).
For the foregoing reasons, plaintiff's motion is denied, defendant's motion is granted, and final judgment will be entered awarding plaintiff the sum of $1,000 from defendant and dismissing the case as to all third-party defendants.[4] Clerk to enter judgment.
SO ORDERED.
NOTES
[1] Notices of Voluntary Dismissal were entered with respect to third-party defendants Navieras NPR Inc., Old Dominion Freight Line, and Panalpina, and on November 22, 1999, the Court granted the unopposed motion for summary judgment in favor of two other third-party defendants, Puerto Rico Freight Systems, Inc. and Carribean Maritime Services, Ltd. For reasons detailed below, the claims against the remaining third-party defendants, M/V Sea Racer, Navylloyd AG, and St. John's Terminal Operating Co., are dismissed as a result of the instant decision.
[2] Although Container asserts that the lack of notation of any damage prior to the time of pick-up suggests that the damage occurred while the goods were being stored at the Port Authority, see Def. Mem. in Opp. to Pl. Mot. at 8, citing Decl. of Stephen Mendes, dated Oct. 18, 1999, annexed to Mem. of Third-Party Defs. ("Mendes Aff.") at ¶ 14, Intercargo asserts that it is not clear when or how the damage occurred, see Pl. Opp. to Def. 56.1 Stmts ¶ 14.
[3] For the historical background of COGSA and the $500 limit, see General Electric Co. v. MV Nedlloyd, 817 F.2d 1022, 1023-24 (2d Cir.1987).
[4] Although defendant presented other arguments to the effect that it was not liable to plaintiff at all or that, if it were, the remaining third-party defendants were then liable to defendant for reimbursement, defendant's counsel represented at oral argument that defendant would not seek to pursue these arguments further if the Court found that the COGSA limitation applied (subject, however, to preserving these defenses and third-party claims if the Court's COGSA determination were reversed on appeal). Accordingly, the Court need not reach these arguments and all remaining claims against all remaining third-party defendants may be dismissed.
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24 F.Supp.2d 1192 (1998)
STATE OF KANSAS, Plaintiff,
v.
UNITED STATES of America, et al., Defendants.
No. 97-4256-RDR.
United States District Court, D. Kansas.
October 9, 1998.
*1193 M.J. Willoughby, John W. Campbell, Office of Attorney General, Topeka, KS, for State of Kansas, plaintiff.
Jackie A. Rapstine, Office of United States Attorney, Topeka, KS, Sheila M Lieber, U.S. Department of Justice, Frank W Hunger, U.S. Department of Justice, Victoria J. Rosenthal, U.S. Department of Justice, Washington, DC, for United States of America, HHS Dept of, Secretary of Health and Human Services, Donna Shalala, in her official capacity as Secretary of Health & Human Services, defendants.
MEMORANDUM AND ORDER
ROGERS, District Judge.
Plaintiff, the State of Kansas, challenges the constitutionality of amendments to the Child Support Enforcement Program, 42 U.S.C. §§ 651-669b, enacted as part of the Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA) of 1996, Pub.L. No. 104-193, 110 Stat. 2105 (1996). Plaintiff contends that these provisions of PRWORA are unconstitutional as exceeding Congress' authority under Article I, Section 8 of the United States Constitution, and as violating dual sovereignty and the Tenth Amendment to the United States Constitution.
The defendant seeks dismissal on two grounds. First, the defendant argues that the State of Kansas lacks standing to bring this action. Second, the defendant asserts that the State of Kansas cannot prevail on the merits. Having heard oral argument on the defendant's motion to dismiss, the court is now prepared to rule.
BACKGROUND
The federal government and the states have been involved in a cooperative effort to make monetary payments to financially needy families, including children deprived of parental support, since 1950. As the years have passed, the federal government has increased the requirements imposed upon the states.
In 1975, the federal government became a major player in child support programs with the passage of the Child Support Enforcement (CSE) Program. See 42 U.S.C. §§ 651-669. The Program was enacted to locate absent parents, establish paternity, and enforce child and spousal support. 42 U.S.C. § 651. The Office of Child Support Enforcement within the United States Department of Health and Human Services oversees the CSE program. The federal government funds 66 percent of state CSE program operating costs, 42 U.S.C. § 655(a)(2), and 90 percent of state expenditures relating to the planning, design, development, *1194 installation or enhancement of an automatic data processing information retrieval system. 42 U.S.C. § 655(a)(3).
PRWORA, popularly known as "welfare reform," made sweeping changes in the laws regulating the poor. It abolished Aid to Families with Dependent Children (AFDC) and created the Temporary Assistance for Needy Families (TANF) program. AFDC had provided cash payments to indigent families based upon national eligibility standards and a uniform federal definition which created an entitlement for recipients. TANF eliminated national eligibility standards and abolished the national entitlement to aid. Under the new TANF program, states are given federal block grant money with the authority to design their own public assistance programs. In exchange, the states must fulfill certain requirements, including meeting specific goals in moving welfare recipients into work and toward self-sufficiency. In addition, the states are required to comply with a variety of federal regulations.
Title III of the PRWORA details a mandatory child support collection structure that must be established and operated if a state is to remain eligible for the full TANF grant. Key features of Title III include the creation of automated state systems for entry of all support orders and of employees who obtain new jobs; authority for income withholding; a requirement that states cooperate with the federal government and with other states in matching employees to outstanding support orders; mechanisms for speedy enforcement of support orders; and the enactment of certain laws and legal conditions, including the Uniform Interstate Family Support Act and the conferral of statewide jurisdiction on agencies and courts empowered to act in paternity and support proceedings. See 42 U.S.C. § 666.
The amendments contained in PRWORA were made with the intent of "establishing uniform State tracking procedures; taking strong measures to establish paternity and funding; and ensuring tough child support enforcement." H.R.Rep. No. 104-651 at 1324. The amendments were effective July 1, 1997, except that changes that had to be approved by state legislatures become effective no later than the first day of the first calendar quarter beginning after the close of the first regular session of the state legislature subsequent to August 22, 1996. 42 U.S.C. § 654 note.
A state is not required to participate in the CSE program. However, pursuant to PRWORA, a state that elects to receive the federally-funded block grant under the TANF program must comply with the statutory requirements and the regulations promulgated by the Secretary of HHS. 42 U.S.C. §§ 602(a)(2), 603. A state that operates a CSE program risks the loss of CSE funding if it fails to conform to the requirements established by the Secretary. 42 U.S.C. §§ 609(a)(5) and (a)(8).
Within the federal mandates, states have broad discretion to establish the specific rules and procedures for the operation of their child support enforcement programs. Federal law may require adoption of laws on particular topics, but states generally determine the specific procedures used. For example, states maintain the responsibility for establishing any guidelines on the amount of support to be awarded, 42 U.S.C. § 667, or the amount of an individual's salary that may be garnished to meet support obligations, 42 U.S.C. § 666(b). In addition, if a state demonstrates to the Secretary that the enactment of any law or procedure required under 42 U.S.C. § 666 will not increase the effectiveness and efficiency of the state CSE program, the Secretary may exempt the state from such requirement. 42 U.S.C. § 666(d).
STANDING
The defendant contends that the court lacks jurisdiction because the State of Kansas does not have standing to bring this action. In the complaint, the State alleges the following concerning the issue of standing:
The State of Kansas has standing to bring this declaratory judgment action because of the injury to its sovereignty as a State caused by the challenged federal statute. Further, any State, including the State of Kansas, which is deemed by the federal defendants to be not in compliance with the provisions of Title III of [PRWORA] is subject to federal withholding of approximately $29 million, representing nearly the entire budget for State-provided child support *1195 enforcement services for State citizens, and funds in excess of $101 million, representing aid to Kansas children and families in need, causing injury to the State and its interests.
The question of standing involves both constitutional limitations on federal court jurisdiction and prudential limitations on its exercise. Bennett v. Spear, 520 U.S. 154, 162, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997). To satisfy the standing requirements of Article III to the United States Constitution, plaintiff must show (1) that it has suffered an "injury in fact" an invasion of a judicially cognizable interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) that there is a causal connection between the injury and the conduct complained of the injury must be fairly traceable to the challenged action of the defendant; and (3) that it be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). The burden of demonstrating standing rests with the party invoking federal jurisdiction. Id. at 561, 112 S.Ct. 2130.
In considering the issue of standing on a motion to dismiss, the court "must accept as true all material allegations of the complaint, and must construe the complaint in favor of the complaining party." State of Utah v. Babbitt, 137 F.3d 1193, 1204 (10th Cir.1998) (quoting Warth v. Seldin, 422 U.S. 490, 501, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975)). In addition, the court must presume that general allegations embrace those specific facts that are necessary to support the claim. Id.
The defendant limits its standing argument to a claim that plaintiff has not met the causation requirement. The defendant points out that the plaintiff is challenging Congress' enactment of the amendments to the CSE program, but that these amendments do not constitute the cause of plaintiff's alleged injury because plaintiff is subject to the challenged federal mandates only as a result of the State of Kansas' decision to participate in, and receive federal funding pursuant to, the TANF program. Thus, the defendant asserts that standing is lacking because the plaintiff's injury is self-inflicted.
Neither side was able to provide any cases that had considered this precise issue, despite the fact that there are dozens of cases where states have challenged the constitutionality of various federal laws under the Tenth Amendment and the Spending Clause. The court is persuaded that the circumstances of this case indicate that the State has standing to pursue this action. The purpose of the causal connection requirement is to insure that the injury alleged by plaintiff is attributable to the defendant. Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U.S. 59, 72, 98 S.Ct. 2620, 57 L.Ed.2d 595 (1978). The injury noted by the defendant the potential loss of funds and the other costs of complying with PRWORA appears to be directly traceable to the challenged action of the defendant. Accordingly, we have little difficulty in determining that the State of Kansas has standing to challenge the requirements of PRWORA, even though the State agreed to participate in the program.
THE MERITS
The defendant contends that plaintiff cannot prevail on the merits. The defendant suggests that the factual allegations of the complaint, even when taken as true, do not state a claim under the Tenth Amendment and the Spending Clause.
Plaintiff contends that its challenge to PRWORA is based primarily upon the Tenth Amendment, relying principally upon New York v. United States, 505 U.S. 144, 112 S.Ct. 2408, 120 L.Ed.2d 120 (1992); South Dakota v. Dole, 483 U.S. 203, 107 S.Ct. 2793, 97 L.Ed.2d 171 (1987); and Printz v. United States, 521 U.S. 98, 117 S.Ct. 2365, 138 L.Ed.2d 914 (1997). Plaintiff contends that it has been "coerced" to participate in the CSE program because a decision otherwise would result in the loss of all funds for child support enforcement services and aid to children and families in need. The loss of these funds, plaintiff argues, would cause substantial injury to Kansas citizens. Plaintiff states:
*1196 PRWORA is both more coercive and more onerous in its requirements than any other Act which has been subjected to constitutional challenge to date. By threatening Kansas with the loss of 100% of federal funding for child support enforcement, the entire State budget for such services, and 100% of federal funding for a separate program aiding needy families and children, PRWORA coerces the State and its employees to serve as an administrative arm of the Congressional will in a manner expressly disapproved of by the Founding Fathers who created our government as a federalist, not a unitary system. If the dual sovereign structure of our government established by the Founding Fathers is to survive, PRWORA must be struck down.
A motion to dismiss under Fed.R.Civ.P. 12(b)(6) cannot be granted unless it appears that the plaintiff can prove no set of facts that would entitle it to relief. Maez v. Mountain States Tel. and Tel., Inc., 54 F.3d 1488, 1496 (10th Cir.1995); Jacobs, Visconsi & Jacobs Co. v. City of Lawrence, 927 F.2d 1111, 1115 (10th Cir.1991). In consideration of such a motion, the court must construe liberally the pleadings and indulge all favorable inferences in favor of the plaintiff. Lafoy v. HMO Colorado, 988 F.2d 97, 98 (10th Cir.1993); Williams v. Meese, 926 F.2d 994, 997 (10th Cir.1991). The court, however, need not accept as true those allegations that are conclusory in nature, i.e., which state legal conclusions rather than factual assertions. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.1991).
Plaintiff argues that the issues raised by its complaint cannot be resolved on a motion to dismiss. Specifically, plaintiff suggests that the issue of coercion must await discovery before it can be addressed. The court believes that the issues raised by the plaintiff's complaint can be decided on the instant motion. See, e.g., South Dakota v. Dole, 791 F.2d 628, 634 (8th Cir.1986) (affirming trial court's disposition of a Spending Clause challenge at the motion to dismiss stage), aff'd, 483 U.S. 203, 107 S.Ct. 2793, 97 L.Ed.2d 171 (1987); California v. United States, 104 F.3d 1086, 1091-92 & n. 10 (9th Cir.1997) (rejecting plaintiff's contention that motion to dismiss inappropriate on grounds that Spending Clause challenge required determination as a matter of fact of whether coercion existed).
The Tenth Amendment provides that "[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." U.S. Const. amend. X. "If a power is delegated to Congress in the Constitution, the Tenth Amendment expressly disclaims any reservation of that power to the States; if a power is an attribute of state sovereignty reserved by the Tenth Amendment, it is necessarily a power the Constitution has not conferred on Congress." New York, 505 U.S. at 156, 112 S.Ct. 2408. Congress, through the Spending Clause set forth in Article I, section 8 of the Constitution, may "hold out incentives to the State as a method of influencing a State's policy choices" or may "encourage a State to regulate in a particular way." Id. at 166, 112 S.Ct. 2408. In a case such as this one, where Congress has attached conditions to the receipt of federal funds, the inquiries under the Spending Clause and the Tenth Amendment "are mirror images of each other." Id. at 156, 112 S.Ct. 2408.
Congress has for many years used conditional offers of federal funds to regulate the actions of the states. The Constitution grants Congress the power to "provide for the common Defence and general Welfare of the United States." U.S. Const. art I, § 8, cl. 1. Under the Constitution, the federal government's conditioning of funds is permissible if (1) the spending is in furtherance of the general welfare; (2) Congress does so unambiguously to the end that states may knowingly exercise their choice to either accept or reject the funds; (3) the conditions imposed are reasonably related to the federal interest in the particular program; and (4) no constitutional provision "provide[s] an independent bar to the conditional grant of federal funds." Dole, 483 U.S. at 207-08, 107 S.Ct. 2793; see also Rust v. Sullivan, 500 U.S. 173, 193, 111 S.Ct. 1759, 114 L.Ed.2d 233 (1991) ("The Government can, without violating the Constitution, selectively fund a program to encourage certain activities it believes to be in the public interest."); Helvering v. Davis, 301 U.S. 619, 640-41, 57 *1197 S.Ct. 904, 81 L.Ed. 1307 (1937) (Congress may spend its money, and place conditions on those expenditures, as it sees fit, so long as the expenditures and conditions are made in pursuit of "the general welfare."). In addition to these four restrictions, the Dole court read the Spending Clause to impose limits on Congress's ability to "coerce" states in ways that it could not directly mandate under its other Article I powers. The Court observed: "[I]n some circumstances, the financial inducement offered by congress might be so coercive as to pass the point at which `pressure turns into compulsion.'" Id. at 211, 107 S.Ct. 2793 (quoting Steward Machine Co. v. Davis, 301 U.S. 548, 590, 57 S.Ct. 883, 81 L.Ed. 1279 (1937)). The Court concluded that a threatened loss to states of five percent of their otherwise obtainable allotment of federal highway funds did not pass this critical point, but did not suggest what percentage of these funds might. Id. This case was in accord with numerous cases at the Supreme Court level and in the lower courts that have failed to invalidate an Act of Congress under the Spending Clause. See, e.g., Fullilove v. Klutznick, 448 U.S. 448, 478-80, 100 S.Ct. 2758, 65 L.Ed.2d 902 (1980); Massachusetts v. United States, 435 U.S. 444, 461-62, 98 S.Ct. 1153, 55 L.Ed.2d 403 (1978); Lau v. Nichols, 414 U.S. 563, 568-69, 94 S.Ct. 786, 39 L.Ed.2d 1 (1974); Oklahoma v. United States Civil Service Comm., 330 U.S. 127, 142-44, 67 S.Ct. 544, 91 L.Ed. 794 (1947); Texas v. United States, 106 F.3d 661, 666 (5th Cir.1997); California v. United States, 104 F.3d 1086, 1092 (9th Cir.1997); Virginia v. Browner, 80 F.3d 869, 881-82 (4th Cir.1996), cert. denied, ___ U.S. ___, 117 S.Ct. 764, 136 L.Ed.2d 711 (1997); Housing Auth. of City of Fort Collins v. United States, 980 F.2d 624, 628-29 (10th Cir.1992); Oklahoma v. Schweiker, 655 F.2d 401, 413-14 (D.C.Cir.1981).
Plaintiff initially raises some cursory arguments that Congress, in passing PRWORA, has violated some of the four conditions set forth in Dole. Plaintiffs primary argument, however, is that it has been coerced into participating in the Title III requirements of PRWORA in order to avoid the loss of funds for its programs for the poor. Plaintiff suggests this is the case noted in Dole where "the financial inducement offered by Congress ... [is] so coercive as to pass the point at which pressure turns into compulsion." Dole, 483 U.S. at 211, 107 S.Ct. 2793 (citation and quotation omitted).
The court is persuaded that the four conditions stated in Dole are present in this case. There can be little dispute that the first requirement is met here. Courts are required to defer substantially to Congress' judgment in determining whether a particular expenditure serves general public purposes. Dole, 483 U.S. at 207, 107 S.Ct. 2793. The overall goal of PRWORA was to protect children and facilitate the self-sufficiency of welfare recipients. The requirements of Title III of PRWORA were designed with the intent of "establishing uniform State tracking procedures; taking strong measures to establish paternity and funding, and ensuring tough child support enforcement." H.R.Rep. No. 104-651 at 1324. Accordingly, we have little trouble in determining that the challenged provisions are intended to serve the general welfare. See Childrens & Parents Rights Ass'n v. Sullivan, 787 F.Supp. 724, 735 (N.D.Ohio 1991) ("[C]hild support regulations are within the `pursuit of the general welfare.'").
As to the second requirement, plaintiff asserts only that certain, unidentified, computer-related standards are ambiguous, but does not contend that any of the remaining "approximately 94 separate sections of Title III of PRWORA" it challenges are ambiguous. Plaintiff also does not assert that any perceived ambiguity in the amendments resulted in its failing to "exercise [its] choice knowingly," as required by Dole.
The requirement that recipients of federal funds receive unambiguous notice of the conditions they are assuming is to ensure the voluntariness of their participation in federal programs. Pennhurst v. Halderman, 451 U.S. 1, 17, 101 S.Ct. 1531, 67 L.Ed.2d 694 (1981) ("By insisting that Congress speak with a clear voice, we enable the States to exercise their choice knowingly, cognizant of the consequences of their participation."). At the hearing on the instant motion, defendant pointed out that new legislation passed in July of this year may have solved plaintiff's *1198 complaints about the computer-related problems. In any event, the court does not find that plaintiff has demonstrated that any perceived ambiguity in PRWORA precluded it from exercising its choice knowingly.
In addressing the third requirement, plaintiff has suggested that the demands of Title III of PRWORA are over-inclusive and under-inclusive. Plaintiff has suggested that certain changes in the child support enforcement program will not prove efficacious. The court is persuaded, despite the arguments made by the plaintiff, that the measures enacted by Congress in PRWORA are reasonably related to the federal interest in the national program. The statutory requirements here at issue clearly demonstrate sufficient relationship to the purpose of the federal funding so as to pass constitutional muster.
The arguments made by plaintiff appear to have their basis in the dissent written by Justice O'Connor in Dole. Justice O'Connor would have applied a substantially different germaneness test than that articulated in the majority opinion. As set forth previously, the majority was concerned only that a funding condition not be "unrelated `to the federal interest in particular national projects or programs,'" and thus sought to ensure minimum rationality in the relationship between the funding condition and the federal interest sought to be advanced. Dole, 483 U.S. at 207, 107 S.Ct. 2793 (quoting Massachusetts v. United States, 435 U.S. 444, 461, 98 S.Ct. 1153, 55 L.Ed.2d 403 (1978)). Justice O'Connor, in contrast, would have required a much closer fit between the funding condition and the proclaimed federal interest. Thus, she, unlike the Dole majority, would not sustain a funding condition found to be over- or under-inclusive. Dole, 483 U.S. at 214-15, 107 S.Ct. 2793. She therefore would have invalidated the funding condition on the ground that it was "not sufficiently related to interstate highway construction." Id. at 214, 218, 107 S.Ct. 2793. While plaintiff's arguments have some support in Justice O'Connor's mind, they have no support in the majority opinion. Accordingly, the court must reject them.
Finally, the challenged provisions do not violate any "independent constitutional bar." This requirement means that Congress may not use its powers under The Spending Clause "to induce the States to engage in activities that would themselves be unconstitutional." Dole, 483 U.S. at 208, 107 S.Ct. 2793. Plaintiff has failed to articulate a valid independent constitutional bar present here, and the court sees none. Accordingly, we find that the four conditions of Dole are met.
The court shall now turn to the issue of coercion. The Supreme Court and other courts have recognized that the judiciary should attempt to avoid becoming entangled in ascertaining the point at which federal inducement to comply with a condition becomes compulsion. Justice Cardozo wrote in Steward Machine Co., 301 U.S. at 589-90, 57 S.Ct. 883 (1937): "[T]o hold that motive or temptation is equivalent to coercion is to plunge the law in endless difficulties." Or, as stated by the District of Columbia Circuit Court in Oklahoma v. Schweiker:
The courts are not suited to evaluating whether the states are faced here with an offer they cannot refuse or merely a hard choice. Even a rough assessment of the degree of temptation would require extensive and complex factual inquiries on a state-by-state basis. We therefore follow the lead of other courts that have explicitly declined to enter this thicket when similar funding conditions have been at issue.
655 F.2d at 414.
Finally, as stated in Nevada v. Skinner, 884 F.2d 445, 448 (9th Cir.1989), cert. denied, 493 U.S. 1070, 110 S.Ct. 1112, 107 L.Ed.2d 1019(1990):
[C]an a sovereign state which is always free to increase its tax revenues ever be coerced by the withholding of federal funds or is it the state merely presented with hard political choices? The difficulty if not the impropriety of making judicial judgments regarding a state's financial capabilities renders the coercion theory highly suspect as a method of resolving disputes between federal and state governments.
These cases suggest that the coercion test is ill-conceived and probably unworkable. See also Steward Machine Co., 301 U.S. at 590, 57 S.Ct. 883 (ruling that no such coercion had occurred in the case then before the Court, "assum[ing] that such a *1199 concept can ever be applied with fitness to the relations between state and nation"). In Dole, the Court never defined "compulsion" or "pressure," explained how one should or could consistently distinguish between the two, or provided any example of an impermissibly "coercive" offer of federal funds to the states. Professors and commentators have roundly criticized the coercion test. See, e.g., Baker, Conditional Federal Spending, 95 Colum.L.Rev.1911 (1995); Engdahl, The Spending Power, 44 Duke L.Rev. 1 (1994); Rosenthal, Conditional Federal Spending and the Constitution, 39 Stan. L.Rev. 1103 (1987). Nevertheless, as recognized in Dole and reaffirmed in New York, it stands as the law at the present time in evaluating challenges based upon the Spending Clause. Plaintiff has suggested that New York and Printz have weakened the test and indicated that a change in the law is on the horizon or should occur. There is support for the position that these cases have resuscitated federalism and revived Tenth Amendment justiciability. See Hoke, State Discretion Under New Federal Welfare Legislation: Illusion, Reality and a Federalism-Based Constitutional Challenge, 9 Stan. L. & Pol'y Rev. 115 (1998). The court, however, believes that we are bound to apply the coercion test under the circumstances set forth here. The court is not persuaded, even assuming that all of the allegations contained in the plaintiff's complaint concerning the "pressure" of complying with the dictates of PRWORA are true, that plaintiff can prevail on the coercion theory. Wherever the line separating encouragement from coercion may lie, Congress has not crossed it in the case at bar. The court believes that the sanctions involved here amount to inducement rather than "outright coercion." See New York, 505 U.S. at 165-67, 112 S.Ct. 2408. In sum, the court finds that Title III of PRWORA is a valid exercise of power by Congress under the Spending Clause. As a valid exercise of that power, it also comports with the requirements of the Tenth Amendment. Id. at 173-75, 112 S.Ct. 2408.
A close look at New York and Printz suggests that they do not provide support for the plaintiff's position here. In New York, the Court upheld two provisions of the Low-Level Radioactive Waste Policy Amendments Act of 1985, 42 U.S.C. §§ 2021b-2021j, one under the Spending Clause and the other under the Commerce Clause, and struck down one provision. The offending provision presented states with a choice: either they could "take title" to radioactive waste generated within their borders or regulate storage and disposal of such waste according to the direction of Congress. The Court held that the "take title" provision went too far and "crossed the line [that] distinguish[ed] encouragement from coercion." 505 U.S. at 175, 112 S.Ct. 2408. The "choice" presented to the states was the regulation of low-level radioactive waste according to federal standards or the acceptance of title to the waste, along with the attendant liabilities. Characterizing the latter as essentially a federal order compelling states to subsidize radioactive waste generators, the Court found that the take-title provision "`commandeer[ed] the legislative processes of the States by directly compelling them to enact and enforce a federal regulatory program.'" Id. at 176, 112 S.Ct. 2408 (quoting Hodel v. Virginia Surface Mining & Reclamation Ass'n, 452 U.S. 264, 288, 101 S.Ct. 2352, 69 L.Ed.2d 1 (1981)). Because the provision did not offer states the option to "decline to administer the federal program," it went beyond Congress's powers and "infring[ed] upon the core of state sovereignty reserved by the Tenth Amendment." Id. at 177, 112 S.Ct. 2408.
In Printz, the Court struck down certain provisions of the Brady Handgun Violence Protection Act, commonly referred to as the Brady Act, as violative of the Tenth Amendment. The Court noted that these provisions forced the states to take action by commanding the chief law enforcement officers of state and local law enforcement agencies to make "reasonable efforts" to conduct background checks on prospective gun buyers. 117 S.Ct. at 2383-84. The Court held that Congress cannot force state officers to administer or enforce federal law. Id. at 2381.
Unlike the "take title" provision in New York, the statute at issue in Printz did not compel state lawmakers to adopt federal regulations or legislation. However, it required "state law enforcement officers to participate, *1200 albeit only temporarily, in the administration of a federally enacted regulatory scheme." Id. at 2369. The Court held that no constitutionally significant distinction could be drawn between compelling a state legislature to make federal law and compelling state officials to enforce federal law. Id. at 2380.
New York and Printz are simply inapposite here. Here, neither the state legislature nor state officers are faced with the choices that were presented in those cases. Plaintiff is required only to choose between receiving federal funds and complying with certain statutory mandates, or not receiving such funds. This is a choice as pointed out previously that the Supreme Court has repeatedly held to be constitutional. In both New York and Printz, the Court recognized this distinction. See New York, 505 U.S. at 171-72, 112 S.Ct. 2408; Printz, 117 S.Ct. at 2376. Indeed, the Supreme Court in New York and Printz held that the statutes at issue in those cases were unconstitutional even though it specifically recognized that both statutes could have been lawfully passed pursuant to Congress's Spending Clause power. See Printz, 117 S.Ct. at 2385 (O'Connor, J., concurring) (noting that Congress could have conditioned the States' receipt of federal funds on compliance with the statute); New York, 505 U.S. at 167, 112 S.Ct. 2408 (noting that Congress could have enacted the statute under its Spending Clause power).
IT IS THEREFORE ORDERED that defendant's motion to dismiss (Doc. # 12) be hereby granted for the reasons set forth in the foregoing memorandum.
IT IS SO ORDERED.
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303 S.W.3d 700 (2010)
GALLAGHER HEADQUARTERS RANCH DEVELOPMENT, LTD., Chris Hill, and Julie Hooper, Petitioners,
v.
CITY OF SAN ANTONIO and City Public Service, Respondents.
No. 08-0773.
Supreme Court of Texas.
February 12, 2010.
*701 Sarah B. Duncan, Mike A. Hatchell, Charles R. Watson Jr., Locke Lord Bissell & Liddell, LLP, Austin, Jesse R. Castillo, Castillo Snyder, P.C., John E. Furrh, Law Office of John E. Furrh, PLLC, David Lawrence Earl, Earl & Associates, P.C., San Antonio, for Petitioners.
Jane M.N. Webre, Casey L. Dobson, Scott Douglass & McConnico, L.L.P., Austin, Michael D. Bernard, Asst. City Atty., Ricardo G. Cedillo, Derick James Rodgers, Davis Cedillo & Mendoza, Inc., San Antonio, for Respondents.
PER CURIAM.
Order Remanding for Findings of Fact
Petitioners Gallagher Headquarters Ranch Development, Ltd., Chris Hill, and Julie Hooper sued Respondent City of San Antonio and its agencies for breaching a "contract with the voters" because the City allegedly used money dedicated to purchase land for conservation purposes to instead purchase land from Gallagher to build an electrical grid. Funding for the project had been approved by voter referendum. The trial court granted summary judgment to the City and awarded the City attorneys' fees. The court of appeals affirmed on the merits, but remanded the attorney fees claim for a new trial. Petitioners appealed the court of appeals' affirmance of the summary judgment.
During the pendency of the petition at this Court, the City filed a motion to dismiss pursuant to settlement. The City alleges that it settled three cases, including this case, and filed with its motion a Mediated Settlement Agreement (the "Agreement"), signed less than a month after the court of appeals issued its opinion in this case. The Agreement recites two condemnation cases in probate courts in Bexar County, against Christopher C. Hill, et al., and Gallagher Headquarters Ranch Development, et al.[1] The Agreement does not include the caption for the case before this Court, and was not signed by Hooper. However, the parties agreed that the previously mentioned condemnation cases and "all related claims and controversies" between the signatories "are hereby settled." The City also agreed to waive its claim for attorney fees in this case, an issue on which it was successful at the court of appeals. Finally, the release language states that each party to the Agreement releases the other "from any and all claims... whether or not asserted in the above case ... arising from or related to the events and transactions which are the subject matter of this cause." The City contends that the issues in this casewhether the City violated the "contract with the voters" by using tracts of land through a program called Proposition 3 to build part of an electrical gridwere related to the controversies in the condemnation actions.
Petitioners argue that the Agreement does not cover this petition. First, petitioners note that Julie Hooper is not a signatory to the Agreement. Second, Petitioners argue that the Agreement only resolves the specifically enumerated condemnation cases and the severable attorneys fees claim. Finally, Petitioners argue that the motion is premature, as the parties agreed that any dispute over the interpretation or *702 performance of the Agreement would be brought to the original mediator in an attempt to resolve the same. The City replies that the language of the Agreement controls the outcome of this case; that agreeing to drop the attorneys fees issue without also dismissing this lawsuit is a nonsensical reading of the Agreement; and that Julie Hooper has no standing to continue as a petitioner, or, in the alternative, that the petition should be dismissed as to the other petitioners.
Interpretation of an unambiguous contract is an issue of law. E.g., SAS Institute, Inc. v. Breitenfeld, 167 S.W.3d 840, 841 (Tex.2005). However, when a contract is ambiguous, extrinsic evidence may be used to determine the intent of the parties. E.g., Progressive County Mut. Ins. Co. v. Kelley, 284 S.W.3d 805, 807-08 (Tex.2009) (considering extrinsic evidence in interpreting an insurance agreement due to a latent ambiguity as to the intent of the parties). Here, a latent ambiguity appears to exist, as it is unclear whether the case at issue here is covered by the Agreement and release, even construing the release language narrowly. See Victoria Bank & Trust Co. v. Brady, 811 S.W.2d 931, 938 (Tex.1991) (recognizing that a claim must be "mention[ed]" in a settlement release to be effective, and that general, categorical releases are narrowly construed). Further, whether this case "aris[es] from or [is] related to the events and transactions which are the subject matter of this cause" will guide resolution of the motion to dismiss, yet the parties provide little briefing and almost no evidence for this Court to determine whether the Agreement's release encompasses the issues underlying this petition.
Accordingly, we abate the petition and remand the case to the trial court to conduct all necessary proceedings[2] and prepare findings of fact on the issue of whether this case is encompassed within the scope of the Agreement. The trial court shall submit its findings to this Court no later than May 3, 2010. The parties may, within thirty days after the trial court's findings are submitted, provide a supplementary brief to this Court, no longer than twenty-five pages, addressing those findings and the following two issues: (1) whether the Agreement moots the case before the Court, and (2) whether petitioner Hooper has standing to pursue the litigation.
NOTES
[1] City of San Antonio, Texas, acting by and through the City Public Service Board of San Antonio v. Christopher Hill, et al., No.2005-ED-0029 (Probate Court No. 1, Bexar County, Texas); City of San Antonio, Texas, acting by and through the City Public Service Board of San Antonio v. Gallagher Headquarters Ranch Development, Ltd., et al., No.2005-ED-0031 (Probate Court No. 2, Bexar County, Texas).
[2] Paragraph 9 of the settlement agreement requires the parties to attempt further mediation if a dispute arises "with regard to the interpretation and/or performance of this Agreement." As part of the remand proceedings, the trial court may order the parties to mediate this dispute if they have not already done so.
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185 F.Supp.2d 246 (2001)
Marc RAMIREZ, Petitioner,
v.
UNITED STATES of America, Respondent.
No. CV 97-2608(ADS).
United States District Court, E.D. New York.
November 5, 2001.
Memorandum Granting Rehearing in Part December 4, 2001.
*247 *248 Marc Ramirez, White Deer, PA, Petitioner Pro Se.
Kevin M. Schad, Schad, Buda, Cook L.L.C., Cincinnati, OH, Former Attorney for Petitioner.
Alan Vinegrad, United States Attorney, Eastern District of New York, Brooklyn, NY, by Jo Ann M. Navickas, Assistant United States Attorney.
MEMORANDUM OF DECISION AND ORDER
SPATT, District Judge.
Petitioner Marc Ramirez (the "petitioner" or "Ramirez") commenced this habeas corpus proceeding pursuant to 28 U.S.C. § 2255. Specifically, the petitioner moves to vacate his conviction and sentence, or, in the alternative, "to order a new sentencing hearing based upon newly developed case law." Initially, the petitioner was represented *249 by counsel, Kevin M. Schad, Esq. of Cincinnati, Ohio. However, some time in late 2000, Schad no longer represented the petitioner because of financial considerations. The petitioner is now proceeding pro se. A courtesy copy of this decision is being sent to petitioner's former counsel.
I. BACKGROUND
Ramirez and many other defendants, nine of whom were on trial with him, were charged with being members of a major drug ring called the "Unknown Organization." This Organization operated a retail and wholesale narcotics business in certain areas in Brooklyn. The Unknown Organization was led by Ricardo Melendez, consisted of approximately 100 members and grossed over ten million dollars a month from heroin sales, together with additional revenue from cocaine sales. The Organization sold its narcotics in glassine envelopes stamped with particular brand names, such as "Unknown," "Critical," "Rated PG," and "No Mercy."
The Unknown Organization purchased large quantities of pure heroin which was cut by an expert called "Nelson the Cutter." The heroin distributed by the Unknown Organization was highly desirable to drug users because it was among the most potent available in the New York area, being about 50 to 60 percent pure. After the heroin was cut, it was transported to various "mills" where it was diluted and placed in glassine bags by dozens of sometimes nude and masked workers. The glassine bags were placed in commercial egg crates and then sent to assorted "retail establishments," known as "spots" in various Brooklyn locations. Extensive and detailed records were kept by the Unknown Organization with regard to each operation, with specific amounts, names of participants and expenses involved in each operation. The Unknown Organization enforced its operation, warded off competition and prevented stealing by its own members by intimidation, torture and murder.
In September 1989, an Eastern District Grand Jury returned a superceding indictment charging 39 defendants in a 43 count indictment. The charges included narcotics trafficking, racketeering, and murder, kidnaping and maiming in furtherance of racketeering activity occurring from January 1985 to October 16, 1989, as part of the Unknown Organization.
Ramirez was named in two counts, the narcotics conspiracy and one substantive count. Count Two charged conspiracy to distribute and possess with intent to distribute in excess of 1 kilogram of heroin and in excess of 5 kilograms of cocaine from January 1985 to October 16, 1989 in violation of 21 U.S.C. §§ 846 and 841(b)(1)(A). Count Thirty charged Ramirez with the attempt to possess with intent to distribute in excess of 1 kilogram of heroin in violation of 21 U.S.C. §§ 846 and 841(b)(1)(A). Both of these charges stemmed from a March 14, 1989 attempted heroin purchase in which the Government alleged that the petitioner was involved in a sting reverse buy in which a confidential informant named Phil Han was attempting to sell seven kilograms of heroin to Manuel Concepcion, a co-defendant and the head of the Unknown Organization, for the sum of approximately 1.1 million dollars, in which transaction Ramirez was heavily involved. The Government alleged that the petitioner, then 18 years old, and his friend "Jimmy" had arranged this heroin purchase.
On March 14, 1989, Manuel Concepcion, four co-conspirators and Ramirez were arrested while Concepcion was attempting to purchase approximately seven and one-half kilograms of heroin from Han, an informant. The arrest was preceded by a number *250 of undercover meetings and telephone conversations, most of which were tape recorded. These conversations concerned negotiations between Ramirez and Han. During these conversations Ramirez vouched for Concepcion and co-conspirator Roberto Aponte. Ramirez told Aponte that he had access to more than seven kilograms of heroin. Aponte reported this to Concepcion who agreed to purchase the heroin. Ramirez was to receive between $90,000 and $100,000 for his role in this narcotics transaction.
In a short time Concepcion and others assembled more than one million dollars in cash. In subsequent conversations Ramirez pushed Han to hurry the deal to avoid keeping "his people" waiting.
Philip Han testified as follows:
Q The conversation you had with Ramirez after the 10:56 conversation, what did you and Mr. Ramirez talk about?
A I believe that's when he was asking me what is the delay, what is taking so long to do the deal.
* * * * * *
Q Did Ramirez ask you anything or did you tell him anything?
A Yes.
Q What?
A He asked me if I had enough room for the money.
Q Enough room where?
A He said, do you have enough room for the money. And I asked why.
Q What did he say?
A He said because the monies (sic) is in five boxes.
Q After the conversation, did you talk to Ramirez again?
A Yes, I did.
Q How much afterwards was the next conversation?
A I don't recall exactly.
Q Approximately?
A 20 minutes, 30 minutes, I'm not sure.
Q During that conversation, what did you say to Ramirez and what did he say to you?
A He was again asking me what the problem was, to hurry it up, and he said someone else wanted to talk to me.
Tr. 5595-96.[*]
On March 14, 1989, the parties met to complete the deal. Ramirez, Concepcion and Aponte transported four boxes and a bag full of money to Han's car, and Ramirez then went with Han to pick up what he thought were bricks of pure heroin. After taking possession of the supposed heroin, federal agents arrested Ramirez and the others. At the time of the arrests, the drug traffickers were in possession of approximately $1.1 million in cash and three weapons, including an Uzi .9 millimeter submachine gun. While in custody, Ramirez made statements to the police that he merely supplied the market. These statements were introduced at the trial.
The petitioner was tried with nine co-defendants beginning on August 27, 1990 before this Court. The petitioner was represented by Lynne F. Stewart, Esq. at trial and on appeal. At the four-month long trial, the Government presented voluminous testimony regarding the Unknown Organization's activities.
At the trial the petitioner testified and presented a defense of entrapment. He testified that this March 14, 1989 attempt to broker a heroin deal was his only contact *251 with dealing drugs. During his cross-examination, the Government brought DEA Agent Timothy Lum into the court-room and before the jury. The Government then asked the petitioner if he had met this person, Agent Lum, in December 1989 to discuss brokering another heroin deal. The petitioner denied this assertion.
The trial counsel for Ramirez did not object to this demonstration at the time of the cross examination. However, after the petitioner concluded his testimony his counsel entered an objection on the record to the presentment of what she characterized as 404(b) evidence and the "parading" of Agent Lum before the jury. On rebuttal, the Government called Agent Lum as a witness. Agent Lum testified that while working undercover in December 1989, he had been introduced to the petitioner at a restaurant in order to set up a heroin sale. However, Agent Lum testified that no deal was ever consummated.
Also during trial, the AUSA Peter R. Ginsberg read into the record a redacted statement from co-defendant Roberto Aponte. The AUSA referred to this statement as "redacted" in cross-examining the petitioner, and in discussing this statement with other witnesses and the court. Although counsel for the petitioner asserts that during his summation, the AUSA inserted the petitioner's name into the redacted statement, the Court did not find this in the trial transcript.
On December 23, 1990, the jury returned a verdict of guilty on both counts against the petitioner.
A Pre-Sentence Investigation report (PSI) was prepared on June 25, 1991. The PSI recommended that the petitioner's offense level should be increased by four levels pursuant to § 3B1.1(a) because the petitioner organized the offense, recruited individuals, and directed their activities.
The petitioner was sentenced on September 13, 1991 by this Court. The petitioner's offense level was enhanced two levels for firearms used in the drug transaction pursuant to Guideline 2D1.1(b)(1). The guideline level was also enhanced four levels for his participation as an organizer in a multiple participant offense pursuant to Guideline 3B1.1(a). The Court also granted a two level reduction for acceptance of responsibility. Counsel for the petitioner made a motion for a downward departure based on her own conduct in "misleading Mr. Ramirez into going to trial on an entrapment defense" and based on her feeling that "some other lawyer might have said, maybe you should plead guilty," especially since he was only eighteen years old at the time of the offense. The grounds for the application for a downward departure apparently were that this conduct on counsel's part, and the age of the defendant, were not taken into consideration by the Guidelines or were "outside the heartland." The Court stated that it perceived no category for a downward departure based on the reasons stated by counsel, and the application was denied. In addition, the Court denied the Government's application for an upward departure.
The petitioner was sentenced to a term of 235 months, the lowest possible term under the guideline range, and to five years supervised release.
II. THE APPEAL
Represented by his trial counsel, the petitioner filed an appeal to the Second Circuit. The petitioner raised the following issues:
1) His due process rights were violated by the Government's overall outrageous conduct.
2) The Government's use of other crimes evidence without prior notice violated *252 his due process rights and was a continuation of prosecutorial misconduct.
3) The Government's failure to produce confidential informant "Jimmy" was a violation of due process and entitled Ramirez to a missing witness jury charge.
4) The trial court incorrectly increased Ramirez's offense level four levels based upon a clearly erroneous finding that he was an organizer or leader of a criminal activity that involved five or more participants.
On August 17, 1992, the petitioner's conviction and sentence was affirmed by summary order. United States v. Maldonato, Ramirez, Bryce and Alvarez, No. 91-1151(L), slip.op. (2d Cir.8/17/92).
III. PRIOR HABEAS CORPUS PROCEEDINGS
In a decision dated March 10, 1998 this Court dismissed the petition on timeliness grounds. This decision was reversed by the Second Circuit which remanded the case for further consideration based on its decision in Mickens v. United States, 148 F.3d 145 (2d Cir.1998) (under the provision of the Anti-Terrorism and Effective Death Penalty Act of 1996, a petition filed within one year after the act's effective date of April 24, 1996, is not time-barred).
At the commencement of this habeas proceeding the petitioner was represented by Kevin Schad, Esq., a privately retained attorney. On March 2, 2000, the petitioner moved for the appointment of counsel and to be released on bail. He indicated that he could no longer afford to pay his counsel Kevin Schad and requested that Schad be appointed as his counsel and be paid by the Government pursuant to the Criminal Justice Act of 1964 18 U.S.C. § 30006a. In a decision dated September 27, 2000, the Court denied this motion. The Court held that the interests of justice did not necessitate appointing counsel for the petitioner:
The Court notes that the Petitioner, with the assistance of counsel, has already filed his petition and a reply to the Government's opposition. As the case is fully briefed and merely awaiting decision, there is no need to appoint counsel at this time. Nunez v. U.S., 892 F.Supp. 528, 531-32 (S.D.N.Y.1995). Moreover, the Petitioner has failed to submit any evidence of the financial means available to him to pay for private counsel, and the extensive argument and citation in his pro se application for bail suggest that he is capable of presenting his claims effectively without the assistance of an attorney. Harney v. U.S., 962 F.Supp. 322, 325 (N.D.N.Y.1997).
The petitioner also moved for his release on bail. In the same September 27, 2000 decision, the Court ruled that release on bail is reserved for "extraordinary cases involving special circumstances or a high probability of success." United States v. Mett, 41 F.3d 1281, 1282 (9th Cir.1994) and the situation in this case did not meet this difficult criteria. Further, in another decision by this Court dated March 10, 2001, the Court denied the petitioner's application for a certificate of appealability.
IV. THE PETITIONER'S CONTENTIONS IN THIS PROCEEDING
The petitioner requests that his conviction and sentence be vacated, or that he be resentenced, based on the following grounds, including a litany of problems with his counsel at the trial and on appeal:
1) Petitioner was denied the effective assistance of counsel on appeal by her failure to raise the issue of the improper admission of Rule 404(b) evidence (the subsequent alleged December 1989 aborted *253 heroin deal) (a violation of his Sixth Amendment rights).
2) Petitioner was denied the effective assistance of counsel on appeal by her failing to raise "the sentencing court's misunderstanding its authority to depart" with regard to the petitioner's application for a downward departure (a violation of his Sixth Amendment rights).
3) Petitioner was deprived of his Sixth Amendment right to the effective assistance of counsel at trial in that "counsel failed to object to the government's use of a codefendant's redacted statement throughout trial and during closing which violated the Confrontation Clause and the Supreme Court's ruling in Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968.)"
4) The petitioner is entitled to be resentenced absent the erroneous organizer/leader four level enhancement, based upon newly developed case law.
5) Lastly, the petitioner submits that he has demonstrated that an evidentiary hearing should be held on the claims raised in this proceeding.
V. DISCUSSION
A. Standards of Review
As stated by the Second Circuit "[b]ecause requests for habeas corpus relief are in tension with society's strong interest in the finality of criminal convictions, the courts have established rules that make it more difficult for a defendant to upset a conviction by collateral, as opposed to direct, attack." Ciak v. United States, 59 F.3d 296, 301 (2d Cir.1995) (citing United States v. Frady, 456 U.S. 152, 165, 102 S.Ct. 1584, 1593, 71 L.Ed.2d 816 (1982)). ("[A]n error that may justify reversal on direct appeal will not necessarily support a collateral attack on a final judgment.") (internal quotation marks and citation omitted). As a result, prisoners seeking habeas corpus relief pursuant to Section 2255 must show both a violation of their constitutional rights and "substantial prejudice" or a "fundamental miscarriage of justice." Ciak, 59 F.3d at 301.
Further, in Section 2255 proceedings, the Supreme Court has recognized the rule of "procedural default: [that prisoners] cannot assert claims they failed to raise at trial or on direct appeal unless they can show `cause' for the default and `prejudice' resulting from it." Id. at 302 (citing Wainwright v. Sykes, 433 U.S. 72, 87, 97 S.Ct. 2497, 2506-07, 53 L.Ed.2d 594 (1977)); see also Reed v. Farley, 512 U.S. 339, 114 S.Ct. 2291, 129 L.Ed.2d 277 (1994). The general rule is that a writ of habeas corpus is not a substitute for an appeal. "Where the petitionerwhether a state or federal prisonerfailed properly to raise his claims on direct review, the writ is available only if the petitioner establishes `cause' for the waiver and shows `actual prejudice from the alleged ... violation.'" Id. at 354, 114 S.Ct. 2291 (citing Wainwright, 433 U.S. at 84, 97 S.Ct. 2497).
However, the traditional procedural default rule generally will not apply to ineffective assistance of counsel claims where a petitioner was represented by the same attorney at trial and on direct appeal and where such claims depend on matters outside the scope of the record of a direct appeal. Billy-Eko v. United States, 8 F.3d 111, 114 (2d Cir.1993). In Billy-Eko, the Court added that, "ineffective assistance of counsel claims are appropriately brought in Section 2255 petitions even if overlooked on direct appeal because resolution of such claims often requires consideration of matters outside the record on direct appeal ..." Id. (citations omitted). Thus, ineffective assistance of counsel claims may be raised for the first time in a *254 habeas petition. See United States v. Matos, 905 F.2d 30, 32 (2d Cir.1990). Therefore, while the petitioner did not raise an ineffective assistance counsel claim on direct appeal, the Court is required to examine the merits of such a claim under Section 2255.
To establish an ineffective assistance of counsel claim, the petitioner must "show that counsel's representation fell below an objective standard of reasonableness." Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 2065, 80 L.Ed.2d 674 (1984). Moreover, the petitioner must show that the "deficient performance prejudiced the defense." Id. at 687, 104 S.Ct. 2052. In order to show prejudice, the petitioner must demonstrate "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." United States v. Caputo, 808 F.2d 963, 967 (2d Cir.1987) (quoting United States v. Cruz, 785 F.2d 399, 405 (2d Cir.1986)). The Court's determination, however, must be highly deferential to counsel as, "[i]t is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence." Id. at 689, 104 S.Ct. 2052 (emphasis added).
Finally, it is well settled that "(s)ection 2255 may not be employed to relitigate questions which were raised and considered on direct appeal." Riascos-Prado v. United States, 66 F.3d 30, 33, 34 (2d Cir.1995) (citing Cabrera v. United States, 972 F.2d 23, 25 (2d Cir.1992)). See also Schlup v. Delo, 513 U.S. 298, 318, 319, 115 S.Ct. 851, 862-63, 130 L.Ed.2d 808 (1995) ("[A] habeas court may not ordinarily reach the merits of successive claims ... absent a showing of cause and prejudice.") (citations and footnote omitted); Douglas v. United States, 13 F.3d 43, 46 ("[A]ny claim raised ... at this point that was also raised in [a] previous § 2255 motion [] or on direct appeal of [the petitioner's] conviction is precluded from consideration by this Court."); 28 U.S.C. § 2255 ("The sentencing court shall not be required to entertain a second or successive motion for similar relief on behalf of the same petitioner.")
B. Alleged Ineffective Assistance of Counsel on AppealFailure to Raise the Improper Admission of Prejudicial Rule 404(b) Evidence
Stating that counsel on appeal has the duty to search for the strongest possible arguments and "must be zealous and must resolve all doubts and ambiguous legal questions in favor of his or her client," McCoy v. Court of Appeals of Wisconsin, 486 U.S. 429, 438, 108 S.Ct. 1895, 1902, 100 L.Ed.2d 440 (1988), the petitioner submits that he can demonstrate both prongs of the Strickland test. The petitioner contends that he was denied the effective assistance of counsel on appeal by counsel's failure to raise the subsequent uncharged criminal act involving the alleged abortive heroin deal in December 1989.
As stated above, the petitioner testified that the only heroin transaction he took part in was the one charged in the indictment. On cross-examination, the Government presented DEA Agent Lum. The following exchange occurred:
AUSA GINSBERG: Mr. Ramirez, does this refresh your recollection whether you negotiated a 15 pound heroin deal with a person by the name of Ah Cong?
RAMIREZ: No.
COURT: "This" meaningis there a person you're referring to, Mr. Ginsberg?
AUSA GINSBERG: DEA Special Agent Timothy Wong (sic), [name mistranscription].
*255 In rebuttal the Government produced Agent Lum who testified about the attempted drug transaction negotiation with Ramirez in December 1989. The petitioner contends that "Agent Lum's testimony regarding a subsequent bad act was inadmissible under the Rules of Evidence." While the petitioner's trial counsel objected to the admission of this testimony, she did not request a limiting instruction on the purpose of 404(b) evidence. According to the petitioner, this error was compounded by the Government's reference to the alleged subsequent bad act in closing arguments. Also, counsel did not raise the issue on appeal.
Further, according to the petitioner, "counsel's failure to raise this issue on appeal most probably would have resulted in a different outcome on appeal ... (and) there is a reasonable probability that but for the admission of this testimony the outcome of the proceeding would have been different." Therefore, the petitioner contends that his counsel's "ineffectiveness in failing to raise this erroneous admission of evidence fell below an objective standard of reasonableness which prejudiced the petitioner."
The Government concedes that the petitioner's ineffective assistance claims do not require a showing of cause and prejudice, because Ramirez had the same counsel at trial and on appeal. Billy-Eko v. United States, 8 F.3d at 115. Also, the Court finds that, on appeal, the petitioner's counsel did not directly raise the 404(b) issue. Although counsel objected to the Government's introduction of this evidence on the ground of lack of notice, she did not argue the merits of this issue. Therefore, the issue is ripe for consideration in this habeas proceeding.
Initially, the Court notes that petitioner's trial counsel not only objected to this evidence, she sought a mistrial. Further, the Court properly permitted the Government, during cross-examination, to bring Lum into the courtroom to stand before Ramirez. The petitioner took the stand in his own defense and testified to his alleged entrapment in the March 14, 1989 heroin deal. He also testified that the March 14, 1989 heroin deal was his only contact with drug dealing. On cross-examination he was questioned about this latter statement:
Q You still claim that this deal, the March 14th, 1989 deal, was the only heroin deal you've ever negotiated?
A Yes.
Q Mr. Ramirez, have you ever been to the BBQ Restaurant on Fifth Avenue?
A Plenty of times.
Q That's over at 10th Street and Fifth Avenue; is that right?
A 8th Street.
Q Do you recall on one of those occasions meeting a person who went by the name Ah Cong?
A I don't remember.
Q You don't remember that at all, Mr. Ramirez?
A I don't.
Q You're sure?
A Pretty sure.
Q Do you remember negotiating to buy 15 pounds of heroin with this person, Ah Cong?
A No.
Q It's your testimonyare you telling us you never met a person with the name Ah Cong?
A I don't remember ever meeting a person Ah Cong.
Q Are you telling us that you never negotiated a deal with a person named Ah Cong?
*256 A No.
Tr. at 10102.
After this exchange, the prosecutor brought DEA Special Agent Timothy Lum into the courtroom. With Lum standing before the petitioner on the stand, the following occurred:
Q Mr. Ramirez, does this refresh your recollection whether you negotiated a 15 pound heroin deal with a person by the name of Ah Cong?
A No.
THE COURT: "This" meaningis there a person you're referring to, Mr. Ginsberg?
MR. GINSBERG: DEA Special Agent Timothy Wong (sic)(Lum).
THE COURT: Who just walked into the courtroom.
Q Does this help you remember negotiating that heroin deal?
A I don't know him.
Q Never seen him before?
A Not that I can recall. I'm seeing a lot of agents in this building and DEA headquarters.
Q How about the BBQ Restaurant?
A A lot of people in BBQ all the time.
Q How about sitting down with this person on December 29, 1989, negotiating a heroin deal?
A I don't remember ever meeting him.
Q You don't remember negotiating a heroin deal either, do you?
A No, I don't.
Q You're sure?
A Pretty sure.
Q You remember after telling him that you were going to go through with the deal that one of your friends told you, in fact, he was a DEA agent; do you remember that?
A I don't understand what you mean.
Q Do you remember after telling this agent who had the name Ah Cong that you were going to go through with the deal that one of your friends told you he was a DEA agent?
A One of my friends told me he was a DEA agent?
Q Do you recall that?
A I never met him.
Q You don't recall calling him back, saying that you were afraid, you were not going to go through with the deal?
A No, I don't.
Q December, 1989?
A I don't remember that.
Q You're claiming March 14th was the only heroin deal you've ever negotiated?
A Yes.
MR. GINSBERG: Thank you, agent.
(Agent Wong (sic)(Lum) leaves court-room.)
Tr. at 10103-04 (emphasis added).
Although this cross-examination was somewhat unusual and innovative, it was not improper. Eighteen-year-old Ramirez took the stand and, on direct, voluntarily testified that the March 14th deal was the only drug deal he had negotiated. He tried to give the impression that he was a young neophyte; he had never participated in drug deals previously; and he had been entrapped. In the Court's view, it was perfectly permissible on cross-examination, to show that he was lying and that he had attempted to negotiate another drug deal. The rule was stated in United States v. Garcia, 936 F.2d 648, 653-54 (2d Cir.1991):
Central to the proper operation of the adversary system is the notion that "when a defendant takes the stand, the [G]overnment be permitted proper and effective cross-examination in an attempt to elicit the truth." United States *257 v. Havens, 446 U.S. 620, 626-27, 100 S.Ct. 1912, 64 L.Ed.2d 559 (1980). Thus, where a defendant testified on direct examination regarding a specific fact, the prosecution may prove on cross-examination "`that [the defendant] lied as to that fact.'" United States v. Garcia, 900 F.2d 571, 575 (2d Cir.) (citation omitted) (emphasis in original), cert. denied, 498 U.S. 862, 111 S.Ct. 169, 112 L.Ed.2d 133 (1990); see also United States v. Bufalino, 683 F.2d 639, 647 (2d Cir.1982) cert. denied, 459 U.S. 1104, 103 S.Ct. 727, 74 L.Ed.2d 952 (1983).
It is the basic purpose of cross examination to attempt to show that a witness had lied on the stand. True, the prosecution did it in a most dramatic fashion; but it was nonetheless permissible.
In United States v. Beverly, 5 F.3d 633 (2d Cir.1993), a similar factual scenario was presented. In Beverly, a drug conspiracy case, the Government elicited evidence as to the defendant's prior shooting and experience with guns on cross-examination and on rebuttal to impeach his testimony that he had no familiarity with guns. The defendant argued that the Government's impeachment evidence ran afoul of 404(b). The Second Circuit disagreed:
White's invocation of rules 404(b) and 608(b) is misplaced. The government's questioning arose in the form of impeachment of specific falsehoods, not as an attack on his general character for truthfulness, Fed.R.Evid. 608(b), nor as an attempt to prove his bad character in order to show he acted in conformity therewith, Fed.R.Evid. 404(b).
"Central to the proper operation of the adversary system is the notion that `when a defendant takes the stand, the government be permitted proper and effective cross-examination in an attempt to elicit the truth.'" United States v. Garcia, 936 F.2d 648, 653 (2d Cir.1991) (quoting United States v. Havens, 446 U.S. 620, 626-27, 100 S.Ct. 1912, 64 L.Ed.2d 559 (1980)). Once a defendant has put certain activity in issue by offering innocent explanations for or denying wrongdoing, the government is entitled to rebut by showing that the defendant has lied. United States v. Mills, 895 F.2d 897, 907 (2d Cir.), cert. denied, 495 U.S. 951, 110 S.Ct. 2216, 109 L.Ed.2d 541 (1990). Where a defendant testifies on direct about a specific fact, the prosecution is entitled to prove on cross-examination that he lied as to that fact. Garcia, 936 F.2d at 653. The same holds true for defendant's false statements on cross-examination. United States v. Atherton, 936 F.2d 728, 734 (2d Cir.1991). Finally, the government's opportunity to impeach the defendant's credibility once he has taken the stand includes the opportunity to use evidence that it was barred from using on its direct case. Atherton, 936 F.2d at 734.
* * * * * *
On cross-examination, the government questioned White regarding several prior incidents in which he allegedly possessed and used firearms. Through cross-examination and on rebuttal, the government introduced evidence White committed two shootings in Albany on March 28 and March 29, 1991.
* * * * * *
Prior to the commencement of trial the district court had ruled evidence of the shootings inadmissible on the government's direct case. Once White testified falsely, however, the district court allowed the government to use evidence of the prior shootings to impeach White's testimony because White had "got across to the jury he had nothing to do with any guns" and thereby "opened the door."
*258 We agree, for the most part, that White opened the door to this impeachment by stating on direct that: (1) he never possessed any gun in Albany, (2) he had no familiarity with guns other than some unfinished training for a security job in the past.... Once White testified that he had no familiarity with guns other than some uncompleted training at a past job security guard, the government was entitled to impeach his testimony by establishing on cross-examination and rebuttal that, in fact, he was familiar with guns and had possessed and fired guns in Albany. See Garcia, 936 F.2d at 654; United States v. Mills, 895 F.2d 897, 907 (2d Cir.) cert. denied, 495 U.S. 951, 110 S.Ct. 2216, 109 L.Ed.2d 541 (1990); United States v. Blake, 941 F.2d 334, 338-39 (5th Cir.1991).
5 F.3d at 639-40.
Similarly, here, once Ramirez took the stand and testified on direct examination that the March 14, 1989 attempt to broker a heroin deal was his only contact with dealing drugs, the Government had the right to impeach his testimony on cross-examination and on rebuttal. As the Supreme Court stated, "It is essential ... to the proper functioning of the adversary system that when a defendant takes the stand, the government be permitted proper and effective cross-examination in an attempt to elicit the truth." United States v. Havens, 446 U.S. 620, 626-27, 100 S.Ct. 1912, 1916, 64 L.Ed.2d 559 (1980); see also United States v. Payton, 159 F.3d 49, 58 (2d Cir.1998). When a defendant offers an innocent explanation, he "opens the door" to questioning into the truth of his testimony, and the Government is entitled to attack his credibility on cross-examination. United States v. Garcia, 936 F.2d 648, 654 (2d Cir.1991) ("Once [defendant] Dominiguez testified that he had no idea that the white powder was cocaine, he opened the door for the Government to impeach his testimony by establishing on cross-examination that he was familiar with and indeed had used cocaine as recently as the day before his arrest.")
Thus, the admission of the December 1989 drug negotiation was not a 404(b) offer but was a permissible impeachment of the defendant as to an alleged falsehood in his testimony. The Government was entitled to confront Ramirez with this evidence on cross-examination and to adduce proof about the drug negotiation on rebuttal. That being so, it could not be ineffective assistance for counsel not to raise this issue on appeal. See Caputo, 808 F.2d at 967 (holding that in order to show prejudice a petitioner must demonstrate that but for counsel's alleged error, the result would have been different.) Accordingly, with regard to the "Lum testimony," and the alleged 404(b) issue, the petitioner's counsel representation did not fall below an objective standard of reasonableness, and there was no ineffective assistance either at trial or on appeal in this regard.
C. Alleged Ineffective Assistance of Counsel on AppealFailure to Argue That the Sentencing Court Misunderstood its Authority to Downwardly Depart
The petitioner contends that counsel was ineffective on appeal for failing to argue that the District Court misunderstood its ability to downwardly depart at the time of his sentence. The petitioner argues that "this failure alone is sufficient to satisfy both prongs of the Strickland ineffective assistance of counsel test."
The Second Circuit has repeatedly stated that a sentencing court's failure to understand that it has the authority to depart downward is an appealable issue. See, e.g. United States v. Montez-Gaviria, 163 F.3d 697, 701 (2d Cir.1998). At the *259 sentencing, the petitioner's counsel moved in writing and orally at the sentencing proceeding for a downward departure. The Court denied the application. It is important that the Court set forth precisely what occurred at sentencing with regard to the petitioner's application for a downward departure.
THE COURT: Is there anything else in your communication, Miss Stewart?
MS. STEWART: No, Judge, we had asked finally for downward departure.
THE COURT: Departure?
MS. STEWART: To some degree, I must admit this comes out of my own sense of remorse, may have been misleading Mr. Ramirez into going to trial on an entrapment defense.
THE COURT: I am sure you didn't mislead anybody, Miss Stewart. You did not mislead him, but you gave it every shot that could be given. You were outstanding in this trial.
MS. STEWART: Thank you, Judge.
THE COURT: I don't know what you mislead. You mislead nobody. You gave him a defense that he could never complain about.
MS. STEWART: Judge, I guess my sense is that had it been otherwise, perhaps some other lawyer might have said, maybe you should plead guilty. Maybe this isn't entrapment. Maybe this is enticement, not entrapment. I do see the role of the government in this, to me, when the government goes into the business of selling drugs, things have turned topsy turvy. When they are selling drugs and enticing people into buying it is not entrapping them into buying it, it puts a different complex on a case. It's not the same as going out investigating, finding something going on and then using all their wires to make it happen again or make it happen in such a way that they can bring it before a jury and prove it absolutely. And for that reason I think that this is something that the Guidelines don't properly take into consideration. I think that they don't address at all the situations where the government controls the amount of drugs to a certain degree by what they offer. If they offered a couple of ounces maybe Mr. Ramirez would only be before you for a couple of ounces, but by offering virtually unlimited amounts, they controlled the amounts that are the ultimate standard by which he is going to be sentenced. I also don't think that we as a society really should think about putting eighteen year olds, albeit he has passed the age of majority as a legal matter, but if we can think about our ownI don't want to repeat the summation. I know you sat valiantly through the summationan eighteen year old wasn't even given the right to vote until a few years ago, and it just would seem to me that he is in a different posture because of his age, because of the excitement or the tintillation (sic-titillation) of making easy money, big money, being somebody, it's different to an eighteen year old than it is to even a 21 year old or 25 year old, and I think even the Guideline age should not be a consideration, I think coupled with the fact of the government's involvement, it should be a consideration, and it's for those reasons together that I would ask that you depart downward.
Sentencing Transcript pp. 20-22 (emphasis added).
In essence, the petitioner's counsel moved for a downward departure based on her feeling that some other lawyer might have recommended that Ramirez plead guilty; the Government's involvement in the seven-kilogram, $1.1 million drug deal; and his age of 18 years; all of which *260 reasons she claimed the Guidelines did not properly take into consideration.
In response the Government asserted that the law considers eighteen year olds to be the age of majority and responsibility; Ramirez "hit the streets with gusto in an attempt to put together a 1.1 million dollar deal"; he lied under oath at the trial; and "that lying is a proper basis for a two-point enhancement for obstruction of justice."
The Court denied the request for a downward departure stating that "Congress has enacted the Sentencing Guidelines with definite categories for downward departure. I see no category for a downward departure as a result of any of the things you said." The Court also denied the Government's request for an upward departure and the Government's other efforts to enhance the sentence. Also, despite the vigorous opposition of the Government, the Court granted to the defendant a two-point reduction for acceptance of responsibility.
In sum, the petitioner's contention is that, at sentencing and on appeal, the failure of counsel for the petitioner to raise the issue that the Court did not realize it had the authority to downwardly depart constitutes ineffective assistance of counsel. Petitioner argues that to adequately represent a defendant, counsel must be able to recognize how the Guidelines operate. The petitioner further asserts that if the sentencing judge knew that he had the authority to downwardly depart on the reasons raised by counsel, he would have granted the motion. This latter assertion constitutes the Strickland prejudice second prong. As a result, the petitioner contends that his sentence should be vacated and a new sentencing proceeding should be held, at which time the petitioner would be afforded his Sixth Amendment right to effective assistance of counsel.
In response, the Government argues that the Court's words at sentencing in regard to this application for a downward departure "do not suggest that it believed itself to be precluded from downwardly departing." The Court disagrees. While it did not expressly state that it had no authority to depart on the reasons raised by counsel, it stated that there "was no category for a downward departure." Those words were an indication by this Court that it believed that the Guidelines did not permit a downward departure under the circumstances presented to the Court. It is noted that this sentence was prior to the Supreme Court's seminal sentencing case in Koon v. United States, 518 U.S. 81, 98, 116 S.Ct. 2035, 2046, 135 L.Ed.2d 392 (1996), where it was stated emphatically that, "A district court's decision to depart from the guidelines ... will in most cases be due substantial deference, for it embodies the traditional exercise of discretion by a sentencing court."
However, having said that, this Court is of the view that even if counsel should have raised this point on appeal, it would have been to no avail. There is no authority for a sentencing court to downwardly depart based on a defendant's age of eighteen years. In fact, a defendant's youthful age is ordinarily not relevant in a downward departure application. Guideline § 5H1.1 provides as follows:
Age (including youth) is not ordinarily relevant in determining whether a sentence should be outside the applicable guidelines range. Age may be a reason to impose a sentence below the applicable guideline range when the defendant is elderly and infirm and where a form of punishment such as home confinement might be equally efficient as and less costly than incarceration. Physical condition, which may be related to age, is addressed at § 5H1.4 (Physical Condition, *261 Including Drug or Alcohol Dependence or Abuse).
Also, a review of the authorities reveals that "youthful lack of guidance" is not recognized in the Second Circuit as a valid basis for downward departure. United States v. Wong, 40 F.3d 1347, 1381 (2d Cir.1994); see also United States v. Haynes, 985 F.2d 65, 68 (2d Cir.1993) ("We begin by noting that youthful lack of guidance has not been adopted as the law in this Circuit.")
Here, the sentencing court was asked to downwardly depart because of (1) counsel's remorse in not urging the defendant to plead guilty; (2) the renewed entrapment argument; and (3) his youthful age of eighteen years. To this Court's knowledge, there is no authority for a downward departure based on any of these grounds, nor based on a combination of these factors. Therefore, the Court properly stated that it had no authority to downwardly depart. Moreover, even if this issue had been raised on direct appeal and the Second Circuit had remanded the case for resentencing, the result would have been the same. This Court would not downwardly depart based on the reasons stated at sentencing.
Thus, the petitioner has failed to show that the "deficient performance," assuming that it was deficient, "prejudiced the defense." Strickland, 466 U.S. at 687, 104 S.Ct. 2052. Accordingly, there was no ineffective assistance either at the sentencing or on appeal based on the downward departure sentencing issue.
D. Alleged Ineffective Assistance of Counsel at TrialFailure to Object to the Government's Use of a Co-defendant's Redacted Statement During Trial and Closing Arguments
The petitioner contends that his counsel's failure to object to the introduction of a redacted statement by a co-defendant, Roberto Aponte, constituted ineffective assistance of counsel. In addition, the petitioner argues that this error was aggravated by the prosecutor's summation in which he referred to the redacted statement. This contention is patently without merit.
The Sixth Amendment guarantees a defendant's right to cross-examine witnesses. Bruton v. United States, 391 U.S. 123, 126, 88 S.Ct. 1620-21, 20 L.Ed.2d 476 (1968). In particular, Bruton held that in a joint trial, the confession of one co-defendant which implicates both defendantsmay not be introduced despite the court's limiting instruction that the confession be considered only against the confessing defendant. Id. at 128, 88 S.Ct. 1620. The Bruton rule was limited somewhat in Richardson v. Marsh, 481 U.S. 200, 211, 107 S.Ct. 1702, 95 L.Ed.2d 176 (1987), where the Supreme Court held that the Sixth Amendment is not violated where the non-testifying codefendant's confession is admitted with a limiting instruction, if the confession is redacted to eliminate both the defendant's name and any reference to his or her existence. Id.
In the succession of cases after Bruton the rule has been further refined. Today, the Court can admit a non-testifying co-defendant's confession if the statement is appropriately redacted to exclude any reference to the defendant and the statement does not clearly implicate the defendant. Gray v. Maryland, 523 U.S. 185, 189, 118 S.Ct. 1151, 1157, 140 L.Ed.2d 294 (1998); ("we concede that Richardson placed outside the scope of Bruton's Rule those statements that incriminate inferentially"); see also United States v. Smith, 198 F.3d 377, 385 (2d Cir.1999) ("In addition, the plea allocution was not incriminating on its face because it did not directly *262 implicate Smith. Therefore, we find no violation of Gray").
Here, Aponte's statement was admitted over objection by other defense counsel. The statement was redacted to remove the names of the co-conspirators. A copy of the redacted statement is annexed to the opinion and designated as Appendix A. A review of the redacted Aponte statement reveals that the Court eliminated all references that could point to Ramirez. Not only were all names deleted but all specific locations were removed. The Court adheres to its statement made at the trial at the time of the statement's admission:
THE COURT: The statement doesn't point the finger at anybody. It's specifically within the exception to Bruton even as extended by Cruz. Does not say anything about anyone in this case. There are also sufficient number of defendants here and sufficient number of actors in this transaction that no one person is pointed out by this statement. That is under Richardson against Marsh.
Moreover, even if the statement had been erroneously received in evidence, in no way did this violation contribute to the guilty verdict. A confrontation clause violation is subject to a harmless error analysis. Any such error is harmless, when the Court is able to "declare a belief that it was harmless beyond a reasonable doubt." Chapman v. California, 386 U.S. 18, 26, 87 S.Ct. 824, 829, 17 L.Ed.2d 705 (1967); see also Harrington v. California, 395 U.S. 250, 254, 89 S.Ct. 1726, 1728, 23 L.Ed.2d 284 (1969). Here, significantly, the defendant took the stand in his own defense and freely admitted his participation in the seven-kilogram heroin deal. His defense was entrapment, which the jury rejected. The Aponte statement had nothing to do with his convictions. There was no ineffective assistance of petitioner's counsel with regard to the redacted Aponte statement, as a matter of law.
E. As to Newly Developed Case Law Requiring Resentencing Absent the Erroneous Leader Enhancement
The petitioner's sentence was enhanced four levels for being an organizer or leader of a criminal activity that involved five or more participants. Guideline § 3B1.1(a). He submits that he is entitled to be resentenced based on new case law, which demonstrates that his sentence was erroneously enhanced. The petitioner claims that he was "merely" a "broker" which is insufficient to hold him accountable as a leader or organizer under the newly developed case law.
In this regard, the petitioner cites to a number of Second Circuit cases speaking about "a chief organizer," the "highest ranking authority," and a "greater relative responsibility" being a leader/organizer. See United States v. DeRiggi, 72 F.3d 7 (2d Cir.1995); United States v. Brinkworth, 68 F.3d 633, 642 (2d Cir.1995); United States v. McGregor, 11 F.3d 1133, 1139 (2d Cir.1993). Also, the petitioner points out that the Eleventh Circuit found that a mere buyer/seller relationship does not establish the role enhancement. United States v. Maxwell, 34 F.3d 1006 (11th Cir.1994); see also United States v. Atkinson, 85 F.3d 376, 378 (8th Cir.1996). The petitioner contends that "the Petitioner at most was a broker," did not control Aponte or any other member of the Unknown Organization, nor did he set up the location of the transaction, and thus, "did not qualify as a leader or organizer under § 3B1.1."
In opposition, the Government states that Ramirez unsuccessfully raised this issue on appeal and is precluded from raising it here. In addition, the Government *263 contends that there is no change in the law in this regard, and, even if there was such a change, the petitioner could not prevail because of the rule in Teague v. Lane, 489 U.S. 288, 307, 310, 109 S.Ct. 1060, 1073-75, 103 L.Ed.2d 334 (1989).
At the sentencing the Court found, based on the evidence at the trial, that the Government established that Ramirez "was the initiating factor in this deal," and that he was most instrumental in putting this seven-kilogram, million dollar drug deal together in two days. Further, the Court found that Ramirez had "certain decision-making authority as to when and where and how ..." and that he recruited accomplices and "got all these people together." In addition, the Court found that the Government proved that "his degree of participation in planning or organizing the offense was a major one."
The petitioner raised this issue on appeal, and it was rejected. The petitioner's convictions were affirmed in a summary order on August 17, 1992. United States v. Maldonato, Ramirez, Bryce and Alvarez, No. 91-1151(L), slip. op. (2d Cir.8/17/92). While a summary order has no precedential effect, the Court is constrained to quote from the order in that it is part of the resolution of this contention in this habeas case. In particular, the Court of Appeals held:
We are also unpersuaded by the contention that the district court erred in sentencing Ramirez as a leader of the conspiracy. "[F]indings as to the defendant's role[] need be established only a preponderance of the evidence and will be overturned only if they are clearly erroneous." United States v. Jacobo, 934 F.2d 411, 418 (2d Cir.1991). The record contained evidence that Ramirez, inter alia, initiated a million-dollar heroin transaction, was able to recruit several accomplices in less than a day for the transaction, and was to receive $100,000 for his efforts, whereas another coconspirator was to receive only $10,000. In light of he record, the court's finding that Ramirez was a leader is not clearly erroneous.
Having raised this sentencing issue on appeal, the petitioner is precluded from again asserting it in a habeas proceeding. As stated in Riascos-Prado v. United States, 66 F.3d 30, 34 (2d Cir.1995):
It is clear that "`[s]ection 2255 may not be employed to relitigate questions which were raised and considered on direct appeal.'" Cabrera v. United States, 972 F.2d 23, 25 (2d Cir.1992) (quoting Barton v. United States, 791 F.2d 265, 267 (2d Cir.1986) (per curiam)); ... Douglas, 13 F.3d at 46 ("[A]ny claim raised ... at this point that was also raised in [a] previous § 2255 motion[] or on direct appeal of [the petitioner's] conviction is precluded from consideration by this Court."); 28 U.S.C. § 2255 ("The sentencing court shall not be required to entertain a second or successive motion for similar relief on behalf of the same petitioner.").
Further, on the merits, the cases cited by counsel for the petitioner do not appear to be that kind of change in the law that would have affected the Court's initial sentencing determination. Moreover, this "new" case law could not serve as a basis for resentencing the petitioner. New rules generally should not be applied retroactively to a case on collateral review. In Teague v. Lane, 489 U.S. 288, 307, 109 S.Ct. 1061, 1073, 103 L.Ed.2d 334 (1989), it was decided that there were only two exceptions to the general rule of non-retroactivity for cases on collateral review. First if the new rule places "certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe." Second, a new rule *264 should be applied retroactively if it requires the observance of "those procedures that ... are `implicit in the concept of ordered liberty.'" Teague, 489 U.S. at 307, 109 S.Ct. at 1073; see also United States v. Salerno, 964 F.2d 172, 176-77 (2d Cir.1992) applying the Teague Rule "to federal prisoners seeking relief pursuant to § 2255." In this case, the sentencing issue here and the "new" case law, do not fall within either prong of the Teague Rule and, thus, will not be applied retroactively.
In his reply brief, the petitioner cites to Jones v. United States, 161 F.3d 397, 403 (6th Cir.1998) in which the court retroactively applied a clarifying amendment to the Guidelines. The court held that "It is unfair to punish a defendant for the Commissioner's lack of clarity, especially when the Commissioner acknowledges and corrects the ambiguity." The petitioner's reliance on Jones is misplaced. Here we do not have a clarifying amendment, but an alleged difference of opinion in interpreting an existing unamended guideline. However, these "new" cases, even if considered by the Court, would not require resentencing.
For the reasons stated above, the petitioner's claim based on a subsequent change in the law, as to the organizer/leader sentencing issue, is denied.
D. As to the Petitioner's Request for an Evidentiary Hearing
In his final contention, the petitioner asserts that, due to the nature of the claims he has raised, he is entitled to an evidentiary hearing on these matters. Ramirez argues that there are disputed issues of facts to be resolved or at least, "it is not clear from the record itself that the facts alleged in [his] habeas ... petition would not entitle the petitioner to relief." Also, the petitioner contends that an evidentiary hearing is required where his claims, if taken as true, would entitled him to relief.
Section 2255 requires the district court to hold a hearing "unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief." In reviewing the law as to whether to hold a hearing in a habeas case, the Court finds that "a district court has broad discretion to hear further evidence in habeas cases." Nieblas v. Smith, 204 F.3d 29, 31 (2d Cir.1999). See also Townsend v. Sain, 372 U.S. 293, 318, 83 S.Ct. 745, 759, 9 L.Ed.2d 770 (1963) ("In every case [the district judge] has the power, constrained only by his sound discretion, to receive evidence bearing upon the applicant's constitutional claim."). The rule in this regard is stated in Hayden v. United States, 814 F.2d 888, 892 (2d Cir.1987):
A petition for habeas corpus requires a hearing to resolve disputed issues of fact unless the record shows that the petitioner is not entitled to relief. 28 U.S.C. § 2255. We have consistently held that the standard to be used in making this determination is whether, "if the evidence should be offered at a hearing, it would be admissible proof entitling the petitioner to relief. Mere generalities or hearsay statements will not normally entitle the applicant to a hearing, since such hearsay would be inadmissible at the hearing itself. The petitioner must set forth specific facts which he is in a position to establish by competent evidence." Dalli v. United States, 491 F.2d 758, 760-761 (2d Cir.1974) (citations omitted).
Recently, in Chang v. United States, 250 F.3d 79, 84-86 (2d Cir.2001), the judge who presided at the underlying trial, decided the habeas petition without an evidentiary hearing. In affirming, the Chang court relied on Section 2255 itself, which expressly provides that the "Court may *265 entertain and determine such motion without requiring the production of the prisoner at the hearing." 28 U.S.C. § 2255. See Machibroda v. United States, 368 U.S. 487, 495, n. 4, 82 S.Ct. 510, 7 L.Ed.2d 473 (1962). The Court cited with approval the decisions of the Fourth and Tenth Circuits which made it clear that the court has discretion to ascertain whether the claim is substantive before granting a full evidentiary hearing. Also, in Chang, the Court observed that "Judge Glasser, having tried the case, was intimately familiar with the trial proceedings and the events and circumstances surrounding them. It was within the Court's discretion to determine that more was not needed." Id. at 86.
In this proceeding, the petitioner has set forth no specific facts which raised any material issues of fact requiring a hearing. The Court had before it a complete transcript of the trial and the sentencing proceeding. The petitioner's voluminous motion to vacate the sentencing with attached exhibits fully set forth all of the prior proceedings and the contested matters. The petitioner's memorandum of law reviewed all of the factual issues and capably set forth the legal precedents. In addition, the petitioner's reply memorandum carefully attempted to refute the Government's arguments. Most importantly, however, this Court presided at the four-month criminal trial, and "is intimately familiar with the trial proceedings and the events and circumstances surrounding them." In the exercise of the Court's discretion no evidentiary hearing is required.
CONCLUSION
For the foregoing reasons, the petition is denied in all respects. Further, having considered the standards for a certificate of appealability under Fed. R.App. Pro. 22(b) and 28 U.S.C. § 2253(c)(2), as set forth in Barefoot v. Estelle, 463 U.S. 880, 893 n. 4 103 S.Ct. 3383, 3395, 77 L.Ed.2d 1090 (1983) and Lucidore v. New York State Div. Of Parole, 209 F.3d 107, 112 (2d Cir.2000), the Court finds that the petitioner fails to make a sufficient showing to entitle him to a certificate of appealability.
Accordingly, the petition is dismissed and the Clerk of the Court is directed to close this case.
SO ORDERED.
SUPPLEMENTAL MEMORANDUM OF DECISION AND ORDER
SPATT, District Judge.
On November 5, 2001, this Court issued a thirty-six page Memorandum of Decision and Order, which in all respects denied this Section 2255 habeas corpus petition.
On November 15, 2001, the Court received a letter dated November 10, 2001 from Marc Ramirez, the Pro Se Petitioner. In this letter the Petitioner asserts that the Court failed to address "the major issue raised in the lower court", the Massiah issue. Annexed to the Petitioner's letter is a Motion for Reconsideration.
The Motion for Reconsideration states that on July 2, 1997 "a supplemental memorandum was submitted to the District Court by Petitioner in which an additional allegation was added alleging a violation of the Petitioner's rights pursuant to Massiah v. U.S. and the Sixth Amendment of the Constitution." In his supplemental memorandum the petitioner asserted that "he was denied his right to counsel because the respondents used evidence obtained in violation of Massiah against Petitioner at his trial, and without such evidence Petitioner would not have been convicted."
The Motion for Reconsideration further states that the Government responded to the Petitioner's supplemental memorandum *266 on March 22, 1999 and the Petitioner filed a reply on April 26, 1999. Further, the Petitioner contends that the Massiah issue was properly joined and "constitutes the gravamen of petitioner's case." The Petitioner further asserts that "this Court, in the November 5, 2001 decision completely failed to address the issue." Petitioner is unable to adequately perfect his appeal until and unless the issue is determined.
The Petitioner is correct. The Court inadvertently overlooked the Petitioner's supplemental memorandum, and the response and reply. Therefore, the Court will grant the Petitioner's motion for reconsideration only to the extent that it will now decide his claim of ineffective assistance of counsel based on the Massiah issue.
The background of the case, the appeal from the convictions and the prior proceedings in this matter are set forth at length in the Court's November 5, 2001 decision and need not be repeated.
THE MASSIAH CONTENTIONS
In his Supplemental Memorandum of Law, the Petitioner asserts that his counsel was ineffective at trial by failing to object to "the Government's violation of Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964) and the Sixth Amendment right to counsel". He relates that while he was out on bail in connection with the indictment in this case, an undercover government agent "deliberately elicited incriminating statements from the petitioner in the absence of counsel and then utilized these incriminating statements as evidence against him at his trial."
The charges in this case against the Petitioner emanate from a major drug transaction which took place on March 14, 1989. The Petitioner relates that on December 20, 1989, while he was out on bail with regard to the charges in this case, DEA Agent Timothy Lum, acting in an undercover capacity, allegedly met him at the BBQ restaurant to discuss a heroin deal, which was not consummated. The Petitioner further correctly states that at the trial in this case, the Government presented DEA Agent Lum to testify about incriminating statements the Petitioner made in the absence of counsel regarding the December heroin transaction. The Petitioner alleges that this meeting was set up by the Government to circumvent his Sixth Amendment right to the presence of counsel. He further contends that he had pled not guilty to the charges at issue, retained counsel and made a motion setting forth his intention to utilize an entrapment defense at the trial. In addition, he contends that Agent Lum's supervisor, Agent Piccininni was also the supervising agent for the activities at issue during this trial. Also, he asserts that Agent Lum's FOI Report of the December 20, 1989 meeting utilized the Petitioner's original case number CI-89-0193.
In sum, the Petitioner contends that "the same case number and same supervising agent demonstrate that the government utilized this December 20, 1989 meeting to obtain evidence and incriminating statements of the Petitioner to utilize at the Petitioner's trial for which the indictment was pending in order to contradict the Petitioner's entrapment defense." Further, the Petitioner states:
The Petitioner contends that it is clear that the incriminating statements which Agent Lum testified to were deliberately elicited from the Petitioner in the absence of counsel. Therefore, the Petitioner submits that the government's use as evidence of these incriminating statements deliberately elicited in the absence of counsel while supposedly investigating "new crimes" related to the *267 pending indictment violated his Sixth Amendment right and the Supreme Court's mandate of Massiah and progeny.
The Petitioner therefore concludes that his counsel should have objected at the trial, based on the Massiah Rule and the failure to do so "fell below an objective standard of reasonableness." Further, the Petitioner contends that his counsel's ineffectiveness in failing to object prejudiced him. He asserts that had counsel objected to the Government's use of this evidence, the objection would have been sustained and "the government would have been left without any evidence in which to refute the Petitioner's strong entrapment defense" and "there exists a reasonable probability that the result of the proceeding would have been different". Therefore, he reasons that "[t]his violation by the government and counsel's ineffectiveness demands that the Petitioner's conviction and sentence be vacated". In addition, the Petitioner contends that, at the least, "he has provided the proof necessary for an evidentiary hearing on this supplemental issue."
In opposition, the Government contends that the Sixth Amendment right to counsel is offense specific. In that regard, the Government contends that the Sixth Amendment does not prohibit the questioning of an individual regarding other crimes, "as to which the right has not yet attached". In sum, the Government asserts that Lum's meeting with the Petitioner on December 20, 1989 "had nothing to do with the pending charges against him". Moreover, the Government contends that even if the December 20, 1989 meeting did concern the charges at issue in this case, "nothing improper occurred since the Sixth Amendment does not prohibit the use of such statements for impeachment purposes ... or if another exception to the exclusionary rule applies".
DISCUSSION
I. The Massiah Rule and the "New Crime" Exception
In Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964) the Supreme Court held that a defendant's Fifth and Sixth Amendment rights were violated by the use in evidence of incriminating statements which he made to a co-defendant, after indictment and their release on bail, without the defendant's knowledge that his co-defendant was cooperating with the Government. The Supreme Court approved the rule followed in the New York Courts that, "Any secret interrogation of the defendant, from and after the finding of the indictment, without the protection afforded by the presence of counsel, contravenes the basic dictates of fairness in the conduct of criminal causes and the fundamental rights of persons charged with crime." Id. at 206, 84 S.Ct. 1199. The Court then stated the Rule now known as the Massiah Rule:
"Here we deal not with a state court conviction, but with a federal case, where the specific guarantee of the Sixth Amendment directly applies.... We hold that the petitioner was denied the basic protections of that guarantee when there was used against him at his trial evidence of his own incriminating words, which federal agents had deliberately elicited from him after he had been indicted and in the absence of his counsel. It is true that in the Spano case the defendant was interrogated in a police station, while here the damaging testimony was elicited from the defendant without his knowledge while he was free on bail. But as Judge Hays pointed out in his dissent in the Court of Appeals, `if such a rule is to have any efficacy it *268 must apply to indirect and surreptitious interrogations as well as those conducted in the jailhouse'. In this case, Massiah was more seriously imposed upon * * * because he did not even know that he was under interrogation by a government agent."
Id. at 206, 84 S.Ct. 1199.
However, the incriminating statements in Massiah made to the secret cooperating codefendant were related to the narcotics activity for which the defendant was convicted. Similarly, following Massiah, in United States v. Henry, 447 U.S. 264, 100 S.Ct. 2183, 65 L.Ed.2d 115 (1980) in jail preceding trial, the defendant made incriminating statements to an informant inmate regarding the very bank robbery for which the defendant was indicted and incarcerated. See also United States v. Rosa, 11 F.3d 315, 329 (2d Cir.1993) (The incriminating statements concerned the charges at issue). Twenty years later the Supreme Court revisited the issue in Maine v. Moulton, 474 U.S. 159, 106 S.Ct. 477, 88 L.Ed.2d 481 (1985). Here again, the incriminating statements made to a cooperating co-defendant, without the presence of counsel, involved the very charges for which the defendant was under indictment and subsequently tried and convicted. Also, the issue of pending charges and "new crimes" was discussed in Moulton:
On the other hand, to exclude evidence pertaining to charges as to which the Sixth Amendment right to counsel had not attached at the time the evidence was obtained, simply because other charges were pending at that time, would unnecessarily frustrate the public's interest in the investigation of criminal activities. Consequently, incriminating statements pertaining to pending charges are inadmissible at the trial of those charges, notwithstanding the fact that the police were also investigating other crimes, if, in obtaining this evidence, the State violated the Sixth Amendment by knowingly circumventing the accused's right to the assistance of counsel.
Id. at 180, 106 S.Ct. 477 (emphasis supplied).
The Petitioner points to Mealer v. Jones, 741 F.2d 1451 (2d Cir.1984) to support his position that "the Massiah protection" extended to statements concerning the indicted offense made in the course of investigating into a "new crime." In Mealer, the defendant was indicted for murder in the second degree. The "new crime" was the attempted bribery of an eyewitness, who was cooperating with the district attorney. In its habeas decision, the district court held that the attempt to suborn perjury was an unrelated charge not yet under indictment and for which Mealer's right to counsel had not yet attached. Therefore, the district court concluded the use of those statements in Mealer's murder trial did not violate Massiah. However, the Court in Mealer held only that: "we conclude it was error for the Court to admit appellant's statements to Gaudet as they arose out of and concerned the offense for which Mealer was under indictment." Id. at 1454. In this regard, the Second Circuit referred to the so-called "new crime" in Mealer as follows:
But the facts of this case demonstrate the fallacy of automatically treating as a similar windfall to the government any information it obtains during a "new crimes" investigation. The "new crime" under investigation here was Mealer's attempt to suborn perjury at the trial on his pending indictment. That crime was intimately related to the pending indictment, and the government must have known that any statements made in the course of suborning perjury would necessarily *269 incriminate Mealer on the murder charge as well. Under the circumstances, we decline to assume that merely because the government was put on notice by appellant that he contemplated a new crime, in empowering its agent to investigate that new crime the government lacked all designs to elicit information concerning the old. Indeed, given that the nature of the new crime proposed also put the government on notice that any discussion between Mealer and Gaudet would almost certainly incriminate Mealer on the old crime as well, we view this, if anything, as an even stronger case than Beatty for finding a violation of defendant's Sixth Amendment rights.
Id. at 1455.
In this Court's view, there is no clear defining answer to the question of the Government-sponsored obtaining of statements from an indicted defendant, without counsel, in regard to "new crimes" and those "inextricably intertwined." The definition of a "new crime" is, apparently, an offense not related in any way to the indicted charges. In addition, it is clear that a "new crime" investigation that obtains statements referring to the indicted crimes, is precluded under the Massiah Rule. See Beatty v. United States, 389 U.S. 45, 88 S.Ct. 234, 19 L.Ed.2d 48 (1967) rev'g, 377 F.2d 181 (5th Cir.1967).
This rule as to new crimes that "relate" to the indicted offense is clearly said but has been interpreted with varying results in the courts. For example, in Grieco v. Meachum, 533 F.2d 713 (1st Cir.1976) it was held that "Cassesso's statements on the other hand, were primarily uttered in the commission of another substantive offense, subornation of perjury, and were only incidentally admissible in his trial on the pending indictment. Because of this distinction we find that Cassesso's Sixth Amendment right to counsel was not violated by Glavin's conversations with him, nor by the introduction into testimony in his trial for the murder of Deegan." United States v. Moschiano, 695 F.2d 236 (7th Cir.1982) cert. denied 464 U.S. 831, 104 S.Ct. 110, 78 L.Ed.2d 111 (1983) is a case involving somewhat similar circumstances to the instant case. In Moschiano, involving a heroin conspiracy, the Court ruled on the admissibility of evidence of "new crimes":
"We adhere to this distinction between post-indictment statements relating to new criminal acts and post-indictment statements constituting admissions of past wrongdoing. The former are generally outside the protection of Massiah because no person has a constitutional right to the assistance of counsel while committing a crime. The latter type of statements are generally not admissible at trial on the pending indictment because they are the kind of utterances for which the assistance of counsel could legitimately play a useful role. In the instant case, Moschiano's post-indictment statements concerned a separate crimethe attempted purchase of Preludin tablets without a prescription and were therefore unprotected by the exclusionary rule of Massiah."
695 F.2d at 241-42.
However, in Moschiano, the Seventh Circuit expressed concern that "at least in egregious cases, Massiah would prohibit the use of evidence of post-indictment criminal activity under circumstances in which that evidence was procured not through an independent investigation into continuing or separate criminal activity but instead through a confrontation with government agents engineered for the purpose of creating evidence to use against the defendant at the trial of the indicted offenses." So, there is authority that *270 where the post-indictment evidence was not the product of an ongoing investigation to turn up "new crimes" but was arranged by the Government "to obtain from the defendant evidence of specific intent to shore up the government's case," that would be a Massiah violation. See United States v. Anderson, 523 F.2d 1192, 1195-96 (5th Cir.1975).
Another important Supreme Court decision that is enlightening on this subject is McNeil v. Wisconsin, 501 U.S. 171, 175, 111 S.Ct. 2204, 2207, 115 L.Ed.2d 158 (1991). In McNeil, it was held that the Sixth Amendment right to counsel is offense specific:
It cannot be invoked once for all future prosecutions, for it does not attach until the prosecution is commenced, that is, "at or after the initiation of adversary judicial criminal proceedingswhether by way of formal charge, preliminary hearing, indictment, information, or arraignment." United States v. Gouveia, 467 U.S. 180, 188, 104 S.Ct. 2292, 2297, 81 L.Ed.2d 146 (1984) (quoting Kirby v. Illinois, 406 U.S. 682, 689, 92 S.Ct. 1877, 1882, 32 L.Ed.2d 411 (1972) (plurality opinion)).
Another Second Circuit case of interest is United States v. DeVillio, 983 F.2d 1185, 1191 (2d Cir.1993). In DeVillio, five tapes that were admitted into evidence included discussions of two burglaries, one of which was not involved in the pending charges. It was held that there was no Massiah violation:
De Angelo and Spoto were not charged with the Bulova burglary as a substantive crime. As such, we find that the trial court's admission into evidence of certain portions of the September 1, 1987 conversation concerning the Bulova burglary was appropriate and that no Massiah violation occurred. See McNeil v. Wisconsin, 501 U.S. 171, 174-75, 111 S.Ct. 2204, 2207, 115 L.Ed.2d 158 (1991). (Sixth Amendment right to counsel is "offense-specific" and "cannot be invoke once for all future prosecutions, for it does not attach until a prosecution is commenced"); Alexander v. State of Connecticut, 917 F.2d 747, 751 n. 1 (2d Cir.) (no Massiah violation in admitting into evidence conversation between friend who was visiting prisoner charged only with arson where inmate confided he had also committed murder and murder charges had not been filed) (citing Moulton).
In this case the Petitioner contends that "Massiah will still bar the evidence when the charges are inexplicably intertwined", citing four cases from circuits other than the Second Circuit. A review of these cases reveals that none is determinative. In United States v. Melgar, 139 F.3d 1005, 1011 (4th Cir.1998), the Court determined that the defendant's post indictment incriminating statements should have been suppressed. The Court held that the statements were "inextricably intertwined" with the pending charges, and the questions to the defendant were closely related to those which his Sixth Amendment right has attached. However, the Court noted the general rule that:
incriminating statements pertaining to crimes "other" than the pending charges are admissible at trial on those charges, without discussing the closely related exception. However, neither case offered the Court any reason to do otherwise because the post-indictment interrogations in McNeil and Moran elicited information only as to the offenses not closely related to the charged offense. See McNeil [v. Wisconsin], 501 U.S. [171,] 175, 111 S.Ct. 2204, [115 L.Ed.2d 158] (after charged with robbery in West Allis, defendant was interrogated (and later charged and convicted) of "unrelated, *271 uncharged" offensesa murder, attempted murder, and robbery in Caledonia) (internal quotations omitted); Moran [v. Burbine], 475 U.S. [412,] 416, 106 S.Ct. [1135,] 1138 [89 L.Ed.2d 410] (after defendant was arrested in connection with a burglary in Cranton he was interrogated (and then charged) with an unrelated murder in Providence). Moulton is the sole instance in which the court has been presented with a post-indictment interrogation about two sorts of offenses in addition to those originally chargedone closely related to the originally charged offenses and one not. Burglary of the auto parts was closely related to the originally charged theft of those same partsboth crimes occurred at the same time and place and involved the same victim and circumstances. The attempted murder, however, was planned at a different time and place, and involved a different victim, and so was not so closely related to the originally charged theft offenses.
Id. at 1013 (Fn.1) (emphasis supplied).
In United States v. Doherty, 126 F.3d 769, 776 (6th Cir.1997), a case involving "precisely the same underlying conduct (that) formed the basis for both charges," the Court commented that, "The question of how `inextricably intertwined' two offenses must be so that the Sixth Amendment right to counsel attaches simultaneously with respect to both offenses is open to some doubt, and we leave consideration of that question to another day."
In United States v. Laury, 49 F.3d 145, 149 (5th Cir.1995), the interrogation involved the charged robberies. In United States v. Mitcheltree, 940 F.2d 1329, 1341 (10th Cir.1991), the statements at issue were elicited "in an effort to lead the defendant into witness tampering" involving the pending charges.
In an important recent case, United States v. Bender, 221 F.3d 265 (1st Cir. 2000), the statements at issue concerned ways in which the defendant could illegally influence the outcome of his impending trial. There were two schemes discussed. The first involved the falsification of an alibi. The second involved the kidnaping and murder of Government witnesses who would testify against him. The statements were held to violate the Massiah Rule.
We disagree. The statements were incriminating not only as to future crimes (perjury, conspiracy to kidnap and murder) but also as to the pending charges. So long as the statements were incriminating as to the pending charges and were deliberately elicited by government agents, they cannot constitutionally be admitted in the trial of those charges. Cf. Id. at 180, 106 S.Ct. 477 (holding that the Sixth Amendment does not permit the introduction of directly incriminating statements obtained during the investigation of other crimes.)
Id. at 269.
Here, the statements were solely incriminating as to the December 1989 drug transaction; nothing ever referred to or mentioned the pending crimes. There is no question that the December 20, 1989 drug transaction was a "new crime." However, upon reviewing all the authorities cited above, it is clear that the issue before the Court is whether the statements of the Petitioner, elicited by Agent Lum were "closely related," or were "inexplicably intertwined" with the crimes at issue. In this regard, the Petitioner points out that "the investigation report filled out by Lum used the case number for the instant offense"; the Petitioner was never indicted with regard to the subsequent acts; Lum is a federal agent, which is the same prosecuting body and "they were only used to bolster the Government's case *272 in the instant trial". Petitioner asserts that Lum's interest was "nothing more than an attempt to obtain incriminating information" in violation of the Petitioner's Sixth Amendment right to counsel. He concludes that had former counsel raised this issue prior to trial, it would have resulted in suppression of the evidence.
A review of the evidence and the cases reveals that there was no Massiah violation. First, other than the fact that the same case number was used, there is no evidence that the December 20, 1989 aborted drug transaction was a "closely related crime" or was "inexplicably intertwined" with the March 14, 1989 criminal conduct. The December 1989 incident was an unrelated uncharged transaction. There is no evidence that Agent Lum attempted, in any manner, to obtain statements from the Petitioner pertaining to the crimes at issue.
Therefore, the Court finds that this December 1989 purported drug transaction was not a "closely related" crime nor was it "inexplicably intertwined" with the crimes at issue; it was a "new crime." Accordingly, there was no Massiah violation, and had counsel raised this issue, it would have been of no avail. There was no ineffective assistance of counsel in the failure to raise the Massiah issue.
II. The Lum Appearance and Testimony were Independently Admissible as Impeachment Evidence
The Lum testimony concerning the December 20, 1989 incident was properly admitted as impeachment evidence. At the trial, the Petitioner took the stand in his own defense. The Petitioner testified that he was entrapped into entering into the March 14, 1989 drug deal and that this was his only contact with drug dealing. It was on cross-examination that Lum was brought into the Courtroom, and then he testified in the Government's rebuttal case.
As the Court set forth at length in the November 5, 2001 decision, the Government had the right to use the statements adduced at the December 20, 1989 incident as impeachment evidence with regard to a specific falsehood. See United States v. Havens, 446 U.S. 620, 626-27, 100 S.Ct. 1912, 1916, 64 L.Ed.2d 559 (1980) ("It is essential ... to the proper functioning of the adversary system that when a defendant takes the stand, the government be permitted proper and effective cross-examination in an attempt to elicit the truth"); United States v. Payton, 159 F.3d 49, 58 (2d Cir.1998) ("When a defendant offers an innocent explanation he `opens the door' to questioning into the truth of his testimony, and the government is entitled to attack his credibility on cross-examination"); United States v. Garcia, 936 F.2d 648, 651 (2d Cir.1991) ("Once [defendant] Dominiguez testified that he had no idea that the white powder was cocaine, he opened the door for the Government to impeach his testimony by establishing on cross-examination that he was familiar with and indeed had used cocaine as recently as the day before his arrest."); United States v. Beverly, 5 F.3d 633 (2d Cir.1993) ("Where a defendant testifies on direct about a specific fact, the prosecution is entitled to prove on cross-examination that he lied as to that fact. Garcia, 936 F.2d at 653. The same holds true for defendant's false statements on cross-examination. United States v. Atherton, 936 F.2d 728, 734 [2d Cir.1991]. Finally, the government's opportunity to impeach the defendant's credibility once he has taken the stand includes the opportunity to use evidence that it was barred from using on its direct case. Atherton, 936 F.2d at 734.")
In a somewhat similar legal mold, it is well settled that statements taken in violation of the Miranda Rule are admissible to *273 impeach a defendant on the stand. This rule was clearly enunciated in Michigan v. Harvey, 494 U.S. 344, 350-51, 110 S.Ct. 1176, 1180, 108 L.Ed.2d 293 (1990):
The prosecution must not be allowed to build its case against a criminal defendant with evidence acquired in contravention of constitutional guarantees and their corresponding judicially created protections. But use of statements so obtained for impeachment purposes is a different matter. If a defendant exercises his right to testify on his own behalf, he assumes a reciprocal "obligation to speak truthfully and accurately," Harris, supra, 401 U.S., at 225, 91 S.Ct., at 645, and we have consistently rejected arguments that would allow a defendant to "`turn the illegal method by which evidence in the Government's possession was obtained to his own advantage, and provide himself with a shield against contradiction of his untruths.'" Id. at 224, 91 S.Ct., at 645 (quoting Walder v. United States, 347 U.S. 62, 65, 74 S.Ct. 354, 356, 98 L.Ed. 503 (1954)). See also [Oregon v.] Hass, supra, 420 U.S. [714,] 722, 95 S.Ct. [1215,] 1220-21, [43 L.Ed.2d 570]; United States v. Havens, 446 U.S. 620, 626, 100 S.Ct. 1912, 1916, 64 L.Ed.2d 559 (1980).
Finally, the Court finds that no evidentiary hearing on the Massiah issue is required. As noted in the Court's November 5, 2001 decision, when "[t]he files and records of the case conclusively show that the Petitioner is entitled to no relief," there need be no hearing. 28 U.S.C. § 2255. The issues of fact in this case were sufficiently adduced at the trial and contained in the voluminous transcripts. This is especially compelling in that this Court presided over the trial. See Machibroda v. United States, 368 U.S. 487, 495 n. 4, 82 S.Ct. 510, 7 L.Ed.2d 473 (1962); Chang v. United States, 250 F.3d 79, 84-86 (2d Cir.2001). This determination is especially viable in this case, where the evidence was used only as impeachment of the petitioner and on rebuttala clearly permissible use of the evidence.
CONCLUSION
In sum, the Court finds that there was no ineffective assistance of Petitioner's trial counsel in failing to object to the Lum evidence based on the Massiah Rule. The Court notes, however, that trial counsel for the Petitioner did object to the admission of this evidence on other grounds, which objection was properly overruled. The Government's use of this evidence in the manner it did, to impeach the testifying petitioner did not violate the Sixth Amendment or the Supreme Court's Massiah holding.
Based on the foregoing, and additional reasons set forth in the Court's November 5, 2001 decision, the petition is denied in all respects. Further, having considered the standards for a certificate of appealability under Fed.R.App.Pro.22(b) and 28 U.S.C. § 2253(c)(2), as set forth in Barefoot v. Estelle, 463 U.S. 880, 893 n. 4, 103 S.Ct. 3383, 3395 n. 4, 77 L.Ed.2d 1090 (1983) and Lucidore v. New York State Div. Of Parole, 209 F.3d 107, 112 (2d Cir.2000), the Court finds that the petitioner has not made a substantial showing of a denial of a constitutional right. Accordingly, the Court finds that the Petitioner is not entitled to a certificate of appealability.
Accordingly, the petition is dismissed and the Clerk of the Court is directed to close this case.
SO ORDERED.
NOTES
[*] Tr. refers to the trial transcript.
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People v Mendez (2015 NY Slip Op 04150)
People v Mendez
2015 NY Slip Op 04150
Decided on May 13, 2015
Appellate Division, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on May 13, 2015
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department
RANDALL T. ENG, P.J.
WILLIAM F. MASTRO
SANDRA L. SGROI
ROBERT J. MILLER
BETSY BARROS, JJ.
2013-10803
(Ind. No. 6464/09)
[*1]The People of the State of New York, respondent,
vSaul Mendez, appellant.
Lynn W. L. Fahey, New York, N.Y., for appellant.
Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Diane R. Eisner of counsel; Gregory Musso on the memorandum), for respondent.
DECISION & ORDER
Appeal by the defendant, as limited by his motion, from a sentence of the Supreme Court, Kings County (Del Giudice, J.), imposed November 12, 2013, on the ground that the sentence was excessive.
ORDERED that the sentence is affirmed.
The defendant's valid waiver of his right to appeal precludes review of his contention that the sentence imposed was excessive (see People v Bradshaw, 18 NY3d 257, 264-267; People v Ramos, 7 NY3d 737, 738; People v Lopez, 6 NY3d 248, 255; People v Brown, 122 AD3d 133; People v Stanley, 99 AD3d 955).
ENG, P.J., MASTRO, SGROI, MILLER and BARROS, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court
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177 S.E.2d 562 (1970)
STATE of West Virginia
v.
Lennis ANGEL.
No. 12866.
Supreme Court of Appeals of West Virginia.
Submitted September 22, 1970.
Decided November 17, 1970.
*563 Samuel D. Lopinsky, Chester Lovett, Charleston, for plaintiff in error.
Chauncey H. Browning, Jr., Atty. Gen., George E. Lantz, Deputy Atty. Gen., Willard A. Sullivan, Cheryl A. Wheeler, Asst. Attys. Gen., Charleston, for defendant in error.
BERRY, Judge:
This is an appeal by the defendant, Lennis Angel, from a judgment of February 18, 1969, of the Circuit Court of Kanawha County, West Virginia, affirming a judgment *564 of the Intermediate Court of Kanawha County entered July 24, 1968, on a jury verdict which had found the defendant guilty of murder in the first degree without recommendation for mercy.
The defendant was indicted at the January, 1967, term of the Intermediate Court of Kanawha County for the murder of Frances Voiles, a twelve year old girl who had been a baby sitter for the two children of the defendant at his residence in the City of Nitro when last seen alive.
A writ of error was granted by this Court on September 15, 1969, and a motion by the defendant to file typewritten briefs was granted June 23, 1970. The case was submitted for decision on arguments and briefs of the parties at the September, 1970, Regular Term of this Court. The errors assigned by the defendant are numerous and relate to the objections that were made throughout the trial of this case which were continuously made and no doubt prolonged the trial and resulted in a lengthy record.
In order to understand the matters involved in this appeal it is necessary to review the evidence introduced during the trial, both on behalf of the state and of the defendant.
On November 19, 1966, around 4:30 a. m. some person reported to the Nitro City Police that a body was lying near the Nitro High School. After the report was received two Nitro City Policemen, Charles Sisk and Sergeant Johnson, went to the reported scene and found the dead body of a young girl lying doubled up with some of her clothes missing and the rest disarranged. Her body bore numerous stab wounds. The testimony of a pathologist, Dr. Willis D. Garrard, who examined her body later that morning, showed that she had 46 stab wounds covering many areas of her body, and that the wounds were inflicted within a comparatively short time. He testified that her death was caused as the result of two or three deep stab wounds which penetrated the chest and back in the area of the heart and lungs.
Near the area where the body was found the officers also found a hunting knife and scabbard and the knife appeared to have blood on it. The identity of the girl was not established until almost noon on the day her body was found when her grandfather and other relatives identified the girl at the hospital where the pathologist was examining her. Although the victim was only twelve years of age, she was large for her age and the pathologist estimated her weight at about 135 pounds. Samples of the victim's blood and hair were given to the police by the pathologist.
After the body was found the police called Mayor W. W. Alexander of Nitro and Clarence A. Palmer, Captain of the Police of Nitro, who proceeded to the scene. Later the mayor called the county coroner and the state police. Two state troopers, John Rapp and F. L. Kyle, who were patrolling in that area, went to the funeral home to which the body had been taken before it was transported to the hospital for examination. Trooper R. L. Hurt was called into the case about 7:00 a. m. from his home.
Later in the morning the mayor received a telephone call from an unknown source to the effect that blood stains were visible on the sidewalk and around the front of the defendant's house. Mayor Alexander, together with two other men who happened to be in his office at the time, proceeded to the defendant's house and was met at the door by the defendant and his father who invited him into the house. The mayor observed what appeared to be blood stains outside the house, and after he entered the house found numerous similar stains on the walls, floor, window sills and some of the furnishings. The defendant's wife, mother and other persons were present at that time. The evidence is uncontradicted that the defendant invited the mayor into his house.
*565 The mayor talked with the defendant and his father and mentioned the identity of the dead girl, which the mayor at that time was aware of. The mayor testified that he did not at that time suspect the defendant and that he was merely investigating the matter because of the telephone call made to him in connection therewith, although he himself did not have police authority. The mayor discussed the situation with the defendant who told him that he had left the Angel home about 11:00 p. m. on the night before and that at that time there was a boy named Butch Reedy with the Voiles girl, that he felt the Reedy boy was the guilty party and wanted to help the police solve the matter as quickly as possible. The defendant's wife was not at home at the time and apparently did not come home until about 3 o'clock a. m. The two young children were at home with their father when their mother returned. While in the house the mayor observed that the floor had been recently cleaned. Another witness testified later in the trial that it was obvious some changes had been made in the house, because there were no rugs nor curtains present, and that he observed a greenish powder residue on the linoleum at some places similar to that left by Comet cleanser, a can of which was later found in the house.
The mayor told the defendant the police would want to examine the house, and the evidence introduced by the state is that the defendant readily agreed and either gave or had the key to the house given to the mayor for that purpose. The only conflict with regard to this matter contained in evidence offered by the state is to the effect that the defendant's father gave the key to the mayor without the express consent of the defendant. However, if it did so happen the defendant was present at the time this was done and made no objection.
The mayor, acting on the offer of cooperation by the defendant, suggested that the family might go to the father's home while the police were conducting their investigation to which suggestion the defendant agreed. The mayor also told the defendant he would have the police take him to the city hall where he could make a statement if he so desired. The mayor called the police, and the defendant and his family went to the home of his parents. The mayor locked the door to the defendant's house and left with the key.
Soon thereafter two city police officers arrived at the home of the defendant's father and talked with the defendant who apparently took the officers to his home where he showed them blood stains in or around the house. On a later visit they observed the defendant's car which was parked nearby and noticed what appeared to be blood stains on the back seat. Officer Rumbaugh testified that he told the defendant he would like to examine his car including the interior of the trunk. The defendant gave them permission to look into the trunk and gave the police the keys. They found blood stains on the latch and interior, as well as some on a set of hubcaps which were on the floor of the trunk, and one observed that a portion of the floor mat was missing. They did not remove anything at that time. The police officers then asked the defendant if he would come to the Nitro police headquarters with them, but informed him that he did not have to go. The defendant said he wanted to go and the officers stated that at that time they advised him of his constitutional rights. A city councilman by the name of Dye was requested by the police to bring the defendant's car to the city hall, which he did. Dye had also looked into the trunk when the police officers opened it.
Upon arrival at the city hall the defendant was offered a room by the mayor for the use of the defendant and the investigating officers. He was introduced to Trooper Hurt, who advised the defendant of his rights and asked if he wanted the services of an attorney. The defendant first stated that he desired to *566 have the services of Attorney Clarence Watts, but when the trooper started to dial the telephone the defendant stated that he did not need an attorney.
Trooper Hurt stated that at this time he did not consider the defendant as a suspect. However, Hurt discussed the case with the defendant who told him the same story that he had told the mayor but elaborated on it considerably. The knife and scabbard had been brought to the city building and were shown to the defendant who stated they were his. Hurt also learned that the defendant's automobile had been brought to the city hall and when he looked at the car he noticed what appeared to be blood stains on the back of the front seat and around the gas tank area.
Hurt then checked the car registration with the Department of Motor Vehicles and called Captain Palmer at the office of the Justice of the Peace, Jack Kinder, and told him to obtain a search warrant for the car. Hurt later went to the office of the justice of the peace and obtained a warrant himself because of some delay in getting the warrant. About this same time a warrant was obtained for the defendant, although he was not arrested until after Hurt had inspected the defendant's car and found the blood stains in the front and in the trunk and on the loose hubcaps, and as the result had the car towed to the state police barracks for laboratory examination by technicians. After this was done Hurt returned to the city hall and advised the defendant that he was arrested, after which he took him over to the office of the justice of the peace where he was again advised of his constitutional rights by the justice of the peace and then taken to the Kanawha County jail.
There appears to be some confusion with regard to the investigation of the case because several officers were investigating it at the same time. Captain Palmer of the Nitro Police had looked at the house and the car and then proceeded to obtain a search warrant for both and a warrant for the defendant. At the same time personnel from the prosecuting attorney's office attempted to obtain search warrants which were apparently not signed until after the officers had searched the defendant's car, no doubt after certain articles had been removed from the car by the state police.
After Captain Palmer had obtained a search warrant for the defendant's house it was entered by the officers and items were obtained from the house that appeared to be connected with the crime. Curtains were later found on Strawberry Road near Coal River with what appeared to be blood stains on them and the curtains fitted the door to the defendant's house. The police executed a list of items taken from the house and a copy of the list was left in the house. The original search warrant obtained for the house was lost but a copy was produced at the trial.
A lengthy pretrial hearing was held at which time the defendant attacked all of the matters pertaining to the warrants and statements by the defendant and moved to suppress all of the evidence in connection therewith. The defendant contended that the evidence does not show that the warrants were issued in accordance with the provisions of Code, 62-1A-2 and 3, as amended, which require certain facts to be contained in a complaint to show probable cause for obtaining a warrant and that the warrants obtained were not such as were permissible under the statute which contained three types of property that can be seized under a search warrant authorized by the statute such as stolen or other illegally obtained property, instrumentalities of the crime, and contraband property used in violation of the law.
The evidence regarding the information contained in the warrants and complaints is rather confusing and the record contains only certain statements with regard to them. The warrants were not contained in the record filed in this appeal. Although apparently the complaints and warrants stated that a murder had been committed and that evidence was in the car or house, *567 some of the evidence consisted of hair, blood and clothing, and the warrants commanded the seizure of such items. It is the defendant's contention that the warrants were not sufficient to authorize the seizure of such items, mainly on the ground that the items mentioned in the complaint or warrant are not such as the statute permits to be searched for because such items fell in a classification of "mere evidence" and did not come under the three categories listed in the statute.
The trial court held that there was no unreasonable search and seizure in connection with the evidence used in the trial of this case and that the defendant's rights had been safeguarded.
The evidence introduced during the trial is perfectly clear as to the defendant's participation in the crime. It shows the following detailed actions on the night of the homicide: The defendant, upon quitting work at the Monsanto Plant at Nitro at 10:40 p. m. went to his home, found the baby sitter there with his two children and his wife absent. He cleaned up and went out with another man and they visited various taverns where they drank beer and some stronger drinks and engaged in dancing at one tavern, but apparently the defendant was not highly intoxicated. He returned home about 2 o'clock a. m. at which time he laid out his hunting knife and gun preparing to go on a hunting trip; he then saw the baby sitter slap his daughter who had tried to grab a magazine from the baby sitter, which enraged him. Whereupon, he stabbed the baby sitter 46 times in the space of a very few minutes. He then took the body to the high school in the trunk of his car and dumped it out. When he returned home he spent considerable time in cleaning the blood off the premises and household items. The materials he could not clean he took with him, along with his two children. He threw part of the items in the backwater near his house and other items in the Coal River Road area. He then tried to clean the car trunk and had to remove part of the floor mat from the trunk to get the bloody part out of it but failed to notice the hubcaps which had blood on them.
After that he went to the home of a friend by the name of Arnold Summers on Big Tyler Road, got him out of bed, appeared to be in a very agitated condition and told Summers a wild story about being in a fight and being chased by five men and stated that he might have killed one of the men and also might have cut a girl who was in the group. He asked Summers to help him clean himself and the car but Summers said he did not have any blood on him and that he would not help him clean the car but he allowed him to take a bath in his house. The defendant had changed his clothing before going to the Summers house because his discarded clothing was found by the police. Summers stated he told him he had put the stabbed man in his car trunk and dumped him in the woods. He wanted Summers' wife to keep the children while he cleaned the car on Poca River but she refused to do so. He later returned home about the time his wife did which was about 3 o'clock a. m. and upon inquiry professed ignorance as to where the baby sitter had gone although his wife found the baby sitter's shoes and inquired why she had not taken them. Defendant at one time told Officer Hurt that when he returned home after work, he found a strange car and a blond boy with the baby sitter, but upon returning after going to the taverns he found the front door open and the baby sitter gone.
Early the next morning he appeared at the home of a relative and made plans for a hunting trip after which he went back home and by that time further questions had arisen about the baby sitter which prompted the visit to his home by the mayor heretofore mentioned.
Many of the details with regard to the defendant's actions as related above were supplied by Gary Junior Boggs who was in the same cell with the defendant at the county jail and who testified that the defendant told him the story about what he *568 had done. These details largely dovetail with the testimony of other persons who saw or talked with defendant in the few hours after the murder.
The defendant's attorneys used another jail inmate as a witness who stated that Boggs told him he fabricated the story. However, the story told by Boggs contains details that he could not have known other than having been told by the defendant, many of which were corroborated by other witnesses.
Numerous exhibits were introduced during the trial which appeared to have blood stains on them and were found either in the house or discarded elsewhere or in the car. Scientific evidence was introduced that several of the items introduced as exhibits were identified as human blood, the same type as that of Frances Voiles, the victim. Evidence was also introduced that hair found in the car was identical with that taken from the head of the victim by the pathologist.
The reason for the delay in the identification of the victim's body was because the girl's mother had thought she had spent the night at the defendant's home and was not disturbed about her absence.
Considerable evidence was introduced during the trial with regard to defendant's mental capacity as to whether he knew right from wrong. The defendant's attorneys refused to inform the court whether they intended to use the defense of insanity but in February, 1967, they requested that the court place the defendant in a sanitarium of their selection for mental examination which request was granted. He was there examined by a psychologist as well as a psychiatrist. The psychologist, D. P. Rogers, testified that he thought the defendant was insecure with sadistic tendencies which, if his masculinity was challenged, would result in homicidal actions toward women. The psychiatrist, Dr. Richard M. Kitching, spent eight hours at various times with the defendant and two additional hours with his parents. This doctor said the defendant whom he interviewed with and without sodium amatol was "pseudo-sociopathic paranoid schizophrenic", meaning that he had spells of instinctive actions without controls normal people have, that he thought people were plotting against him, and that he did not know right from wrong at the time of the crime. This doctor stated that the defendant could not remember killing the girl but just remembered becoming enranged and then finding himself with her stabbed body. This witness also testified from army records which the defendant submitted to him with regard to an instance where he attempted to tear up an army barracks over a trivial matter. Dr. Kitching also testified that the defendant attacked him when he tried to administer sodium amatol but later became docile.
After the examination requested by the defendant the court acting on its own motion and under the authority of Code, 62-3-9, as amended, had the defendant examined by Dr. Thomas Knapp and Dr. William Rossman. Dr. Knapp was unable to get anything out of the defendant because his lawyers had advised him not to talk with the doctor. In July, 1967, the defendant created a disturbance in the jail and cut himself severely at which time Dr. Knapp recommended to the court that he be sent to Weston State Hospital which was done by the court. Dr. Knapp, in rebuttal to the testimony of Dr. Kitching, was asked a hypothetical question based on the evidence introduced during the trial and answered that the defendant knew the difference between right and wrong at the time of the crime, giving as his reason that defendant tried to conceal what he had done. Dr. Rossman was also used by the state on rebuttal. He had examined the defendant in April or May, 1967, in pursuance of an order of the court but the defendant refused to discuss the matter of the homicide with him. Also, he was asked a hypothetical question based on the evidence and stated that the defendant's activities after the homicide indicated a frenzy of guilt to cover up a wrong deed and that *569 he would not have gone psychotic and then back to normal so suddenly.
The principal witness however in the rebuttal evidence offered by the state was a psychiatrist from Weston State Hospital, Dr. Manuel J. Aguiles, who testified from a report which was a composite of work done on the defendant by other staff members as well as a separate report made by him dealing with both the physical and mental nature of the defendant. He testified that the defendant admitted to him he did remember attacking the baby sitter with a knife. He said the defendant admitted that he had a volatile temper and had done many antisocial acts with schizoid trends. The doctor thought the defendant was not a true psychotic or full schizophrenic and that the patient knew right from wrong at the time he examined him at the hospital. All of the efforts to examine the defendant other than the one request by the defendant were objected to by attorneys for the defendant and all of the evidence other than that by their own psychiatrist was objected to. It is the contention of the defendant that it violated his constitutional rights to be examined by anyone other than by his own psychiatrist.
Numerous assignments of error are made by the defendant in this appeal. However, upon close examination we find many of them without merit, such as the assignment of error that the defendant was not tried as required by the statute within three terms after the indictment was returned which was apparently relied upon in the appeal but was not stressed during the argument of the case. It appears from the record because of continuances agreed to by the defendant that there was no merit whatsoever to this contention because the trial was clearly held within the limits prescribed by the statute.
The three main assignments of error relied on by the defendant which were stressed in the arguments and briefs are: (1) Illegal search warrants referred to above which were issued for the search of defendant's house and automobile, (2) improper testimony by psychiatrists who testified on behalf of the state, and (3) improper instructions given on behalf of the state and proper instructions offered and refused on behalf of the defendant.
We will discuss these assignments in order and take up the matter of the search warrants and a search of the defendant's house and automobile and the evidence used in connection therewith.
It appears to be the defendant's contention that none of the evidence obtained from the defendant's house and automobile can be used in the trial of this case because there was an unlawful and unreasonable search and seizure in each instance. It is the contention of the defendant that the search warrants did not comply with the provisions of the statute, Code, 62-1A-2, as amended, which only deals with illegally obtained property, instrumentalities of a crime and contraband, and that inasmuch as none of such property was involved in the search and seizure in the instant case, the warrants and searches were illegal. In other words, it is the contention of the defendant that a search warrant for "mere evidence" cannot be issued and any evidence obtained by virtue of search warrants issued for "mere evidence" should be suppressed and not used in the trial of a criminal case. This argument is without merit because common sense would dictate that evidence of the commission of a crime obtained by virtue of a search and seizure warrant should certainly be used in the trial of a criminal case. It is true that considerable confusion has existed with regard to this matter in the past but apparently has been cleared up at the present time by virtue of recent decided cases in the various states and the United States Supreme Court.
At common law there was no prohibition with regard to search and seizures other than that they be reasonable and it should be pointed out that the provisions of both the State and Federal Constitutions prohibit only unreasonable searches and *570 seizures and there are still numerous situations in which a search and seizure warrant is not needed. 79 C.J.S. Searches and Seizures, §§ 8, 65 and 66; 16 M.J., Searches and Seizures, § 8; McClannan v. Chaplain, 136 Va. 1, 116 S.E. 495; Morris v. Boles, 4 Cir., 386 F.2d 395; Cert. denied 390 U.S. 1043, 88 S.Ct. 1640, 20 L.Ed.2d 304. Some of the situations in which a search warrant is not needed are an automobile in motion, searches made in hot pursuit, searches around the area where an arrest is made, things that are obvious to the senses, and property that has been abandoned, as well as searches and seizures made that have been consented to. 79 C.J.S. Searches and Seizures §§ 26, 62 and 66.
Much of the confusion has been caused by the case of Gouled v. United States, 255 U.S. 298, 41 S.Ct. 261, 65 L.Ed. 647, which was decided in 1921 and indicated that search warrants could not be obtained for mere evidence. However, this case has been overruled by the Supreme Court of the United States by the case of Warden Md. Penitentiary v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782. A concise statement by former Chief Justice Traynor of the Supreme Court of California in the case of People v. Thayer, 63 Cal.2d 635, 47 Cal.Rptr. 780, 408 P.2d 108, Cert. denied 384 U.S. 908, 86 S.Ct. 1342, 16 L.Ed.2d 361, adequately answers this question in the following language: "The asserted rule that mere evidence cannot be seized under a warrant or otherwise is condemned as unsound by virtually all the modern writers. It is typically described as `unfortunate' * * * and is a commonly-used example of a legal absurdity." Contrary to the contention of the defendant, the statute with regard to obtaining a search warrant for certain property, Code, 62-1A-2, as amended, merely authorizes search warrants for the three categories of property contained in the statute and does not prohibit or eliminate search warrants for other evidence of the commission of a crime or reasonable searches without warrants for such evidence. 79 C.J.S. Searches and Seizures § 6. However, in the case at bar the searches made of the defendant's house and automobile were clearly consented to, and therefore no search warrant was needed and no unreasonable search was made in connection with the evidence obtained and used in the trial of this case. 79 C.J.S. Searches and Seizures § 62; State v. Hall, 164 Tenn. 548, 51 S.W.2d 851; United States v. Bianco, C.C.A.N.Y., 96 F.2d 97. The consent to search may be given by some person other than the accused in certain situations. Tolbert v. State, 224 Ga. 291, 161 S.E.2d 279, Cert. den. 393 U.S. 1005, 89 S.Ct. 493, 21 L.Ed.2d 468.
It is contended by the defendant that where there is a void search warrant consent to search cannot be given. The search warrants involved in the case at bar are not contained as exhibits in this record and therefore we are unable to carefully scrutinize the warrants. However, even if the warrants were void the searches and seizures were entirely proper and not unreasonable under the evidence in the instant case because they were clearly consented to and the mere fact that they may have been illegal or void search warrants is of no consequence in the case presented here and would not prohibit a search that is lawful if the warrants had never been issued. 79 C.J.S. Searches and Seizures § 78; United States v. Gearhart, 4 Cir., 326 F.2d 412; United States v. White, (CCA4), 342 F.2d 379, Cert. denied 382 U.S. 871, 86 S.Ct. 148, 15 L.Ed.2d 109; Morris v. Boles, (CCA4), 386 F.2d 395, Cert. den. 390 U.S. 1043, 88 S.Ct. 1640, 20 L.Ed.2d 304.
It was held in the case of United States v. Horton, 3 Cir., 328 F.2d 132, that if officers are lawfully present and observe what is then and there immediately apparent, no search warrant is required in such instance, and the testimony by the officers with regard to the evidence which *571 they observed is entirely proper. It was held in the case of Chapman v. United States, 9 Cir., 346 F.2d 383, that it is actually not a search for officers to observe that which is clear and plainly in their vision if they are lawfully near or on and within any premises. It therefore clearly appears that the trial court properly admitted the evidence which was obtained from the defendant's house and automobile and the motion to suppress such evidence which consumed much time and entailed considerable expense was unnecessary and properly overruled.
The next assignment of error deals with the testimony of psychiatrists who testified on behalf of the state.
It is the contention of the defendant that he is entitled to be examined by a psychiatrist but the state is not entitled to have such an examination made. If this were true, it would completely tie the hands of the state in the prosecution of any case where a plea of insanity is involved and it would be helpless in such prosecution because this would allow the defendant to prove that he was insane but prohibit the state from introducing any evidence to the contrary.
In the first place there is specific statutory authority for such examination if the court is of the opinion that it is needed in the trial of the case where the defendant's insanity is involved, and it may be done on the court's own motion. Code, 62-3-9, as amended. About thirty states have such a statute similar to the statute in this state and such statutes have been held to be constitutional. State v. Olson, 274 Minn. 225, 143 N.W.2d 69.
The defendant through his attorneys refused to advise the court during the preliminary stages of the trial whether or not they would rely on insanity as a defense. However, when a motion was made to have the defendant examined by a psychiatrist, as was done in this case, the state or judge can assume that a plea of insanity will be made and it is entirely proper for the court to order a similar examination and the defendant cannot raise any constitutional objection to such action. State v. Myers, 220 S.C. 309, 67 S.E.2d 506.
It should be pointed out that the evidence of the psychiatrist introduced by the state was used in rebuttal to contradict what the defendant had first placed into evidence in this case and it is proper to use such evidence in the trial of any case. Vol. 2, Warren on Homicide, § 212, 41 C.J.S. Homicide § 337. See State v. Barker, 128 W.Va. 744, 38 S.E.2d 346.
It should also be pointed out that the defendant was not compelled to talk with the psychiatrist. In fact he refused to talk with two doctors which the court had appointed before being sent to Weston State Hospital for examination. His communication with the doctor at Weston was purely voluntary and was not made to any officer in the investigation of the case and therefore does not come within the rule of the cases of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694; Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977. See Commonwealth v. Byrd, 421 Pa. 513, 219 A.2d 293, Cert. denied 385 U.S. 886, 87 S.Ct. 181, 17 L.Ed.2d 114, and Commonwealth v. Musto, 348 Pa. 300, 35 A.2d 307.
It was held in the case of People v. Spencer, 60 Cal.2d 64, 31 Cal.Rptr. 782, 383 P.2d 134, Cert. denied 377 U.S. 1007, 84 S.Ct. 1924, 12 L.Ed.2d 1055, that where the defendant pleaded insanity and was examined by a psychiatrist, even if he withdrew the plea of insanity it was proper to use the evidence of the psychiatrist in connection with the examination. In the instant case this rebuttal evidence by the psychiatrist introduced by the state was prompted by the testimony of the psychiatrist who testified on behalf of the defendant and the evidence with regard to the facts is practically the same in both instances *572 although there is, of course, a difference in medical findings and conclusions. The psychiatrist who testified on behalf of the defendant stated that the defendant did not know right from wrong and the psychiatrist who testified for the state testified that he did know the difference between right and wrong. This was also true with regard to the testimony of the doctors who were asked hypothetical questions based on evidence introduced in the trial of the case wherein they stated the defendant knew the difference between right and wrong. Then, too, the evidence of all the physicians who testified on behalf of both the defendant and the state relative to the defendant's statements was almost identical to the testimony of the witness Boggs who testified on behalf of the state. The only difference was in one instance the witness stated that the defendant recalled that he saw the baby sitter slap his child and then remembered carrying her body out to his car, and the other witness said the defendant related that he saw the baby sitter slap the child and he then stabbed or killed her, which practically amounts to the same thing in each instance. It is fundamental that any fact relating to the act of killing which tends to rebut the claim of the defendant is admissible in rebuttal evidence on the part of the prosecution. Vol. 2, Warren on Homicide, § 212 at page 561. Therefore, the evidence of the physician offered by the state in rebuttal to evidence offered by the psychiatrist who testified on behalf of the defendant was properly admitted by the trial court in the trial of this case.
The assignments of error with regard to the instructions are general and attempt to cover all instructions both given by the state and offered by the defendant and refused by the court which are listed by numbers in the assignments of error with the additional statement "and any defense instructions refused by the court that might be omitted herein".
The record indicates that the defendant made only a general objection to the instructions both given and refused by the court, of which he complains on this appeal. It is necessary in order to have such matter considered on appeal for a party objecting to instructions given and refused by the trial court to state distinctly the matter to which he objects and the ground for his objection, none of which was done with regard to any instructions given or refused in the case presented here. Rule VI(c), Trial Court Rules for Trial Courts of Record, promulgated and adopted by the Supreme Court of Appeals July 22, 1960, and amended June 11, 1963, which is applicable to criminal trials in the State of West Virginia.
However, inasmuch as the defendant complains of several of the instructions in the brief submitted in this case and in the argument they will be discussed briefly.
The first instruction complained of is state's instruction number 4 which merely instructed the jury that a mortal wound given with a deadly weapon in the possession of the slayer without any, or upon very slight provocation, is prima facie, wilful, deliberate and premeditated killing and throws upon the defendant the necessity of proving extenuating circumstances and unless he does or unless the circumstances appear from the case made by the state, he is guilty of murder in the first degree.
There was no error in the giving of this instruction and such instruction was approved in the case of State v. McCauley, 130 W.Va. 401, 43 S.E.2d 454.
The defendant objected to the refusal to give instruction 1C offered on his behalf which would have instructed the jury that even though the witness Boggs had been convicted of a felony and although that did not necessarily render him incompetent to testify it should consider the fact of his conviction in evidence as going to his credibility. This instruction was properly refused because it attempted to single out this witness' testimony in an undue attempt to discredit him. See State *573 v. Moubray, 139 W.Va. 535, 81 S.E.2d 117. Then, too, a general instruction dealing with credibility of a witness, instruction number 17 offered by the defendant, was given by the court, which is a proper instruction for such matters.
It was not error for the court to refuse to give the defendant's instruction number 11 relating to reasonable doubt because the court gave instruction number 11A offered by the defendant which properly covered the same matter. The court committed no error in refusing to give instructions 20A, 20C, 21, 22 and 23 because they are either matters for the court and not for jury determination or did not comply with the legal requirements with regard to the rules of law in connection with the matters involved. See State v. Cook, 69 W.Va. 717, 72 S.E. 1025, in connection with defendant's instructions 21 and 22.
Although it was not necessary to take up the various instructions because the reasons and grounds for objections were not given as required by the rules, we nevertheless find no error in connection with any of the instructions either given or refused by the trial court to the jury at the trial of this case.
For the reasons stated herein, no prejudicial error was committed during the trial of this case and the judgment of the Circuit Court of Kanawha County affirming the judgment of the Intermediate Court of Kanawha County is affirmed.
Judgment affirmed.
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769 N.W.2d 574 (2009)
2009 WI App 77
DANE COUNTY DHS
v.
ROBERT A.[1].
Nos. 2008AP2932, 2008AP2933, 2008AP2934.
Court of Appeals of Wisconsin.
April 23, 2009.
Unpublished opinion. Affirmed.
NOTES
[1] Petition for Review Filed.
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190 S.E.2d 842 (1972)
STATE of North Carolina
v.
James Ray HOFFMAN.
No. 93.
Supreme Court of North Carolina.
August 31, 1972.
*846 Robert Morgan, Atty. Gen., Charles A. Lloyd, Associate Atty., Raleigh, for the State.
Hodges & Rochelle by James A. Hodges, Jr., Kinston, for defendant appellant.
SHARP, Justice:
Defendant brings forward four assignments of error. The first is to the *847 court's refusal to grant his motion for nonsuit made at the conclusion of the State's evidence. The rule, succinctly stated by Justice Higgins in State v. Stephens, 244 N.C. 380, 383, 93 S.E.2d 431, 433 (1956), is as follows:
"Taking the evidence in the light most favorable to the State, if the record here discloses substantial evidence of all material elements constituting the offense for which the accused was tried, then this court must affirm the trial court's ruling on the motion. The rule for this and for the trial court is the same whether the evidence is circumstantial or direct, or a combination of both."
The record here contains plenary evidence that defendant, after threatening to do so, and procuring a rifle for the purpose, on 21 October 1970 shot and killed Stocks with malice, premeditation, and deliberation. His motion for nonsuit was, therefore, properly overruled. State v. Walters, 275 N.C. 615, 170 S.E.2d 484 (1969).
The second assignment which defendant argues is that the judge erred in denying defendant's motion to suppress the testimony of Mrs. Gene Autry Stocks, Mrs. Thelma Barfield, Mrs. Bertie Croombs, and Mrs. Rebecca Moore. Defendant based his motion on the following facts:
On or about 15 March 1971 counsel for defendant moved in writing before Judge Cohoon that the solicitor be directed to furnish defendant's attorney a list of all witnesses whom the State intended to produce at defendant's trial. Judge Cohoon, after ascertaining that the solicitor had no objection to furnishing the names of the persons the State then proposed to call as witnesses, orally directed that he give defendant the requested information. Deputy Sheriff Garris immediately prepared and delivered to defendant's attorney a handwritten list which omitted the names of Mrs. Stocks, Mrs. Barfield, Mrs. Moore, and Mrs. Croombs.
At the beginning of the trial the State called Mrs. Stocks as its first witness. Defendant moved to suppress her testimony and that of any other person called whose name had not been on the list. After hearing the motion, Judge Godwin entered an order in which he found, in addition to the facts set out in the preceding paragraph, that the State now proposed to call, inter alia, Mesdames Stocks, Barfield, Moore and Croombs; that defendant's motion before Judge Cohoon was not made under G.S. § 8-74; that the State's failure to furnish defendant with the name of every person sworn as a witness when the case was called for trial, and whose testimony it then proposed to use, had not prevented defendant from making full and proper preparation for his trial. Whereupon he denied defendant's motion to suppress, and thereafter the four women above named testified. Defendant excepted but did not move to continue the case.
"The common law recognized no right of discovery in criminal cases." State v. Goldberg, 261 N.C. 181, 191, 134 S.E.2d 334, 340 (1964). In the absence of a statute requiring the State to furnish it, the defendant in a criminal case is not entitled to a list of the State's witnesses who are to testify against him. McDaniel v. State, 191 Miss. 854, 4 So.2d 355 (1941); Padgett v. State, 64 Fla. 389, 59 So. 946 (1912); State v. Matejousky, 22 S.D. 30, 115 N.W. 96 (1908); 21 Am.Jur.2d Criminal Law § 328 (1965); 16 C.J.S. Criminal Law § 2030 (1938). There is no such statute in this State.
Defendant, however, claims that G.S. § 8-74 gives him the right to a list of the State's witnesses. This statute, however, provides for taking the deposition of an incapacitated defense witness, "whose name must be given" to the court. Patently this section has no application to defendant's motion.
Although defendant was not entitled to the list as a matter of right, Judge Godwin *848 found that an order to furnish it had been made and that the State had purported to comply with it. Thus, the question presented is whether the omission of the names of Mrs. Stocks, Mrs. Barfield, Mrs. Moore, and Mrs. Croombs prejudiced defendant's defense and deprived him of a fair trial.
Defendant contends that he was prejudiced because the testimony of these four witnesses supplied the sole evidence of motive, premeditation and deliberation. Certainly these witnesses gave material evidence tending to show essential elements of the crime with which defendant was charged. Notwithstanding, a defendant is not legally prejudiced merely because the State proves its case against him.
As stated by the Kentucky Court of Appeals in Evans v. Commonwealth, 230 Ky. 411, 19 S.W.2d 1091 (1929), prejudicial surprise results from events "not reasonably to be anticipated, or perhaps testimony contrary to a prior understanding between the parties or something resulting from fraud or deception." Id. at 415-416, 19 S.W.2d at 1093. Neither the presence nor testimony of these four womenthe wife of deceased, his mother, his sister-in-law, and a family friend of both defendant and deceasedcould have taken defendant by surprise.
Defendant suggests, however, that had he known the ladies were to testify, he might have found "possible rebuttal witnesses or searched for ground upon which to impeach their credibility. Had there been a reasonable probability of finding such witnesses or grounds, a motion for a continuance would have been appropriate. Defendant's motion, however, was to suppress the testimony of the witnesses, whatever it might be, and not to continue the trial so that he would have an opportunity to disprove it.
The record fails to show that defendant's defense was prejudiced by the omission of the four names from the list furnished him. Permitting these witnesses to testify was a matter in the discretion of the trial judge, not reviewable on appeal in the absence of a showing of abuse. State v. Anderson, 281 N.C. 261, 188 S.E.2d 336 (1972). No abuse of discretion appears.
The third question raised by defendant's assignments of error is the legality of the officers' entrance into his residence during the late afternoon of 21 October 1970 and the seizure of the .22-caliber rifle found therein. He contends that both the entry and seizure were unlawful and, in consequence, neither the rifle nor the ballistic tests made with it were admissible in evidence. Upon defendant's objection to any testimony involving the rifle, Judge Godwin held a voir dire in which he heard the evidence summarized within the brackets and also a substantial portion of the applicable testimony which was later given in the presence of the jury. He then found facts in accordance with the evidence and concluded that the officers had reasonable grounds to believe defendant was concealed in the house. He held that their entry and subsequent seizure of "plain-view" items were legal and overruled defendant's objection in the evidence. In this ruling we find no error.
G.S. § 15-44 (1965) provides: "If a felony. . . has been committed, or a dangerous wound has been given and there is reasonable ground to believe that the guilty person is concealed in a house, it shall be lawful for any sheriff . . . or police officer, admittance having been demanded and denied, to break open the door and enter the house and arrest the person against whom there shall be such ground of belief."
Indubitably Stocks had been murdered and the officers had reasonable grounds to believe that defendant had committed the murder. About 1:15 p. m. on the day of the murder, officers had gone to defendant's home, but when he did not answer their calls, they had left without entering. The thrust of defendant's argument is that Judge Godwin should not have believed Whaley's testimony that between 3:30 and 4:00 p. m. he saw the kitchen curtains move. *849 This testimony was not inherently incredible and was sufficient to support the court's findings. They are, therefore, binding on appeal. State v. Roseman, 279 N.C. 573, 184 S.E.2d 289 (1971). Reasonable grounds for belief can be based upon information given to an officer by another, "the source of such information being reasonably reliable." State v. Roberts, 276 N.C. 98, 107, 171 S.E.2d 440, 445 (1969). Further, the fact that silence greeted the officers' demands for entrance and that defendant was not found in the house did not make their entry illegal.
Being lawfully in defendant's residence, the officers could examine and, without a warrant, seize "`suspicious objects in plain sight' . . . . If the officers' presence was lawful, the observation and seizure of what was then and there apparent could not in itself be unlawful." State v. Howard, 274 N.C. 186, 202, 162 S.E.2d 495, 505-506 (1968); accord, State v. Harvey, 281 N.C. 1, 187 S.E.2d 706 (1972); State v. Virgil, 276 N.C. 217, 172 S.E.2d 28 (1970); State v. Colson, 274 N.C. 295, 163 S.E.2d 376 (1968). The rifle, the bullet which was removed from Stocks's body, and the testimony of ballistics expert Pierce that in his opinion the bullet was fired from the rifle were, therefore, properly admitted in evidence. The assignments of error upon which defendant bases his third proposition are overruled.
Defendant's final assignment of error is that the court erred in admitting the statements which he made to Deputy Sheriff Garris and SBI Agent Campbell as a result of their in-custody interrogation of him.
On voir dire, upon plenary supporting evidence, Judge Godwin found facts which show that both Garris and Campbell fully advised defendant of all his constitutional rights in strict compliance with all Miranda requirements; that after being thus warned defendant freely, voluntarily, understandingly, and without being induced by threats or promises, specifically waived his constitutional right to remain silent and to have counsel present when he talked to the officers. Upon these findings, Judge Godwin overruled defendant's objections, and admitted his statements to the officers in evidence.
On appeal, defendant makes no contention that he did not orally waive the presence of counsel at his interrogation, or that he did not voluntarily submit to the officers' questioning. The evidence shows that he did both. Thus, the admission of his statements involves no federal constitutional question. See State v. Lynch, 279 N.C. 1, 13-14, 181 S.E.2d 561, 569 (1971); State v. Chance, 279 N.C. 643, 185 S.E.2d 227 (1971); State v. Blackmon, 280 N.C. 42, 185 S.E.2d 123 (1971).
Defendant's contention is that at the time of his interrogation he was an indigent, in custody on a capital charge; and that, under G.S. § 7A-457(a) (1969), as it read on 22 October 1970, he could not waive his right to counsel at an in-custody interrogation either orally or in writing. This contention is untenable, for the record affirmatively discloses that at the time of his interrogation defendant had funds, immediately available and adequate, with which to employ counsel to provide the legal advice he then needed. The admissibility of defendant's statements to the officers was not, therefore, affected by G.S. §§ 7A-450 to -459 (1969). The statements were competent evidence and defendant's assignments of error relating to their admission are overruled.
An indigent person for whom the State must provide counsel is defined by G.S. § 7A-450(a) as "a person who is financially unable to secure legal representation and to provide all other necessary expenses of representation in an action or proceeding enumerated in this subchapter." Section (c) of this same statute provides: "The question of indigency may be determined or redetermined by the court at any stage of the action or proceeding at which an indigent is entitled to representation." G.S. § 7A-455(a) (1969) requires the court, *850 if it is of the opinion that "an indigent person is financially able to pay a portion, but not all, of the . . . necessary expenses of representation (to) order the partially indigent person to pay such portion to the clerk of superior court for transmission to the State treasury."
The foregoing statutes clearly manifest the legislative intent that every defendant in a criminal case, to the limit of his ability to do so, shall pay the cost of his defense. It is not the public policy of this State to subsidize any portion of a defendant's defense which he himself can pay. An indigent is not one who lacks sufficient funds over and above his homestead and personal property exemptions and his pre-existing debts and obligations to pay the total costs of his defense from beginning to end. An indigent is one who does not have available, at the time they are required, adequate funds to pay a necessary cost of his defense.
At the time of defendant's arrest, according to his sworn statement, he had $160.00 in the bank. He owed no debts except the monthly payments on his 1971 Chevrolet Nova. We take judicial notice that for a fee of less than $160.00 defendant could have obtained counsel for the purpose of advising him with reference to the course of conduct which would serve his best interest at that time. In short, he could pay for the legal services he needed on the morning of his arrest. His ability to pay the costs of subsequent proceedings was not then a question. That was a matter to be determined when that question arose.
Upon defendant's request for counsel and his affidavit of indigency, the district court assigned counsel, who represented him at his preliminary hearing and at his trial in the superior court, and the State paid counsel's fee. We note, however, that this appeal is not at State expense and that defendant was able to post bond for the costs. Prima facie, it was for such situations as this that G.S. § 7A-450(c) was enacted.
The decision here is not in conflict with State v. Wright, 281 N.C. 38, 187 S.E.2d 761 (1972). In that case, at the time of his arrest, the defendant had $5.00 in cash, an automobile on which he was paying $56.00 per month, and two recently purchased government bonds. These bonds, which had cost $18.75 each, were in his mother's possession in Ohio, unavailable even if adequate. The amount of his equity in the automobile was not disclosed, and it was immaterial at that time. The defendant, under arrest for three serious felonies, one of which was rape, was in no position to negotiate either a mortgage or a sale of his automobile. As a practical matter he had only $5.00 with which to meet the immediate emergency, and that was not enough to secure the advice of counsel which he needed then and there. At the time the defendant Wright was interrogated he was, in truth and in fact, an indigent; defendant Hoffman was not.
In the trial below we find
No error.
HIGGINS, Justice (concurring in result).
I cannot agree with that part of the opinion which intimates that if a defendant is able to employ counsel for the purpose of advising him, or being with him at the interrogation, that he is not an indigent within the meaning of § 7A-451 of the General Statutes.
The entitlement begins when the defendant is taken into custody or served with initiating process and continues through all critical stages including reviews by appeal. The statute does not contemplate that separate counsel may be appointed for each successive step in the trial, but I think contemplates that the same counsel will continue from beginning to end subject to the right of the court to excuse or allow substitution of counsel at any proper state.
"Entitlement continues through any critical stage of the action or proceeding including *851 identification procedure, preliminary hearing, trial, sentencing, and review." These are specifically stated in § 7A-451.
I concur in result.
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536 F.Supp. 641 (1982)
Antoinette O'CONNOR, Gary Chadwick, Joanne Chadwick and Mary Schlich, Plaintiffs,
v.
Anthony MAZZULLO, individually and as Superintendent of Schools for the Garrison Union Free School District; Edward Vrooman, individually and as Vice-President of the Board of Education of the Garrison Union Free School District; Nor Preusser, individually and as a member of the Board of Education of the Garrison Union Free School District; Edward Ricca, individually and as a member of the Board of Education of the Garrison Union Free School District; John Gardner, individually and as a member of the Board of Education of the Garrison Union Free School District; Janet Spalding, individually and as a member of the Board of Education of the Garrison Union Free School District; Wilhemina Roda, individually and as a member of the Board of Education of the Garrison Union Free School District; and Garrison Union Free School District, Defendants.
No. 81 Civ. 1624 (ADS).
United States District Court, S. D. New York.
April 13, 1982.
As Amended April 26, 1982.
*642 *643 Hall, Clifton & Schwartz, New York City, for plaintiffs; Arthur Z. Schwartz, New York City, of counsel.
Winer, Neuburger, & Sive, P. C., New York City, for defendants; Daniel Riesel, Eric Bregman, Lawrence R. Sandak, Jay S. Blumenkopf, New York City, of counsel.
MEMORANDUM OPINION AND ORDER
SOFAER, District Judge:
Plaintiffs are three teachers and a former nurse-teacher in the Garrison Union Free School District ("District") who claim that the District took various forms of adverse action against them because they had actively supported one of two rival unions seeking to represent the District's employees. Defendants have moved for summary judgment on various grounds. After arguing the present motion, the parties informed the Court that they had settled the claims of plaintiffs Gary and Joanne Chadwick, which are causes of action 1, 3, 4, 10, 11, 12, and 13 of the complaint. With respect to the remaining causes of action and plaintiffs, the following discussion disposes of the motion and of most of the litigation.
Plaintiffs' Second, Sixth, Eighth, and Ninth causes of action in the present complaint allege that defendants' actions were unconstitutional because improperly motivated. These causes of action largely replicate an improper practice charge that plaintiffs filed with the Public Employment Practices and Representation Board of New York State ("PERB"). In response to that charge, defendants admitted that the adverse actions were taken but denied that they were motivated either by bias against unions in general or by bias against the particular union that plaintiffs supported. A PERB Hearing Officer conducted a five-day hearing at which the parties had full due process rights, including legal representation and an opportunity to examine and cross-examine witnesses. At the hearing's conclusion, the Hearing Officer made findings of fact about defendants' motivation in taking action against plaintiffs; in particular, he found that defendants were not motivated by anti-union bias. Motion for Summary Judgment, Ex. D. Plaintiffs challenged some of the findings on appeal to PERB, which dismissed all the exceptions and affirmed the decision.
Defendants now contend that plaintiffs are collaterally estopped in this proceeding from relitigating the facts relevant to defendants' alleged anti-union bias. This contention is correct but too limited. Collateral estoppel binds defendants as well as plaintiffs, because both were parties to the earlier adjudication. See Montana v. United States, 440 U.S. 147, 153, 99 S.Ct. 970, 973, 59 L.Ed.2d 210 (1979). Moreover, the doctrine here bars relitigation of the findings on defendants' motivation generally; it is not restricted to the finding that anti-union bias did not motivate the challenged adverse actions. All the facts relevant to defendant's motivation were fully and fairly litigated in a trial-type hearing before a competent and impartial state-agency tribunal. A PERB determination cannot be collaterally attacked in the New York courts, though it may be subject to limited judicial review, and is treated as final by New York law. See Taylor v. New York City Transit Authority, 309 F.Supp. 785, 792 (E.D.N.Y.), aff'd, 433 F.2d 665 (2d Cir. 1970); Incorporated Village of Lynbrook v. New York State Public Employment Relations Board, 48 N.Y.2d 398, 423 N.Y.S.2d 466, 399 N.E.2d 55 (1979); N.Y. Civ.Serv.Law § 213 (McKinney 1973). All the findings about defendants' motivation, moreover, were necessary to the PERB determination, because the issue was whether defendants had acted in order to interfere with or penalize the exercise of the right to support union activity. In these circumstances, collateral estoppel should bar relitigation of the facts determined in the PERB proceeding, even though this action *644 presents constitutional challenges and even though the state tribunal is an administrative agency rather than a court. Allen v. McCurry, 449 U.S. 90, 101 S.Ct. 411, 66 L.Ed.2d 308 (1980); United States v. Utah Construction & Mining Co., 384 U.S. 394, 421-22, 86 S.Ct. 1545, 1559-60, 16 L.Ed.2d 642 (1966); Winters v. Lavine, 574 F.2d 46, 54-60 (2d Cir. 1978); Mitchell v. National Broadcasting Co., 553 F.2d 265, 268-69 (2d Cir. 1977); Gear v. City of Des Moines, 514 F.Supp. 1218 (S.D.Iowa 1981); Moore v. Bonner, 526 F.Supp. 143, 150 (D.S.C.1981); Taylor v. New York City Transit Authority, supra, 309 F.Supp. at 791-92.
Application of collateral estoppel requires granting summary judgment to defendants on the Second and Eighth causes of action, which allege that defendants' actions were motivated by anti-union bias. Although plaintiffs now style their causes of action in constitutional terms, the underlying and controlling factual issue whether defendants were motivated by anti-union bias is identical to those fully litigated in the PERB proceeding. Plaintiffs there charged that defendants violated New York Civil Service Law § 209-a by taking adverse actions against plaintiffs in order to interfere with or penalize plaintiffs' exercise of their rights, under New York Civil Service Law § 202, to support or participate in union activities. That charge raises precisely the issue that plaintiffs now raise in alleging a first amendment violation based on anti-union motivation. Plaintiffs have submitted no affidavits or other evidence to suggest any ground other than anti-union bias for their first amendment claims, with the exceptions discussed below. The PERB finding that defendants were not motivated by anti-union bias therefore binds plaintiffs here. See Winters v. Lavine, supra, 574 F.2d 46; Mitchell v. National Broadcasting Co., supra, 553 F.2d 265; Taylor v. New York City Transit Authority, supra, 309 F.Supp. 785. To the extent that the Eighth cause of action alleges unconstitutional motivation of any other sort, the allegation is conclusively rebutted by the PERB finding that the decision not to hire plaintiff Schlich for the English teacher position was made "solely" on legitimate grounds and that there was no evidence that Schlich ever applied for a position as Emergency Medical Technician. See Defendants' Rule 9(g) statement, unrebutted by plaintiffs. For these reasons, all defendants are entitled to summary judgment on the Second and Eighth causes of action.
Defendants are likewise entitled to summary judgment on the Sixth cause of action. The PERB hearing officer found that plaintiff O'Connor's transfer was not motivated by anti-union bias or by any desire to retaliate for the exercise of first amendment rights. That finding binds plaintiff O'Connor here. That the hearing officer found an illegitimate reason for defendant Mazzullo's chastisement of O'Connor does not affect defendants' entitlement to summary judgment on the Sixth cause of action, which challenges only Mazzullo's transfer of O'Connor, not his reprimand of her. See Def. Motion for Summary Judgment, Ex. D at 13-14.
On the Ninth cause of action, all defendants except Mazzullo are entitled to summary judgment. Plaintiffs have submitted no affidavits or other evidence that even suggests that these defendants participated in the decisions challenged in the Ninth cause of action or that the challenged decisions were made pursuant to a school district policy. Moreover, those defendants cannot be held liable on a respondeat superior theory. See Monell v. Department of Social Services, 436 U.S. 658, 691 (1978); Gorman v. Tilles, 79 Civ. 2251 (E.D.N.Y. 1980).
Mary Schlich claims in the Ninth cause of action that defendants refused to consider her for various available positions because of defendant Mazzullo's animus towards her. Mazzullo's motivation, as defendants urge in their motion for summary judgment, was fully considered by the PERB Hearing Officer. He specifically found that Mazzullo had admitted that "a factor in his decision not to consider [Schlich] was the fact that she had complained" to the school board and brought an *645 improper practice charge at PERB. That the Hearing Officer properly found that Mazzullo had no bias against one union or the other, provides no basis for dismissing Schlich's present claim. The complaint alleges that Mazzullo acted "with malicious intent to retaliate" for Schlich's resort to "expression protected by the First and Fourteenth Amendments," as well as "her association with G.E.A.," the union she favored. Her resort to PERB is itself an expression protected by the first amendment, which guarantees the right to seek redress of grievances in courts or in administrative agencies. U.S.Const. amend. I; California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508, 510, 92 S.Ct. 609, 611, 30 L.Ed.2d 642 (1972); cf. Edwards v. Habib, 397 F.2d 687, 690 (D.C.Cir.1968), cert. denied, 393 U.S. 1016, 89 S.Ct. 618, 21 L.Ed.2d 560 (1969) (first amendment violated by state evicting tenant for reporting housing code violations to authorities). A public school may not deny employment solely because of a teacher's exercise of first amendment rights. See Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274, 283-84, 97 S.Ct. 568, 574, 50 L.Ed.2d 471 (1977); Perry v. Sindermann, 408 U.S. 593, 597-98, 92 S.Ct. 2694, 2697-98, 33 L.Ed.2d 570 (1972). Where, as here, no claim is made that plaintiffs' exercise of first amendment rights violated any policy established by the public employer to enable it to perform its functions, a denial of employment that is merely an "ad hoc response" to the lawful pursuit of a grievance is unconstitutionally motivated. See Mt. Healthy City School District Board of Education v. Doyle, supra; Simard v. Board of Education, 473 F.2d 988, 995 (2d Cir. 1973); Hastings v. Bonner, 578 F.2d 136, 140-42 (5th Cir. 1978); Hillis v. Stephen F. Austin University, 486 F.Supp. 663, 666-68 (E.D.Tex.1980); Cooper v. Ross, 472 F.Supp 802, 809-10 (E.D.Ark.1979); cf. Edwards v. Habib, supra, 397 F.2d 687. Conceivably, the filing of a grievance against an employer might so poison an employment relationship that the employer's functions could not be carried out efficiently. See Pickering v. Board of Education, 391 U.S. 563, 570, 88 S.Ct. 1731, 1735, 20 L.Ed.2d 811 (1968); Simard v. Board of Education, supra, 473 F.2d at 996. But the circumstances in which a refusal to hire could be so justified are rare, for speech and other activity directed against the policies or actions of an employer is strongly protected by the first amendment. See, e.g., Mt. Healthy City Board of Education v. Doyle, supra, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471; Perry v. Sindermann, supra, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570; Pickering v. Board of Education, supra, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811; Simard v. Board of Education, supra, 473 F.2d 988. The PERB Hearing Officer found no such circumstance in this case, and defendants have not put forth any evidence in response to plaintiffs' request for summary judgment that even suggests that Mazzullo's consideration of the exercise of protected rights was legitimately based on any policy related to the needs of educational administration. The record therefore clearly establishes that Schlich's exercise of her constitutional rights was a "motivating factor" in her not being hired. Defendant Mazzullo, who has conceded both the legal propriety of applying collateral estoppel and the fullness and fairness of the agency proceeding, is collaterally estopped from disputing that fact.
Under Mt. Healthy City School District Board of Education v. Doyle, supra, 429 U.S. at 287, 97 S.Ct. at 576, however, Mazzulo must be given an opportunity to allege and prove that he would have reached the same decision about Schlich's employment even absent the unconstitutional motivation. See Oates v. United States Postal Service, 458 F.Supp. 57, 59 (S.D.N.Y.), aff'd, 591 F.2d 1331 (2d Cir. 1978). The report of the PERB Hearing Officer does not include a finding on that issue, and in concluding that defendants violated New York Civil Service Law § 209-a.1(c), no finding on that issue appears to have been necessary. See City of Albany v. Public Employment Relations Bd., 57 A.D.2d 374, 395 N.Y.S.2d 502 (1977), aff'd on opinion below, 43 N.Y.2d 954, 404 N.Y.S.2d 343, 375 N.E.2d 409 (1978). On the Ninth cause of action, *646 therefore, a limited trial may be warranted. Defendant Mazzullo will submit within twenty days of this order, under oath, any claim that he would have refused to consider Schlich for the positions involved even if she had not complained about him. Plaintiff Schlich will thereafter have twenty days to respond by way of a motion for summary judgment if such an allegation is made. On the motion, or at any subsequent trial, Mazzullo will have the burden of proving that Schlich would not have been hired even absent his unconstitutional motivation.
In the Fifth cause of action, O'Connor claims a violation of due process because she was transferred without her consent, in violation of state law. She has prevailed on this claim before the Education Commissioner, and defendants twice sought clarifications from the Commissioner, who clearly enough ordered that O'Connor be given her former position no later than the 1979-1980 school year. O'Connor sought enforcement of the Commissioner's decision in the Supreme Court, County of Rockland. Justice Richard J. Daronco carefully reviewed all of defendants' arguments in an opinion and granted O'Connor's application for enforcement. Defendants have, however, appealed Justice Daronco's decision to the Appellate Division. Consequently, this Court will abstain by holding the Fifth cause of action in abeyance, because the matter is one of intensely local concern and because the state-court decisions may make unnecessary a decision on whether O'Connor has a property interest entitled to federal constitutional protection. Compare, e.g., Perry v. Sindermann, supra, 408 U.S. at 597, 92 S.Ct. at 2697; Teachers United for Fair Treatment v. Anker, 445 F.Supp. 469, 472-73 (E.D.N.Y. 1977). The Seventh cause of action merely states the procedural history relevant to the Fifth cause and alleges that the failure to reinstate plaintiff violates her rights; it too must be held in abeyance pending completion of state court proceedings.
The Fourteenth cause of action alleges that defendants' acts were "outrageous" and were intended to and did cause emotional distress. To the extent this allegation is a separate cause of action, it alleges a prima facie tort under New York law. That tort requires (1) the intentional infliction of harm (2) resulting in damages (3) without excuse or justification (4) by an otherwise lawful act. Sadowy v. Sony Corp. of America, 496 F.Supp. 1071, 1074-75 (S.D.N.Y.1980). Though its elements can thus be enumerated, the contours of this tort are the subject of considerable uncertainty, especially where the complaint alleges that defendants had several motives here both the desire to retaliate for plaintiffs' exercise of first amendment rights and the desire to chill future speech. See id.; National Nutritional Foods Ass'n v. Whelan, 492 F.Supp. 374, 382-86 (S.D.N.Y. 1980); Avigliano v. Sumitomo Shoji America, Inc., 473 F.Supp. 506, 515-16 (S.D.N.Y. 1979), modified on other grounds, 638 F.2d 552 (2d Cir. 1981); Korry v. ITT, 444 F.Supp. 193, 195 (S.D.N.Y.1978); Board of Education v. Farmingdale Classroom Teachers, 38 N.Y.2d 397, 405-06, 380 N.Y.S.2d 635, 644-45, 343 N.E.2d 278, 284-85 (1975); Squire Records v. Vanguard Recording Society, 25 A.D.2d 190, 191-92, 268 N.Y.S.2d 251, 253, aff'd on other grounds, 19 N.Y.2d 797, 279 N.Y.S.2d 737, 226 N.E.2d 542 (1st Dep't 1966). In this case, any trial that may be necessary on the federal claim will be limited to one substantive issue, much narrower than the issues needed to be tried for a prima facie tort claim. The policies behind the federal cause of action, moreover, differ substantially from those behind the state cause. In these circumstances, to avoid a trial dominated by state issues and a needless decision in an uncertain area of state law unrelated to the federal claims, an exercise of pendent jurisdiction is inappropriate, and the claim is dismissed without prejudice. See United Mine Workers of America v. Gibbs, 383 U.S. 715, 726-27, 86 S.Ct. 1130, 1139, 16 L.Ed.2d 218 (1966); Crawford v. Roadway Express, Inc., 485 F.Supp. 914, 922 (W.D.La.1980); Holmes v. Elks Club, Inc., 389 F.Supp. 854 (M.D.Fla. 1975).
The Fifteenth cause of action restates in general terms the claim of plaintiffs that defendants have retaliated against them for *647 their exercise of first and fourteenth amendment rights, in violation of 42 U.S.C. §§ 1983, 1985(3). The § 1983 claim is identical to, and is therefore resolved in the same way as, the constitutional claims discussed above. No cause of action against any defendant is alleged under § 1985(3), which requires action against a protected group. See Griffin v. Breckenridge, 403 U.S. 88, 102, 91 S.Ct. 1790, 1798, 29 L.Ed.2d 338 (1971); Orshan v. Anker, 489 F.Supp. 820, 823 (E.D.N.Y.1980).
Therefore, defendants' motions for summary judgment and dismissal are granted with respect to all claims not settled, except that summary judgment will be granted in favor of plaintiff Schlich on the Ninth cause of action, against defendant Mazzullo, unless he demonstrates a genuine dispute of material fact as to the issue discussed above. The Court abstains on the Fifth and Seventh causes of action, which are placed on the suspense calendar until the completion of related state-court proceedings. The parties will proceed with any necessary discovery on the remaining substantive issue, and on the issue of damages; the case will be called for trial by the Court on twenty-four hours notice after June 1, 1982, on all remaining issues.
SO ORDERED.
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1 Md. App. 399 (1967)
230 A.2d 358
CHARLES E. STACKHOUSE
v.
STATE OF MARYLAND.
No. 218, Initial Term, 1967.
Court of Special Appeals of Maryland.
Decided June 7, 1967.
The cause was argued before ANDERSON, MORTON, ORTH, and THOMPSON, JJ., and O'DONNELL, J., Associate Judge of the Eighth Judicial Circuit, specially assigned.
Jack E. Richards for appellant.
*402 Edward S. Digges, Special Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Charles E. Moylan, Jr., State's Attorney for Baltimore City, and John H. Lewin, Assistant State's Attorney for Baltimore City, on the brief, for appellee.
THOMPSON, J., delivered the opinion of the Court.
Charles E. Stackhouse, the appellant, was convicted in a trial before the court in the Criminal Court of Baltimore, on June 8, 1966. He was convicted on the first counts of six separate indictments as follows: (a) Forgery on the endorsements of three checks in Indictments Nos. 2047, 2048 and 2050; (b) obtaining money by false pretenses from Foodarama, Inc. (a corporation) in Indictment No. 2049; and (c) larceny of three checks from Bethlehem Steel Company, (a corporation) in Indictments Nos. 2051 and 2053. He was sentenced to five years in the Maryland House of Correction for each conviction, all to be served concurrently except No. 2048 which is to be consecutive making a total penalty of ten years.[1] The facts will be disclosed in the discussion of the various contentions.
I Forgery
Stackhouse contends that because none of the payees testified that their endorsements were false and no expert on handwriting testified, that there was an insufficient proof of the corpus delicti, outside of his extrajudicial confession, to support the convictions of forgery. The rule that an extrajudicial confession will not warrant a conviction unless there is independent evidence to establish the corpus delicti has been approved in many cases decided by the Court of Appeals of Maryland, Hadder v. State, 238 Md. 341, 209 A.2d 70, Bradbury v. State, 233 Md. 421, 197 A.2d 126, Banks v. State, 228 Md. 130, 179 A.2d 126, Wood v. State, 192 Md. 643, 65 A.2d 316, Whitmer v. State, 1 Md. App. 127, 227 A.2d 761 and Koprivich v. State, 1 Md. App. 147, 228 A.2d 476. In Cooper *403 v. State, 220 Md. 183, 190, 152 A.2d 120, 124, the Court said:
"However, it is not necessary that the evidence independent of the confession be full and complete or that it establish the truth of the corpus delicti either beyond a reasonable doubt or by a preponderance of proof * * *. The quantum of independent proof of the corpus delicti is to be determined by the circumstances of each particular case * * *."
It is necessary to review the evidence to discover whether or not it is sufficient to support the confession. William J. Warthen, a security chief for the Bethlehem Steel Corporation, testified that the checks involved in the forgery were stolen from the company. Theodore Schloss testified that the checks were cashed at his restaurant and that they would have been endorsed in his presence, but he could not identify the person who did so. In addition, in open court, Stackhouse testified:
"I wrote Bethlehem Steel and I have asked those people if there was any way possible I could sort of like make restitution for these things, having signified I have taken these checks."
Under the cases hereinabove cited, we hold that this was a sufficient proof of the corpus delicti to support the conviction where, as here, there was also a free and voluntary confession of the crime.
Stackhouse attempts, on appeal, to make much of a discrepancy in the testimony. The date of the theft of the checks, as alleged and as proven, was subsequent to the date on which the checks were cashed and paid at the bank. A careful reading of the testimony shows that the date of the indictment and the testimonial date of the theft were obvious errors and are therefore immaterial, Chisley v. State, 236 Md. 607, 203 A.2d 266, Fulton v. State, 223 Md. 531, 165 A.2d 774, Mazer v. State, 212 Md. 60, 127 A.2d 630 and Yanch v. State, 201 Md. 296, 93 A.2d 749.
II Larceny
Stackhouse contends that the convictions for larceny in Indictments Nos. 2051 and 2053 should be reversed under the *404 authority of Richardson v. State, 221 Md. 85, 156 A.2d 436 for the reason there was no proof that Bethlehem Steel Company was a corporation as alleged in the indictment. Both Richardson and Sippio v. State, 227 Md. 449, 177 A.2d 261, hold that the proof need not, in a criminal case, be formal. The evidence concerning the existence of a corporation here consisted of the fact that Mr. Warthen testified that he was employed as security chief for the "Bethlehem Steel Corporation" and the checks themselves show the maker to be the "Bethlehem Steel Corporation." We hold that this was a sufficient proof of the corporate existence of Bethlehem Steel Corporation, a nationally known company.
III False Pretenses
Stackhouse alleges that there was no proof that Foodarama, Inc. was a corporation as alleged in Indictment No. 2049 for false pretenses. This is required by State v. Blizzard, 70 Md. 385, 17 A. 270. See also Flannigan v. State, 232 Md. 13, 191 A.2d 591, Wersten v. State, 228 Md. 226, 179 A.2d 364, and Sippio v. State, 227 Md. 449, 177 A.2d 261. A review of the evidence discloses that there is absolutely no testimony whatsoever that Foodarama was a corporation and indeed the name Foodarama, Inc. is not mentioned in the record outside of the indictment. We, therefore, reverse the conviction for false pretenses.
IV Defective Indictments
Stackhouse alleges that Indictments Nos. 2051 and 2053, charging larceny of three checks, are defective in that the dates, endorsements and payee of the checks were not specified. These indictments stated that checks of the Bethlehem Steel Company, in particular amounts, were stolen on specified dates. No objection to the indictments was raised before trial as required by Maryland Rule 725B (except where there is a lack of jurisdiction or failure of the indictment to charge an offense). No allegations are made, nor could be, that the defects here come within the exceptions to the rule. Since the contention was not raised below, it cannot be considered here. Maryland Rule 1085, Martel v. State, 221 Md. 294, 157 A.2d 437.
*405 V Illegal Arrest
The appellant, in proper person, contends that he was illegally arrested because the officer did not show him the warrant which had been previously issued. There are several answers to this contention, some of which are: (1) The arrest was for a felony and no warrant was necessary, 4 Anderson: Wharton's Criminal Law and Procedure Section 1617, page 282, Crumb v. State, 1 Md. App. 98, 227 A.2d 369. (2) None of the fruits of any search which may have followed the alleged illegal arrest were introduced at the trial, Cherrix v. Warden, 1 Md. App. 65, 227 A.2d 50. The confession was not a "fruit," Prescoe v. State, 231 Md. 486, 191 A.2d 226. (3) There is no allegation that there was a request to see the warrant, 4 Anderson: Wharton's Criminal Law and Procedure, Sec. 1617, page 282. (4) The question was not raised below, Maryland Rule 1085.
Judgment as to Indictment No. 2049 reversed, all other judgments affirmed.
NOTES
[1] This is shown by the transcript. The docket entries show that all sentences were concurrent.
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July 21, 2015
JUDGMENT
The Fourteenth Court of Appeals
IN THE ESTATE OF RUTH BAILEY, DECEASED
NO. 14-14-00291-CV
________________________________
This cause, an appeal from the judgment signed March 14, 2014 in favor of
appellee Effie Collins, which rendered final the partial summary judgment signed
on November 5, 2013 in favor of Effie Collins, was heard on the transcript of the
record. We have inspected the record and find no error in the judgment. We order
the judgment of the court below AFFIRMED.
We order appellants Iona Grant, Lauretta Moss, and Nannie Johnson jointly
and severally to pay all costs incurred in this appeal.
We further order this decision certified below for observance.
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UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO . 07-0532
FLORA L. KERNEA , APPELLANT ,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before GREENE, Chief Judge, and DAVIS and SCHOELEN, Judges.
ORDER
In an August 24, 2009, joint motion for remand (JMR), the parties propose that the Court set
aside the February 1, 2007, Board of Veterans' Appeals (Board) decision on appeal. They contend
that the Board provided an inadequate statement of reasons and bases for its determinations that (1)
the appellant was not entitled to enhanced DIC under a theory of "hypothetical entitlement"; and (2)
the appellant failed to file a claim alleging clear and unmistakable error in a prior rating decision.
The Court agrees that the assertions of error are supported by the record. The motion will be
granted, the Board decision set aside, and the matter remanded for further adjudication. On remand,
the appellant is permitted to submit additional evidence and argument to support her claim. See Kay
v. Principi, 16 Vet.App. 529 (2002). Additionally, on remand, the Board must ensure compliance
with terms of the JMR or explain why such terms will not be fulfilled. See Forcier v. Nicholson,
19 Vet.App. 414, 426 (2006). The Secretary is expected to provide expeditious treatment pursuant
to 38 U.S.C. § 7112.
On consideration of the foregoing, it is
ORDERED that the Secretary will include a copy of the parties' motion and a copy of this
order in the claims file. It is further
ORDERED that the joint motion for remand is GRANTED. The February 1, 2007, Board
decision is SET ASIDE and the matter is REMANDED for readjudication in accordance with the
bases for remand included in the joint motion. Under Rule 41(b) of the Court's Rules of Practice and
Procedure, this order is the mandate of the Court.
DATED: August 27, 2009 PER CURIAM.
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687 F.Supp.2d 811 (2009)
FLAGSTAR BANK, FSB, Plaintiff,
v.
FREESTAR BANK, N.A., Defendant.
Case No. 08-1278.
United States District Court, C.D. Illinois.
November 13, 2009.
*816 Fadi B. Rustom, Jordan A. Fifield, Kavanagh, Scully, Sudow, White & Frederick, PC, Peoria, IL, Kevin J. Heinl, Robert C. Tuttle, Chanille Carswell, Brooks & Kushman, Southfield, MI, for Plaintiff.
Robert A. Kearney, Law Office of Robert Kearney, Bloomington, IL, for Defendant.
ORDER
MICHAEL M. MIHM, District Judge.
This matter is now before the court on cross Motions for Summary Judgment as well as two Daubert Motions to Strike expert testimony. For the reasons set forth below, Plaintiff's Motion for Partial Summary Judgment on the "Likelihood of Confusion" Question [#38] is DENIED. Defendant's Motion to Strike the Expert Report of Edward Lee Lamoureux [# 49] is GRANTED. The Court finds Plaintiff's Motion to Exclude the Expert Testimony of Ronald R. Butters, Ph.D. [# 59] MOOT. Defendant's Motion for Summary Judgment [# 57] is GRANTED.
JURISDICTION
The Court has jurisdiction over this matter pursuant to 15 U.S.C. § 1121 and *817 28 U.S.C. §§ 1331, as the complaint presents federal questions arising under the Lanham Act 15 U.S.C. §§ 1501, et seq. The Court has supplemental jurisdiction over the related state law claim pursuant to 28 U.S.C. § 1367.
FACTUAL BACKGROUND
Plaintiff, Flagstar Bank ("Flagstar"), Flagstar is a publicly traded, Michigan-based bank with 175 banking centers in Michigan, Indiana, and Georgia. There are no Flagstar banking centers located in Illinois.
Plaintiff is the owner of the following registered trademarks (with dates of registration in parenthesis):
U.S. Trademark Registration No. 2,015,295 (11/12/1996):
FLAGSTAR
U.S. Trademark Registration No. 2,123,471 (12/13/1997):
U.S. Trademark Registration No. 3,188,184 (12/19/2006):
U.S. Trademark Registration No. 3,593,602 (3/24/2009):
Flagstar offers checking and savings accounts, home mortgage loans, and money market accounts as a part of its banking services. Prospective customers must submit to a credit check prior to opening an account with Flagstar, who bases the approval of the new account on the prospective customer's financial history. According to its 2008 Annual Report, Flagstar has incurred $12.3 million in advertising costs over the course of the year. Registration No. 3,188,184 is the mark that Flagstar predominantly uses in commerce today. Joyce Depo. at *818 12. The "legacy mark" (Registration No. 2, 123,471) is Flagstar's original trademark and is still used in various parts of the organization. Id. at 11.
Flagstar also operates 104 home loan centers, including five within the state of Illinois. None of Flagstar's Illinois home loan centers are located in Champaign, Livingston, or McLean counties. Flagstar's home loan centers are engaged in mortgage origination; customers are not capable of making deposits or withdrawals at the home loan centers. The home loan centers are provided with Flagstar marketing materials and are allowed to independently decide how to utilize those materials in local advertising.
Freestar is a small community bank with 13 branches, all located within a three-county area of Central Illinois: Champaign, Livingston, and McLean. Defendant limits its advertising to that area. Freestar began operations in 1934 as "Pontiac National Bank" and "Peoples Bank," and adopted the "Freestar Bank" name in 2006 after consulting with The Tracy Edwards Company, a private branding and marketing consulting company. Freestar offers traditional banking services including checking and savings accounts as well as home mortgage loans.
For over three years, Freestar has used its mark in commerce. According to Freestar's designated representative, Freestar limits its advertising to the three-county area in which it operates banking centers via local radio stations, television broadcasts, newspapers, and billboards. Vogelsinger Aff. ¶ 20. On June 23, 2006, Defendant filed Application No. 78/915,706 to register the following mark:
The parties do not dispute the identical nature of their products and services. Both parties' banking centers offer personal and business savings accounts, personal and business checking accounts, money market accounts, certificates of deposit, home mortgage loans, home equity lines of credit, online banking and online mortgage applications. Flagstar's home loan centers are used for mortgage origination, and customers are not able to make deposits or withdrawals at the home loan centers.
On October 15, 2008, Flagstar commenced this action against Freestar alleging trademark infringement under 15 U.S.C. § 1114 (Count One), false designation of origin, false advertising, and trade dress infringement under 15 U.S.C. § 1125 (Count Two), and Illinois state common law trademark infringement (Count Three). Plaintiff moved for Partial Summary Judgment on the "Likelihood of Confusion" Question. Flagstar argues that the evidence presented clearly proves that allowing competitive uses of FLAGSTAR BANK and FREESTAR BANK in the marketplace will create a likelihood of confusion. Flagstar points to the similarity of the marks, similarity of the products offered, and use of the same marketing channels directed toward a similar type of consumer to justify its position.
Freestar countered with its own Motion for Summary Judgment on all counts of Flagstar's Complaint. Freestar first claims that Flagstar lacks Constitutional *819 standing to bring this lawsuit because it has failed to prove an actual or imminent injury giving rise to a justiciable case or controversy. Freestar asserts that the undisputed facts, as well as the evidence on the record, present no genuine issue of fact concerning the likelihood of confusion question. This matter is fully briefed, and this order follows.
DAUBERT MOTIONS
Under Federal Rule of Evidence 702, witnesses "qualified as an expert by knowledge, skill, experience, training, or education" may testify as long as "scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue". Fed.R.Evid. 702. The court functions as a gatekeeper, allowing the admission of expert testimony only if it "rests on a reliable foundation" and is "relevant to the task at hand". Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 597, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).
Courts may consider numerous factors when determining the reliability of proposed expert testimony, including: "whether the theory or technique ... can be (and has been) tested"; whether the theory "has been subjected to peer review and publication"; the technique's "known or potential rate of error"; if the theory is generally accepted within the community; and whether the expert's "preparation is of a kind that others in the field would recognize as acceptable". Daubert, 509 U.S. at 592-594, 113 S.Ct. 2786; Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 151, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999).
I. Edward Lee Lamoureux
Dr. Edward Lee Lamoureux holds a Ph.D. from the University of Oregon in Rhetoric and Communication with an emphasis on conversation analysis, rhetoric, qualitative research methods, general speech, and interpersonal communication. He has been employed a professor in Bradley University's Department of Communication since 1985 and asserts that his expertise lies in the realm of "social" linguistics, as opposed to "formal" linguistics. Lamoureux Dep. at 33. Although Freestar disputes the relevancy of his qualifications, Dr. Lamoureux's educational background clearly qualifies him as an expert on "social" linguistics and rhetorical criticism.
Dr. Lamoureux has offered an expert report with two pages of analysis concerning the "Flagstar Bank" and "Freestar Bank" names. Lamoureux asserts that "flag," "free," and "star" are each "strongly associated with some of the most broadly shared values in American culture: Patriotism, loyalty, national identity, and individual rights". Briefly noting the "significant and overlapping metaphorical associations" of these words, Lamoureux goes on to state that "given post 9-11 emphases on patriotism and nationalism, we can expect that a substantial population of bank customers are likely to confuse" the parties' names if encountered in a common marketplace.
Freestar argues that Dr. Lamoureux's report is unreliable, not as a result of faulty methodology, but because Dr. Lamoureux employs no methodology at all. According to Dr. Lamoureux, his conclusions are based upon consultation of "classic texts" in the field of metaphorical association. The consultation of texts is acceptable if it leads to a report grounded in the accepted theory or method applicable to the field. However, as this court has stated before, "if [the expert] is unable to specify what type of methodology [he] employed in this case, it is impossible ... to evaluate the propriety of that methodology". *820 Collier v. Bradley, 113 F.Supp.2d 1235, 1244-1245 (C.D.Il.2000).
Dr. Lamoureux has not presented any proposal, theory, or technique justifying his conclusion that customers are likely to confuse the parties' marks. Dr. Lamoureux includes no footnotes and attaches no supplements which explain the theories offered by the "classic texts" he read. He includes no reference to or discussion of the classic texts in his report. Thus, the court is left to speculate as to what the classic texts stated and how Dr. Lamoureux used those theories to reach the conclusions he articulates. Dr. Lamoureux proposes no theory which explains how one particular metaphor shared by three words becomes so dominant in customer's minds that it overcomes the many other metaphorical associations attributable to the words. Dr. Lamoureux asserts that all of these words are "God-terms," "Ideographs," and "Ultimate-terms"; however, he offers no explanation of the factors or process by which a word is evaluated and categorized as a "God-term". Further, Dr. Lamoureux offers no explanation of why words associated under the "God-term" category move beyond the realm of distinguishable similarity and into the world of confusion. His fleeting reference to "metaphorical markers" and similar meanings sets is accompanied by no stated theoretical underpinning which would explain the significance of these labels on consumer confusion in the marketplace.
Further, Dr. Lamoureux references no polls or qualitative research supporting his statement that patriotic metaphorical associations "have become particularly `re-energized' and show an increase in both patriotic and nationalistic fervor since the events of September 11, 2001". R. 50, Ex. D: Dr. Lamoureux Expert Report. Without any references to back up this bare assertion, Dr. Lamoureux's statement is nothing more than conjecture. Is he asserting that "re-energized" patriotic metaphors reveal an increase in patriotic fervor? Does he base his conclusive findings on personal observation? Television reports? Dr. Lamoureux fails to establish any basis for a conclusion so important to his testimony. He also fails to discuss and quantify the phrase "particularly re-energized" or theoretically connect this concept with a likelihood of confusion in the marketplace. Have words bearing an association to patriotism become so "re-energized" that customers are not able to "meaningfully distinguish" between them? Id. Without data, process, theory, or any other testable methodology, expert testimony does not fall within the admissibility standards of Daubert.
The utter absence of a reliable theory is highlighted by Dr. Lamoureux's inability to express a theory or explain the procedure by which he could evaluate whether the words "freedom," "America," "liberty," and "patriot" fall under the same metaphorical umbrella of "patriotism" that also covers the terms "flag," "free," and "star". Lamoureux Dep. at 112-120 (Q: "Does patriot have a nationalistic or patriotic connotation to you?" A: "I don't have a professional opinion. I haven't studied it"). When questioned about his preparation process, Dr. Lamoureux stated that he was given the parties' names and subsequently "formulated sort of a plan of attack as to how I would work this out if I was going to make the argument". Lamoureux Dep. 111. Preparation by an expert which involves beginning with a goal (finding a similarity between the marks) and working backwards to meet the goal (evaluating only the given words, looking for a link) is the antithesis of reliable and scientific. See Castellow v. Chevron USA, 97 F.Supp.2d 780 (S.D.Tex.2000) (excluding expert testimony due to unreliable *821 methodology which was "result-driven" and "anathema to both science and law").
In addition to a reliability inquiry, the court must evaluate the relevancy of the proffered testimony. Dr. Lamoureux's general expertise in the field of rhetorical criticism is relevant to a discussion of similarities in meanings between two words. However, expert testimony is unnecessary, and may be excluded at the trial judge's discretion, if
"... all the primary facts can be accurately and intelligibly described to the jury, and if they, as men of common understanding are as capable of comprehending the primary facts and of drawing correct conclusions from them as are witnesses possessed of special or peculiar training, experience, or observation in respect of the subject under investigation." Mercado v. Ahmed, 974 F.2d 863, 870 (7th Cir.1992) (quoting Salem v. United States Lines Co., 370 U.S. 31, 35 [82 S.Ct. 1119, 8 L.Ed.2d 313] (1962)).
In light of these standards, it is clear that the two page report submitted by Dr. Lamoureux is not particularly helpful because the trier of fact is able to draw upon his/her own understanding and evaluate the meanings of the words included in the parties' marks. First, the array of meanings and associations ascribable to the words "flag," "free," and "star" are easily discernable to "men of common understanding". When presented with the parties' marks, the average person is capable of concluding that all three words share a patriotic connotation. A person of average intelligence knows that the American flag features stars in the upper left corner and symbolizes, among many other concepts, the "Land of the Free". Conversely, the common juror is also capable of discerning the differences in meaning and association between the three words. A juror could conclude that a consumer hearing the word "star" would immediately think of outer space or a celebrity before thinking of the shape. It is entirely reasonable and conceivable, possibly even likely, that consumers could primarily associate the word "free" with an item or service requiring no payment. Considering the immense popularity of American football among American citizens, a group of people brainstorming the meanings of these words could correctly note that a "flag" is also the yellow piece of cloth thrown during a football game after a penalty occurs on the field. Men of common understanding do not need assistance in comparing the similarities and differences of common English words such as "flag," "free" or "star". They need help in determining how the similarities of these words lead to confusion, or conversely, how the differences among the words may negate the likelihood of confusion. See Patsy's Italian Restaurant, Inc. v. Banas, 531 F.Supp.2d 483, 485 (E.D.N.Y.2008) (excluding expert testimony where the party has failed to show why the testimony would aid the jury on the likelihood of confusion question).
Lamoureux offers no reasoning, theory, or technique to aid the trier of fact in determining whether consumers are likely to link "flag," "free," and "star" to patriotism as opposed to the other associations listed above. Further, he offers no reasoning, theory, or technique to aid the trier of fact in assessing whether the patriotism associations are confusingly similar, as opposed to merely "similar". Thus, Dr. Lamoureux's expert report offers no help to the trier of fact, beyond their own comprehension abilities, in determining the degree of similarity between the marks and whether that level of similarity will likely lead consumers to be confused. Accordingly, the Motion to Strike is granted.
II. Dr. Ronald R. Butters
As the Court has determined that the expert report of Dr. Butters is not essential *822 to ruling on the present Motions for Summary Judgment, the Court need not address the merits of Plaintiff's Motion to Strike. The Motion is therefore moot.
CROSS MOTIONS FOR SUMMARY JUDGMENT
Summary judgment should be granted where "the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). The moving party has the responsibility of informing the Court of portions of the record of affidavits that demonstrate the absence of a triable issue. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The moving party may meet its burden of showing an absence of disputed material facts by demonstrating "that there is an absence of evidence to support the non-moving party's case." Id. at 325, 106 S.Ct. 2548. Any doubt as to the existence of a genuine issue for trial is resolved against the moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Cain v. Lane, 857 F.2d 1139, 1142 (7th Cir.1988).
If the moving party meets its burden, the non-moving party then has the burden of presenting specific facts to show that there is a genuine issue of material fact. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Federal Rule of Civil Procedure 56(e) requires the non-moving party to go beyond the pleadings and produce evidence of a genuine issue for trial. Celotex, 477 U.S. at 324, 106 S.Ct. 2548. In other words, the non-moving party "must do more than simply show there is some metaphysical doubt as to the material facts." Matsushita, 475 U.S. at 586, 106 S.Ct. 1348. Nevertheless, this Court must "view the record and all references drawn from it in the light most favorable to the [non-moving party]." Holland v. Jefferson Nat. Life Ins. Co., 883 F.2d 1307, 1312 (7th Cir.1989). Summary judgment will be denied where a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. at 248, 106 S.Ct. 2505; Hedberg v. Indiana Bell Tel. Co., 47 F.3d 928, 931 (7th Cir.1995).
I. Standing to Sue
Freestar begins its challenge by asserting that Flagstar does not have constitutional standing to bring this lawsuit because it has not suffered an "injury in fact" which is "actual or imminent, not conjectural or hypothetical". Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). This argument has no merit because Flagstar clearly asserts "an invasion of a legally protected interest". Id. Under Section 32(1) of the Lanham Act, a trademark "registrant" has standing to bring a lawsuit against "any person" who allegedly used an unauthorized "reproduction, counterfeit, copy, or colorable imitation" of the registrant's mark in commerce. 15 U.S.C. § 1114(1); See 6 J. Thomas McCarthy, McCarthy on Trademarks and Unfair Competition § 32:3 (4th ed. 2009) ("if plaintiff is the owner of a federal mark registration, it may sue in federal court for infringement of that registered mark"). Flagstar is the undisputed owner of U.S. Trademark Registration No. 2,015,295, Registration No. 2,123,471, Registration No. 3,188,184, and Registration No. 3,593,602 and asserts that the continued use of Freestar's mark violates its rights under the Lanham Act and will cause harm to the value of its registered marks. This allegation represents an injury in fact as defined in Lujan, and Freestar's argument to the contrary is unavailing.
*823 II. Likelihood of Confusion
A plaintiff may recover for trademark infringement under the Lanham Act by establishing that (1) its mark is protectable and (2) a junior mark creates a likelihood of confusion in the minds of consumers. Eli Lilly & Co. v. Natural Answers Inc., 233 F.3d 456, 461 (7th Cir.2000). The first element of this inquiry, whether Flagstar's registered marks fall within the protection of the Lanham Act, is not at issue here as the Defendant has not challenged the validity of Plaintiff's registered trademarks or the right of the Plaintiff to use the marks. Thus, the only element at issue is the likelihood of confusion. The likelihood of confusion element is also necessary to prove the claims contained in Counts II and III of the Complaint. Rust Environment & Infrastructure, Inc. v. Teunissen, 131 F.3d 1210, 1214 (7th Cir. 1997); AHP Subsidiary Holding Co. v. Stuart Hale Co., 1 F.3d 611, 615 (7th Cir. 1993); Spraying Systems Co. v. Delavan, Inc., 975 F.2d 387, 392 (7th Cir.1992).[1] As a result, the only question now before the court is whether the evidence submitted on the likelihood of confusion issue is "so one-sided that there can be no doubt about how the question should be answered". Packman v. Chicago Tribune Co., 267 F.3d 628, 637 (7th Cir.2001) (quoting Door Sys., Inc. v. Pro-Line Door Sys., Inc., 83 F.3d 169, 171 (7th Cir.1996)).
To determine whether a likelihood of confusion exists, the court must analyze the following seven factors: (1) the similarity between the marks in appearance and suggestion; (2) the similarity of the products; (3) the area and manner of concurrent use; (4) the degree and care likely to be exercised by consumers; (5) the strength of the plaintiff's mark; (6) any actual confusion; and (7) the intent of the defendant to "palm off" his product as that of another. AutoZone, Inc. v. Strick, 543 F.3d 923, 929 (7th Cir.2008). The court may apply varying weight to each of these factors depending on the facts of the case; however, the similarity of the marks, defendant's intent, and actual confusion are of particular importance. See Barbecue Marx, Inc. v. Ogden, Inc., 235 F.3d 1041, 1044 (7th Cir.2000); Eli Lilly, 233 F.3d at 461.
a. Similarity of the marks
When determining whether two marks are confusingly similar, the court should consider the marks as a whole. AutoZone, 543 F.3d at 929. The court must evaluate the marks "in light of what happens in the marketplace and not merely by looking at the two marks side-by-side". Sullivan v. CBS Corp., 385 F.3d 772, 777 (7th Cir.2004) (citation omitted). The question to be addressed is "not whether the public would confuse the marks, but whether the viewer of an accused mark would be likely to associate the product or service with which it is connected with the source of products or services with which an earlier mark is connected". AutoZone, 543 F.3d at 930 (quoting James Burrough Ltd. v. Sign of Beefeater, Inc., 540 F.2d 266, 275 (7th Cir.1976)). Stated more simply, the court should consider whether the similarity of the marks would lead a customer to believe that the trademark owner "sponsored, endorsed, or was otherwise affiliated with the [Defendant's] product". AutoZone, 543 F.3d at 930 (quoting Nike, Inc. v. "Just Did It" Enters., 6 F.3d 1225, 1228-1229 (7th Cir.1993)).
Flagstar asserts that four registered marks, each containing the word "Flagstar" are infringed upon by Defendant's mark, which contains the word "Freestar". As a result, the similarities and differences *824 between the words "Flagstar" and "Freestar" are applicable to all of the marks. To begin, both are two-syllable compound words beginning with the letter "F" and ending with the word "Star". Each word contains eight letters, the second letter a consonant and the third a vowel. However, the first word of each mark is distinctly different: "flag" and "free". Beyond the first letter, each word bears a distinct sound, utilizing different vowels (an "a" verses "e"), a different compound ("fl" verses "fr"), and a different ending ("ag" versus "ee").
Courts, however, must move beyond a side-by-side comparison of minor details when considering the similarity of the marks. Accordingly, each of the following Flagstar marks will be compared to the Freestar mark based on overall impression.
i. U.S. Trademark Registration No. 2,015,295
The similarities between the two marks shown above are few. Plaintiff's mark is not formatted and includes no colors or graphics. Defendant's mark includes italicized letters, identifies the registrant as a bank, and includes the four word slogan: "Life keeps getting better!". Further, the "A" in "star" is the color green, with a star-shape graphic in the center of the letter. The points of the star extend into the "T" and "R" in the word "star," invoking the imagery of a shooting star.
The two marks above bear some similarities, but are not confusingly similar. Both marks include words italicized in the same direction. They also include a reference to the nature of their business: banking, as well as slogans located under the name of the bank.
A consumer looking at these two marks could not be reasonably confused as to their source. A reasonable person, based on the lack of similarity between these marks, would have no reason to believe that Flagstar sponsored the services being marketed by the owner of Defendant's mark. When taken as a whole, a genuine issue of material fact concerning whether or not these marks are confusingly similar simply does not exist.
ii. U.S. Trademark Registration No. 3,593,602
In Flagstar's mark, the first letter of the word "Flagstar" is capitalized, followed by lower-case lettering. The slogan, "The new wave in banking," is located below the name, with a graphic comprised of two thick, black, curved lines underneath it. This graphic implies the waves of a flag. Joyce Dep. pg. 24.
*825 Freestar's mark is comprised of all capital lettering. It includes the word "Bank" on the lower right of the mark below the word "Star". The slogan, "Life keeps getting better!", is included on the third line of the mark. Finally, the mark includes the color green and has a star-shaped graphic on the "A" in "star".
The slogans included in each of the marks are very distinct and do not utilize any of the same words. Flagstar's slogan is a statement describing the innovative nature of Flagstar's services. In contrast, Freestar's slogan is an exclamatory quotation intended to focus the reader on himself and the nature of life with Freestar as his banking provider.
The differences between these marks are not "minor stylistic differences" between two marks with identical names. Meridian Mut. Ins. Co. v. Meridian Ins. Group, Inc., 128 F.3d 1111, 1115 (7th Cir. 1997). The marks at issue feature completely different graphics (two black curved bars and a star), slogans which differ in both content and function, and different color-schemes. When considered as a whole, these marks are clearly indicative of two separate entities and pose no likelihood of confusion.
iii. U.S. Trademark Registration No. 3,188,184
The similarities between the marks above would not lead a consumer to become confused about the origin of defendant's mark. Both marks include the word "Bank" in the bottom right corner of the mark and feature italicized lettering. However, the graphics are different and unrelated (two thick, black, wavy lines in Flagstar's mark as opposed to a shooting star in Freestar's mark), the capitalization of the words is different, and Freestar's mark includes its slogan along with the color green.
Flagstar submitted photographs of its mark as it appears in the marketplace. As shown below, Flagstar's mark prominently features the color red when displayed in the marketplace. Freestar's pending registration for its mark singles out the colors black, green, and white as a feature of the mark. When the marks are considered as a whole, the colors featured on each mark, coupled with the graphical differences in their representation, the differences in name, and Freestar's slogan, overcome the minimal similarities of the marks and render them clearly distinguishable in the marketplace.
*826
*827 iv. U.S. Trademark Registration No. 2,123,471, ("Legacy mark")
Of the four marks at issue, the Plaintiff's "Legacy mark," displayed below, bears the most similarity with Freestar's mark. The visual similarities between these two marks include: italicized lettering, capital letters for all words, the word "Bank" on the lower right of the mark, and a star graphic in the middle of the letter "A" in "Star". The differences include: the "wave" graphic in Flagstar's mark, the presence of Freestar's slogan in its mark, and Freestar's use of a "shooting" star as its graphic.
As discussed in the section above, Flagstar's use of its marks in the marketplace features the color red prominently while Freestar employs a consistent use of black and green. The marks, as used in the marketplace are displayed below:
*828
Once again, Freestar's mark is clearly distinguishable from Flagstar's mark as it appears in the marketplace despite the similarities of the marks when compared side-by-side. The similarities between these two marks would not lead a reasonable fact finder to conclude that consumers would attribute these marks to the same *829 source. A customer is not likely to be confused between the origin of marks with different names and completely different colors and slogans. Further, the graphics of the marks evoke different imagery: a waving flag as opposed to a shooting star. When considered holistically and as used in the marketplace, reasonable minds can reach only one conclusion: that these marks are indicative of completely separate, but possibly competing, entities.
b. Intent to "palm off"
The record contains no evidence pertaining to Freestar's intent to "pass off [its] products as having come from the plaintiff". Packman, 267 F.3d at 644 (quoting Liquid Controls Corp. v. Liquid Control Corp., 802 F.2d 934, 940 (7th Cir.1986)). However, Flagstar nevertheless contends that if Freestar acted with due diligence during its rebranding process, it would have discovered the existence of the Flagstar marks. Flagstar also points out that its registrations are constructive notice to any subsequent registrant of Flagstar's prior rights and registrations of its marks under 15 U.S.C. § 1072. Defendant has denied any prior, actual knowledge of Flagstar's marks. However, even if Freestar had prior actual or constructive knowledge of the Flagstar marks, the legal weight of this issue is negligible in this instance because actual knowledge alone is not enough to prove intent. Barbecue Marx, 235 F.3d at 1046.
Flagstar relies on AutoZone in urging the Court to infer intent based on the similarities of the marks. However, the AutoZone ruling is clear that intent can be inferred based on similar marks only where "the senior mark has attained great notoriety" and is "nearly ubiquitous in the geographic area where the junior mark competes". AutoZone, 543 F.3d at 934. Flagstar operates no banking centers or home loan centers in the three counties where Freestar exclusively operates and advertises. Additionally, Flagstar has submitted no evidence regarding either a marketing or a business presence in the geographic area where the junior mark competes. As a result, the Court cannot infer intent based on either the facts of this case or the evidence in the record.
c. Actual confusion
Evidence of actual confusion is not required to prove that a likelihood of confusion exists. CAE, Inc. v. Clean Air Engineering, Inc., 267 F.3d 660, 685 (7th Cir.2001); Barbecue Marx, 235 F.3d at 1045. However, in the interest of thoroughness, the Court notes the complete absence of evidence related to any actual consumer confusion between any of Flagstar's marks and Freestar's mark.
d. Area and manner of concurrent use
When evaluating this element, the Court must determine "whether there is a relationship in use, promotion, distribution, or sales between the goods or services of the parties". Ty, Inc. v. Jones Group, Inc., 237 F.3d 891, 900 (7th Cir. 2001) quoting Forum Corp. of North America v. Forum, Ltd., 903 F.2d 434, 442 (7th Cir.1990). Primary considerations include: geographic overlap, see AutoZone, 543 F.3d at 932; direct competition between the products, see Smith Fiberglass Prods., Inc. v. Ameron, Inc., 7 F.3d 1327, 1330 (7th Cir.1993); and the use of the same marketing channels, see Nike, Inc., 6 F.3d at 1230. The undisputed facts of this case, along with evidence submitted by both parties, clearly show that Flagstar and Freestar's services are not utilized concurrently in any area or manner.
To begin, the parties' geographic markets do not overlap. Freestar's banks are located exclusively within three Central Illinois counties: Champaign county, Livingston county, and McLean county. Flagstar operates no banking or home loan centers in these counties. Similarly, *830 Freestar operates no banking centers in Flagstar's primary areas of operation: Michigan, Indiana, and Georgia. The disparate geographic presence of the parties weighs against finding an overlap in consumer base. An Illinois consumer seeking to open a bank account would need to drive across state lines before encountering a Flagstar banking center. A person seeking a home loan cannot "cruise down the street" and become confused by the presence of a Flagstar home loan center and a Freestar banking center because he or she will not encounter both of these entities within the same county, let alone city. Compare AutoZone, 543 F.3d at 930 (where both parties sold and promoted their goods and services in the Chicago area, one mile separated the parties' businesses, and a consumer "cruising down the street ... after driving past both parties' businesses" could believe the parties' businesses were affiliated). How can customers be confused by marks which they do not encounter during their everyday lives, and conceivably, do not even know exist?
Further, Flagstar has presented no evidence that remotely suggests an expansion into Champaign, Livingston, and McLean counties is reasonably expected. On the contrary, Flagstar stated in SEC filings for the 2007 fiscal year that the company's "expansion strategy consists principally of adding new bank locations in Michigan and Georgia growth areas". R. 58, Exhibit to Defendant's Motion for Summary Judgment at App 000221. Flagstar has not submitted any business plans, emails, internal memoranda, or deposition testimony to support a finding that Flagstar is reasonably expecting to enter into the Illinois banking landscape or expecting to open home loan centers in Champaign, Livingston, or McLean counties. The record is devoid of evidence of any link between these two businesses beyond the hypothetical possibility that Flagstar may open a branch somewhere in the state of Illinois one day. The Plaintiff must submit evidence beyond speculation if it expects to survive summary judgment, and no such evidence of any concurrent use exists here. Nor has Flagstar presented any evidence of direct competition between the products or an overlap in the consumer base.
Finally, Flagstar has offered no evidence of overlapping marketing channels. Freestar limits its advertising to the local radio stations, television advertisements, newspapers, and billboards which serve the three-county Central Illinois area in which it operates. Vogelsinger Aff. ¶ 20. Flagstar has offered no evidence proving that it markets its services via the same Central Illinois channels. Flagstar points to the presence of five home loan centers located in Illinois as evidence that it advertises in the same area as Freestar. However, Flagstar does not assert, and offers no evidence establishing, that it advertises in Champaign, Livingston or McLean counties, while Freestar limits its advertising solely to these three counties. Additionally, Flagstar's corporate model allows the centers to devise their own marketing plan. As a result, Flagstar is unable to confirm that these home loan centers actually use the Flagstar advertising materials given to them to advertise the Flagstar name within the state of Illinois. Flagstar includes screenshots of both parties' websites in an effort to show that both parties utilize the internet as a marketing channel. However, Flagstar has presented no authority stating that the maintenance of two independent websites, which are not linked in any way,[2] constitutes an overlapping *831 marketing channel for purposes of this discussion. In sum, the record contains no evidence showing that the companies have marketed and sold their goods or services to the same customers, CAE, 267 F.3d at 682; advertized in similar magazines, Ty, Inc., 237 F.3d at 901; marketed their goods and services concurrently via the same websites, Id. at 901; or intentionally linked otherwise independent websites, Eli Lilly, 233 F.3d at 460.
The parties do not operate businesses which overlap in geographic location. Additionally, Flagstar has offered no evidence showing that both parties use the same marketing channels or that the products and services offered by these companies serve the same consumers, or that the parties are in direct competition. As a result, no genuine issue of fact exists as to whether a likelihood of confusion will arise on this element.
e. Degree of care exercised by consumers
When the products and services offered by the parties are widely accessible and inexpensive, consumers will likely exercise "a lesser degree of care and discrimination in their purchases" AutoZone, 543 F.3d at 933 (quoting CAE, Inc., 267 F.3d at 683). The products and services offered by banks are widely accessible; however, banking customers engage in a profoundly different process than consumers of other widely accessible products such as cans of cooking spray in the grocery aisle[3] or oil change services.[4] Potential Flagstar customers must submit to credit checks before they are able to open a new bank account and must submit to intrusive questioning about personal finances as a part of the home loan process. Freestar Bank requires prospective customers to speak with a bank loan officer before obtaining a home loan. The services offered by the parties' banks subject prospective customers to invasive and prolonged inquiries before the services are rendered. Customers do not carelessly sign themselves up for such investigative procedures, indicating that banking customers exercise an elevated degree of care.
Flagstar relies on the testimony of Freestar's designated representative, who stated that customers vary in their degree of care, in its effort to show that a genuine issue of fact exists. However, this testimony is mere speculation, the kind of "metaphysical doubt" which does not survive the summary judgment analysis. Matsushita, 475 U.S. at 586, 106 S.Ct. 1348. Flagstar has offered no evidence justifying its assertion that banking customers are likely to be confused because they generally lack sophistication. Thus, a genuine issue of fact beyond mere speculation does not exist on the degree of care element.
Flagstar also points the Court's attention to two sub-issues in the degree of care analysis, arguing that, even if banking customers are sophisticated and discerning, they are susceptible to initial interest confusion and reverse confusion resulting from the simultaneous use of the parties' marks. Initial interest confusion occurs when a consumer is "lured to a product by the similarity of the mark, even if the customer realizes the true source of the goods before the sale is consummated". Promatek Industries, Ltd. v. Equitrac Corp., 300 F.3d 808, 812 (7th Cir.2002). In Promatek, the defendant used the plaintiff's mark as a metatag on its website, directly linking defendant's website to plaintiff's mark. As a result, when consumers entered plaintiff's mark into a search engine, defendant's website would appear. Here, the evidence on record offers no proof that Freestar lured Flagstar's *832 consumers to its products or website in any way or that consumers will patronize a Freestar bank because they perceive the name to be linked with Flagstar bank. Flagstar has only offered its own self-serving speculation on this matter, which is plainly insufficient to survive summary judgment.
Reverse confusion occurs when "a large junior user saturates the market with a trademark similar or identical to that of a smaller, senior user". Sands, Taylor & Wood Co. v. Quaker Oats Co., 978 F.2d 947, 957 (7th Cir.1992). As a result, consumers may begin to see the senior user as the infringer. This scenario is most likely if "the senior user were to attempt to expand into the precise field where the junior user has created a strong association between its product and the senior user's mark". Sands, 978 F.2d at 958. The facts presented in this case simply do not support a finding of reverse confusion. Neither party asserts that Freestar, which in our case is clearly a small bank, has saturated the Central Illinois banking market. Additionally, the record is barren of evidence proving that Flagstar's expansion into Central Illinois would be hampered because Freestar has created a "strong association" between its product and the Flagstar mark. Reverse confusion does not apply to this case.
f. Strength of the plaintiff's mark
The Court assesses "strength" by evaluating the overall economic and marketing strength of Plaintiff's mark. AutoZone, 543 F.3d at 933. Economic and marketing strength is measured by "the distinctiveness of the mark, or more precisely, its tendency to identify the goods sold under the mark as emanating from a particular ... source". Eli Lilly, 233 F.3d at 464 (citations omitted). The only ways to directly prove the public's evaluation of a mark are via customer testimony and consumer surveys. Gimix Inc. v. JS & A Group Inc., 699 F.2d 901, 907 (7th Cir. 1983). However, evidence of the frequency of a mark's display and the amount of advertising dollars used to promote the mark are relevant factors when determining a mark's strength. See AutoZone, 543 F.3d at 933.
Flagstar displays its marks in 175 banking centers in Michigan, Indiana, and Georgia and spent $12.3 million in advertising in 2008. These numbers are not indicative of a mark bearing enormous economic and marketing strength nationwide. Compare AutoZone, 543 F.3d at 933 (citing the mark's display in over 3,000 stores nationwide and use in "hundreds of millions of dollars worth of advertising" as indicators of national economic and marketing strength). Additionally, Flagstar cannot verify that its marks have any economic or marketing strength outside of the three states which house its banking centers because it has no knowledge of how the home loan centers advertise. Obtaining even a small piece of evidence regarding advertising in Illinois would have been simple, yet Flagstar filed for summary judgment before placing a single call to one of its five Illinois home loan centers in order to find out if and when it has used Flagstar materials in advertising. Coupled with Flagstar's absence from the Central Illinois marketplace where Freestar does business, the record is clear: Flagstar has not met its burden to produce actual facts and evidence beyond speculation and argument which raise a genuine issue of fact regarding the strength of its mark. A mark cannot bear economic and marketing strength in a place where it does not do business and does not advertise.
g. Similarity of the products
The parties do not dispute the identical nature of their products and services. *833 Both parties are banks. In the areas where they have banking centers, they offer the same products and services, including personal and business savings accounts, personal and business checking accounts, money market accounts, certificates of deposit, home mortgage loans, home equity lines of credit, online banking and online mortgage applications. Although Defendant notes that the products and services offered in Illinois are not identical, as Plaintiff offers only home loan-related services rather than full service banking centers, any further discussion of this point conflates similarity of the products with area and manner of concurrent use.
No issue of fact exists as to the similarity of the products offered by the parties, a factor which weighs in favor of Flagstar.
III. Weighing the factors
Although no single factor of the seven-part likelihood of confusion test is dispositive, the 7th Circuit has acknowledged that the similarity of the marks, intent to palm off and actual confusion are generally important factors. AutoZone, 543 F.3d at 929. Nevertheless, courts "may assign varying weights to each of the factors depending on the facts presented". Packman, 267 F.3d at 643. The facts and evidence presented by the parties show that Flagstar and Freestar's products and services, although identical, are not offered concurrently in any area of this country, nor are they marketed to an overlapping consumer base. This fact clearly distinguishes this case from the preeminent 7th Circuit decisions relied upon by the parties and warrants weighing the area and manner of concurrent use element heavily. Consumers cannot become confused by a mark they will never encounter in the marketplace.
Although Flagstar's "Legacy mark", in particular, and Freestar's mark bear many similarities when compared side-by-side, a reasonable fact-finder comparing the marks as a whole could not conclude that these similarities will lead to customer confusion as to the marks' origin or affiliation. The other identified marks bear no significant similarity and could create no likelihood of confusion. Even if reasonable fact-finders could disagree over confusion resultant from the similarities of the marks, the record is still extremely one-sided when the other AutoZone factors are also considered. Flagstar has presented no evidence confirming that these two marks are used in the same state, let alone county, city, neighborhood or street. Flagstar has also submitted no evidence of imminent expansion into the counties where Freestar exclusively operates. The absence of any concurrent or overlapping distribution and marketing of services negates the relevance of the parties' identical services for purpose of the likelihood of confusion analysis.
Concerning the strength of the Plaintiff's mark, reasonable minds could not consider a $12.5 million advertising expenditure for 2008 to be evidence of a strong mark when Flagstar has presented no evidence that a single dollar of that amount was directed toward Illinois. Neither party has submitted strong evidence of customer sophistication beyond speculation. However, because the parties submit prospective customers to credit checks and interviews, the evidence on the record favors considering banking customers sophisticated for purposes of this analysis. Finally, the record contains no evidence of actual confusion or Freestar's intent to palm off its product as being associated with Flagstar's.
In order to resolve cross Motions for Summary Judgment, the court must evaluate the undisputed facts and evidence submitted to determine whether a genuine *834 issue of material fact exists. Concerning whether Freestar's use of its mark creates a likelihood of confusion with Flagstar's registered marks, no such issue exists. Accordingly, because no reasonable trier of fact could find in favor of Flagstar on this issue, Freestar is therefore entitled to judgment as a matter of law. Flagstar's request for summary judgment is therefore denied.
CONCLUSION
For the foregoing reasons, Flagstar's Motion [#38] is DENIED. Defendant's Motion to Strike [# 49] is GRANTED, and Plaintiff's Motion to Strike [#59] is MOOT. Freestar's Motion for Summary Judgment [#57] is GRANTED. This matter is now TERMINATED. All deadlines are vacated, and all other pending motions are MOOT.
NOTES
[1] Both parties acknowledge that the likelihood of confusion analysis applies to all claims contained within the Complaint. See R. 39 at 25; R. 58 at 36.
[2] Compare Eli Lilly, 233 F.3d at 460 (where Defendant intentionally used Plaintiff's mark as a metatag on its website, resulting in the diversion of people searching for Plaintiff's mark to Defendant's website)
[3] AHP, 1 F.3d at 616-617.
[4] AutoZone, 543 F.3d at 931-932.
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930 F.2d 918
Unpublished DispositionNOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.Phillip BAXTER, Petitioner-Appellant,v.UNITED STATES of America, Respondent-Appellee.
No. 90-5511.
United States Court of Appeals, Sixth Circuit.
April 12, 1991.
Before RALPH B. GUY, Jr. and ALAN E. NORRIS, Circuit Judges, and WELLFORD, Senior Circuit Judge.
PER CURIAM.
1
Defendant, Phillip Baxter, appeals from the denial by the district court of his claim for relief under 28 U.S.C. Sec. 2255, or, in the alternative, for a new trial. Defendant sought this relief from the district court after we affirmed his conviction on direct appeal.
2
Having had the benefit of oral argument, and having carefully considered the record on appeal and the briefs of the parties, we are unable to say that the district court erred in denying the relief sought.
3
Although the United States Attorney's office may have exercised poor judgment by being "cagey" or "stonewalling" concerning Chester Barry Gibson's involvement as an informant, it does not follow that this amounts to a demonstration by defendant of error in the manner in which the matter was handled by the district court. Furthermore, while defendant's chief complaint is that Gibson "contaminated" evidence given by Billy Chesser, as we pointed out in our previous opinion there was a considerable amount of evidence incriminating defendant, apart from Chesser's testimony.
4
As the other reasons why the order of the district court should be affirmed have been articulated by the district court, the issuance of a detailed written opinion by this court would be duplicative and serve no useful purpose. Accordingly, for the reasons stated above, and those set out in the district court's Memorandum Opinion dated May 8, 1990, the order of the district court is affirmed.
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State, 103 Nev. 669, 673, 748 P.2d 3, 6 (1987). Accordingly, we
ORDER the judgment of conviction AFFIRMED.
41,
J.
Gibbons
J.
J.
Saitta
cc: Hon. Scott N. Freeman, District Judge
Washoe County Public Defender
Attorney General/Carson City
Washoe County District Attorney
Washoe District Court Clerk
SUPREME COURT
OF
NEVADA
2
(0) 1947A
•1111111111111 INZIR 4E1611
| {
"pile_set_name": "FreeLaw"
} |
245 B.R. 644 (2000)
In re VIET VU and Mai Vu, Debtors.
Viet Vu and Mai Vu, Appellants,
v.
John T. Kendall, Chapter 7 Trustee, Appellee.
BAP No. NC-99-1523-RyMeR. Bankruptcy No. 92-50827-JRG-7.
United States Bankruptcy Appellate Panel of the Ninth Circuit.
Argued and Submitted January 20, 2000.
Decided February 8, 2000.
*645 Susan B. Luce, Law Offices of Charles E. Logan, San Jose, CA, for Viet Vu.
James D. Sumner, San Jose, CA, for Mai Vu.
Eric A. Nyberg, Kornfield, Paul & Bupp, Oakland, CA, for John T. Kendall, trustee.
Before RYAN, MEYERS, and RUSSELL, Bankruptcy Judges.
OPINION
RYAN, Bankruptcy Judge.
After converting their chapter 11[1] bankruptcy case to chapter 7, Viet and Mai Vu ("Debtors") filed a motion (the "Motion") to compel the chapter 7 trustee to abandon their residence (the "Property"). The chapter 7 trustee filed a motion to sell the Property (the "Sale Motion"), and both motions were set for hearing on the same *646 day. The bankruptcy court denied the Motion and approved the Sale Motion.
Debtors timely appealed.[2] We AFFIRM.
I. FACTS
On February 10, 1992 (the "Filing Date"), Debtors filed their chapter 11 bankruptcy petition. In September 1994, John T. Kendall ("Trustee") was appointed chapter 11 trustee. On January 12, 1999, and after unsuccessfully proposing a chapter 11 plan, Debtors' case was converted to chapter 7, and Trustee was appointed chapter 7 trustee.
On May 24, 1999, Debtors filed the Motion. The Motion contended that as of the Filing Date, there was no equity in the Property and that the Property was therefore burdensome and of inconsequential value and benefit to the estate. Specifically, Debtors contended that the market value of the Property as of the Filing Date was approximately $1.1 million and that there were approximately $1.3 million in encumbrances in addition to Debtors' $75,000 homestead exemption.[3] Therefore, they contended that the Property was burdensome or of inconsequential value and benefit to the estate because as of the Filing Date, there was no equity in the Property. Alternatively, Debtors argued that even if there were equity in the Property as of the Filing Date, in determining whether the Property was burdensome or of inconsequential value and benefit to the estate, the court had to consider the amount that Debtors spent towards increasing the equity and improving the Property postpetition.[4] The Motion stated that
[t]here is still $814,000 owed to Bank of America; $109,086 in unpaid property taxes; administrative expense credits of $965,401.83; and the Debtors' homestead exemption of $75,000 to be deducted prior to any money coming in to the estate. Based upon these figures, the [P]roperty is of inconsequential value to the estate and must be abandoned.
Mot. to Compel Trustee to Abandon Property (May 24, 1999), at 4.
On July 1, 1999, Trustee filed the Sale Motion, seeking a court order approving the sale of the Property free and clear of liens for $1.9 million and compelling Debtors to turnover the Property. At the hearing on August 10, 1999, the court denied the Motion and granted the Sale Motion. Debtors timely appealed both orders.
Debtors subsequently filed a motion for stay of the orders granting the Sale Motion and denying the Motion, but the bankruptcy court denied the requests for a stay. Debtors then unsuccessfully sought a stay pending appeal from the Bankruptcy Appellate Panel. The appeal from the order granting the Sale Motion was dismissed as being moot.
In September 1999, the court held a hearing on Debtors' application for an administrative *647 expense claim, but the court denied the application without prejudice.[5]
II. ISSUE
Whether the court abused its discretion in denying the Motion.
III. STANDARD OF REVIEW
Once a bankruptcy court has determined whether "the factual predicates for abandonment . . . are present, the court's decision to authorize or deny abandonment is reviewed for an abuse of discretion." Johnston v. Webster (In re Johnston), 49 F.3d 538, 540 (9th Cir.1995). A court abuses its discretion if its decision is "based on an erroneous conclusion of law or when the record contains no evidence on which the [bankruptcy court] rationally could have based that decision." Vanderpark Properties, Inc. v. Buchbinder (In re Windmill Farms, Inc.), 841 F.2d 1467, 1472 (9th Cir.1988).
IV. DISCUSSION
In denying the Motion, the bankruptcy court rejected Debtors' alternative contentions that (1) as of the Filing Date, "there was no equity in the [P]roperty and therefore there was no interest by the estate to appreciate," or (2) if there was equity in the Property as of the Filing Date, "even giving the estate any appreciation that has accrued, there is still no equity after deductions for liens, administrative expenses and the Debtors['] homestead exemption." Mot. to Compel Trustee to Abandon Property (May 24, 1999), at 4. The court disagreed with Debtors' contentions and denied the Motion. The court granted the Sale Motion, in which Trustee estimated the sale would bring as much as $742,500 into the estate.
Section 554(b) provides that "[o]n request of a party in interest and after notice and a hearing, the court may order the trustee to abandon any property of the estate that is burdensome to the estate or that is of inconsequential value and benefit to the estate." 11 U.S.C. § 554(b). In order to approve a motion to abandon property, the bankruptcy court must find either that (1) the property is burdensome to the estate or (2) of inconsequential value and inconsequential benefit to the estate. See 11 U.S.C. § 554(b); Morgan v. K.C. Mach. & Tool Co. (In re K.C. Mach. & Tool Co.), 816 F.2d 238, 245 (6th Cir.1987). As the Sixth Circuit noted, "[a]n order compelling abandonment is the exception, not the rule. Abandonment should only be compelled in order to help the creditors by assuring some benefit in the administration of each asset. . . . Absent an attempt by the trustee to churn property worthless to the estate just to increase fees, abandonment should rarely be ordered." Morgan, 816 F.2d at 246.
Here, the Property was not burdensome, as indicated by the fact that Trustee had a ready buyer for the Property. Id. at 245. Therefore, Debtors had to establish that the Property was both of inconsequential value and benefit to the estate.
Debtors first argue that the Property was of inconsequential value and benefit to the estate because there allegedly was no equity in the Property as of the Filing Date. Debtors contend that Trustee's interest is as a judicial lien creditor with a claim in the amount of the unsecured debt. If there was no equity in the Property as of the Filing Date, Debtors argue that there was no interest to which Trustee's interest could attach and the estate therefore would not be entitled to postpetition appreciation or other increases in equity. We disagree.
The Ninth Circuit has consistently held without limitation that, under § 541(a)(6),[6]*648 the estate is entitled to postpetition appreciation. See Alsberg v. Robertson (In re Alsberg), 68 F.3d 312, 314-15 (9th Cir. 1995); Hyman v. Plotkin (In re Hyman), 967 F.2d 1316, 1321 (9th Cir.1992); Schwaber v. Reed (In re Reed), 940 F.2d 1317, 1323 (9th Cir.1991).[7]
In Hyman, the debtors filed a chapter 7 bankruptcy petition and scheduled their home as having a value of $415,000 and encumbrances of $347,611. They claimed a $45,000 homestead exemption to which no objection was filed. The court approved the trustee's application to employ a real estate broker, and the debtors responded by filing for declaratory judgment, claiming that the trustee was not allowed to sell their home because the sum of the encumbrances, estimated costs of sale, and their homestead exemption exceeded the value of the property as of the petition date. The debtors alternatively argued that they were entitled to the postpetition appreciation in their home. The Ninth Circuit rejected the debtors' arguments. First, it acknowledged that California law permitted a forced sale of a homestead only if its sale price exceeded the amount of the homestead exemption and any liens and encumbrances on the property. Hyman, 967 F.2d at 1320 (citing CAL.CIV.P.CODE § 704.800). However, it noted that nothing in the Code required that a trustee demonstrate in advance of attempting a sale that the sale price will exceed all costs and encumbrances. The court stated that
[t]he sale of encumbered property is a relatively complex financial transaction and the trustee cannot be certain of what he will reap until he has taken bids on the property. Some of the variables involved are known in advance, such as the amounts of the homestead exemption and encumbrances. Other variables remain unknown until the bids are in, such as the sale price and, to a lesser extent, the sale costs.
Id. Importantly, the court stated that "[i]n making these calculations, the relevant figure is the actual sale price of the property, not the value of the property listed by the debtor on his schedule of assets." Id. at 1320 n. 9.
Similarly, the debtor in Reed argued that the bankruptcy estate had no interest in his home as of the commencement of the case because the sum of the encumbrances, liens, and homestead exemption exceeded the value of his one-half interest in the residence. The Ninth Circuit rejected his argument and held that "there is value if the Debtor's one-half interest in the net proceeds from the sale of the entire residence exceeds the value of Debtor's homestead exemption." Reed, 940 F.2d at 1323. Thus, despite the debtor's argument that there was no equity in the property as of the filing date, the court measured the value of the home at the time of the sale rather than at the commencement of the case for purposes of determining the estate's interest.
Debtors' argument that the Ninth Circuit precedent can be distinguished because each of the fact patterns involved property in which the debtors had equity as of the petition date is without merit. Specifically, Debtors argue that (1) the *649 estate obtained an interest through § 544 and Trustee holds a lien against the Property in the amount of the unsecured debt and, therefore, (2) if there was no equity to which Trustee's lien could attach as of the Filing Date, then Trustee is not entitled to postpetition appreciation. We disagree.
As the bankruptcy court noted, § 541, and not § 544, defines the estate's interest in property. The intent of § 544 is not to limit the trustee's interest in property, but is instead to vest the trustee with the "rights and powers of" a judicial lien creditor. 11 U.S.C. § 544(a); Duck v. Wells Fargo Bank (In re Spectra Prism Indus., Inc.), 28 B.R. 397, 399 (9th Cir. BAP 1983). "The legislative history of the `strong-arm clause' indicates that the basic purpose underlying the section was to avoid the `evil' of secret liens and transfers of the debtor's property." Id. (citation omitted). Clearly, this section was not intended to be used as a shield by debtors to secure their interest in property to the detriment of the bankruptcy estate. Given the clear Ninth Circuit precedent holding without limitation that appreciation inures to the benefit of the estate, we decline to adopt an approach at odds with both that general principle and the purpose behind the strongarm clause. Thus, under § 541(a)(6), postpetition appreciation is property of the estate without regard to whether there is equity in the property as of the petition date.
Debtors next argue that even if appreciation inures to the bankruptcy estate, the Property was still of inconsequential value and benefit to the estate because there was no equity available to the estate once their postpetition mortgage payments and improvements to the Property were reimbursed as an administrative expense claim. Specifically, Debtors argue that under § 541(a)(6), the estate does not succeed to proceeds or profits that result from earnings of an individual debtor, and that once these proceeds or profits were considered, the Property was of inconsequential value and benefit and therefore should have been abandoned to them. Again, given these facts, we disagree.
In the Motion, Debtors asserted an entitlement to an administrative expense claim in the sum of their postpetition mortgage and interest payments, postpetition improvements to the Property, and homeowners' association dues, less the fair market rent of the Property during the pendency of their bankruptcy case. However, because Debtors had not yet sought approval of their administrative expense claim, any amount that they claimed was merely speculative. Further, Debtors provided no evidence that the source of their payments was their postpetition income.[8] Additionally, we note that by paying postpetition mortgage payments, property taxes, and homeowners' association dues, Debtors were able to remain on the Property while attempting to reorganize. Once their case was converted to chapter 7, these payments preserved their exemption. We simply find no support in the Code for Debtors' proposition that in considering whether property of the estate should be abandoned, the court must take into consideration reimbursement for these postpetition payments prior to the approval of an appropriate administrative expense claim. See In re Prospero, 107 B.R. 732, 735-36 (Bankr.C.D.Cal.1989); In re Brusseau, 57 B.R. 457, 460-61 (Bankr.D.N.D. 1985).[9]
*650 Here, Trustee estimated in his declaration in support of the Sale Motion that the sale of the Property for $1.9 million would bring a sum in between $266,846[10] and $742,500[11] into the estate for payment of creditors' claims.[12] At this point, Debtors' contention that they were entitled to an administrative expense claim in the approximate net sum of $609,401.83 was mere speculation because the claim had not yet been liquidated against the estate. Therefore, in the face of the Sale Motion and Ninth Circuit precedent, Debtors did not meet their burden of establishing by a preponderance of the evidence that the Property was of inconsequential value and benefit to the estate. Thus, the court did not abuse its discretion in denying the Motion.
V. CONCLUSION
In sum, pursuant to § 541 and Ninth Circuit precedent, the Property became property of the estate as of the Filing Date and any postpetition appreciation inured to the benefit of the estate.
Second, in ruling on the Motion, the court was not required to take into consideration Debtors' argument that they were entitled to an administrative expense claim because Debtors had not yet sought court approval of this claim and it therefore was merely speculative.
Because Debtors did not establish by a preponderance of the evidence that the Property was burdensome or of inconsequential value and benefit to the estate, the court did not abuse its discretion in denying the Motion.
AFFIRMED.
NOTES
[1] Unless otherwise indicated, all chapter and section references are to the Bankruptcy Code, 11 U.S.C. §§ 101-1330.
[2] Debtors appealed both the denial of the Motion, which is at issue in this appeal, and the granting of the Sale Motion. Debtors' appeal of the sale order was dismissed as moot after Debtors unsuccessfully attempted to obtain a stay pending appeal.
[3] Specifically, Debtors contended that as of the Filing Date, the Property was encumbered by (1) a deed of trust in favor of Bank of America with an outstanding balance of $900,000, (2) a second deed of trust in favor of Dale Sobeck with an outstanding balance of $300,000, and (3) outstanding property taxes of $40,000.
[4] Debtors attached a summary of their expenditures and copies of the checks to reflect the following postpetition payments:
Interest on the first mortgage $519,628
Principal on first mortgage 85,500
Principal on second mortgage 150,000
Legal fees to stop foreclosure 48,000
Maintenance and improvements 23,293.92
Pool 3,211.52
Landscaping 7,725.39
Homeowners' Association Fees 7,116
Property taxes 84,630
[5] At oral argument, Debtors' counsel advised the Panel that the application for approval of Debtors' administrative expense claim had been denied. Additionally, the docket reflects that an order was entered denying the application without prejudice.
[6] Section 541(a)(6) provides that property of the estate includes "[p]roceeds, product, offspring, rents, or profits of or from property of the estate, except such as are earnings from services performed by an individual debtor after the commencement of the case." 11 U.S.C. § 541(a)(6).
[7] Courts in other circuits have reached the same conclusion. See Potter v. Drewes (In re Potter), 228 B.R. 422, 424 (8th Cir. BAP 1999) (stating that "[e]xcept to the extent of the debtor's potential exemption rights, post-petition appreciation in the value of property accrues for the benefit of the trustee"); In re Paolella, 85 B.R. 974, 977 (Bankr.E.D.Pa. 1988) (holding that "[b]ecause sale does not generally, if ever, occur simultaneously with formation of a bankruptcy estate, § 541(a)(6) mandates that the estate receive the value of the property at the time of the sale. This value may include appreciation or be enhanced by other circumstances creating equity which occur postpetition."); In re Heflin, 215 B.R. 530, 534-35 (Bankr.W.D.Mich.1997) (same).
[8] Debtor stated in his declaration that "I spent my own money, time and labor improving it.... Since the filing of the bankruptcy petition, I have spent hundreds of thousands of dollars in expenses to maintain the property." Decl. of Viet Vu in Supp. of Mot. to Compel Trustee to Abandon Property (May 24, 1999), at 3.
[9] But see O'Leary v. Oregon (In re O'Leary), 75 B.R. 881 (Bankr.D.Or.1987) (holding that "appreciation of property or an increase in equity post-petition is property acquired after bankruptcy which is not subject to claims of pre-petition creditors"); Tanner v. FinanceAmerica Consumer Discount Co. (In re Tanner), 14 B.R. 933 (Bankr.W.D.Pa.1981) (same); Donahue v. Parker (In re Donahue), 110 B.R. 41, 44-45 (Bankr.D.Kan.1990) (same).
[10] This amount included the costs of sale and all encumbrances against the Property.
[11] The $742,500 took into consideration what Trustee termed "valid liens."
[12] The Sale Motion sought approval of the sale free and clear of the following liens: (1) a deed of trust in favor of Dale and Doriana Sobek in the face amount of $300,000; (2) a deed of trust in favor of American Bankers Insurance Company in the face amount of $50,000; (3) a judgment lien held by Commercial Credit Recovery Service; and (4) an Internal Revenue Service tax lien. The sale price was $1.9 million less liens totaling $940,000 in favor of Bank of America and Santa Clara County, a 6% broker's fee split between the buyer and seller, and costs of sale.
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107 B.R. 832 (1989)
In re PRUDENTIAL LINES, INC., Debtor.
The OFFICIAL COMMITTEE OF UNSECURED CREDITORS
and
Cold Spring Shipping, L.P., Plaintiffs,
v.
PSS STEAMSHIP COMPANY, INC., Defendant.
Bankruptcy No. 86-B-11773, Adv. No. 89-6430A.
United States Bankruptcy Court, S.D. New York.
December 4, 1989.
White & Case, New York City by Allan L. Gropper, Barbie D. Lieber, and James Laughlin, for The Official Committee of Unsecured Creditors.
Wilmer, Cutler & Pickering, Washington, D.C. by Timothy Dyk, William J. Perlstein, Philip D. Anker, Bryan Slone, and Patrick T. Conners, for Cold Spring Shipping, L.P.
Battle Fowler, New York City by W. Bruce Johnson, Nancy J. Mrazek, and Richard L. O'Toole, for PSS Steamship Company, Inc.
*833 HOWARD C. BUSCHMAN, III, Bankruptcy Judge.
The instant motion for a preliminary injunction presents the legal issue of whether a debtor's potential ability to carry over pre-bankruptcy net operating losses is protected by the automatic stay from the claiming of a worthless stock deduction by its parent.
Plaintiffs, the Official Committee of Unsecured Creditors (the "Creditors' Committee") and Cold Spring Shipping, L.P. ("Cold Spring"), seek a preliminary injunction barring defendant PSS Steamship Company, Inc. ("PSS") from claiming a worthless stock deduction for its stock in Prudential Lines, Inc. ("Debtor" or "PLI") in an original or amended federal income tax return for the tax year 1988 or any tax year prior to that in which the confirmation of a plan of reorganization of the Debtor occurs. They assert that the claiming of such a deduction for preconfirmation tax years would, under the tax laws, destroy the Debtor's $74 million net operating loss ("NOL") carryovers.
I
An involuntary bankruptcy petition was filed on September 12, 1986 against PLI, a corporation organized under the laws of the State of Delaware, pursuant to § 303 of Title 11 of the United States Code (the "Code"). PLI subsequently consented to the entry of an order for relief and has since been operating its business as debtor-in-possession under §§ 1107 and 1108 of the Code.
Defendant PSS, a corporation organized under the laws of the State of Delaware, is a holding company owning all of the outstanding stock of PLI. Its tax basis in that stock is approximately $38,900,000. Tr. at 48; Pls' Exh. 4.[1]
The extended Skouras family controls PSS through a series of holding companies and trusts. Stip. at 7-8. Spyros S. Skouras, Sr. was chief executive officer and a director of both PLI and PSS until he resigned in early November 1989 from his positions at PLI. Stip. at 12-13. His son, Spyros S. Skouras, Jr., remains an officer and a director of the Debtor. Tr. at 58.
PLI and PSS are two of four affiliated entities that have filed consolidated federal income tax returns since 1976. Stip. at 9. Of the total $75 million NOL presently available to the four entities, $74 million is attributable to PLI. Tr. at 139; Pls' Exh. 4.
During the course of this case, Plaintiff Cold Spring acquired a participation interest in the deficiency claim of the United States Maritime Administration, likely the Debtor's largest unsecured creditor. Together with the Creditors' Committee, appointed in January 1987 pursuant to § 1102 of the Code, Cold Spring filed a Second Amended Joint Plan of Reorganization dated October 2, 1989 (the "Joint Plan") with the court. A disclosure statement describing the Joint Plan (the "Disclosure Statement") was approved by this Court on October 3, 1989 as containing adequate information in accordance with § 1125 of the Code. Copies of the Joint Plan and accompanying Disclosure Statement were subsequently disseminated to PLI's creditors. A confirmation hearing with respect to the Joint Plan is currently scheduled for December 7, 1989.
Although Cold Spring and the Creditors' Committee will seek to confirm the Joint Plan even were PLI's NOL carryovers to be destroyed, Tr. at 177-8, the Joint Plan contemplates the carryover of PLI's $74 million NOL. It provides, in salient part, that unsecured creditors are to receive $10 million in notes due five years after issuance and bearing 12.5% interest. Payment of these notes is to be funded by cash contributions of Cold Spring, income from Vessel Charters, Inc., a wholly owned operating subsidiary of PLI, and utilization of an Operating Differential Subsidy Contract. It is envisioned by the plan proponents *834 that PLI's $74 million NOL will be available to enhance recovery to creditors by reducing tax liabilities on the cash flow of businesses to be acquired, enabling payment ahead of schedule of the notes with the excess cash flow. Tr. at 177-8. The Joint Plan also proposes cancellation of the stock held by PSS and ouster of Spyros S. Skouras, Jr. from management of PLI.
In an objection dated September 19, 1989 to approval of an earlier version of the Disclosure Statement, PLI asserted that the Debtor's NOL would be "effectively eliminated if PSS exercises its right to claim a worthless stock deduction with respect to its stock in the Debtor for 1988." Stip. at 11.[2] Shortly after approval of the Disclosure Statement, Cold Spring focussed on that assertion. By letter to PSS, dated October 6, 1989, Cold Spring demanded that PSS disavow the right to take the deduction as represented by PLI. Stip. at 12. Numerous letters between PLI, PSS and Cold Spring[3] culminated in PSS' advising Cold Spring, by letter dated November 6, 1989, that it reserved the right to take the deduction within ten days unless enjoined by a court of competent jurisdiction. Id.
II
Consequently, on November 13, 1989, plaintiffs filed a complaint with this Court seeking a temporary restraining order and preliminary and permanent injunctions against PSS from claiming a worthless stock deduction with respect to its stock in PLI in any tax year prior to the year in which confirmation of a plan of reorganization occurs.
Count one of the complaint asserts that PSS' claiming a deduction in any tax year other than in the year in which confirmation occurs would breach its fiduciary duty to the Debtor and its creditors. Count two asserts that threats by PSS to take the deduction for the 1988 tax year are an attempt made in bad faith by the Skouras family to defeat the Joint Plan and retain control of PLI in breach of its fiduciary duties to the Debtor and its creditors. In both counts, it is alleged that there is no legitimate tax benefit to be gained by PSS in taking the deduction in 1988 since PSS had no income in that year or in any year to which a loss could be carried back. Count three asserts that PLI's NOL carryovers are property of the estate under the Code and that any act by PSS that would extinguish them or secure their benefit to PSS rather than PLI constitutes a violation of the automatic stay pursuant to § 362(a)(3). Plaintiffs sought preliminary injunctive relief on all counts.
Upon the parties' summary showings regarding the need for immediate relief, this court, on November 13, 1989, issued the temporary restraining order sought against PSS, pursuant to Bankruptcy Rule 7065, pending hearing on the motion for a preliminary injunction.[4]
At the evidentiary hearing held on November 21, 1989 on the motion for a preliminary *835 injunction, however, this Court denied relief under the first count of the complaint, concluding that under applicable law, plaintiffs did not show a probability of success on the merits or serious questions going to the merits.[5] We similarly concluded that the Plaintiffs failed to demonstrate a probability of success of the second count, the gravamen of which is that Skouras Jr. threatened that PSS would take the deduction in order to distort the creditor process. No evidence supporting that claim was adduced. Moreover, since it was shown that PSS' return claiming the declaration was to be filed immediately upon the lifting of any legal restraints and the claiming of the deduction would adversely impact Skouras Jr.'s hopes to reorganize PLI, the evidence rebuffed the theory alleged.[6]
The court reserved decision on whether termination of a debtor's NOL is barred by § 362(a)(3) of the Code.[7] That question presents two issues: (i) is the right to carry forward an NOL "property" of an estate as envisioned by that section and (ii) if so, is the taking of a worthless stock deduction by a sole shareholder an exercise of control as also envisioned. These are issues of first impression. Although we initially treated with considerable skepticism plaintiffs' claim that the automatic stay bars taking a worthless stock deduction by a parent of a debtor-in-possession, analysis of the statute, legislative history and policy considerations require that result.
III
A.
Because the terms of art of an integrated statute are generally to be interpreted *836 consistently,[8] the definition of property under § 362(a)(3) is governed by § 541 where Congress sought to define the scope of a bankruptcy estate's property. In § 541(a)(1) it is provided that "such estate is comprised of all of the following property wherever located and by whomever held:
(1) . . . all legal or equitable interests in property as of the commencement of the case." § 541(a)(1).
That the term "property" is broader than tangible physical property, claims to property, and causes of action is made clear by § 541(b)(1). In that section, Congress excluded from the term "property" "any power that the debtor may only exercise solely for the benefit of an entity other than the debtor. . . ." § 541(b)(1). Powers that a debtor may exercise for its own benefit are, therefore, included or there would be no need for the exemption. Since the provisions of § 541 in their entirety are to be viewed "as definition of what is included in an estate rather than a limitation," United States v. Whiting Pools, Inc., 462 U.S. 198, 203, 103 S.Ct. 2309, 2312, 76 L.Ed.2d 515 (1983), it follows from the language of the statute that other non-leviable or even non-transferable rights of a debtor come within the broad embrace of § 541(a)(1) and its definition of the composition of a bankruptcy estate, notwithstanding that the right may not fall within more traditional or common law concepts of property.[9] The statutory language thus implies that a tax attribute, such as the potential ability of a debtor-in-possession and reorganized debtor to use loss carryovers to offset future taxable income, falls within the ken of property under § 541(a)(1).
Such a result, moreover, flows from § 346(h). That section expressly contemplates that NOLs belong to the bankruptcy estate. It provides:
Notwithstanding section 728(a) and 1146(a) of this title, for the purpose of determining the number of taxable periods during which the debtor or the estate may use a loss carryover or a loss carryback, the taxable period of the debtor during which the case is commenced is deemed not to have been terminated by such commencement.
§ 346(h) (emphasis added). Since there is no provision that expressly provides for the inclusion of NOLs in an estate of a corporate debtor,[10] it appears that Congress must have contemplated that NOLs came into a bankruptcy estate through the provisions of § 541(a)(1).
B.
While it might be argued that § 346(h) applies for tax purposes only,[11] careful examination of the legislative history confirms that estate property includes a debtor-in-possession's right to carry forward an NOL.
The identical reports of both houses of Congress observed with respect to § 541(a)(1):
*837 the estate is comprised of all legal or equitable interest of the debtor in property, wherever located, as of the commencement of the case. The scope of this paragraph is broad. It includes all kinds of property, including tangible or intangible property, cause of action (see Bankruptcy Act § 70a(6)), and all other forms of property currently specified in section 70a of the Bankruptcy Act § 70a. The result of Segal v. Rochelle, 382 U.S. 375 [86 S.Ct. 511, 15 L.Ed.2d 428] (1966), is followed,
and the right to a refund is property of the estate. H.R.Rep. No. 95-595, 95th Cong. 1st Sess. 367 (1977); S.Rep. No. 95-989, 95th Cong.2d Sess. 82 (1978) (emphasis added), U.S.Code Cong. & Admin.News 1978, pp. 5868, 6323.
Segal v. Rochelle, 382 U.S. 375, 86 S.Ct. 511, 15 L.Ed.2d 428 (1966), involved the closely analogous issue of whether a NOL carryback is property of a bankruptcy estate. The debtors, two partners and their partnership, commenced their bankruptcy cases by filing bankruptcy petitions at the end of the third quarter of 1961. After the close of that calendar year, the partners filed for tax refunds for the two years prior to the year of the bankruptcy by applying and carrying back losses incurred by the partnership in 1961 prior to the filing of the bankruptcy petitions. The Court held that the potential claims for loss carryback refunds due to pre-bankruptcy losses are property of the estate.
In so holding, the Court ruled that bankruptcy purposes controlled the definition of property under § 70(a)(5) of the Bankruptcy Act, 11 U.S.C. § 110(a)(5) (1970) (repealed), the predecessor to § 541(a)(1), rather the meanings attributed to "property" in other contexts. It added:
The main thrust of § 70a(5) is to secure for creditors everything of value the bankrupt may possess in alienable or leviable form[12] when he files his petition. To this end the term "property" has been construed most generously and an interest is not outside its reach because it is novel or contingent or because enjoyment must be postponed . . . Turning to the loss-carryback refund claim in this case, we believe it is sufficiently rooted in the pre-bankruptcy past and so little entangled with the bankrupts' ability to make an unencumbered fresh start that it should be regarded as "property" under § 70a(5).
382 U.S. at 379-80, 86 S.Ct. at 515.
Thus, at commencement of the bankruptcy case, the debtors in Segal had, like the debtor here, pre-bankruptcy net operating losses that might, depending on compliance with the Internal Revenue Code, be applied advantageously. By expressly referring to Segal, the legislative history consequently demonstrates a congressional intent that NOLs be included in estate property under the Code.
C.
The Segal Court characterized NOLs as a potential claim for refunds due to the carryback provisions of the Internal Revenue Code. Here, the movants desire to preserve those losses to apply in the future if a plan reorganizing the debtor is confirmed and if the reorganized debtor has income. Does the difference lead to a differentiation in result?
In Segal, the debtors argued that, since the trustee's claim to the refunds depended on the notion that an NOL is estate property, to hold that the refunds belonged to the estate was also to hold that loss carryovers likewise belonged to the estate. Segal, 382 U.S. at 381, 86 S.Ct. at 515. They argued that to so hold would force bankrupt estates to be kept open for long periods. In cases involving individuals, this assertion appeared to disturb the Court, seemingly because an individual's fresh start might be unduly penalized due to the inability to use NOL carryovers not likely to be utilized by a trustee in liquidating an estate:
While in fact the trustee can obviate this detriment to the estate by selling a contingent claim in some instances or simply forgoing it inconvenience and hindrance might be caused for the bankruptcy individual. *838 Without ruling in any way on a question not before us, it is enough to say that a carryover into post-bankruptcy years can be distinguished conceptually as well as practically. The bankrupts in this case had both prior net income and a net loss when their petitions were filed and apparently would have deserved an immediate refund had their tax year terminated on that date; by contrast, the supposed loss-carryover would still need to be matched in some future year by earnings, earnings that might never eventuate at all.
Id.
Section 346(i) of the Bankruptcy Code addresses this concern. It provides that an individual's bankruptcy estate succeeds to loss carryovers; that they are returned to the debtor when the case is closed or dismissed to the extent not utilized; and that the debtor may utilize any NOLs as though the applicable periods for the use of loss carryovers were suspended in the interim.
The conceptual and the practical distinctions noted by the Court simply disappear in the case of a reorganized company. Plans involving companies such as White Motor Corp., Allis-Chalmers Corp. and McLean Industries, Inc., all having significant NOLs, have been confirmed long before the expiration of loss carryover periods. Final decrees are issued in Chapter 11 cases when a plan of reorganization is substantially consummated. See § 1101; Bankruptcy Rules 2015(a)(6), (7), 3022. If a debtor corporation is liquidated either under Chapter 7 or pursuant to a Chapter 11 plan, no discharge is granted, §§ 727(a)(1), 1141(d)(3), and there is no concern for a fresh start. Unless the corporation is reorganized, NOL carryovers will apparently be lost. Nor does the indefiniteness or the contingency of a loss carryover make a loss carryover any less estate property. Contingent and future interests of a debtor are estate property. See n. 9 supra.[13] Thus, in the case of a corporate debtor, there appears no cognizable reason to differentiate loss carryovers from carrybacks.
D.
Strong policy reasons, moreover, support the conclusion that debtor's potential ability to utilize NOLs is property of an estate. While the definition of property of an estate does not depend on the property having any value, it cannot be gainsaid that "the right to use the loss as an offset . . . is valuable . . . The market for it is restricted, of course, but this detracts nothing from its value to one in a position to utilize it." Western Pacific R.R. Corp. v. Western Pacific R.R. Co., 345 U.S. 247, 276, 73 S.Ct. 656, 670, 97 L.Ed. 986 (1953) (Jackson, J. dissenting). It is only just and appropriate that creditors be given the opportunity to attempt to realize on that value. They have not been paid because of the very losses giving rise to the NOLs. Their short-fall should not be increased further through failure to recognize loss carryforward rights as part of a bankruptcy estate.[14]
To this, defendant responds that the Internal Revenue Code does not treat NOLs as property in, for example, allocation of purchase price among assets acquired in the acquisition of a trade or business, see, I.R.C. § 1060; Temp.Treas.Reg. 1.338(b)-2T; that NOLs are more like a tax exemption held not to be property in In re Heritage Village Church-Missionary Fellowship, 87 B.R. 401, 405 (D.S.C.1988); that they are created by statute and taken away by statute; and that recognizing NOLs as property could yield "untoward results," consisting principally of the threat of applicability of fraudulent transfer law and alleged *839 difficulty in allocation of NOLs among affiliates in bankruptcy. Def's Mem. at 14-20.
In Segal, however, the Court held that property of an estate is to be defined by bankruptcy purposes, not by the Fifth Amendment's Just-Compensation clause or a state taxing statute. Segal, 382 U.S. at 379, 86 S.Ct. at 514. The same reasoning applies to attempts to define estate property by the Internal Revenue Code: the purposes differ. To be sure, ability to use an NOL depends on compliance with the tax laws, just as a debtor's ability to utilize a mine depends on compliance with applicable state and local regulation. See, Beker Ind. Corp. v. Florida Land and Water Adjudicatory Commission (In re Beker Ind. Corp.), 57 B.R. 611, 622-24 (Bankr.S.D. N.Y.1986). But that dependence does not mean the absence of a property right. Id. To the extent that Heritage Village, a case where the IRS sought to revoke a debtor's tax exempt status implies anything more than that such a revocation is exempt from the automatic stay by virtue of § 362(b)(4), see, 87 B.R. at 404, it is not followed here.[15] In Beker it was held that similar good faith governmental revocation of a permit is not within the bar of § 362(a)(3).[16]
Of more significance is the assertion that recognition of NOL's as estate property will induce instability in pre-bankruptcy tax returns of affiliated companies through the application of fraudulent transfer statutes such as § 548 of the Bankruptcy Code where tax savings have been achieved through the filing of a consolidated return or where a worthless stock deduction has been taken by a parent. To this is added the notion that a corporation generally has no interest in transactions in its stock.
Like the Segal Court, we do not decide these issues and we note that the consequences alleged are largely hypothetical and not necessarily unjust. If the fraudulent transfer section of the Code, § 548, were to apply, it would be through an intended detriment to creditors or the failure of a debtor to receive reasonably equivalent consideration while insolvent.[17] It is *840 hardly contrary to bankruptcy purposes to avoid transactions so motivated or to require a solvent affiliate having positive income to return to an insolvent debtor its share of tax savings achieved through the filing of a consolidated return utilizing losses generated by the debtor during the one year pre-bankruptcy period permitted by § 548 of the Code if the debtor failed to receive reasonably equivalent value. In Western Dealer Mgmt., Inc. v. England (In re Bob Richards Chrysler-Plymouth Corp.), 473 F.2d 262 (9th Cir.1973), cert. denied, 412 U.S. 919, 93 S.Ct. 2735, 37 L.Ed.2d 145 (1973), the court held that a parent of a debtor who received a tax refund through filing a post-bankruptcy consolidated tax return including the debtor held the entire refund in trust for the bankruptcy estate since it was due to the carryback of prebankruptcy NOLs of the debtor. No cognizable reason appears why the result should be any different if a consolidated return were filed pre-bankruptcy and an insolvent debtor failed to receive reasonably equivalent consideration from the affiliate. Although the allocation of such savings is normally governed by the business judgment rule, Meyerson v. El Paso Natural Gas Co., 246 A.2d 789 (Del.Ch. 1967); see also, Western Pacific R.R. Corp. v. Western Pacific R.R. Co., 197 F.2d 994, reh'g denied, 197 F.2d 1012 (9th Cir.1951), vacated and remanded on other grounds, 345 U.S. 247, 73 S.Ct. 656, 97 L.Ed. 986 (1953), prior opinion aff'd, 206 F.2d 495 (9th Cir.1953), cert. denied, 346 U.S. 910, 74 S.Ct. 242, 98 L.Ed. 407 (1953), reh'g denied, 346 U.S. 940, 74 S.Ct. 376, 98 L.Ed. 428 (1954); Case v. New York Central R.R. Co., 232 N.Y.S.2d 702 (1962), rev'd, 19 A.D.2d 383, 243 N.Y.S.2d 620 (1963), rev'd, 15 N.Y.2d 150, 256 N.Y.S.2d 607, 204 N.E.2d 643 (1965), the business judgment rule does not apply in fraud cases. Meyerson, 246 A.2d at 794; see also, Western Pacific, 197 F.2d at 994; Case, 15 N.Y.2d 150, 256 N.Y.S.2d 607, 204 N.E.2d 643. Indeed, one would think that in most cases the concern will not arise in view of the support that most parents afford subsidiaries and thus the presence of reasonably equivalent consideration.
Similar considerations would seem to apply to cases where a parent takes a worthless stock deduction pre-petition thereby limiting or eliminating prior NOL carryforwards of its prospectively bankrupt subsidiary. Reasonably equivalent consideration might be found. In any event, one would think the carryover consequences of terminating or limiting a prospective bankrupt's NOLs pre-bankruptcy are largely hypothetical. A worthless stock deduction can be taken only if the stock is truly worthless, including consideration of the possibility of reorganization in bankruptcy. Rev.Ruling 77-17, 1977-1 C.B. 44. If the situation is so bleak that only liquidation is in the offing, then NOL carryovers would generally be worthless to a corporate debtor since there will be no future income to offset. Thus, nothing of value would have been appropriated by the claiming of the deduction. If there is a prospect of reorganization, either as a going concern or through creation of an investment vehicle, the deduction will likely be unavailable pre-bankruptcy given that few, if any, Chapter 11 debtors seeking to reorganize as a going concern will concede initially that shareholders are not likely to be participants in the reorganized company, as is required to sustain the deduction. See, Id.
Nor does the task of separating NOLs among bankrupt affiliates raise the daunting spectre forecast by defendant. There appears no reason why skilled accountants cannot perform these tasks, regardless of whether the companies are in bankruptcy. *841 See, R.A. Jacobs, Post-TAMRA Chapter 11 Corporate Tax Survival Kit, U.S.C.L. Center Forty-First Tax Inst. ¶ 705 (Matthew Bender 1989) for a discussion of such an allocation. Indeed, in this very case, the parties have been able to determine that $74 million of the $75 million NOLs reflected on the consolidated tax return of four affiliated companies belong to PLI.
It thus remains that there are compelling bankruptcy purposes for including NOL carryforwards within the ken of estate property. The losses relate to the period when creditors were not paid and any value to be obtained should belong to them. The statutory language, legislative history and better reasoned case law permit no other conclusion. We, therefore, turn to the issue of whether the taking of a worthless stock deduction is an exercise of control over a debtor's NOLs.
IV
Section 362(a)(3) stays "any act to obtain possession of property of the estate or of property from the estate or to exercise control over property of the estate." This matter was tried by both sides on the theory that by taking a worthless stock deduction, PSS will eliminate PLI's ability to carry forward its NOLs. See, Tr. at 96, 210.[18]
The contours of the open-ended phrase "exercise control" have been only partially described by case-law. In Beker this Court held that it did not apply to good faith governmental regulation of the use of estate *842 property, ruling that it was highly unlikely that Congress, in adding that phrase in P.L. 98-353 (1984), intended to overrule legislatively the government regulation exemption from the automatic stay set forth in § 362(b)(4). Beker, 57 B.R. at 626. In Pension Benefit Guaranty Corp. v. the LTV Corporation (In re Chateaugay Corp.), 87 B.R. 779 (S.D.N.Y.1988), aff'd, 875 F.2d 1008 (2d Cir.), cert. granted on another issue, ___ U.S. ___, 110 S.Ct. 321, 107 L.Ed.2d 311 (1989), the court ruled that the P.B.G.C.'s restoration of a debtor's terminated pension plans did not violate § 362(a)(3): the restoration was not an exercise of control over estate property although it reinstated obligations of the debtor to provide pension benefits to employees. 87 B.R. 805-06. In Continental Air Lines, Inc. v. Hillblom, 61 B.R. 758 (S.D.Tex.1986), the court held that § 362(a)(3) did not bar litigation against debtor arising from debtor's post-petition attempt to take over another corporation because the litigation sought to vindicate rights of the target corporation rather than to obtain a favorable position vis a vis the debtor's creditors, 61 B.R. at 776-79.
As stated in Beker, 57 B.R. at 626 and Hillblom, 61 B.R. at 776, 779, the control provision of § 362(a)(3) is to be defined by the underlying congressional purposes of preventing dismemberment of the estate and assuring orderly distribution.
The claiming of a worthless stock deduction having the effect of terminating potential use of loss carryovers violates the first of those purposes. It dismembers the estate by eliminating a potential that may be of benefit to creditors. That the effect is due to the legal consequences of the act is of no importance. In re 48th Street Steakhouse, Inc., 61 B.R. 182 (Bankr.S.D.N.Y. 1986), aff'd, 77 B.R. 409 (S.D.N.Y.1987), aff'd, 835 F.2d 427 (2d Cir.1987), cert. denied, Rockefeller Group Inc. v. 48th Street Steakhouse, Inc., 485 U.S. 1035, 108 S.Ct. 1596, 99 L.Ed.2d 910 (1988). There the court held that § 362(a)(3) barred a landlord from terminating the lease of its tenant where the effect under state law would be to terminate a sub-lease held by the debtor-in-possession.
Nevertheless, PSS, citing to legislative history pertaining to § 362(a)(1), argues that the sole purpose of the automatic stay is to afford a breathing spell and creditor protection by barring creditors from unilateral acts to the detriment of other creditors; that PLI's NOLs are subject to PSS' determination of when to take a worthless stock deduction; and that PLI, pre-petition, had no ability to affect that determination. To PSS, barring it from taking the deduction affords PLI an unintended windfall. These contentions are without merit.
It cannot be gainsaid that § 362(a)(1) is designed to afford a breathing spell and creditor protection by staying proceedings brought on pre-petition claims. Section 362(a)(3), however, is designed to afford additional protection permitting the bankruptcy process to work by enabling a debtor to keep estate property intact during the process at least until it becomes apparent that a feasible reorganization cannot be achieved in a reasonable period of time. C.f. United Sav. Ass'n of Texas v. Timbers of Inwood Forest Associates, Inc., 484 U.S. 365, 376, 108 S.Ct. 626, 632, 98 L.Ed.2d 740, 751 (1988).
That PLI's NOL carryovers are subject to PSS' ability to take a worthless stock deduction is irrelevant. It is elementary, for example, that estate property subject to a lien is protected by § 362(a) from foreclosure even though a debtor had no defense to foreclosure prior to bankruptcy. The bar is not a windfall; it preserves estate property.
Accordingly, we hold that to claim the deduction would constitute a violation of the stay contained in § 362(a)(3) and should be enjoined. The foregoing constitutes this Court's findings of fact and conclusions of law pursuant to Bankruptcy Rule 7052.
Settle Order.
NOTES
[1] References to "Tr." and "Exh." are to the transcript of the hearing held on November 21, 1989 and exhibits admitted at that hearing. "Stip." refers to the facts contained in Defendant's Memorandum of Law ("Def's Mem.") at 7-13 to which the parties stipulated at the hearing. Tr. at 13-14.
[2] Under § 382(a) of the Internal Revenue Code, 26 U.S.C. § 382 (1988), if there is a change in ownership of a loss corporation, the availability of that entity's NOL is limited to the value of the corporation times a prescribed rate of return. A deemed ownership change occurs pursuant to § 382(g)(4)(D) of the Internal Revenue Code on the last day of the tax year in which a majority shareholder declares its stock to be worthless by taking a loss deduction. PSS reports income on a calendar year basis. Thus, if PSS were to claim a worthless stock deduction for the 1988 tax year, a deemed ownership change would take place on December 31, 1988.
[3] Requested by plaintiff Cold Spring to demand of PSS that it not claim the deduction for the 1988 tax year, the Debtor declined, claiming it owed fiduciary duties to all parties in interest. Stip. at 12.
[4] Bankruptcy Rule 7065 makes Rule 65 of the Federal Rules of Civil Procedure applicable to adversary proceedings. Under Rule 65(b), a temporary restraining order may be granted "upon a summary showing of its necessity in order to prevent immediate and irreparable injury." Fed.R.Civ.P. 65(b). On a motion for preliminary injunction, the movant must establish "irreparable harm and either (1) probable success on the merits or (2) sufficiently serious questions going to the merits to make them a fair ground for litigation plus a balance of hardships tipping decidedly in plaintiff's favor." Jackson Dairy, Inc. v. H.P. Hood & Sons, Inc., 596 F.2d 70, 72 (2d Cir.1979). Where an act would violate the automatic stay, irreparable harm is established by the violation since Congress, by legislatively staying such acts, has determined that they cause irreparable injury to the estate. Beker Ind. Corp. v. Florida Land and Water Adjudicatory Commission (In re Beker Ind. Corp.), 57 B.R. 611, 621 (Bankr.S.D.N.Y. 1986).
[5] Skouras, Sr. credibly testified that PSS sought to take the deduction for the 1988 tax year on advice of Battle Fowler and BDO Seidman, its attorneys and its accountants, respectively, Tr. at 30-6, 44; that PSS was being pressured by and was obligated to its minority shareholders, dissident members of the Skouras family, to take the deduction in that year, Tr. at 53-4; that PSS' federal income tax return for 1988 was prepared and would be filed immediately upon the lifting of any legal bar, Tr. at 44; that PSS sought the deduction to build its own NOL by which it could offset any deemed income expected as a result of cancellation of indebtedness by Chase Manhattan Bank, N.A., Tr. at 47-8, 54-6. It thus became apparent during the hearing that PSS planned to take the deduction for its own purposes and not merely to advance the efforts of Spyros S. Skouras Jr. to defeat the Joint Plan. If PSS' taking the deduction would eliminate the Debtor's ability to carry forward its $74 million NOL, such act would preclude enhancement of any plan of reorganization, not only that of the plaintiffs, but also that which Skouras Jr. hopes to advance if the Joint Plan is defeated. Tr. at 162-4. Applying Delaware corporate law, this court held that the state law issue is to be judged by fairness and the business judgment rule. Meyerson v. El Paso Natural Gas Co., 246 A.2d 789 (Del Ch. 1967); see also, Western Pacific R.R. Corp. v. Western Pacific R.R. Co., 197 F.2d 994, reh'g denied, 197 F.2d 1012 (9th Cir.1951), vacated and remanded on other grounds, 345 U.S. 247, 73 S.Ct. 656, 97 L.Ed. 986 (1953), prior opinion aff'd, 206 F.2d 495 (9th Cir.1953), cert. denied, 346 U.S. 910, 74 S.Ct. 242, 98 L.Ed 407, reh'g denied, 346 U.S. 940, 74 S.Ct. 376, 98 L.Ed. 428 (1954); Case v. New York Central R.R. Co., 232 N.Y.S.2d 702 (1962), rev'd, 19 A.D.2d 383, 243 N.Y.S.2d 620 (1963), rev'd, 15 N.Y.2d 150, 256 N.Y.S.2d 607, 204 N.E.2d 643 (1965). Here, PSS had a valid business reason for taking the deduction and there was no gross overreaching by PSS. Thus the court did not pass upon the business judgment of PSS' management. See, Meyerson, 246 A.2d at 794; see also, Western Pacific, 197 F.2d 994; Case, 15 N.Y.2d 150, 256 N.Y.S.2d 607, 204 N.E.2d 643. This court also held that while Delaware law prohibits a director from using the subject corporation to further its own interests and requires it to protect the interests of the corporation, it does not require a shareholder to forego tax benefits to which it is entitled under the Internal Revenue Code merely because it is the sole shareholder of the corporation. Meyerson, 246 A.2d at 791-2; see also, Western Pacific, 197 F.2d at 1004.
[6] Although PSS in its brief argued that it was far from clear whether the Debtor's ability to carry over its NOLs would be eliminated as a result of the deduction in 1988, the hearing proceeded on the basis that PLI's NOL carryovers would be terminated. Tr. at 96, 210. Accordingly, irreparable harm was found in that termination of the NOLs would constitute a deprivation of a tax attribute or property not be compensable in damages. Tr. at 210-11.
[7] Section 362(a)(3) provides that the filing of a bankruptcy petition automatically stays "any act to obtain possession of property of the estate or of property from the estate or to exercise control over property of the estate."
[8] See, F. Frankfurter, Some Reflections on the Reading of Statutes, 47 Colum.L.Rev. 528, 537-8 (1947).
[9] The limitations of former § 70(a)(5)'s definition of property to alienable or leviable property in the debtor's possession were discarded by Congress in enacting § 541 of the Bankruptcy Code. Congress intended to include within the § 541(a) definition of property "all interests, . . . contingent interests and future interests, whether or not transferable by the debtor." H.R.Rep. No. 595, 95th Cong. 1st Sess. 175-76 (1977), U.S.Code Cong. & Admin.News 1978, pp. 5787, 6136.
[10] Section 346(i) provides that loss carry forwards belong to the bankruptcy estates of individuals to the extent utilized by the trustee and revert to the debtor on closing of the case. See also, § 1398(g) of the Internal Revenue Code. It was apparently enacted to address the Supreme Court's concern, expressed in Segal v. Rochelle, 382 U.S. 375, 86 S.Ct. 511, 15 L.Ed.2d 428 (1966), for the fresh start individuals obtain upon discharge. See discussion infra. That the failure to expressly provide that estate property includes the right of corporate debtors to use NOLs is of no significant consequence since Congress made reference to individuals in the context of addressing that concern.
[11] But see, Holder v. Wilson (In re Wilson), 49 B.R. 19, 20-21 (Bankr.N.D.Tex.1985), wherein the Court held that § 346(i) codified the holding in Segal and required that NOL carrybacks attributable to an individual debtor and giving rise to a tax refund be included within the definition of estate property.
[12] See, n. 9, supra.
[13] The language of § 541, moreover, so confirms. Section 541(a)(5) limits contingent future interests only in instances involving bequests, inheritance, matrimonial settlements and life insurance policies to the actual property so received by a debtor within 180 days of the filing of the bankruptcy petition. Other contingent future interests in property are not so limited.
[14] Indeed, Skouras Jr. testified at the hearing that he believed that PLI's $74 million NOL was "an important potential asset of the estate," Tr. at 62; that he "hoped" it would be a "valuable asset of the estate," id.; and that "among the assets the Debtor possessed was a net operating loss," Tr. at 88.
[15] Moreover, the Heritage Village Court stated that § 362(a)(3) bars assessment of taxes by the Internal Revenue Service, 87 B.R. at 405, thereby failing to recognize that § 362(b)(9), added in 1986, exempts the issuance of a notice of tax deficiency by a governmental unit from the automatic stay. In Bob Jones University v. Simon, 416 U.S. 725, 94 S.Ct. 2038, 40 L.Ed.2d 496 (1974), the Supreme Court held that the Anti Injunction Act, 26 U.S.C. § 7421, prohibits enjoining the revocation of tax exempt status on the ground that, although the Anti Injunction Act barred only law suits brought for the purpose of restraining assessment and collection of taxes, revocation of the exemption was a prelude to assessment. 416 U.S. at 731-33, 94 S.Ct. at 2043-44. Since revocation is a prelude to a notice of deficiency, it would fall within the exemption provided by § 362(b)(9). Thus, the Heritage Village court's ruling that a tax exemption is not property within § 362(a)(3) was unnecessary to its holding that revocation is not barred by the automatic stay.
[16] In asserting that NOLs are not property of the estate, defendant relies on Pension Benefit Guar. Corp. v. Braniff Airways, Inc. (In re Braniff Airways, Inc.), 700 F.2d 935 (5th Cir.1983) and D.H. Overmyer Telecasting Co. v. Lake Erie Communications, Inc. (In re D.H. Overmyer Telecasting Co.), 35 B.R. 400 (Bankr. v. N.D. Ohio 1983). Braniff held that Federal Aviation Administration rules limiting air carrier operation to landing slots do not create property rights. 700 F.2d at 942. The Overmyer Court held that a license issued by the Federal Communications Commission is not property. 35 B.R. at 401-03. Both cases failed to recognize that, in enacting § 541, Congress intended inclusion of interests, whether or not transferable, in its expansion of property of the estate. Overmyer, moreover, was decided prior to the Supreme Court's ruling in Whiting Pools that estate property is to be broadly defined and Braniff, although decided after the Supreme Court's decision, failed to cite it. Accordingly, this Court, following Bernstein v. R.C. Williams, Inc. (In re Rocky Mtn. Trucking Co.), 47 B.R. 1020 (D.Colo.1985) (holding that a license is estate property) and applying Whiting Pools, so distinguished those cases and held in Beker Ind. v. Florida Land and Water Adjudicatory Commission (In re Beker Ind. Corp.), 57 B.R. 611 (Bankr.S.D.N.Y.1986), that a debtor-in-possession's right to truck its products from its mine, although subject to state and local regulation, lies within the purview of property of the estate. 57 B.R. at 622. The Heritage Village Court also failed to consider Whiting Pools.
[17] Section 548(a)(1) of the Code, § 7 of the Uniform Fraudulent Conveyance Act ("UFCA"), and § 4(a)(1) of the Uniform Fraudulent Transfer Act ("UFTA") invalidate transfers made with actual intent to hinder, delay or defraud present or future creditors of the transferor. Those statutes also void transfers amounting to constructive fraud, i.e., made by a transferor who is or is thereby rendered insolvent if it failed to receive "reasonably equivalent value" under § 548(a)(2) of the Code and UFTA § 5(a) or "fair consideration" under UFCA § 4. See, Murdoch, Sartin and Zadek, Leveraged Buyouts and Fraudulent Transfers: Life After Gleneagles, 43 The Business Lawyer 1, 9-11, 13 (1987). Since our task is to define property of a bankruptcy estate in light of bankruptcy purposes as Segal commands, we consider only transfers that are fraudulent under § 548 of the Bankruptcy Code. While a trustee may bring a fraudulent transfer suit under state law, that cause of action is measured by state law. The definition of property under those statutes may be governed by purposes other than federal bankruptcy purposes.
[18] While PSS, in its brief, argues that that result is not certain, it gives no cogent reason for the alleged lack of certainty.
Under § 382 of the Internal Revenue Code, the utilization of NOL carryovers is limited if there is an ownership change defined by that section. The claiming of worthless stock deduction by a more than 49% shareholder will cause an ownership change if the owner retains its stock at the end of the tax year in which the deduction is claimed. § 382(g)(4)(D); Jacobs, ¶ 702.1. Because the value of the corporation prior to the ownership change is limited generally to the value of its stock immediately prior to an ownership change, § 382(e)(1), and a worthless stock deduction can only be taken if the stock is worthless, the claiming of the deduction by a 100% shareholder such as PSS will apparently render all NOL carryovers of the subject corporation valueless. Section 382(a) imposes the so-called "§ 382 limitation" for carryovers limiting them to the value of the corporation prior to the ownership change multiplied by the long term tax exempt rate. Thus, it appears that since the value of the stock will be zero if a worthless stock deduction is claimed by a 100% shareholder, the "§ 382 limitation" will be zero.
If the subject corporation is in bankruptcy, § 382(l)(5) states that the "§ 382 limitation" does not apply if the old loss corporation is the subject of a bankruptcy case or similar court proceeding immediately prior to the ownership change and if the shareholders and "old and cold" creditors of the corporation own at least 50% of the stock after the ownership change. Jacobs, ¶ 702.3. This provision would appear to contemplate an ownership change as a result of a plan of reorganization, foreclosure or receivership, not a worthless stock deduction. C.f. Jacobs, ¶ 701.2. If so, the "§ 382 limitation" would apparently apply to an ownership change caused by the claiming of a worthless stock deduction by a 100% shareholder before the effective date of a plan of reorganization and NOL carryovers would be lost.
If a worthless stock deduction is claimed by a 100% shareholder for a taxable year in which a confirmed plan of reorganization became effective or within a two year period thereafter, there is a possibility that NOL carryforwards will be lost. Section 382(l)(5)(D) reimposes the "§ 382 limitation" if another ownership change occurs within two years after an ownership change pursuant to a bankruptcy plan of reorganization and further provides that the "§ 382 limitation" is deemed to be zero for any taxable year after the second ownership change. Thus, the claiming of a worthless stock deduction by a 100% shareholder within two years after the effective date of a plan could eliminate NOL carryovers for subsequent years.
If the reorganization plan, however, provides for cancellation of the stock held by the 100% shareholder, it appears that claiming a worthless stock deduction post-effective date would not affect NOL carryovers. In providing for an ownership change upon the claiming of a worthless stock deduction, § 382(g)(4)(D) conditions the ownership change upon the stock being held at the close of the taxable year in which the deduction was claimed. This provision was added to overrule Textron v. United States, 561 F.2d 1023 (1st Cir.1977) and prevent a double deduction if the parent retains its stock. That condition will not be met if the stock is cancelled and consequently no ownership change should occur by virtue of claiming the deduction after cancellation. Thus, NOL carryforwards should be preserved to the extent permitted by other parts of § 382, see e.g., § 382(l)(5)(C) and Jacobs, ¶ 702.3 regarding reduction in carryovers on exchange of debt for stock.
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Filed
Washington State
Court of Appeals
Division Two
March 14, 2017
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 47326-7-II
Respondent, PART PUBLISHED OPINION
v.
KEVIN A. RIVERA,
Appellant.
BJORGEN, C.J. — Kevin Rivera appeals his convictions for second degree assault and
third degree malicious mischief and his sentencing condition forfeiting property.
In the published portion of this opinion, we hold that (1) the trial court lacked statutory
authority to impose the sentencing condition forfeiting property. In the unpublished portion we
hold that (2) Rivera waived his claim of improper elicitation of opinion testimony by failing to
object, (3) the State did not misstate the law relating to intent, (4) the State did not shift the
burden of proof, and (5) Rivera’s counsel did not render ineffective assistance. Accordingly, we
affirm Rivera’s convictions but reverse and remand his sentence to the trial court to strike the
forfeiture condition.
No. 47326-7-II
FACTS
On September 20, 2014, Alicia Clements arrived at Rivera’s home to serve him papers
concerning a civil matter. Clements exited her vehicle to tape the documents to a post near
Rivera’s driveway. While Clements was posting the paperwork, Rivera and his wife came out
the front door and into the driveway. Rivera yelled at Clements that she was trespassing and
needed to leave.
As Clements was getting back into her car, Rivera took down the documents Clements
had posted and approached her car in order to return them. In the process of returning the
documents, Rivera shattered the driver’s side window on Clements’s car, causing glass to
cascade into the car and onto the street, injuring both Rivera and Clements in the process.
Clements claimed that her window was completely rolled up and that Rivera had deliberately
punched through the window with the documents in hand, striking her twice with his fist in the
process. Rivera stated that Clements’s window was still open when he returned the documents,
but that because Clements was attempting to roll up her windows, his fingers caught the edge of
the window causing it to shatter. Both Rivera and Clements called 911, and Pierce County
Sheriff’s Deputies Montgomery Minion and Jonathan Collins responded to the incident. Deputy
Minion ultimately arrested Rivera for assault.
The State charged Rivera with second degree assault by battery under RCW
9A.36.021(1)(a), felony harassment, and third degree malicious mischief. At trial, Rivera
conceded that he had broken Clements’s window, but argued he did so accidently rather than
intentionally.
2
No. 47326-7-II
The State called Deputy Minion and Clements as witnesses. The prosecutor questioned
Deputy Minion about his arrest of Rivera and questioned Clements about whether Rivera’s
conduct appeared accidental to her. Defense counsel did not object to this questioning. In
closing argument, the State challenged Rivera’s credibility and argued that his claim that his
physical conduct was accidental was belied by the evidence presented at trial, including Rivera’s
intentional acts just before breaking the window. Defense counsel did not object to this
argument.
The jury convicted Rivera of second degree assault and third degree malicious mischief.
As part of his sentence, Rivera was required to forfeit “[a]ll property.” CP at 74. Rivera appeals.
ANALYSIS
I. FORFEITURE
Rivera argues that the trial court lacked authority to order property forfeiture as a
sentencing condition. We agree.
We review whether the trial court had statutory authority to impose a sentencing
condition de novo. State v. Roberts, 185 Wn. App. 94, 96, 339 P.3d 995 (2014). A trial court
has no inherent power to order forfeiture of property in connection with a criminal conviction.
Id. The authority to order forfeiture of property as part of a judgment and sentence is purely
statutory. Id. The State has the burden to show that the trial court had statutory authority to
order the forfeiture. Id. at 96-97.
The State argues that we should decline to consider Rivera’s challenge because he has not
identified any property that was improperly seized and failed to make a CrR 2.3(e) motion. We
recently considered and rejected an identical argument in an unpublished case, State v. Trevino,
3
No. 47326-7-II
noted at 195 Wn. App. 1002, 2016 WL 3866082. In Trevino, the defendant challenged the
property forfeiture condition of his judgment and sentence. Id. at *1. The State responded by
arguing that the record was insufficient for review because Trevino had failed to identify any
seized property or file a motion under CrR 2.3(e). Id. We disagreed, explaining that under
Roberts, the State had the burden to produce a record demonstrating that the sentencing court had
statutory authority to include a forfeiture provision in the appellant’s judgment and sentence. Id.
at *2. Because the State could not demonstrate that the trial court had the authority to order
forfeiture, we reversed the trial court and remanded to strike the forfeiture condition. Id. at *2.
In this case, the State makes the same arguments as it did in Trevino and does not cite any
statute that would authorize the trial court to order forfeiture as a sentencing condition.
Therefore, we hold that the trial court erred by ordering forfeiture of seized property as a
sentencing condition.
A majority of the panel having determined that only the foregoing portion of this opinion
will be printed in the Washington Appellate Reports and that the remainder shall be filed for
public record pursuant to RCW 2.06.040, it is so ordered.
II. PROSECUTORIAL MISCONDUCT
Rivera argues that the State committed prosecutorial misconduct by eliciting improper
opinion testimony from its witnesses, misstating the law relating to intent, and improperly
shifting the burden of proof during closing argument. We disagree.
To establish a claim of prosecutorial misconduct, Rivera must demonstrate that the
4
No. 47326-7-II
prosecutor’s conduct was both improper and prejudicial in the context of the entire record and
circumstances at trial. In re Pers. Restraint of Glasmann, 175 Wn.2d 696, 704, 286 P.3d 673
(2012), cert. denied, 136 S. Ct. 357 (2015). To establish prejudice, there must be a substantial
likelihood that the misconduct affected the jury verdict. Id. Because Rivera did not object at
trial, his arguments are waived unless he can establish that the misconduct was so flagrant and
ill-intentioned that an instruction would not have cured the prejudice. Id.
A. Improper Elicitation of Opinion Testimony
Rivera argues that the State elicited improper opinion testimony on his credibility,
veracity, and guilt from Deputy Minion and Clements. We disagree.
In general, a witness may not testify regarding the guilt or veracity of the defendant,
because to do so would unfairly prejudice the defendant and usurp the function of the jury. State
v. Demery, 144 Wn.2d 753, 759, 30 P.3d 1278 (2001). Rivera asserts that the following
exchange with Deputy Minion was tantamount to a comment on his credibility, veracity, and
guilt:
Q. [Prosecutor] :[D]id he [Rivera] say anything as to what he did with the
paperwork?
A [Deputy Minion] : He said that he had grabbed the paperwork off the post.
Q: What, if anything, after that did he explain that he did?
A: He approached the vehicle and told her [Clements] that she was
trespassing, that she needed to leave immediately.
Q: And did he claim to, shall we say, return the documents to her?
A: Yes he did. He – as he went to put his – put the documents back
into her vehicle, she was rolling up the window. And he –
5
No. 47326-7-II
Q: That’s okay. Here’s what I was kind of asking. I apologize. At
some point in time, he returned the documents to her?
A: Yes.
Q: Did he acknowledge that a window, her driver’s window, was
broken?
A: Yes.
Q: And did he admit that he was the cause of that?
A. Yes.
Q: So it’s at this point you have determined what as it relates to Mr.
Rivera and the incident with Ms. Clements?
A: Well, it’s to my understanding that he was involved in an
altercation with her, and that he broke her window out and struck
her with his fist.
Q: And what, if anything, did that cause you to do regarding your
contact with Mr. Rivera?
A. I placed Mr. Rivera under arrest for assault.
Verbatim Report of Proceedings (VRP) (Feb. 11, 2015) at 129-31. Similarly, Rivera argues that
the following testimony from Clements was effectively a comment on his credibility, veracity,
and guilt:
[Prosecutor] Q: Based upon what you observed of the defendant’s conduct
directed toward you, did you consider, and did his behavior
and actions appear to be intentional from what you could
see?
[Defense]: Objection, leading.
6
No. 47326-7-II
[The Court]: I am going to ask you to rephrase, please.
[Prosecutor] Q: Can you describe for us the nature of the defendant’s actions
directed toward you?
[Clements] A: He seemed to be – I mean, he was mad.
Q: Who was he focusing on?
A: Me.
Q: At the time that he struck the windows, was this also the
same time in which he was saying those threats to you?
A: To me, yes.
Q: Any way they could have been accidental?
A: No.
VRP (Feb. 12, 2015) at 31.
Under the facts of this case, we need not determine whether the testimony elicited from
Deputy Minion and Clements was improper because Rivera has not demonstrated that he was
prejudiced by the prosecution’s conduct. A defendant who fails to object to alleged misconduct
at trial must show that the prosecutor’s conduct was so flagrant and ill-intentioned that an
instruction could not have cured the error and that the misconduct caused prejudice. Glasmann,
175 Wn.2d at 704. To establish prejudice, there must be a substantial likelihood that the
misconduct affected the jury verdict. Id. We review allegedly improper arguments in the
context of the total argument, the issues in the case, the evidence addressed in the argument, and
the instructions given. State v. Russell, 125 Wn.2d 24, 85-86, 882 P.2d 747 (1994). Our
ultimate focus is not on “whether the prosecutor’s misconduct was flagrant or ill intentioned,”
7
No. 47326-7-II
but rather “whether the resulting prejudice could have been cured.” State v. Emery, 174 Wn.2d
741, 762, 278 P.3d 653 (2012).
In State v. Montgomery, 163 Wn.2d 577, 594, 183 P.3d 267 (2007), our Supreme Court
found that a chemist’s testimony that a defendant possessed pseudoephedrine with the intent to
manufacture methamphetamine was improper opinion testimony. However, the court found that
even though the testimony was improper, the defendant had not established prejudice. Id. at 595-
96. The court reasoned that a timely objection would have likely been sustained and curative
instructions could have been given to mitigate any prejudice caused by the improper testimony.
Id. at 596. The court also noted that the jury was properly instructed that it is the sole judge of
witness credibility. Id. at 595.
Without deciding whether Deputy Minion’s or Clements’s testimony was improper, we
conclude that Rivera’s challenge is waived because he has not demonstrated that the challenged
conduct was so flagrant or ill-intentioned that a timely objection and instruction could not have
cured any error. Glasmann, 175 Wn.2d at 704. Therefore, the claimed improper elicitation of
opinion testimony cannot serve as a basis for a claim of prosecutorial misconduct.
B. Burden of Proof
Rivera argues that the prosecutor improperly lowered the State’s burden of proof by
urging the jury to reach a verdict based on whether they found the State’s narrative more credible
than Rivera’s. During closing argument the prosecutor stated:
These are just a few things you can consider when it comes to having to
pick and choose as to who you believe, that’s what it comes down to. You are the
ones that are going to have to decide if you find the defendant’s version credible or
if you find the victim’s explanation of what occurred on September 20th, 2014.
8
No. 47326-7-II
VRP (Feb. 12, 2015) at 122-23. Rivera asserts that the State’s argument urging the jury to
“believe” one side or the other essentially asks the jury to decide the case on the basis of
preponderance of the evidence rather than beyond reasonable doubt. Br. of Appellant at 22. We
disagree.
A prosecutor has wide latitude in closing argument to draw reasonable inferences from
the evidence and may comment on witness credibility based on the evidence. State v. Lewis, 156
Wn. App. 230, 240, 233 P.3d 891 (2010). Considering the record as a whole, the State did not
improperly comment on Rivera’s credibility or urge the jury to decide the case solely on the
basis of credibility. Rivera argued at trial that while he did break Clements’s window, he did so
accidentally. Because Rivera and Clements gave different accounts of the incident, the State
argued that Clements’s narrative was more credible in light of the evidence admitted at trial and
the testimony of the witnesses. Furthermore, the State repeatedly emphasized that it bore the
burden “to prove every element beyond a reasonable doubt” and that the jury must determine if
there was evidence “sufficient to prove the elements beyond a reasonable doubt of the three
crimes.” VRP (Feb. 12, 2015) at 131-32.
Consequently, we hold that the prosecutor’s argument was proper. Therefore, Rivera’s
claim of misconduct on this basis fails.
C. Misstatement of the Law
Rivera argues that the State misstated the law of assault in the second degree to the jury
with respect to intent.
9
No. 47326-7-II
During closing argument, the State stated:
[Rivera] decides intentionally, again, to come out from behind the gate. His gate.
He’s now leaving his property. He is coming to [Clements]. This is what we call
intentional. This is one of the things you can look at to determine whether or not
this was an accident, whether or not he acted intentionally. Every one of these acts
is leading up to what eventually occurs. Every one of these things I read out for
you is something that he has intentionally done.
VRP (Feb. 12, 2015) at 136. Rivera asserts that the State’s explanation of intent to the jury
during closing argument was improper because “the [State] was required to prove that [he]
intended the assault.” Br. of Appellant at 20. Rivera contends that the claimed misconduct
“went to the only issue in the case—whether the prosecution proved that Rivera had the required
intent for second-degree assault.” Br. of Appellant at 8. Rivera does not argue that the State
misstated or failed to prove the remaining elements of assault in the second degree.
The State charged Rivera under RCW 9A.36.021(1)(a), assault by battery, and had the
burden only to prove beyond a reasonable doubt that Rivera “[i]ntentionally assault[ed] another
and thereby recklessly inflict[ed] substantial bodily harm.” We have held that second degree
assault by battery is a general intent crime that requires “‘an intent to do the physical act’” itself
rather than the specific intent “‘to produce a specific result.’” State v. Esters, 84 Wn. App. 180,
184-85, 927 P.2d 1140 (1996) (quoting State v. Davis, 64 Wn. App. 511, 515, 827 P.2d 298
(1992), reversed on other grounds, 121 Wn.2d 1, 846 P.2d 527 (1993). More precisely, in
Esters, we determined that “second degree assault by battery requires an intentional touching that
recklessly inflicts substantial bodily harm. It does not require specific intent to inflict substantial
bodily harm.” Id. at 185 (emphasis omitted). In State v. Baker, Division Three of our court
10
No. 47326-7-II
similarly reasoned that in the context of assault by battery, the “actual battery consists of an
intentional touching or striking, whether or not any physical injury results.” 136 Wn. App. 878,
883-84, 151 P.3d 237 (2007). The court clarified that “the State need show only the intention to
touch or strike, not the intent to injure.” Id. at 884. Therefore, the State was required to prove
beyond a reasonable doubt that Rivera intended to touch or strike Clements.
The State’s references to Rivera’s intentional actions just prior to breaking the window
are consistent with an attempt to argue the required intent for assault by battery in the second
degree. To establish that Rivera “intentionally assaulted” Clements, the State argued that
Rivera’s breaking the car window, causing glass to cut Clements, and punching Clements were
the intentional physical acts constituting assault. At trial, Rivera conceded that he had broken
the window, but denied that he did so intentionally or that he struck Clements:
[Prosecutor] Q: My question is: You threw these documents back into
[Clements’] vehicle, correct?
[Rivera] A: Yes, ma’am, I did.
Q: You thought that was the best thing to do?
A: No, actually, after I did it, I thought it was a pretty stupid
thing to do.
Q: Now, I know your – you have indicated your version of
tipping or hitting the, the top of the window. Is that your--
A: Yes, ma’am, the edge.
Q: It was an accident?
11
No. 47326-7-II
A: Yes, ma’am.
Q: The window exploded because you touched the top of the
window?
A: Don’t say touch. No. Because my fingertips slammed up
against the top of the window because it was perfect
timing; as the window was coming up, my fingers hit the
edge.
Q: But not literally just the fingertips?
A: My fingertips right here hit the edge of the glass, window
blew up. I have a cut on the palm of my hand. No fist
involved in anything. No glass on my knuckles or anything
like that.
Q: You believe by merely putting some force on the window
that you say was down caused it to completely explode?
A: That is exactly what happened.
VRP (Feb. 12, 2015) at 70-71.
In response, the State presented evidence of Clements’s injuries, arguing that they were
consistent with being struck in the head by a fist. In order to prove Rivera’s mental state,
whether or not he intended to unlawfully touch or strike Clements, the State argued that
circumstantial evidence supported the inference that Rivera intentionally punched Clements and
her window. The State drew the jury’s attention to the force necessary to shatter a window,
argued that Rivera was angry about the impending foreclosure of his home, and asserted that
Rivera channeled his anger towards Clements, culminating in Rivera intentionally striking both
the window and Clements. The State also argued that the damage to the window was indicative
12
No. 47326-7-II
of an intentional act, reasoning that the nearly complete shattering of the window was “most
consistent with somebody taking two fists and going right at it through the center,” rather than
accidentally hitting the window as Rivera claimed. VRP (Feb. 12, 2015) at 115. The State also
reminded the jury of Clements’s testimony that her window was only rolled down a few inches
because she smokes, and that she had already rolled up her window as Rivera approached her
car.
In context, the State’s argument regarding Rivera’s actions supported the conclusion that
he intended to touch or strike Clements. This, in turn, is the nature of the intent needed for
assault by battery. Esters, 84 Wn. App. at 185; Baker, 136 Wn. App. at 883-84. In addition, the
State’s argument was intended to undermine Rivera’s credibility by highlighting the apparent
inconsistency between his intentional actions prior to breaking the window and his claim that his
physical act was accidental. As such, we hold that the State did not misstate the law of intent
during closing argument. Because Rivera has not established that the State’s conduct was
improper, he has not established prosecutorial misconduct with respect to this issue.
D. Cumulative Error
Rivera argues that even if a single act of prosecutorial misconduct did not result in
prejudice, the cumulative effect of different instances of misconduct resulted in prejudice that
merits reversal. We disagree.
Where several trial errors standing alone may not merit reversal, but when combined may
deny a defendant a fair trial, we may reverse under the doctrine of cumulative error. State v.
13
No. 47326-7-II
Greiff, 141 Wn.2d 910, 929, 10 P.3d 390 (2000). This doctrine does not apply where the errors
are few and have little to no effect on the outcome of the trial. Id. In this case, the State did not
misstate the law of intent or advocate for a standard of guilt in the trial court beyond a reasonable
doubt. That leaves only the claimed improper elicitation of opinion testimony by the State. As
we conclude below in the discussion of ineffective assistance of counsel, even if we assume
impropriety, Rivera has not demonstrated prejudice from that elicitation. Therefore, Rivera’s
claim of cumulative prejudice fails.
III. INEFFECTIVE ASSISTANCE OF COUNSEL
Rivera argues that he received ineffective assistance of counsel as a consequence of his
attorney’s failure to object to the State’s misstatement of the law, improper burden shifting, and
elicitation of improper opinion testimony. We disagree.
To establish ineffective assistance of counsel, Rivera must demonstrate that: (1) his
counsel’s performance was deficient in that it fell below an objective standard of reasonableness
under the circumstances, and (2) he was prejudiced as a result of his counsel’s performance.
State v. Larios-Lopez, 156 Wn. App. 257, 262, 233 P.3d 899 (2010). A defendant is prejudiced
by counsel’s deficient performance if but for counsel’s errors, there is a reasonable probability
that the result of the proceeding would have been different. State v. McFarland, 127 Wn.2d 322,
334-35, 889 P.2d 1251 (1995). We presume that defense counsel’s representation was effective
and Rivera must demonstrate that there was no legitimate or strategic reason for defense
counsel’s conduct. McFarland, 127 Wn.2d at 335-36. Where a claim of ineffective assistance
14
No. 47326-7-II
of counsel is predicated on defense counsel’s failure to object, the defendant must also show that
the objection would have likely been sustained. State v. Fortun-Cebada, 158 Wn. App. 158,
172, 241 P.3d 800 (2010). Failure to establish either deficient performance or prejudice resulting
from such deficiency is fatal to an ineffective assistance of counsel claim. Strickland v.
Washington, 466 U.S. 668, 700, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).
We conclude above that the State did not misstate the law of intent or improperly shift or
lower the burden of proof through its argument. Thus, an objection to those elements of the
State’s case would likely not have been sustained, and the failure to make such objections cannot
serve as the basis for an ineffective assistance claim.
We did not, however, rule above on whether the State improperly elicited opinion
testimony, but held that defendant’s claim of misconduct on that basis was waived by his failure
to object. Assuming, without deciding, that counsel’s failure to object to the claimed elicitation
of opinion testimony was deficient, Rivera has not demonstrated that the deficiency resulted in
prejudice. The State’s question that most easily could be deemed improper on this ground was,
“Any way they [Rivera’s actions] could have been accidental?”, to which the witness replied,
“No.” VRP (Feb. 12, 2015) at 31. Rivera does not show, however, that the result of the trial
would probably have been different without that question. In addition, the jury was properly
instructed on the burden of proof, intent, assault, credibility, and assault in the second degree.
Therefore, Rivera has not demonstrated that he was prejudiced by the State’s claimed elicitation
of opinion testimony. For these reasons, Rivera’s ineffective assistance of counsel claim fails.
15
No. 47326-7-II
CONCLUSION
We affirm Rivera’s convictions but reverse and remand his sentence to the trial court to
strike the forfeiture condition.
BJORGEN, C.J.
We concur:
JOHANSON, J.
MELNICK, J.
16
| {
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} |
United States Court of Appeals
For the Eighth Circuit
___________________________
No. 15-2008
___________________________
United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Alphonso Wynn
lllllllllllllllllllll Defendant - Appellant
____________
Appeal from United States District Court
for the Eastern District of Arkansas - Little Rock
____________
Submitted: January 15, 2016
Filed: July 1, 2016
____________
Before LOKEN, GRUENDER, and KELLY, Circuit Judges.
____________
LOKEN, Circuit Judge.
In August 2014, Alphonso Wynn worked for the Veterans’ Administration
(now the Department of Veterans Affairs) as a housekeeping aid at the V.A. hospital
in Little Rock, Arkansas. On August 24, Wynn called a V.A. Crisis Hotline and said
he had a gun and was going to shoot his supervisor due to work-related issues. Wynn
was subsequently charged and convicted of transmitting a threat to injure through
interstate communications, 18 U.S.C. § 875(c), and threatening a federal employee
with intent to retaliate, 18 U.S.C. § 115(a)(1)(B). The district court1 imposed a
sentence of time served after an in-depth sentencing hearing. Wynn appeals both
convictions, raising numerous issues.
We conclude that the district court’s jury instruction defining the elements of
an § 875(c) offense, though consistent with then-governing Eighth Circuit precedent,
omitted the mens rea element now required by the Supreme Court’s recent decision
in Elonis v. United States, 135 S. Ct. 2001 (2015). The government conceded this
issue and advised at oral argument that it does not seek a new trial of this charge if
the § 115(a)(1)(B) conviction is affirmed. We conclude that § 115(a)(1)(B) applied
to Wynn’s threats to assault or murder his supervisor; that the jury was properly
instructed regarding the mens rea element of this offense; and that the evidence was
sufficient to convict. We reject Wynn’s contentions that the district court committed
errors relating to his entrapment defense, and plain error regarding an alleged patient-
psychotherapist privilege. Accordingly, we affirm the § 115(a)(1)(B) conviction and
remand with instructions to vacate the § 875(c) conviction.
I. Background.
On the day in question, Andrew Horton and Albert Moore were Foremen of
Housekeeping Aids in the hospital’s Environmental Management Services
department, with supervisory authority over Wynn. When Wynn arrived at work, he
expressed frustration to Horton over not receiving more overtime shifts. Horton
testified that he told Wynn, “whatever it is that’s agitated you or [is the] problem
here, that’s the past, and we can’t change the past. So just do the best you can do for
today.” Moore saw Wynn shortly thereafter and heard Wynn say that “he was going
to get his .357 [revolver] and blow him away.” Moore responded: “Please don’t say
1
The Honorable J. Leon Holmes, United States District Judge for the Eastern
District of Arkansas.
-2-
anything like that, because that kind of talk we can’t tolerate around here. And if you
say it again, I’ve got to do something about it.”
At about eight a.m., Wynn complained to Horton that a coworker had received
overtime. Horton replied, “I have nothing to do with that, and neither should you,
because this is something that’s completely out of our hands. . . . Let it go. Go back
to work.” Wynn returned to Horton, dropped his keys on the desk, and said, “Look,
I’m through for the day. I can’t work anymore.” Horton told Wynn he was needed
and if he left work he would be reported as absent without leave (“AWOL”). Wynn
said something to the effect of “so be it” and left. Horton reported Wynn AWOL.
Shortly thereafter, Wynn went to the V.A. hospital’s emergency room. James
Alexander, R.N., testified that Wynn complained that he was too stressed to work and
that his supervisors were going to report him AWOL. David Schmidt, M.D., testified
that Wynn did not appear to be suffering from stress and did not report harmful
ideations. Dr. Schmidt told Wynn to take the day off and return for an outpatient
psychiatric appointment the following day. At Dr. Schmidt’s request, Nurse Megan
Taylor gave Wynn work-release and discharge notes, which reported a diagnosis of
stress and provided information on how to follow up and the Hotline phone number.
At about four p.m., Wynn called the Hotline multiple times. Two nurses
working in the acute psychiatric unit of the V.A. hospital in North Little Rock
responded to Wynn’s calls. Nurse Kristen Kemp, who answered the first two calls,
testified that Wynn said he “was really stressed-out[,] that he wanted to inflict harm
on his supervisor because he was unable to take sick leave and they were going to
give him AWOL,” and that Wynn was specific that “[h]e wanted to kill his
supervisor.” According to her notes, Wynn told her: “I went outside [the V.A.
hospital] for a couple of hours and waited for [my supervisor] to come out and I had
a gun.” She testified that Wynn said he “want[ed] to pop a cap in him, bang-bang,
pow-pow.” Although Kemp does not report most Hotline calls, she called the police
-3-
because Wynn would not calm down, refused treatment, had a specific target, and had
the means to carry out his threat.
Wynn soon called the Hotline again. Nurse Thomas Boyd responded.
According to notes Boyd made during the call, Wynn stated, “I’m sitting here with
a gun in my face and I don’t care anymore. I’m not suicidal but I will shoot the hell
out of somebody.” Boyd told Wynn to go to the emergency room. Wynn refused,
then stated, “I needed a day off work [due to] stress and when I told my supervisor
this, he put me as AWOL. I am going to shoot the hell out of that mother fucker. I
might just come back up [to the V.A. hospital] now.” Boyd notified police of Wynn’s
location, which Wynn stated during the call.
II. The 18 U.S.C. § 875(c) Conviction.
Section 875(c) provides that “[w]hoever transmits in interstate or foreign
commerce any communication containing any threat . . . to injure the person of
another, shall be fined under this title or imprisoned not more than five years.” In
Elonis, the Supreme Court held that a violation of this criminal statute requires proof
of a mental state that separates wrongful from innocent conduct, a requirement that
applies “to the fact that the communication contains a threat.” 135 S. Ct. at 2011.
Wynn argues that the district court’s pre-Elonis instruction did not include this intent
element, and the § 875(c) conviction must be reversed because he preserved the issue.
The government concedes the jury instruction was erroneous under Elonis,
which applies as the case is on direct appeal, but argues the error was harmless given
the overwhelming evidence of Wynn’s intent to threaten. See Neder v. United States,
527 U.S. 1, 15 (1999) (“[T]he omission of an element [from the jury instructions] is
an error that is subject to harmless-error analysis.”); United States v. Carlson, 787
F.3d 939, 947-49 (8th Cir. 2015); United States v. Cacioppo, 460 F.3d 1012, 1025
(8th Cir. 2006). Wynn argues instruction error that “impermissibly alters the
-4-
prosecution’s burden of proof” is never harmless, a contention rejected in Neder.
Alternatively, he argues that the trial record contains little evidence of Wynn’s intent,
and certainly not overwhelming evidence. The government replies that, if the
evidence of intent to threaten was not overwhelming, it was at least sufficient to
warrant a new trial. Wynn counters that the government does not deserve a new trial
because it “effectively waived any argument that the evidence adduced at trial was
sufficient” by having evidence of Wynn’s subjective intent excluded through a
motion in limine, citing United States v. Burks, 437 U.S. 1 (1978).
These harmless error issues are complex. However, the government stated at
oral argument that it agrees to the vacating of Wynn’s § 875(c) conviction if we
affirm his § 115(a)(1)(B) conviction. Accordingly, we turn to that issue.
III. The 18 U.S.C. § 115(a)(1)(B) Conviction.
Section 115(a)(1) provides that “[w]hoever . . . (B) threatens to assault, kidnap,
or murder, a United States official, a United States judge, a Federal law enforcement
officer, or an official whose killing would be a crime under [18 U.S.C. § 1114] . . .
with intent to retaliate against such official, judge, or law enforcement officer on
account of the performance of official duties, shall be punished as provided in
subsection (b).” (Emphasis added.) Section 1114 makes it a federal offense to kill
or attempt to kill “any officer or employee of the United States or of any agency in
any branch of the United States Government . . . while such officer or employee is
engaged in or on account of the performance of official duties.” Count One of the
indictment charged that Wynn “did threaten to assault, murder and retaliate against
an employee of the [V.A.] on account of the performance of his official duties.”
Wynn challenges his conviction for violating this statute on a number of grounds.
A. Was Supervisor Horton a Protected “Official”? Wynn argues that the
person he threatened -- Horton -- is not protected by § 115(a)(1)(B) because, as a
-5-
Foreman of Housekeeping Aids at a V.A. hospital, Horton was not a federal
“official.” The district court denied Wynn’s motion to dismiss Count One, relying
on United States v. Bankoff, 613 F.3d 358 (3d Cir.), cert. denied, 562 U.S. 1086
(2010), the only circuit court decision that has considered this issue.2 We review the
district court’s interpretation of the statute de novo. See, e.g., United States v.
Markert, 732 F.3d 920, 925 (8th Cir. 2013).
In describing the persons protected, § 115(a)(1)(B) uses the word “official”
twice: first, “a United States official,” and second, “an official whose killing would
be a crime under [§ 1114].” The first use, “United States official,” was specifically
defined in § 115 as “the President, President-elect, Vice President, Vice President-
elect, a Member [or Member-elect] of Congress, [the head of an executive branch
department], or the Director of the Central Intelligence Agency.” § 115(c)(4). When
a different meaning was intended for the second use of the word in the same
subsection, the context strongly suggests that this different meaning will also be
specifically defined, and it was -- by a cross reference to the universe of federal
“officials” covered by § 1114. As the first use of “official” was narrowly defined,
Congress would presumably recognize that leaving the second use undefined would
risk violating the Fifth Amendment requirement that a criminal statute not be “so
vague that it fails to give ordinary people fair notice of the conduct it punishes.”
Johnson v. United States, 135 S. Ct. 2551, 2556 (2015).
In Bankoff, after reviewing the complex history of this strangely-worded
statute, the Third Circuit concluded “that when § 115’s reference to an ‘official whose
2
The Seventh Circuit upheld a § 115 conviction for threatening federal
employees covered by § 1114 without addressing this issue. See United States v.
Cash, 394 F.3d 560, 561 (7th cir. 2005) (threatening V.A. service representative); see
also United States v. Wolff, 370 F. App’x 888, 895 (10th Cir. 2010) (stating that the
similarly worded 18 U.S.C. § 876(c) “incorporates Section 1114’s definition of a
government official or employee”).
-6-
killing would be a crime under’ § 1114 is read in context, the meaning is plain;
‘official’ is not used as a term of limitation, but as a general term that incorporates by
reference all the individuals protected under § 1114, both ‘officer[s] and
employee[s].’” 613 F.3d at 370 (alterations in original). Wynn urges us to reject the
Third Circuit’s interpretation, arguing that by choosing the word “official,” which is
narrower than the words “employee” or “person,” Congress limited the cross
reference in § 115(a)(1)(B) to fewer than all the persons identified in § 1114. If
Congress intended to include all federal officers and employees listed in § 1114,
Wynn reasons, “it could have explicitly said so, or merely used the word ‘person’ in
place of ‘official’ when it drafted § 115,” quoting United States v. Fenton, 10 F.
Supp. 2d 501, 503-04 (W.D. Pa. 1998), a district court decision explicitly overruled
by Bankoff.
Like the Third Circuit, we turn to the history of these statutes. Section § 1114
when first enacted in 1934 protected a limited universe of federal law enforcement
personnel, but Congress over the years greatly expanded the list of protected federal
employees. See United States v. Feola, 420 U.S. 671, 679 n.15 (1975). When
Congress enacted § 115 in 1984,3 it “applied only to threats against the family
members of federal officials. In 1986, § 115 was amended to extend protection to the
officials themselves.” Bankoff, 613 F.3d at 371 n.13 (quoting the 1986 legislative
history). The 1986 amendment retained the family member prohibition as
§ 115(a)(1)(A). This evolution explains both the current title of § 115 --
“Influencing, impeding, or retaliating against a Federal official by threatening or
injuring a family member” -- and the terminology in listing protected persons in
§ 115(a)(1)(B), which mirrors the original language of the family-member prohibition
now found in § 115(a)(1)(A).
3
Act of Oct. 12, 1984, Pub. L. No. 98-473, § 1008, 98 Stat. 1837, 2140.
-7-
When Congress enacted § 115 in 1984, § 1114 covered a long list of federal
personnel that included “any officer or employee of the Veterans’ Administration
assigned to perform investigative or law enforcement functions.” Bankoff, 613 F.3d
at 368 n.9. “Congress did not shorten this list until 1996 -- twelve years after it
enacted § 115 -- when it amended § 1114 to refer simply to ‘any officer or employee
of the United States or of an agency in any branch of the United States Government.’”
Id. at 369. The Third Circuit concluded:
that Congress used “official” in § 115 as a general term to incorporate
by reference all the “officers,” “employees,” “members,” and “agents”
of the federal departments and agencies listed in § 1114. By doing so,
Congress avoided the need to restate the lengthy list in § 115 itself. . . .
Moreover, we think it implausible that Congress used the term “official”
as a limitation on the persons enumerated in § 1114, yet declined to
define that term or provide any indication as to how courts (or,
presumably, juries) were to determine which of the enumerated
[personnel] listed in § 1114 also qualify as “officials.” Id. at 369-70.
Though the interpretive question is not free from doubt, we agree with the
Third Circuit’s analysis. To be sure, Congress has cross-referenced § 1114 in other
statutes using introductory words broader than “official.” In 18 U.S.C. § 1201(a)(5),
Congress expanded the federal kidnapping crime to include a victim who “is among
those officers and employees designated in section 1114” in an amendment enacted
in the preceding section of the same Title that first enacted § 115.4 In 18 U.S.C.
§ 111(a)(1), Congress criminalized offenses committed against “any person
designated in section 1114,” and at the same time amended § 115 but retained § 115’s
cross reference to “an official whose killing would be a crime under [§ 1114].”5 See
also 18 U.S.C. § 119(b)(2)(A) (criminalizing publication of private information of
4
Act of Oct. 12, 1984, Pub. L. No. 98-473, § 1007, 98 Stat. at 2139-40.
5
Anti-Drug Abuse Act of 1988 § 6487, Pub. L. No. 100-690, 102 Stat. 4181,
4386-87.
-8-
“an individual designated in section 1114”); 18 U.S.C. § 1521 (criminalizing false
claims “against the real or personal property of an individual described in section
1114”). But there is nothing in the legislative history of these other statutes, or of the
later amendments to § 115 and § 1114, that “suggests that . . . Congress intended to
change, or to clarify, the fundamental relationship between” § 115(a)(1)(B) and
§ 1114. Cf. Almendarez-Torres v. United States, 523 U.S. 224, 234 (1998). As the
Third Circuit observed, “that Congress used different language to incorporate § 1114
in different statutes . . . does not, standing alone, demonstrate that it used the term
‘official’ (as opposed to ‘person’) in § 115 with the intention of limiting its scope.”
613 F.3d at 367 & n.7.
The interpretive problem is aggravated by the fact that the expansion of § 1114
in 1996 to include all federal “officers and employees” made the first three subparts
of the persons covered by § 115(a)(1)(B) superfluous, unless the word “official” in
the cross reference means fewer than all persons covered by § 1114. This rubs
against the “cardinal principle” that a statute should be construed so that, “if it can be
prevented, no clause, sentence, or word shall be superfluous, void, or insignificant.”
TWR Inc. v. Andrews, 534 U.S. 19, 31 (2001) (quotations omitted). But the critical
question is whether Congress intended to limit the cross reference to § 1114 by using
the word “official” when it enacted § 115 in 1984. As the Third Circuit explained,
the answer to that question is no, taking account of the context of the statute at that
time.6 We conclude that the answer to that question did not change simply because
Congress failed to amend or clarify the list of persons covered by § 115 when it
expanded the universe of cross-referenced federal employees in § 1114 twelve years
later.
6
“[T]he meaning of words depends on their context.” Shell Oil Co. v. Iowa
Dep’t of Revenue, 488 U.S. 19, 25 (1988).
-9-
For these reasons, the district court did not err when it denied Wynn’s motion
to dismiss Count One of the indictment and instructed the jury on the elements of “the
crime of threatening retaliation against a federal employee.”
B. Was the Jury Properly Instructed? Wynn argues the district court erred
in instructing the jury on the elements of Count One because § 115(a)(1)(B), like
§ 875(c), requires proof of criminal intent to threaten a federal employee. We
disagree. As the Second Circuit recently explained, § 115(a)(1)(B) “includes both
objective and subjective elements:” a true threat to assault or murder a federal
employee, and the intent to retaliate against the employee “on account of the
performance of official duties.” United States v. Turner, 720 F.3d 411, 420 (2d Cir.
2013), cert. denied, 135 S. Ct. 49 (2014). “We read into the statute ‘only that mens
rea which is necessary to separate wrongful conduct from otherwise innocent
conduct.’” Elonis, 135 S. Ct. at 2010 (quotation omitted). The district court
instructed the jury it must find that Wynn “made a threat to assault or murder an
employee of the [V.A.] . . . with intent to retaliate against such employee on account
of the performance of official duties.” That intent separated Wynn’s “wrongful
conduct” from innocent conduct. The court objectively defined “threat” in another
instruction as a “true threat.” There was no instruction error.
C. Was the Evidence Sufficient To Convict? Wynn argues the evidence was
insufficient to convict him of violating § 115(a)(1)(B) because there was no evidence
that he made his threatening statements to the Hotline nurses with the required intent
to retaliate. Again, we disagree. It is well established that a “jury may infer intent
from circumstantial evidence.” United States v. Pennington, 168 F.3d 1060, 1065
(8th Cir. 1999). Here, the testimony of the Hotline nurses and other government
witnesses regarding the threatening words Wynn used, the manner in which he
communicated those threats, and his other contemporaneous actions provided
sufficient evidence for a reasonable jury to find that he “made a [true] threat to assault
or murder” supervisor Horton “with intent to retaliate against [Horton] on account of
-10-
[his] performance of official duties.” See United States v. Williamson, 81 F. Supp.
3d 85, 90-92 (D.D.C. 2015), appeal docketed, No. 15-3018 (D.C. Cir. Mar. 17, 2015).
D. The Entrapment Defense. Wynn argues that the district court erred in
refusing to instruct the jury on his entrapment defense. A defendant is entitled to an
instruction on the affirmative entrapment defense if sufficient evidence exists from
which a reasonable jury could find that government entrapped him. See, e.g., United
States v. Kendrick, 423 F.3d 803, 807 (8th Cir. 2005) (quotations omitted). At the
close of the evidence, the district court denied Wynn’s timely request, explaining:
I don’t think that the entrapment defense applies here. The government
did not -- no one from the government encouraged or solicited or
induced Mr. Wynn to make a threat. They did tell him if he needed help,
to call the hotline. But I don’t think that constitutes entrapment.
We review the denial of a requested entrapment instruction de novo. United States
v. Young, 613 F.3d 735, 743-44 (8th Cir. 2010), cert. denied, 562 U.S. 1159 (2011).
“[A] valid entrapment defense has two related elements: government
inducement of the crime, and a lack of predisposition on the part of the defendant to
engage in criminal conduct.” Mathews v. United States, 485 U.S. 58, 63 (1988). To
warrant an instruction, a defendant alleging entrapment must “show that the
government agents implanted the criminal design in his mind and induced him to
commit the offense.” Kendrick, 423 F.3d at 867 (quotations omitted). Wynn argues
the evidence that Nurse Taylor provided him with the Hotline telephone number was
sufficient evidence of government inducement to submit his entrapment defense to
the jury. Like the district court, we disagree.
Taylor was a medical professional providing resources to help V.A. patients
handle medical emergencies, not a law enforcement officer engaged in criminal
detection or prosecution. Nurse Kemp testified that the Hotline exists so that “if a
-11-
veteran becomes suicidal, homicidal, or [experiences] any kind of crisis, they can call
us and try to get help. We try to help them.” Taylor and the Hotline nurses did not
induce Wynn to use the Hotline to make criminal threats. At most, Taylor provided
Wynn information that gave an opportunity to make threats that violated
§ 115(a)(1)(B). “[E]vidence that Government agents merely afforded an opportunity
or facilities for the commission of the crime would be insufficient to warrant [an
entrapment] instruction.” Mathews, 485 U.S. at 66. “Entrapment occurs only when
the criminal conduct was the product of the creative activity of law-enforcement
officials.” Sherman v. United States, 356 U.S. 369, 372 (1958) (quotation omitted;
emphasis in original). The district court did not err in refusing Wynn’s request for
an entrapment instruction.
Wynn further argues that the district court erred in denying his motion for a
judgment of acquittal because he was entrapped as a matter of law. This contention
is without merit. When a defendant requests and is properly denied a jury instruction
because no reasonable jury could find entrapment, as in this case, it is clear that the
trial record did not establish entrapment as a matter of law.
E. The Patient-Psychotherapist Privilege Issue. Finally, Wynn argues for
the first time on appeal that his § 115(a)(1)(B) conviction violated the patient-
psychotherapist privilege because it was based on “statements made to the VA nurses
during calls to the VA Crisis Line . . . in the context of [Wynn’s] attempt to comply
with the directive of Nurse Taylor to call the hotline if he experienced ‘suicidal or
homicidal ideations.’” Wynn is correct that “confidential communications between
a licensed psychotherapist and her patients in the course of diagnosis or treatment are
protected from compelled disclosure.” Jaffee v. Redmond, 518 U.S. 1, 15 (1996).
However, “[t]he party asserting the psychotherapist-patient privilege has the burden
of showing . . . that the communications at issue were made: (1) in confidence, (2)
between the patient and a licensed psychotherapist, and (3) in the course of diagnosis
or treatment.” Weinstein’s Federal Evidence § 504.09[2][a] (footnote omitted). Here,
-12-
the privilege did not apply to the communications in question because (1) there was
no evidence that any of the nurses were licenced psychotherapists, see United States
v. Ghane, 673 F.3d 771, 781-84 (8th Cir.), cert. denied, 133 S. Ct. 477 (2012), and
(2) there was no evidence establishing that Wynn made the calls in confidence during
the course of diagnosis or treatment. Thus, there was no error, much less plain error.
See United States v. Pirani, 406 F.3d 543, 549 (8th Cir.) (en banc), cert. denied, 546
U.S. 909 (2005).
For the foregoing reasons, we affirm the § 115(a)(1)(B) conviction, and we
remand with instructions to vacate the § 875(c) conviction and enter an Amended
Judgment in a Criminal Case.
______________________________
-13-
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836 F.2d 1026
13 O.S.H. Cas.(BNA) 1583, 1988 O.S.H.D. (CCH)P 28,126
UNITED STATES of America, Plaintiff-Appellee,v.In the Matter of: ESTABLISHMENT INSPECTION OF: JEEPCORPORATION, Defendant- Appellant.
No. 87-3004.
United States Court of Appeals,Sixth Circuit.
Argued Dec. 14, 1987.Decided Jan. 12, 1988.Rehearing and Rehearing En Banc Denied March 1, 1988.
John T. Landwehr (argued), Thomas J. Gibney, Eastman & Smith, Toledo, Ohio, for defendant-appellant.
Gail Hurd, U.S. Dept. of Labor, Cleveland, Ohio, Barbara A.W. McConnell (argued), Andrea Casson, U.S. Dept. of Labor, Office of the Solicitor/OSH Div., Washington, D.C., for plaintiff-appellee.
Before MARTIN and GUY, Circuit Judges; and JOHNSTONE,* Chief District Judge.
BOYCE F. MARTIN, Jr., Circuit Judge.
1
Jeep Corporation appeals the denial of its motion to quash an OSHA inspection warrant. Jeep argues the district court applied the wrong standard to applications for administrative warrants.
2
The relevant facts of this case are not in dispute. On September 10, 1984, an agent of OSHA applied for and secured an inspection warrant to conduct a comprehensive search of most of Jeep's departments at its plant in Toledo, Ohio, for possible work-related causes of carpal tunnel syndrome in the wrist area of employees of Jeep. The warrant was not, however, successfully executed. On May 5, 1985, OSHA applied for another inspection warrant, using a substantially identical application with respect to form and contents. On May 8, 1985, the district court issued a warrant for inspection. The basis for the warrant request was OSHA's receipt of a written complaint from an employee and representative of employees of Jeep Corporation. The complaints alleged that they believed a violation of the Occupational Safety and Health Act existed, which violation posed a job health hazard. The complaint stated that employees were exposed to unsafe usage of hand tools and equipment, that they were forced to use their hands to install parts in an unsafe manner, and that these conditions resulted in potential numbness and disabling condition in their wrist and hand known as carpal tunnel syndrome.
3
We have reviewed the determinations of the magistrate and of the district court, and we believe they correctly applied the appropriate law. Under Marshall v. Barlow's Inc., 436 U.S. 307, 98 S.Ct. 1816, 56 L.Ed.2d 305 (1978), an administrative warrant may be issued when it is shown that there is specific evidence of a violation of OSHA regulations. It is also clear that administrative warrants are not subject to the same stringent probable cause standards applicable to criminal search warrants. We believe OSHA met the requirement of showing that its proposed inspection was based upon a reasonable belief that a violation had been or was being committed, and that it was not based upon a desire to harass the target of the inspection. West Point-Pepperell, Inc. v. Donovan, 689 F.2d 950 (11th Cir.1982); In re: Establishment Inspection of Gilbert & Bennett Mfg. Co., 589 F.2d 1335, 1339 (7th Cir.), cert. denied, 444 U.S. 884, 100 S.Ct. 174, 62 L.Ed.2d 113 (1979). As the court in West Point-Pepperell observed:
4
... the evidence of a specific violation required to establish administrative probable cause, while less than that needed to show a probability of a violation, must at least show that the proposed inspection is based upon a reasonable belief that a violation has been or is being committed.... This requirement is met by a showing of specific evidence sufficient to support a reasonable suspicion of a violation.
5
We believe there was sufficient evidence here of a violation of the Act to justify the issuance of a warrant. We do not believe that it was necessary, however, for the Secretary to cite specific regulations that may have been violated. Oftentimes, it will not be possible to identify the precise regulations violated until the employer's worksite has been inspected. We affirm, therefore, the district court's interpretation of the proper legal standard for the issuance of an administrative warrant. Finally, we note that great deference is due when reviewing a probable cause determination. United States v. Algie, 721 F.2d 1039 (6th Cir.1983).
6
We have also reviewed and find without merit the allegation that the issued warrant was unconstitutionally broad. The warrant limited the inspection of records to those "which are directly related to the purpose of this inspection." We do not believe this to be overbroad.
7
For the reasons set out in the district court opinion below, as well as the great deference that is due when reviewing a probable cause determination, we affirm the decision of the district court.
*
The Honorable Edward H. Johnstone, Chief United States District Judge for the Western District of Kentucky, sitting by designation
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796 F.2d 55
UNITED STATES of America, Appellee,v.John Edward WILSON, Appellant.UNITED STATES of America, Appellant,v.John Edward WILSON, Appellee.
Nos. 85-5264(L), 85-5265.
United States Court of Appeals,Fourth Circuit.
Argued April 11, 1986.Decided July 15, 1986.
James A. Matish, Clarksburg, W.Va., for appellant.
William A. Kolibash, U.S. Atty., Thomas O. Mucklow, Asst. U.S. Atty., Wheeling, W.Va., on brief, for appellee.
Before WINTER, Chief Judge, and MURNAGHAN and ERVIN, Circuit Judges.
ERVIN, Circuit Judge:
1
John Edward Wilson was convicted by a jury on a three count indictment for violating 18 U.S.C. Sec. 1512(b)(1).1 Thereafter, upon Wilson's motion pursuant to Rule 29 of the Federal Rules of Criminal Procedure, the district court entered a judgment of acquittal as to counts two and three, but affirmed the conviction on count one. On appeal, Wilson asks this court to reverse the trial court's decision on count one; the government seeks a reversal on counts two and three. For the reasons set forth below, we affirm the district court's order on count one and reverse on counts two and three.
I.
2
On April 3, 1985, Wilson was being escorted by U.S. Marshals from a district courtroom, where he had been brought in on a writ to testify on behalf of the government in the trial of United States v. Joseph James McDermott. Three other government witnesses in the same trial, Pauline Virginia Sawyer, Kimberly Renee Lindsey, and Patrick Charles Malone, were sitting in the hallway outside of the courtroom. As Wilson walked past the three, he pointed at each witness and with a sneer said in a low tone of voice: "Your asses belong to Joe" and "you are a bunch of jokes and should be in jail too."2
3
Sawyer, Lindsey and Malone stated that they understood these comments to be threats regarding their testimony in the McDermott trial. Sawyer, who had not testified yet, became so upset that she attempted to leave the courthouse and temporarily decided not to testify against McDermott. Lindsey, who had testified for the government, but had not been excused yet by the court, was upset and frightened by the comments. Malone, who had testified and had been excused by the court, felt the statements were idle threats toward him.
4
The government brought a three count indictment against Wilson, charging that he did
5
intentionally harass [Sawyer--Count One; Lindsey--Count Two; Malone--Count Three], thereby attempting to hinder, delay, prevent and dissuade [each one] from testifying in an official proceeding, in violation of Title 18, United States Code, Section 1512(b)(1).
6
After the jury returned a guilty verdict on all three counts, the district court acquitted Wilson on the charges relating to Lindsey and Malone, finding that the facts as to those two counts fell outside the purview of Sec. 1512(b)(1). The court reasoned that neither Malone nor Lindsey were actually harassed and dissuaded from giving testimony against McDermott, since both had already testified. The court further reasoned that Malone was no longer a witness, having been excused by the court before Wilson made the statements, and thus he could not be protected by a "witness protection statute."
7
We cannot accept the lower court's judgment. First, the evidence was substantial enough to sustain the jury's verdict that the witnesses were harassed; each justifiably reacted adversely to Wilson's statements. Cf. 128 Cong.Rec. H8469 (daily ed. Oct. 1, 1982) (purpose of Sec. 1512(b) is to "reach thinly-veiled threats that create justifiable apprehension" in a witness).
8
Second, the court erroneously assumed that Sec. 1512(b)(1) applies only to conduct that actually dissuades testimony. The statute, and the indictment upon which Wilson was tried, both state that "attempts to" dissuade testimony are sufficient for conviction. The success of an attempt or possibility thereof is irrelevant; the statute makes the endeavor a crime. Cf. United States v. Murray, 751 F.2d 1528, 1534 (9th Cir.), cert. denied, --- U.S. ----, 106 S.Ct. 381, 88 L.Ed.2d 335 (1985).3
9
Finally, Malone retained his witness status, despite his previous excusal by the court. Section 1512(b)'s protection of a person who has been called to testify at a trial continues throughout the duration of that trial. Cf. United States v. Jackson, 513 F.2d 456 (D.C.Cir.1975).4 The McDermott rial was ongoing at the time Wilson made the comments. Accordingly, threats to the excused witness Malone violated Sec. 1512(b).
II.
10
Next, we must address Wilson's contention that he should be acquitted on all three counts because he lacked the intent to harass the witnesses. We reject this argument because, viewing the evidence in the light most favorable to the government, there is substantial evidence of Wilson's intent. Wilson knew that the three witnesses were in the hallway for the purpose of testifying against McDermott. Wilson did not know that Lindsey and Malone had already testified. Wilson spoke in a low tone of voice, so that the U.S. Marshals could not hear him. He made the comments with a sneer on his face while pointing at the witnesses. The statements, "your asses belong to Joe" and "you are a bunch of jokes and should be in jail too" could reasonably be interpreted as harassing remarks. Furthermore, Wilson's intent can be inferred from the adverse reactions the witnesses suffered upon hearing the threats. This court has recognized that
11
[Pettibone v. United States, 148 U.S. 197, 207, 13 S.Ct. 542, 546-47, 37 L.Ed. 419 (1893) ] acknowledge[d] the propriety of inferring specific intent where the disfavored result naturally flows from a wrongful undertaking:
12
Specific intent to violate the statute must exist to justify a conviction.... It is true that if the act in question is a natural and probable consequence of an intended wrongful act, then the unintended wrong may derive its character from the wrong that was intended.
13
See also United States v. Jackson, 168 U.S.App.D.C. 198, 202, 513 F.2d 456, 460 (1975) ("normally, the natural probable consequences of an act may satisfactorily evidence the state of mind accompanying it.... We perceive nothing that would divert cases of the instant type from this branch of legal doctrine"). Accord United States v. Harris, 558 F.2d 366, 369 (7th Cir.1977).
14
United States v. Neiswender, 590 F.2d 1269, 1274 (4th Cir.), cert. denied, 441 U.S. 963, 99 S.Ct. 2410, 60 L.Ed.2d 1068 (1979).
15
Wilson also argues on appeal that the court erred in instructing the jury that "harass" is defined as
16
"conduct that was designed and intended to badger, disturb or pester for the unlawful purpose or purposes as alleged in the indictment counts."
17
Wilson requested that harass be defined as "repeated attacks." We can find no error in either the jury instructions or the lower court's refusal to adopt Wilson's request.
18
The term "harass," as it is used in Sec. 1512(b), is not defined by statute. Section 1515 in 18 U.S.C. contains definitions for Sec. 1512 terms, but harass is omitted. This implies that Congress intended that "harass" take its ordinary meaning in Sec. 1512.5 See Perrin v. United States, 444 U.S. 37, 100 S.Ct. 311, 62 L.Ed.2d 199 (1979) ("A fundamental canon of statutory construction is that, unless otherwise defined, words will be interpreted as taking their ordinary, contemporary, common meaning."), quoted in Beigay v. Traxler, 790 F.2d 1088 (4th Cir.1986).
19
The ordinary meaning for harass includes both a single act and a series of acts. See BLACK'S LAW DICTIONARY 645 (5th ed. 1979); THE AMERICAN HERITAGE DICTIONARY 600 (5th ed. 1970). Thus, the court did not err by refusing to limit the definition of harass to "repeated attacks." In addition, defining harass as conduct that would "badger, disturb or pester," was in accordance with the common meaning of the word, see id., and was sufficiently broad to allow the jury to find that "harass" requires more than one act. Accordingly, the instruction contained no reversible error.
20
The final issue on appeal is whether Wilson was prejudiced, thereby warranting a cautionary instruction or a mistrial, when the prosecution associated Wilson's name with two members of the Gallo family. Wilson contends that because the "Gallo Organization" was known for its drug related offenses, Wilson's character was tarnished by the reference and the jury could have found him guilty by association. The district court rejected this argument, and we affirm.
21
The reference to Wilson and the two Gallos did not have a prejudicial effect upon Wilson's defense. The government, on redirect examination of witness Lindsey, asked: "Mrs. Lindsey, you were indicted along with Carl Lee Gallo and John Edward Wilson and Freda Gallo Wilson and others." This question did not lead the jury to associate Wilson with the "Gallo Organization." Indeed, that term was not used in the reference. In addition, the jury had previously heard of the Gallo Organization only once during trial, and that was at voir dire when Wilson asked if anyone had ever "heard of the so-called Gallo Drug Ring." Moreover, after the contested reference was made, Wilson testified and admitted to certain criminal acts and responded without objection to questions regarding the Gallo Organization. Thus, we do not see how a single reference to Wilson and two Gallos during the Lindsey examination can provide grounds for mistrial. In addition, the lack of a cautionary instruction is likewise no grounds for reversal, especially in light of the fact that Wilson never requested such instruction at trial.
22
In accordance with the above opinion, we affirm the district court on the Sawyer count and reverse on the Lindsey and Malone counts. We find no error in the jury instructions or the court's refusal to grant a mistrial. Accordingly, we affirm in part, reverse in part and remand with instructions that the jury verdict on counts two and three be reinstated.
23
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
1
That statute reads in pertinent part:
(b) Whoever intentionally harasses another person and thereby hinders, delays, prevents, or dissuades any person from--
(1) attending or testifying in an official proceeding;
....
or attempts to do so, shall be fined not more than $25,000 or imprisoned not more than one year, or both.
2
There was some dispute at trial as to what statements were actually made by Wilson and to whom the comments were directed. The facts recited herein, however, are in accordance with the requirement that we must view the evidence in the light most favorable to the government. See United States v. MacCloskey, 682 F.2d 468 (4th Cir.1982) (in deciding a motion for judgment of acquittal, evidence is taken in the light most favorable to the prosecution)
3
See also other cases construing 18 U.S.C. Sec. 1503, as that statute is the predecessor to Sec. 1512. United States v. Chandler, 604 F.2d 972 (5th Cir.1979), cert. denied, 444 U.S. 1104, 100 S.Ct. 1074, 63 L.Ed.2d 317 (1980); United States v. Jackson, 513 F.2d 456 (D.C.Cir.1975)
4
The Jackson court held that under 18 U.S.C. Sec. 1503, a witness retains that character during the entire trial, even if the court excuses the person after he testifies. We adopt such holding as applicable to Sec. 1512(b) because Sec. 1503 was 1512's predecessor. Moreover, Sec. 1512(b) was enacted to "strengthen existing legal protections for victims and witnesses of federal crimes." S.Rep. No. 532, 97th Cong., 2d Sess. 9, reprinted in 1982 U.S.Code Cong. & Ad.News 2515. Thus, if Sec. 1503 protected excused witnesses in an ongoing trial, Sec. 1512(b) must be so intended. Indeed, such intent is shown by Congress's providing for protection of "potential witnesses" under Sec. 1512(b). An excused witness is certainly a "potential witness" during the duration of trial since the court is empowered to recall him. Cf. Shillitani v. United States, 384 U.S. 364, 370, 86 S.Ct. 1531, 1535, 16 L.Ed.2d 622 (1966) ("[I]t is essential that courts be able to compel the appearance and testimony of witnesses" at any stage of the proceeding.)
5
Section 1514 defines harass, but this statutory definition is not applicable to Sec. 1512(b). Obviously, Congress intended the definition limited to Sec. 1514, a civil statute, since Sec. 1515 was specifically adopted to provide definitions for Sec. 1512, a criminal statute
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483 F.2d 1202
UNITED STATES of America, Appellee,v.PUI KAN LAM et al., Appellants.
Nos. 888, 889, Dockets 73-1150, 73-1270.
United States Court of Appeals,Second Circuit.
Argued May 23, 1973.Decided Aug. 21, 1973.
Alan Scribner, New York City (Albert J. Krieger and Ivan S. Fisher, New York City, on the brief), for appellants Wai Kwon Yip and Wai Kwok Yip.
Phylis Skloot Bamberger, New York City (Robert Kasanof, The Legal Aid Society, New York City, of counsel), for appellant Pui Kan Lam.
Charles H. Fier, Brooklyn, N. Y., for appellant Pui Leung Lam.
L. Kevin Sheridan, Asst. U. S. Atty. (Robert A. Morse, U. S. Atty. for the E. D. of New York, and Robert L. Clarey, Asst. U. S. Atty., on the brief), for appellee.
Before KAUFMAN, Chief Judge, and KILKENNY* and OAKES, Circuit Judges.
OAKES, Circuit Judge:
1
Following a two-week trial before the late Hon. George Rosling and a jury in the Eastern District of New York, appellants Pui Kan Lam ("Kan Lam"), Pui Leung Lam ("Leung Lam"), Wai Kwok Yip ("Kwok Yip") and Wai Kwon Yip ("Kwon Yip") were found guilty on one count of possessing with intent to distribute approximately three pounds of heroin. 21 U.S.C. Sec. 841(a)(1).1 On this appeal all appellants claim that an electronic interception of a conversation between appellants Kan Lam and Kwok Yip was illegal and that a tape recording of that conversation was erroneously admitted into evidence during the Government's rebuttal case. Additionally, appellant Leung Lam challenges the sufficiency of the evidence supporting his conviction. We reject all contentions of error and affirm the convictions.
2
The electronic interception occurred at Apartment 1F in a small building, 43-24 42nd Street, located in Queens, New York. Apartment 1F had been occupied by two males of Oriental extraction who were unrelated to appellants and who had been arrested on heroin importation charges in January, 1972. On June 26, 1972, the wife of the superintendent of 43-24 42nd Street called Customs agents (with whom she had become acquainted during the January investigation) to report that several young males, likewise of Oriental extraction, were attempting to gain entrance to Apartment 1F.
3
Suspicions aroused, Customs agents visited the building, informed the tenants of Apartment 1F of the narcoticsrelated history of the apartment, and obtained "free access" to it, including a consent to search it and to "do anything they want[ed] to." From the occupant of the apartment over 1F, the agents were told of hammering noises coming from the back wall of the bedroom heard during Christmas week, 1971. The tenants of 1F were instructed that in the event the men came back seeking access to the apartment they should be told the apartment belonged to a mythical uncle and that they should return the following day between noon and 1:00 p.m. when the uncle would be there.
4
As luck would have it, the four Oriental visitors appeared late that very night. One of them said that the four were the former occupants of 1F and wished to retrieve "immigration papers" left in the apartment. The prearranged story was recited, the night visitors departed, and Customs was called. A neighbor in the building noted the license plate number of the visitors' car and a check revealed that it was registered to the father of appellants Yip.
5
The next morning the agents were admitted to 1F after the tenants had left. A search revealed approximately three pounds of heroin stashed behind a bedroom baseboard. The agents dusted the heroin bags with fluorescent powder so as to leave a residue on the hands of anyone touching them.
6
The agents placed a transmitting "bug" beneath a mattress in the 1F bedroom and receiving equipment in the superintendent's apartment. They had received no prior judicial approval for these actions.
7
At approximately noon on the 27th the surveilling agents spotted the Yip car containing four occupants. After a stop at a nearby restaurant the four occupants walked toward the apartment. Two, Kwok Yip and Kan Lam, went into a store to purchase a screwdriver and a shopping bag, while the others waited outside. The appellants then divided up, with three heading for 43-24 42nd Street and Leung Lam (whose contentions of insufficiency of the evidence will be discussed infra) walking alone in the same general direction.
8
The Yips and Kan Lam were admitted to Apartment 1F by a Customs agent posing as a superintendent's helper. From a peephole in the superintendent's apartment and the receiving equipment placed therein the agents monitored the three appellants' activities. Kwon Yip left Apartment 1F almost immediately after entry. The monitoring equipment then picked up a conversation in Chinese (which the agents did not understand) and some ripping noises. Shortly thereafter, the two remaining appellants, Kwok Yip and Kan Lam, emerged from 1F and were arrested. Kwon Yip was carrying a shopping bag which contained the heroin packages dusted by the agents. Leung Lam was also arrested. Illuminatingly, on subsequent examination the hands of Kan Lam revealed traces of fluorescent powder.
9
Appellants' defense was that they intended to retrieve money hidden in 1F, not heroin. Kan Lam testified that he was told of the hidden money by a somewhat mysterious "Chang" during a Chinatown conversation and was also shown a map of Queens indicating 43-24 42nd Street's location. At the time, however, Kan Lam dismissed the whole affair as a "joke." Later he claimed to have changed his mind and recruited Kwok Yip (who had access to a car) to help recover the "money." According to Kan Lam, only Kwok Yip was told of the purpose of the several trips to Queens taken by appellants; the others were taken "along for the ride." It suffices here to say that the other appellants testified along the same general lines.
10
After all the appellants had testified the Government introduced in rebuttal, through the testimony of a Customs agent and a Chinese interpreter, a transcript of that part of the intercepted conversation that was translatable and played the whole tape for the jury. The actual conversation introduced contained no specific references to heroin but does demonstrate that two men were engaged in conversation while the baseboard was being ripped off. This contradicted Kwok Yip's testimony on direct examination that immediately after entry he went into Apartment 1F's bathroom and remained there until after Kan Lam removed the baseboard. The final sentence of the translated transcript of the intercepted conversation introduced was: "Next time it's better to go out from here." According to appellant Kan Lam, that sentence "impli[ed] that the activities of the defendants involved other and similar activities which would be going on in the future" and "undercut the joint defense, which was that the entry into the apartment was a one-time event for the purpose of getting $30,000."
11
All appellants contend in varying ways that the warrantless interception of the conversation in 1F was illegal under the federal statute regulating such matters, 18 U.S.C. Sec. 2510 et seq., and the fourth amendment. Appellants' argument of illegality is premised on the fact that there was no "consent" to the interception by one of the parties to the conversation2 which, under the statute, 18 U.S.C. Sec. 2511(2)(c), is the only applicable exception to the general warrant requirement. Appellants Yip, and apparently appellant Leung Lam, argue that the interception was the principal basis for the probable cause necessary to justify the arrest of appellant Kwon Yip and the resulting seizure of the heroin. Since the interception was illegal, the argument runs, so was the seizure. All appellants additionally argue that the introduction of the tape recording in the Government's rebuttal case prejudiced them in the ways described above.
12
At the threshold, appellants Kwon Yip and Leung Lam, who were not at 1F at the time of the allegedly illegal interception, lack standing to challenge it under either the constitutional, see, e. g., Brown v. United States, 411 U.S. 223, 93 S.Ct. 1565, 36 L.Ed.2d 208 (1973), or statutory standard. 18 U.S. C. Sec. 2510(11).3 To establish standing these appellants must show not that damaging evidence was introduced against them but rather that their personal rights were violated by the allegedly illegal interception. "Coconspirators and codefendants have been accorded no special standing," Alderman v. United States, 394 U.S. 165, 172, 89 S. Ct. 961, 965, 22 L.Ed.2d 176 (1969), in this regard. See United States v. San Martin, 469 F.2d 5, 8 (2d Cir. 1972). Since appellants Kwon Yip and Leung Lam were not in Apartment 1F during the intercepted conversation, they had no legitimate interest in protecting the privacy of the intercepted conversation. They also had no interest in protecting the privacy of the premises for they had no possessory interest in them. See Brown v. United States, supra, 411 U.S. at 223, 93 S.Ct. 1565; cf. Alderman v. United States, supra, 394 U.S. at 176-180, 89 S.Ct. 961.4
13
Appellants Kan Lam and Kwok Yip, however, are rightfully conceded by the Government to have the necessary standing since it was their conversation that was intercepted. Their claim of illegality is nonetheless rejected, because the conversation between them did not occur in a factual setting which legally justified any subjective expectation of privacy they may have had. As a result it was neither an "oral communication" within the meaning of the statute, 18 U.S.C. Sec. 2510(2),5 nor entitled to constitutional protection against the "uninvited ear." Katz v. United States, 389 U.S. 347, 352, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967).
14
As we have been advised, "the Fourth Amendment protects people, not places," Katz v. United States, supra, 389 U.S. at 351, 88 S.Ct. at 511, and the statutory definition of an "oral communication" tracks this constitutional concept.6 The question we have before us is whether the subjective expectation of privacy violated by the allegedly illegal intrusion is one society is prepared to recognize as "'justifiable."' United States v. White, 401 U.S. 745, 752, 91 S. Ct. 1122, 28 L.Ed.2d 453 (1971) (plurality opinion). See Katz v. United States, supra, 389 U.S. at 352, 353, 88 S.Ct. at 511-512 (majority opinion) and at 360-362, 88 S.Ct. at 516-517 (concurring opinion of Harlan, J.). Measured by this objective standard appellants' expectations must fail. The interception here did not occur in a public phone booth, Katz v. United States, supra; a suspect's home, Silverman v. United States, 365 U.S. 505, 81 S.Ct. 679, 5 L.Ed.2d 734 (1961); or office, Berger v. New York, 388 U.S. 41, 87 S.Ct. 1873, 18 L.Ed.2d 1040 (1967); or the home of a friend into which appellants had been invited. Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960). Rather it occurred in the house of complete strangers to which appellants had made several suspicious visits and into which they tried to gain entry by false representations, which alone would seem sufficient to deny them any expectation of privacy. Further, appellants were granted entry into the house by a "superintendent's helper" who then departed and left them alone. Under the circumstances appellants may be held to have assumed that their activities might be monitored. Cf. People v. Santos, 26 Cal.App.3d 397, 102 Cal.Rptr. 678 (Ct. App.2d Dist. 1972) (interception of conversation between husband and wife over jail intercom telephone not interception of an "oral communication" within statute in part because an expectation of privacy under the circumstances would not have been reasonable). There is no danger here that upholding the interception will "smother that spontaneity-reflected in frivolous, impetuous, sacrilegious, and defiant discourse -that liberates daily life." United States v. White, supra, 401 U.S. at 787, 91 S.Ct. at 1144 (Harlan, J., dissenting). For "daily life" does not include conversation in the apartment of strangers under the circumstances preceding the entry here.
15
Additionally, in delineating the scope of the statutory and constitutional protections, the value of the law enforcement activity, see White v. United States, supra, 401 U.S. at 786, 91 S.Ct. 1122 (Harlan, J., dissenting), as well as the officers' reasons for not obtaining a warrant, cf. Coolidge v. New Hampshire, 403 U.S. 443, 455, 91 S.Ct. 2022, 29 L. Ed.2d 564 (1971), should also be considered. The value of the interception here is obvious, since it enabled relevant evidence against appellants to be gathered that could be obtained by no other means. The reason for not securing a warrant was simply, and justifiably, the pressure of time. The officers did not even enter the apartment until approximately 9:30 a.m., after the tenants had left for work. They did not discover the heroin until sometime thereafter, approximately 10:30 a.m. According to the prearranged story planted by the tenants the Oriental visitors were to return to the apartment by noon that day and could have arrived even earlier. The agents scarcely had enough time to call for and install their equipment and organize their surveillance, let alone obtain a warrant.
16
Having held that appellants either have no standing to bring this challenge or are not protected by the statute or constitution, there is no need to pass on the further questions whether, absent the interception, there was probable cause to arrest Kwon Yip and seize the shopping bag containing the heroin packages; whether the transcript and tape recording of the intercepted conversation were properly introduced against appellant Kwok Yip for impeachment purposes; and whether, even if the interception was illegal, the admission of the transcript and tape recording was harmless error. We affirm the convictions of appellants Kan Lam, Kwok Yip and Kwon Yip and go on to consider the sufficiency of the evidence against appellant Leung Lam.
17
Leung Lam is Kan Lam's older brother and came to the United States from Hong Kong in 1968. He had worked as a merchant seaman and in the clothing industry in Hong Kong. Since his arrival in New York Leung Lam worked steadily at various jobs in the garment industry and eventually acquired ownership interests in two sportswear companies. He does not speak, read or understand English.
18
The evidence of Leung's involvement in this case, viewed in the light most favorable to the Government, was as follows: although appellant testified he accompanied the other appellants to Queens only on June 26 and June 27, 1972, there was evidence from which the jury could have inferred that he also accompanied them there on at least one other occasion and perhaps other times. Even one prior visit was inconsistent with Leung Lam's defense, that he was just wandering around while the others had gone to "look for a friend."
19
On the day of appellant's arrest, June 27, Leung Lam entered the Queens restaurant with the other appellants. After leaving the restaurant, all appellants walked east on Queens Boulevard toward 43-24 42nd Street. Leung Lam waited outside with Kwon Yip while the other appellants entered the store to purchase a screwdriver and shopping bag.
20
The business at the store complete, all four appellants walked east on Queens Boulevard to the corner of Queens Boulevard and 42nd Street. Kwok Yip, Kwon Yip and Kan Lam then turned north and proceeded toward the apartment house up 42nd Street on the west side of the street. Leung Lam crossed to the east side of 42nd Street but also proceeded north toward the apartment building.
21
The Customs agent who followed Leung Lam testified that while proceeding toward the apartment building Leung Lam frequently stopped and looked around. Still looking around, Leung Lam walked past the subject apartment building, crossed 43rd Avenue (which runs parallel to Queens Boulevard), then crossed 42nd Street and recrossed 43rd Avenue. He then proceeded past the apartment house on the west side of 42nd Street. It was here he was arrested, shortly after Kwon Yip had left the immediate vicinity of the apartment building with the shopping bag containing the heroin. At the time of arrest, Leung Lam was walking towards Queens Boulevard, about 45 feet behind Kwon Yip, toward the parked Yip car.
22
Leung Lam's testimony in his own behalf was that he did not know anything about the purpose of the various trips to Queens and that he went along solely to see a movie and get a bite to eat. He claimed to have heard no conversation in the car about the purpose of the trips. The only business he ever discussed with the Yips was the possibility of financing a Chinese restaurant in which the Yips would be employed. According to Leung Lam, after the other appellants had told him they were laving to "meet a friend," he entered a store to buy some yarn but needed an interpreter to negotiate the purchase and therefore left the store to look for the other appellants. He was doing that, he said, just before his arrest.
23
The jury could find, however, that Leung Lam acted as a lookout for the group and did not innocently go along with the others "just for the ride." While the evidence against appellant was entirely circumstantial, see United States v. Taylor, 464 F.2d 240, 244 (2d Cir. 1972), and less than overwhelming, we cannot conclude it was insufficient as a matter of law. Leung Lam followed the appellants toward the apartment on the opposite side of the street. The testimony of the surveilling agents disputed his testimony that he entered a store to shop for yarn. According to the agents he never lost sight of the others until they entered the apartment building. He admitted on cross-examination7 that he made purchases alone in non-Chinese stores "many times" and that he could read Arabic price tags on merchandise. Given that admission, and the agent's testimony, the jury could rationally discredit entirely Leung Lam's story that at the time of arrest he was wandering on the street seeking an interpreter to help him negotiate a purchase of yarn. The jury could thus interpret appellant's conduct as indicating "concer[n] about possible police surveillance or interference from innocent passers-by," United States v. Carneglia, 468 F.2d 1084, 1088 (2d Cir. 1972), and not as the conduct of an innocent caught in a police dragnet.
24
As a matter of common sense, the jury was entitled to take into account what appears to us an incredibility inherent in Leung Lam's story. United States v. Arcuri, 405 F.2d 691, 695 (2d Cir. 1968), cert. denied, 395 U.S. 913, 89 S.Ct. 1760, 23 L.Ed.2d 227 (1969). It is a little difficult to believe that a man of some sophistication and business success within the Chinese community would take at least two trips to an unknown location in Queens without inquiring or hearing anything about the purpose of the trips (which happened to result in his younger brother and two friends acquiring a cache of heroin). There was no language barrier in his communications with the other appellants that prevented such an inquiry. Further, there is the fact that far from being the most docile member of the group, Leung Lam provided virtually all support for his younger brother and had proposed a restaurant venture in which he would be "the boss" of the Yips. Cf. Nye & Nissen Corp. v. United States, 336 U.S. 613, 619, 69 S.Ct. 766, 93 L.Ed. 919 (1949); United States v. Fried, 464 F.2d 983, 985 (2d Cir.), cert. denied, 409 U.S. 1059, 93 S.Ct. 554, 34 L.Ed.2d 511 (1972). This role as provider and proposer is hardly consistent with his claim of passive association with the narcotics recovery operation. Rather, Leung Lam's isolation from contact with the apartment could rationally be viewed by the jury as an effort to insulate himself from criminal liability, to put himself in the position of a manipulative leader rather than an unwitting innocent. Such inferences are for juries to draw and we will not disturb them on appeal, at least where, as here, there was a fair aiding and abetting charge. See United States v. Infanti, 474 F.2d 522, 526 (2d Cir. 1972); United States v. Fried, supra, 464 F.2d at 985.
25
Judgments affirmed.
*
Of the Ninth Circuit Court of Appeals, sitting by designation
1
The appellants Lam were each sentenced to a term of ten years' imprisonment and five years' special parole, sentences they are presently serving. The appellants Yip were each sentenced to five years' imprisonment and five years' special parole. They are free on bail pending this appeal
2
The Government does not contend here, as it apparently did below, that the consent by the tenants to "do anything they want[ed] to" in Apartment 1F satisfied the statutory requirement of consent by "one of the parties to the communication." 18 U.S.C. Sec. 2511(2)(c). See United States v. San Martin, 469 F.2d 5, 7 (2d Cir. 1972) (dictum)
3
18 U.S.C. Sec. 2510(11) provides:
"[A]ggrieved person" means a person who was a party to any intercepted wire or oral communication or a person against whom the interception was directed.
4
The rationale of the only case cited by appellants Kwon Yip and Leung Lam to support their standing, Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L. Ed.2d 697 (1960), has been questioned in the recent Brown v. United States, 223 U.S. 411, 93 S.Ct. 1565, 36 L.Ed.2d 208 (1973). The Jones concept of "automatic standing" to contest an allegedly illegal search and seizure where, as here, the same possession needed to establish standing is "an essential element of the offense with which the defendant is charged," Simmons v. United States, 390 U.S. 377, 390, 88 S.Ct. 967, 974, 19 L. Ed.2d 1247 (1968), is thus of dubious vitality. But we need not and do not decide what is left of Jones after Brown, for the rationale of Jones is simply inapplicable to this case, as it was to the case presented to the Court in Brown. The Jones Court conferred "automatic standing" on the petitioner there because it was "not consonant with the amenities, to put it mildly, of the administration of criminal justice," 362 U.S. at 263, 80 S. Ct. at 732, to require a defendant to affirm possession of contraband for purposes of establishing standing to challenge an illegal search and seizure and later to require him to deny it at trial of guilt or innocence. Here, there is no conflict with such "amenities," as appellants do not contest their actual or constructive possession of the narcotics, only their knowledge of what they were possessing. Thus, the Jones rationale is plainly inapposite here and appellants Kwon Yip and Leung Lam have no other basis to establish standing to challenge the legality of the interception
5
18 U.S.C. Sec. 2510(2) defines an "oral communication" as:
"[O]ral communication" means any oral communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation . . . .
6
In contrast, the statutory definition of "wire communication," the interception of which is also prohibited, contains no "justified" expectation of privacy requirement. See United States v. Carroll, 332 F.Supp. 1299, 1301 (D.D.C.1971)
7
Once a defendant offers evidence after the denial of a motion for acquittal at the close of the Government's case in chief, of course, the defendant waives any claim as to the sufficiency of the Government's case considered alone. United States v. Arcuri, 405 F.2d 691, 695 n. 7 (2d Cir. 1968), cert. denied, 395 U.S. 913, 89 S.Ct. 1760, 23 L.Ed.2d 227 (1969)
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130 F.Supp.2d 23 (2000)
Julie Hiatt STEELE, Plaintiff,
v.
Michael ISIKOFF, Newsweek Magazine, and the Washington Post Company, Inc., Defendants.
No. 98CV1471.
United States District Court, District of Columbia.
September 6, 2000.
*24 *25 John Purcell Coale, Diane Elizabeth Cooley, Deborah Lee St. Jean, Coale, Cooley, Lietz, McInerny & Broadus, Washington, DC, for plaintiff.
Roger Campbell Spaeder, Zuckerman, Spaeder, Goldstein, Taylor & Kolker, L.L.P., Washington, DC, for defendants.
MEMORANDUM OPINION
KOLLAR-KOTELLY, District Judge.
Plaintiff Julie Hyatt Steele ("Steele") brought suit against Newsweek reporter Michael Isikoff ("Isikoff"), Newsweek Magazine ("Newsweek"), and the Washington Post ("Washington Post") (collectively, "Defendants") based on the Defendants' alleged failure to honor an agreement not to reveal that Steele was a source of information Defendants published. See, e.g., Am.Compl. ¶ 118. Steele's Amended Complaint addresses the alleged misconduct of Isikoff in eight separate counts in which she claims breach of contract (Counts I and II); promissory estoppel (Count III); fraud (Count IV); negligent misrepresentation (Count V); unjust enrichment (Count VI); intentional infliction of emotional distress (Count VII); and breach of fiduciary duty/duty of confidentiality (Count VIII). Steele also claims that Newsweek and the Washington Post are vicariously liable under the doctrine of respondeat superior (Count IX), that Newsweek is liable for negligently hiring and supervising Isikoff (Count X), and that Steele is entitled to punitive damages (Count XI). See id. ¶¶ 50-115.
Before the Court is Defendants' Motion to Dismiss in which they assert that (1) the First Amendment bars all of Steele's claims collectively, and (2) each of her claims fails individually as a matter of common law. See Defs.' Mot. to Dismiss; Mem. in Supp. of Defs.' Mot. to Dismiss at 2-3 [hereinafter Defs.' Mem.]. The Court concludes that Steele's suit cannot be completely dismissed on First Amendment grounds, but that each of individual claims merits dismissal for failure to state a claim under the applicable state law.
I. BACKGROUND
Steele is a citizen of the Commonwealth of Virginia, see Am.Compl. ¶ 3, and Isikoff is a resident of the District of Columbia, see id. ¶ 4. Newsweek, Inc., sued as Newsweek *26 Magazine, has offices in the District of Columbia and is wholly owned by the Washington Post. See id. ¶ 5. Newsweek Magazine is an unincorporated division of Newsweek, Inc., a New York corporation. See Defs.' Mem. at 34-35. The Washington Post, sued as The Washington Post Company, Inc., is incorporated in Delaware; its principal place of business is the District of Columbia. See Am.Compl. ¶ 6. At all times relevant to this case, Isikoff was an employee of Newsweek. See id. ¶ 7.
During the course of his employment at Newsweek, Isikoff investigated various stories about the private life of President William Jefferson Clinton. Id. ¶ 7. In late 1997, Isikoff began working on a story about an improper encounter between Kathleen Willey and the President that allegedly occurred at the White House in November 1993.[1]See id. ¶ 8. Steele alleges that Isikoff entered her life at the direction of Kathleen Willey, Steele's long-time friend, when Willey telephoned Steele to request that she talk to Isikoff about the alleged encounter. See id. ¶ 9. Steele states that within minutes of her conversation with Willey, Isikoff called her and requested driving directions to her home. See id. ¶ 9. Steele gave the directions to Isikoff and he arrived at her home shortly thereafter. See id. ¶¶ 9, 14.
Prior to Isikoff's arrival at Steele's home, Willey purportedly called Steele back to inform her of the nature of Isikoff's visit. See id. ¶ 10. Steele states that this conversation was tile first time that Willey told her of the alleged sexual encounter between Willey and the President. See id. ¶ 12. Steele further alleges that Willey gave Steele a prepared story to tell Isikoff that on the day of the alleged encounter. Willey went from the White House to the commuter train, and from the train station to Steele's home. See id. ¶ 11. Steele also states that Willey asked her to tell Isikoff that Willey appeared upset and humiliated after the encounter with the President, and that she reported to Steele that the President had "groped" her. Id. ¶ 11. Steele asserts that she was uncomfortable with the prospect of relaying information about which she had no first-hand knowledge. See id. ¶ 13. Nonetheless, because Willey assured her that the conversations would be off the record and because she was afraid that Willey would be angry if she did not speak to Isikoff, Steele agreed to confirm Willey's story. See id. ¶ 13.
Steele alleges that she and Isikoff discussed the nature of their conversation and the manner in which he would use the information he gained. See id. ¶¶ 15-18, 23-24. Steele states that she and Isikoff agreed "explicitly and verbally" that her statements regarding Kathleen Willey's encounter would be off the record. Id. ¶ 15. Steele claims that she and Isikoff both understood that "off the record" meant that Isikoff would take "her statements in confidence ... and neither [her] statements nor her name would be printed by Isikoff or Newsweek." Id. ¶¶ 16-17. Steele states that she would not have spoken to Isikoff at all if he had not agreed that their conversations would be strictly off the record. See id. ¶ 18. Steele further asserts that she and Isikoff discussed the fact that he would call Steele first should he ever intend to print a story about Willey's accusations. See id. ¶ 24.
According to Steele, Isikoff called her on July 28 and 29, 1997, in an attempt to reach Willey. See id. ¶¶ 25-26. During the latter call, Steele claims that Isikoff told her that he was under pressure to print the Willey story. See id. ¶ 26. Steele requested a personal meeting with Isikoff before the story was printed. See id. ¶ 26. After a series of phone conversations in which it became clear that Steele and Isikoff could not meet in person, Steele agreed to discuss the matter with him over the phone on the morning of July *27 31, 1997. See id. ¶¶ 26-28. Steele alleges that she and Isikoff "explicitly and verbally agreed" that the conversation on the morning of July 31, 1997 would be off the record. Id. ¶ 29. During the July 31 conversation, Steele told Isikoff that she had lied to him when she recounted Willey's story regarding her alleged encounter with the President. See id. ¶ 30. Steele explained that in actuality she had no knowledge of an encounter between Willey and the President at any time. See id. ¶ 30. Steele ended the conversation with Isikoff with the purported mutual understanding that Newsweek "no longer had a story to print." Id. ¶ 31-32.
In the hours immediately following Steele's July 31 conversation with Isikoff, Steele alleges that Isikoff and his editors decided that they needed either Willey or Steele on the record. See id. ¶ 34. Steele suggests that Isikoff and Newsweek made this decision because Steele had recanted her story, leaving Isikoff without the two corroborating sources that journalistic standards require in order to proceed with the story. See id. ¶ 34. Later that same afternoon, Steele alleges that Isikoff called her to inform her that her name and her statements would appear in his story. See id. ¶ 36. During this conversation, Steel maintains that she again told Isikoff that all of their conversations, including the present one, were off the record. Isikoff allegedly responded that the decision was "out of [his] hands" due to mounting pressure to print the story. Id. ¶ 37. Newsweek and Isikoff published stories naming Steele and reporting her statements to Isikoff on August 11, 1997, March 9, 1998, and March 30, 1998. See id. ¶ 38. In conjunction with the articles, Isikoff made numerous television appearances and Newsweek issued a press release repeating this information. See id. ¶¶ 38-39. Steele further asserts that Isikoff falsely accused her of attempting to sell her story to the tabloids. See id. ¶ 43.
Steele contends that Isikoff and Newsweek were well aware that by publishing her name in connection with the scandals surrounding the President's personal life, they were thrusting her into a public spotlight in which she did not want to appear. See id. ¶¶ 41-43. In addition, Steele claims that both Isikoff and Newsweek have profited by publishing Steele's statements about the Willey story. See id. ¶ 40.
Seeking damages for injury to her reputation, embarrassment, humiliation, loss of earning capacity, anguish, and severe emotional distress, see id. ¶ 118, Steele filed the instant suit against Isikoff, the Washington Post, and Newsweek. In Counts I and II (Breach of Contract), Steele alleges that Isikoff breached two separate contracts by publishing Steele's name in conjunction with the Willey story. Steele asserts that the contracts formed when Isikoff agreed, on two separate occasions, to protect her identity in exchange for information about the Willey incident. Steele alleges in Count III (Promissory Estoppel) that the Court should enforce Isikoff's promises that their conversations would be "off the record" because Steele relied on those promises to her detriment. Steele also charges Isikoff with fraud (Count IV), negligent misrepresentation (Count V), unjust enrichment (Count VI), intentional infliction of emotional distress (Count VII), and breach of fiduciary duty (Count VIII). Finally, Steele contends that Newsweek and the Washington Post are vicariously liable for Isikoffs acts, under the theory of respondeat superior (Count IX) or negligent hiring and supervision (Count X), and that she is entitled to punitive damages as a result of Isikoff's and Newsweek's conduct (Count XI).
Defendants raise a host of arguments in support of their contention that Steele's amended complaint should be dismissed in its entirety. First, Defendants argue that Steele's amended complaint is a thinly disguised effort to avoid the First Amendment's heightened threshold for reputational damages based on publication. See Defs.' Mem. at 2. Relying on *28 Steele's own admission that she lied to Isikoff, the Defendants argue next that (1) Steele's equitable claims should be dismissed because she has "unclean hands," (2) Steele's contract claims fail because she committed the first material breach, and (3) Steele's tort claims are deficient because her conduct "vitiates any claim of causation or reliance," Id. Under a more traditional analysis, Defendants also contend that the alleged contracts are too vague to be enforced, and that the tort claims against Isikoff fail as a matter of law. See id. Finally, Defendants argue that Steele fails to allege any facts to support her respondeat superior or negligent hiring and supervision claims. See id. at 3.
II. DISCUSSION
Defendants move to dismiss the amended complaint for failure to state a claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. A motion to dismiss should be granted only if the "plaintiff[ ] can prove no set of facts in support of [its] claim which would entitle [it] to relief." Kowal v. MCI Communications Corp., 16 F.3d 1271, 1276 (D.C.Cir. 1994) (citing Schuler v. United States, 617 F.2d 605, 608 (D.C.Cir.1979)). When considering a motion to dismiss, the Court must resolve all factual doubts in favor of the plaintiff and allow the plaintiff the benefit of all inferences. See EEOC v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624 (D.C.Cir.1997).
Notwithstanding this liberal construction, "the court need not accept inferences drawn by plaintiffs if such inferences are unsupported by the facts set out in the complaint. Nor must the court accept legal conclusions cast in the form of factual allegations." Kowal, 16 F.3d at 1276; see also Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986).
A. Defendants' First Amendment Argument
Preliminarily, Defendants urge the Court to dismiss Plaintiff's entire suit on First Amendment grounds. See Defs.' Mem. at 7-14. Specifically, they assert that Steele's claims amount to nothing but a thinly disguised effort to collect damages for defamation without meeting the constitutional requirements of a defamation claim. See id. at 7-8. Arguing that Hustler Magazine v. Falwell, 485 U.S. 46, 108 S.Ct. 876, 99 L.Ed.2d 41 (1988), and Cohen v. Cowles Media Co., 501 U.S. 663, 111 S.Ct. 2513, 115 L.Ed.2d 586 (1991), bar plaintiffs from obtaining reputational damages from media defendants without proving defamation, Defendants maintain that the damages Steele seeks all relate to her reputation and that she has failed to put forth a defamation claim. See Defs.' Mem. at 8-14. Therefore, Defendants conclude, the Court must dismiss all of Steele's claims.
Defendants' portrayal of the applicable First Amendment jurisprudence is accurate. In Hustler, the Supreme Court held that public figures may not recover for harm to reputation under a claim of intentional infliction of emotional distress without meeting the strict constitutional requirements of a defamation claim. See Hustler Magazine, 485 U.S. at 56, 108 S.Ct. 876. In other words, even though the Hustler plaintiff pled intentional infliction of emotional distress and not defamation, the Court determined that the First Amendment requires claimants to meet the constitutional defamation requirements in order to obtain reputational damages, regardless of the claim under which such damages are sought. See id. at 56, 108 S.Ct. 876 (reaffirming that "[f]reedoms of expression require `breathing space'" and that such breathing space is protected by the First Amendment limits on defamation claims).
Three years after issuing the Hustler decision, the Supreme Court had occasion to apply the Hustler reasoning in Cohen, a case with many apparent similarities to the *29 one at issue here.[2] The Cohen majority began by confirming that First Amendment protections, iron-clad and far-reaching though they may be, do not allow the media to break the law in its efforts to gather the news. Specifically, the Court held that "generally applicable laws do not offend the First Amendment simply because their enforcement against the press has incidental effects on its ability to gather and report the news." Cohen, 501 U.S. at 669, 111 S.Ct. 2513. The Court proceeded to determine that the plaintiff's promissory estoppel claim was rooted in a "generally applicable law" inoffensive to the First Amendment because the doctrine of promissory estoppel does not "target or single out the press." Id. at 670, 111 S.Ct. 2513.
The Cohen Court also found that the restrictions outlined in Hustler were not applicable in Cohen because the Cohen plaintiff had not "attempt[ed] to use a promissory estoppel cause of action to avoid the strict requirements for establishing a libel or defamation claim." Id. at 671, 111 S.Ct. 2513. The Court reached this conclusion upon determining that the plaintiff sought damages "for breach of a promise that caused him to lose his job and lowered his earning capacity," not "for injury to his reputation or his state of mind." Id.
Viewed in tandem, Hustler and Cohen divide claims against the news media by categorizing the damages sought. If a party seeks damages for harm to reputation or state of mind, the suit can only proceed if that party meets the constitutional requirements of a defamation claim. If a party seeks damages for non-reputational harms, which include lost jobs and diminished employment prospects, then the First Amendment does not bar suit as long as the claims are brought under generally applicable laws.
In the case before this Court, complete dismissal on First Amendment grounds would be inappropriate because the character of Steele's damages is not definite at this early stage. While Defendants urge the Court to conclude that all of Steele's alleged harm is to her reputation, Steele's amended complaint does not necessarily lead to such a conclusion. On the contrary, Steele's pleadings carefully portray some of her harm as analogous to that of the plaintiff in Cohen and therefore not restricted by the Hustler decision. Specifically, while Steele does allege reputational injury, she also argues that she has suffered occupational harm as a result of Defendants' conduct.
Quite possibly, following discovery Defendants could demonstrate that the damages Steele seeks are all for harm to her reputation. On a motion to dismiss, however, the Court must accept the plaintiff's version of events. Steele has alleged that she has suffered reputational and non-reputational harm as a result of Defendants' conduct. To the extent that her claims call for reputational damages, they are barred under the First Amendment and therefore dismissed. To the extent that she seeks damages for non-reputational harm, the claims survive Defendants' constitutional challenge. In light of the Court's conclusions regarding each of Steele's individual claims, however, there is no need to attempt to break down the precise damages harm to reputation or not that follow from each individual claim.
B. Choice of Law For Common Law Claims
In this diversity action between a citizen of Virginia and citizens of the District of Columbia, each of Steele's claims turns on state law. In their motion, Defendants argue that there is a "false conflict" between Virginia and D.C. law as to *30 almost all of Steele's claims.[3]See Defs.' Mem. at 7. Steele does not challenge this assertion in her opposition memorandum, and, during the hearing on Defendants' motion to dismiss, Steele agreed (through counsel) that there is a false conflict as to all of her claims except promissory estoppel (Count III). See 6/21/99 Tr. at 55-56.
"When confronted with a false conflict, a court may apply the law of the state whose policy would be advanced by the application of its law or forum law if no state's policy would be advanced by application of its law." Greaves, 984 F.Supp. at 14. The parties concur that Virginia law and D.C. law are largely interchangeable on all of the claims other than promissory estoppel. See Defs.' Mem. at 7:6/21/99 Tr. at 55-56. To the degree that they are interchangeable, no state's policy is advanced by applying one over the other. Therefore, where the laws of D.C. and Virginia are the same, the Court will apply D.C. law because the District of Columbia is the forum jurisdiction.[4]
The parties are not in agreement on which law applies to Steele's promissory estoppel claim. In such cases, where courts must choose which jurisdiction's law to apply, "a federal court follows the choice-of-law rules of the jurisdiction in which it sits." Stephen A. Goldberg Co. v. Remsen Partners, Ltd., 170 F.3d 191, 193 (D.C.Cir.1999) (citation omitted). Therefore, this Court applies the District of Columbia rule, which calls for "a modified governmental interests analysis which seeks to identify the jurisdiction with the most significant relationship to the dispute." Dominion Caisson Corp. v. Clark, 614 A.2d 529, 531 (D.C.1992).
After reviewing the allegations contained in Steele's amended complaint, the Court concludes that Virginia's relationship to the promissory estoppel dispute is far more significant than that of the District of Columbia. According to Steele, Isikoff first promised confidentiality during their only face-to-face meeting, which took place in Steele's home in Richmond, Virginia. See Am.Compl. ¶¶ 18-19. Steele claims that he made the promise again later over the telephone while she was in Virginia; Steele does not indicate where Isikoff was during that conversation. See id. ¶ 29-32. On both occasions, the conduct that allegedly resulted from the promise Steele's statements to Isikoff regarding Willey's accusations took place in Virginia. See id. ¶¶ 18-19, 27-30. Further, the impact of the eventual publication of Steele's name and statements befell her where she lived, in Richmond, and not in the District of Columbia.
In short, because Virginia has the stronger relationship to the dispute, the Court will apply Virginia law to Steele's promissory estoppel claim. Because the parties agree that there is a false conflict between the laws of D.C. and Virginia as to the other claims, the Court will apply the law of the forum the District of Columbia and point out any relevant discrepancies.
C. Common Law Claims
Defendants' have moved to dismiss each of Steele's eleven counts independently, arguing that none of them states a claim for which relief can be granted under the relevant common law. The Court addresses each of the counts, and Defendants' arguments for dismissal, in turn.
1. Breach of Contract (Counts I and II)
According to Steele, her contract claims are straightforward. On two separate occasions *31 she promised to speak to Isikoff about Willey's accusations in exchange for Isikoff's promises that her statements and identity would be "off the record." Steele's contract claims based on that exchange of promises present an issue of first impression in the District of Columbia and in Virginia: whether a reporter's oral promise of confidentiality to a source constitutes a binding and enforceable contract.
In Cohen v. Cowles Media Co., 457 N.W.2d 199 (Minn.1990), rev'd on other grounds, 501 U.S. 663, 111 S.Ct. 2513, 115 L.Ed.2d 586 (1991),[5] the only published decision from any jurisdiction that addresses this question, the Supreme Court of Minnesota concluded that contract law was not the appropriate vehicle for enforcement of a reporter's promise of confidentiality:
We are not persuaded that in the special milieu of media newsgathering a source and a reporter ordinarily believe they are engaged in making a legally binding contract. They are not thinking in terms of offers and acceptances in any commercial or business sense. The parties understand that the reporter's promise of anonymity is given as a moral commitment, but a moral obligation alone will not support a contract.... Indeed, a payment of money which taints the integrity of the newsgathering function, such as money paid a reporter for the publishing of a news story, is forbidden by the ethics of journalism.
. . . . .
... The durability and duration of the confidence is usually left unsaid, dependent on unfolding developments; and none of the parties can safely predict the consequences of publication....
In other words, contract law seems here an ill fit for a promise of news source confidentiality. To impose a contract theory on this arrangement puts an unwarranted legal rigidity on a special ethical relationship, precluding necessary consideration of factors underlying that ethical relationship. We conclude that a contract cause of action is inappropriate for these particular circumstances.
Cohen, 457 N.W.2d at 203 (internal citations omitted).
Even though the Minnesota Supreme Court was engaged in an analysis of Minnesota contract law, its reasoning applies in this case. As aptly described by the Minnesota court, journalistic ethics effectively bar reporters and sources from entering traditional contracts relating to the provision of information or the publication of stories. Because ordinary contractual considerations are inapplicable in this context, a reporter-source confidentiality arrangement is more appropriately viewed as a moral commitment.
As in Minnesota, moral obligations do not give rise to contractual liability under the laws of the District of Columbia or Virginia. See, e.g., Baker v. District of Columbia, 39 App.D.C. 42, 44-45 (App. D.C.1912) ("It is elementary in the law of contracts that a promise of a person competent, made under a sense of moral obligation ... is not legally binding."); Mihalcoe v. Holub, 130 Va. 425, 107 S.E. 704, 706 (1921) ("[A] mere moral obligation is not a sufficient foundation for an implied contract...."). Accordingly, because a reporter's promise of confidentiality is a moral obligation, not a contractual requirement, and because a moral obligation does not give rise to express or implied contractual duties, there is no contractual relationship *32 between Steele and Isikoff. Without contracts on which to base them, Steele's breach of contract claims will be dismissed.
Even if the courts of the District of Columbia (or Virginia) were to determine that a reporter-source confidentiality agreement gives rise to a contractual relationship, Isikoff would have been relieved of his duty to abide by his promise under the alleged first contract because of Steele's pre-existing intent to lie. He would also have had no duty to perform under the second alleged contract, both because the second alleged contract is not itself a contractual arrangement separate from the first, and because it is not supported by consideration.
Under District of Columbia law, "every contract [contains] an implied covenant that neither party shall do anything which will have the effect of destroying or injuring the right of the other party to receive the fruits of the contract, which means that in every contract there exists an implied covenant of good faith and fair dealing." Hais v. Smith, 547 A.2d 986, 987 (D.C.1988); see also Pennsylvania Life Ins. Co. v. Bumbrey, 665 F.Supp. 1190, 1195 (E.D.Va.1987) ("Under Virginia law, every contract contains an implied covenant of good faith and fair dealing in the performance of the agreement."). The implied duty of good faith and fair dealing "prevents a party from evading the spirit of the contract, willfully rendering imperfect performance or interfering with the other party's performance." Hais, 547 A.2d at 987-88.
As Steele recounts in her amended complaint, she intended to lie to Isikoff about Willey's accusations before she entered into the first confidentiality "contract" with him, and she proceeded to do just that after they made their arrangement. Steele's lie is the epitome of bad faith. Rather than provide the reporter with her personal knowledge of the incident in question, Steele "evad[ed] the spirit of the contract" by deceiving him. Id. Plainly, Steele's conduct amounts to "imperfect performance" in violation of the implied duty of good faith and fair dealing. Id. Because Steele breached the alleged first contract by providing deceptive information, Isikoff was relieved of his duty to live up to his side of the bargain. See Restatement (Second) of Contracts § 237 (1981) ("[I]t is a condition of each party's remaining duties to render performances ... that there be no uncured material failure by the other party to render any such performance due at an earlier time."); id. cmt. a ("[A] material failure of performance, including defective performance as well as an absence of performance, operates as the non-occurrence of a condition [which] discharg[es] the [other party's corresponding] duty when the condition can no longer occur."); see generally Ellis v. James V. Hurson Assocs. Inc., 565 A.2d 615, 618 (D.C.1989) (adopting the Restatement "[i]n the absence of any current well-developed doctrine in our jurisdiction").[6]
Arguably, the alleged second contract between Steele and Isikoff does not suffer from Steele's earlier bad faith: she herself initiated the formation of the alleged second contract precisely because she wanted to disavow her prior statements and tell the truth. Nonetheless, despite her nobler intentions the second time around, Steele's second contract claim fails along with the first.
Initially, even though Steele strives to present an image of two separate encounters in which she and Isikoff entered into two separate contracts, the facts alleged in her amended complaint lead the Court to conclude that there was, at most, only a single "contract." Steele agreed to tell Isikoff what she knew about Willey's accusations, and he agreed to keep her identity *33 confidential. When she ultimately decided to recant her earlier statements, she was still operating within the scope of the initial (and only) alleged contract: she told him what she knew about Willey, and he agreed to keep the conversation off the record. Because there was only one alleged contract, any shortcomings in its performance would impact its validity in regard to both of the occasions on which Steele and Isikoff spoke. Accordingly, since the initial contract claim suffers from Steele's lack of good faith, the entire alleged contractual relationship suffers from that failing.
Alternatively, Steele's claim regarding the alleged second contract fails because it lacks any independent, valid consideration. It is a basic tenet of contract law that a party's agreement to perform a preexisting duty is "a typical example of invalid consideration." United States v. Bridgeman, 523 F.2d 1099, 1110 (D.C.Cir.1975); see also Interdonato v. Interdonato, 521 A.2d 1124, 1134 (D.C.1987) (stating principle). The obligation that Steele accepted at the time of her second conversation with Isikoff was identical to the one she accepted when they first spoke. Even though Steele knew that she would convey altogether different information to Isikoff during the second conversation, she agreed on both occasions to tell Isikoff what she knew about Willey's accusations. Because she had already agreed to that duty during the first conversation, it preexisted the second conversation, and therefore cannot serve as consideration for the alleged second contract.
In sum, the Court determines that the relationship between a reporter and a source is not contractual in nature. Even if reporters and their sources could form contracts, however, Steele's lie breached the alleged reporter-source contract in this case, thereby relieving Isikoff of his duty to perform. While her lie may not impact the alleged second contract, that alleged contract is properly viewed as a continuation of the first, and it lacks valid, independent consideration. Accordingly, Defendants' motion to dismiss shall be granted as to Steele's breach of contract claims.
2. Promissory Estoppel and Unjust Enrichment (Counts III and VI)
Steele's amended complaint also raises two equitable claims. First, she contends that she is entitled to relief under the doctrine of promissory estoppel:[7] Isikoff promised confidentiality, she relied on that promise when she agreed to provide him with information, and her reliance proved to be detrimental because it led to the harm she suffered. See Am.Compl. ¶¶ 61-60.[8]
Virginia law does not recognize the doctrine of promissory estoppel. See W.J. Schafer Assocs., Inc. v. Cordant, Inc., 254 Va. 514, 493 S.E.2d 512, 516 (1997) ("[P]romissory estoppel is not a cognizable cause of action in the Commonwealth, and we decline to create such a cause of action.") Because Virginia law governs to Steele's promissory estoppel argument, Steele has failed to state a claim under which relief can be granted, and the claim shall be dismissed.[9]
*34 Second, Steele argues that the Defendants have improperly profited as a result of Isikoff's alleged promise, her alleged reliance on that promise, and Isikoff's alleged pre-existing intent to disregard the promise he made. See Am. Compl. ¶¶ 82-87.
The courts of the District of Columbia, which have acknowledged that unjust enrichment is an equitable doctrine, see National Union Fire Ins. Co. v. Riggs Nat'l Bank, 646 A.2d 966, 969 (D.C.1994), prohibit plaintiffs with unclean hands from obtaining equitable relief:
In an action in equity. `he who asks relief must have acted in good faith. The equitable powers of th[e] court can never be exerted in behalf of one who has acted fraudulently or who by deceit or any unfair means has gained an advantage. To aid a party in such a case would make th[e] court the abetter of iniquity.' ... Thus, while `equity does not demand that its suitors shall have led blameless lives, ... it does require that they shall have acted fairly and without fraud or deceit as to the controversy in issue.'
Synanon Found, Inc. v. Bernstein, 503 A.2d 1254, 1264 (D.C.1986) (citations omitted).
Steele's conduct in this case bars the equitable remedy she seeks. As she admits in her amended complaint, she set out to lie to Isikoff and, after reaching the confidentiality arrangement with him, she practiced her deception, just as she had planned. Steele, a "suitor" of equitable relief, acted with "deceit as to the controversy in issue." Id. Accordingly, her unjust enrichment claim shall be dismissed. See id. ("A plaintiff's non-compliance with this [clean hands] requirement warrants dismissal of his action.").
3. Fraud and Negligent Misrepresentation (Counts IV and V)
In Counts IV and V of her amended complaint, Steele argues that Isikoff is liable in tort for (1) fraud and (2) negligent misrepresentation because of his alleged misconduct. In her fraud claim, she asserts that "Isikoff intentionally misrepresented to Ms. Steele that he would not print her name or any statements she made to him." Am.Compl. ¶ 68. In the claim for negligent misrepresentation, Steele states that "Isikoff negligently and/or recklessly misrepresented to Ms. Steele that he would not print her name or any statements she made to him." Id. ¶ 75.
Defendants challenge both of the tort claims on the ground that Isikoff's conduct was not the cause of Steele's harm. Rather, they assert, Steele's own lie proximately caused whatever injury she suffered. Defendants conclude by reasoning that without a showing that Isikoff proximately caused the harm, she is unable to state a claim for which relief can be granted. See Defs.' Mem. at 24.
The courts of the District of Columbia subscribe to the fundamental principle that a plaintiff in a tort action cannot recover without showing that the defendant's challenged conduct proximately caused plaintiff's injury. See Prosser & Keaton, The Law of Torts § 41, at 263 (5th ed.1984) (stating that proximate cause is an essential element of any tort); Thompson v. Shoe World, Inc., 569 A.2d 187, 189 (D.C.1990) (accepting the Prosser & Keaton formulation). A defendant's conduct is the proximate cause of a plaintiff's injury only if "the injury is the natural and probable consequence of the negligence or wrongful act and ought to [have been] foreseen in light of the circumstances." Sanders v. Wright, 642 A.2d 847, 849 (D.C. 1994) (quoting Ceco Corp. v. Coleman, 441 A.2d 940, 944 (D.C.1982)).
Despite Steele's conclusory assertions that the harm she suffered was the "direct and proximate result of Isikoff's intentional misrepresentation and his subsequent printing of Ms. Steele's name and statements." Am.Compl. ¶¶ 73, 80, her own depiction of the facts indicates otherwise. *35 Notably, Steele argues that the publication hurt her because it "thrust [her] into the national and international spotlight," id. ¶ 118, and caused her "name and personal life [to be] discussed on countless occasions by various news organizations, including scores of newspapers around the country, national and local television news programs, and hundreds of news-related Internet `websites'." Id. ¶ 119.
Painful as the glaring spotlight may be, Steele's harm is rooted in her own lie, a deception by which she alone tied herself to a sordid news story that dominated all types of media. In other words, Steele has suffered because people friends, employers, customers, and even strangers changed their opinions of her after she was unflatteringly tied to the Clinton-Willey saga. That link to President Clinton and Kathleen Willey, however, was not the work of Isikoff. On the contrary, Steele herself decided to fabricate her connection to Willey's accusations. While Isikoff printed that fabrication and Steele's subsequent recantation, Steele herself proximately caused the harm.[10]
In short, because Steele's conduct, not Isikoff's, proximately caused her harm, she cannot make out claims for the torts of fraud or negligent misrepresentation. Consequently, the claims will be dismissed.
4. Intentional Infliction of Emotional Distress (Count VII)
In Count VII, Steele alleges that Isikoff intentionally engaged in "extreme and outrageous" conduct toward her, and that she suffered "extreme and severe emotional distress" as a result. Am.Compl. ¶¶ 89, 92, 93.
In order to state a claim for the intentional infliction of emotional distress in the District of Columbia, a plaintiff must allege "(1) `extreme and outrageous' conduct on the part of the defendant which (2) intentionally or recklessly (3) causes the plaintiff `severe emotional distress.'" Sere v. Group Hospitalization, Inc., 443 A.2d 33, 37 (D.C.1982) (citing Restatement (Second) of Torts § 46 (1965)), cert. denied, 459 U.S. 912, 103 S.Ct. 221, 74 L.Ed.2d 176 (1982).[11]
*36 As a threshold matter, Steele's emotional distress claim must be dismissed because it suffers from the same failings of causation described in the Court's analysis of her fraud and negligent misrepresentation claims. Steele's emotional distress claim also fails, however, because she has not alleged facts that satisfy all the elements of the tort.
To be "extreme and outrageous" in satisfaction of the first element under D.C. law, the defendant's conduct must "go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community." Sere, 443 A.2d at 37 (citing Restatement (Second) of Torts § 46 (1965)). While Steele alleges in conclusory fashion that Isikoff "acted in an extreme and outrageous manner" and that his "conduct ... is utterly outrageous and intolerable in a civilized society," Am.Compl. ¶¶ 89, 92, she fails to allege facts that support such a conclusion.
Steele claims that Isikoff intentionally misrepresented himself, that he broke his promise of confidentiality, and that he "falsely report[ed] in his articles and television appearances that Ms. Steele had attempted to sell her story to a tabloid." Id. ¶ 90. While this alleged conduct may be contrary to journalistic standards and upsetting to sources like Steele, it does not approach the high "extreme and outrageous" standard required by D.C. law. See, e.g., Smith v. Union Labor Life Insurance Co., 620 A.2d 265, 269-270 (D.C. 1993) (holding that dismissing an employee without following disciplinary procedures is not extreme and outrageous); Adams v. George W. Cochran & Co., 597 A.2d 28, 35 (D.C.1991) (firing an employee for refusing to violate the law is not extreme and outrageous): Waldon v. Covington, 415 A.2d 1070, 1077-1078 (D.C.1980) (holding that defendant's refusal to give plaintiff keys to laboratory, failure to notify plaintiff of departmental meetings, threats of lawsuits, and deliberate efforts to embarrass plaintiff do not meet the legal standard for emotional distress).[12]
Although Steele has deployed the requisite emotional distress buzzwords in her amended complaint, she has not pled facts supporting the conclusion that Isikoff's conduct was "extreme and outrageous." Without such facts, she cannot satisfy the first element of the tort. Because she is unable to satisfy that element, she has failed to state a claim upon which relief can be granted, and the claim will therefore be dismissed.
5. Breach of Fiduciary Duty/Duty of Confidence (Count VIII)
Like her contract claims, Steele's breach of fiduciary duty claim raises general questions about the nature of the relationship between reporter and source as well as specific questions about the relationship between Isikoff and Steele.
The Defendants correctly point out that no court in any jurisdiction has ever recognized the existence of a fiduciary or confidential relationship between a reporter and his or her source. Moreover, the Court notes that the mere existence of a contractual relationship is ordinarily insufficient to give rise to a fiduciary duty. See Church of Scientology Int'l v. Eli Lilly & Co., 848 F.Supp. 1018, 1028 (D.D.C.1994) *37 (citing Don King Prods., Inc. v. Douglas, 742 F.Supp. 741, 769 (S.D.N.Y.1990)).
Notwithstanding the absence of any favorable precedent, Steele counters that the existence of a fiduciary or confidential relationship "is a fact-intensive question, involving a searching inquiry into the nature of the relationship, the promises made, the type of services or advice given, and the legitimate expectation of the parties." Id. (denying public relations firm's motion for summary judgment "even though no Court has ever found there to be a fiduciary relationship between a public relations firm and one of its clients"). On these grounds alone, Steele asserts that her bare allegation that she "entered into a confidential and/or fiduciary relationship wherein Isikoff received Ms. Steele's statements in trust and confidence based both upon his status as a professional journalist and his explicit agreement not to print Steele's statements" permits an inference that such a relationship existed. Am.Compl. ¶ 95.
Although the Court must construe the amended complaint in Steele's favor, it "need not accept inferences drawn by the plaintiff[ ] if such inferences are not supported by the facts set out in the complaint." Kowal, 16 F.3d at 1276. Similarly, the Court need not "accept legal conclusions cast in the form of factual allegations." Id. As the Scientology court observed. "[t]he existence of a fiduciary relationship would depend on whether the parties, through the past history of the relationship and their conduct, had extended the relationship beyond the limits of the contractual obligations." Church of Scientology Int'l, 848 F.Supp. at 1028.
Even if everything that Steele alleges were true, her relationship with Isikoff was simply too fleeting and too superficial to give rise to a fiduciary duty. See Hopper v. Financial Mgmt. Sys., No. 96-456, 1997 WL 31101, *5-*6 (D.D.C. Jan 23, 1997) (granting summary judgment where relationship lacked the "traditional earmarks" of a fiduciary relationship); O'Hearn v. Bodyonics, Ltd., 22 F.Supp.2d. 7, 12 (E.D.N.Y.1998) (dismissing breach of fiduciary duty claim as a matter of law). By her own account, their contact was limited to several short telephone calls and one face-to-face meeting. This limited interaction stands in sharp contrast to the relationship alleged in Scientology, which spanned over two and one half years and entailed the performance of "substantial services" to the client. See Church of Scientology Int'l, 848 F.Supp. at 1023-24. While the client in Scientology entrusted the public relations firm with management of its affairs, Steele has not alleged that she expected Isikoff to advise her or take care of her affairs.
In short, neither of the parties has unearthed any support for the proposition that a reporter-source relationship entails a fiduciary duty and a duty of confidentiality. Even ignoring the absence of such precedent, however, the scope and duration of the relationship between Steele and Isikoff are too limited to give rise to such duties. Because those duties have not arisen in this case, Steele's claim based upon them shall be dismissed.
6. Respondeat Superior, Negligent Hiring and Supervision, and Punitive Damages (Counts IX, X, and XI)
In the last three counts of her amended complaint, Steele asks the Court to find the Defendants derivatively liable for the alleged conduct and resulting harms described in her first eight counts. The Court has already determined, however, that the conduct alleged in the first eight counts does not give rise to any primary liability. Without any primary liability, there can be no derivative liability. Accordingly, each of Steele's derivative claims will be dismissed.
III. Conclusion
For the reasons stated above, the Court has determined that Steele has failed to state a claim for which relief can be granted *38 as to each of the eleven counts of her amended complaint. Therefore, the Court shall grant Defendant's motion to dismiss.
NOTES
[1] Early in the President Clinton's first term, Kathleen Willey served as a volunteer and employee at the White House. See Am. Compl. ¶ 12.
[2] In Cohen, as here, the plaintiff sought damages from a media company that printed his name despite its reporters' assurances of confidentiality. See Cohen, 501 U.S. at 665, 111 S.Ct. 2513.
[3] "A false conflict exists when the laws of the different states are: (1) the same; (2) different but would produce the same outcome under the facts of the case; or (3) when the policies of one state would be furthered by the application of its laws while the policy of the other state would not be advanced by the application of its laws." Greaves v. State Farm Ins. Co., 984 F.Supp. 12, 14 (D.D.C. 1997); see also Long v. Sears Roebuck, & Co., 877 F.Supp. 8, 11 (D.D.C.1995).
[4] Where relevant D.C. law and Virginia law differ, the Court addresses those differences.
[5] The Supreme Court's subsequent review of this reporter-source case provides much of the grist for the constitutional analysis in this case. See supra. The Supreme Court accepted the Minnesota court's determination that reporter-source relationships are not contractual under Minnesota law, but disagreed with the Minnesota court's conclusion that "enforcement of the promise of confidentiality under a promissory estoppel theory would violate defendants' First Amendment rights." 501 U.S. at 667, 111 S.Ct. 2513 (quoting 457 N.W.2d at 205).
[6] Virginia law is the same. See Horton v. Horton, 254 Va. 111, 487 S.E.2d 200, 204 (1997) ("If the initial breach is material, the other party to the contract is excused from performing his contractual obligations.").
[7] As previously noted, the Court has determined that Virginia law applies to Steele's promissory estoppel claim. See supra.
[8] Unlike her contract claims, in which Steele alleges separate breaches of two distinct contracts, Steele's single promissory estoppel claim is rooted in her alleged reliance on Isikoff's general promise of confidentiality. Since she has not alleged two separate instances of promissory estoppel, the Court has not engaged in a two-tiered analysis, as it did in regard to the contract claims.
[9] Like unjust enrichment, promissory estoppel is an "inherently equitable doctrine." Moss v. Stockard, 580 A.2d 1011, 1035 (D.C. 1990). Therefore, although the Court dismisses Steele's promissory estoppel argument for failing to state a claim under Virginia law, the argument would fail under D.C. as well for the reasons set forth in the following discussion of her unjust enrichment claim.
[10] Courts in two other districts have taken the same approach to the issue of causation in fraud claims against media defendants. In Food Lion, Inc. v. Capital Cities/ABC, Inc., 964 F.Supp. 956 (M.D.N.C.1997), aff'd in part and rev'd in part on other grounds, Food Lion, Inc. v. Capital Cities/ABC, Inc., 194 F.3d 505 (4th Cir.1999), two producers from an ABC news program were hired by Food Lion after submitting false employment histories with their job applications. After the producers filmed and broadcast footage of Food Lion's unsavory food-handling practices, Food Lion brought suit for fraud in which it sought to recover lost profits and sales. See Food Lion, 964 F.Supp. at 958. The court determined that "it was the food handling practices themselves not the method by which they were recorded or published which caused the loss of consumer confidence." Id. at 963.
In Frome v. Renner, No. 97 Civ. 5641 (C.D.Cal. Oct. 1, 1997), a physician brought suit after a CBS reporter held himself out as a patient and then broadcast a report in which he claimed that the physician's "methods were `total nonsense.'" Id. at 1-2. The court determined that the plaintiff's harm was not the result of defendant's alleged fraud, but was rather caused by the physician's medical practices. See id. at 4-5. Recognizing that Frome is an unpublished decision issued in another jurisdiction, the Court describes it merely to highlight the consistency of reasoning among these cases.
[11] Virginia's courts hold the tort of intentional infliction of emotional distress in disfavor. See, e.g., Russo v. White, 241 Va. 23, 400 S.E.2d 160, 162 (1991), citing Ruth v. Fletcher, 237 Va. 366, 377 S.E.2d 412, 415 (1989) (remarking that the tort is "not favored in the law" because it does not "provide clear guidance either to those whose conduct it purports to regulate, or to those who must evaluate that conduct"); but see Russo, 400 S.E.2d at 163 (Hassell, J., dissenting) ("Even though the tort ... is a disfavored cause of action, it remains a viable cause of action until it is abolished.").
Notwithstanding their general disfavor, Virginia courts apply the same basic standard as do D.C. courts in evaluating whether a claim exists. See Womack v. Eldridge, 215 Va. 338, 210 S.E.2d 145, 148 (listing elements of the tort: (1) "the wrongdoer's conduct was intentional or reckless," (2) "the conduct was outrageous and intolerable," (3) "there was a causal connection between the wrongdoer's conduct and the emotional distress," and (4) "the emotional distress was severe"). In light of the similarity of the jurisdictions' approaches and Virginia's disfavor for the tort, there is no need to engage in a separate analysis under Virginia law.
[12] In a case decided under Pennsylvania law, a newspaper published the identities of a mother and her children, one of whom was an alleged victim of sexual abuse, despite a reporter's promise of confidentiality. See Morgan v. Celender, 780 F.Supp. 307 (W.D.Pa. 1992). The court, relying on the same Restatement provision that D.C. courts have adopted, held that "the publication of the article ... was not outrageous in character, or so extreme in degree, as to go beyond all possible bounds of decency in a civilized community." Id. at 310.
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47 F.3d 1165
NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.Anthony LAMBERT, Sr.; Marion Knight Lambert; AnthonyLambert, Jr.; Antowin Lambert, Plaintiffs--Appellants,v.ADMINISTRATIVE OFFICE OF THE COURTS, Guardian Ad LitemProgram; Pearlie Dixon; Veola R. Spivey; IleneNelson; Cy Gurney, Defendants--Appellees.
No. 94-2399.
United States Court of Appeals, Fourth Circuit.
Submitted Jan. 19, 1995.Decided Feb. 6, 1995.
Anthony Lambert, Sr., Marion Knight Lambert, Anthony Lambert, Jr., Antowin Lambert, Appellants Pro Se.
Before WILKINS and MICHAEL, Circuit Judges, and SPROUSE, Senior Circuit Judge.
PER CURIAM
1
Appellants appeal the district court's order dismissing their 42 U.S.C. Sec. 1983 (1988) complaint. Appellants' case was referred to a magistrate judge pursuant to 28 U.S.C. Sec. 636(b)(1)(B) (1988). The magistrate judge recommended that relief be denied and advised Appellants that failure to file timely objections to this recommendation could waive appellate review of a district court order based upon the recommendation. Despite this warning, Appellants failed to object to the magistrate judge's recommendation.
2
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. Wright v. Collins, 766 F.2d 841, 845-46 (4th Cir.1985). See generally Thomas v. Arn, 474 U.S. 140 (1985). Appellants have waived appellate review by failing to file objections after receiving proper notice. Accordingly, we affirm the judgment of the district court. 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
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316 F.3d 624
UNITED STATES of America, Plaintiff-Appellee,v.Jeffrey Glenn GALLOWAY, Defendant-Appellant.
No. 01-5299.
United States Court of Appeals, Sixth Circuit.
Submitted October 16, 2002.
Decided and Filed January 17, 2003.
COPYRIGHT MATERIAL OMITTED Roy G. Romo (briefed), Houston, TX, for Appellant.
Charles P. Wisdom, Jr. (briefed), Assistant United States Attorney, Lexington, KY, David L. Bunning (briefed), Assistant United States Attorney, Covington, KY, for Appellee.
Before BOGGS, SUHRHEINRICH, and CLAY, Circuit Judges.
SUHRHEINRICH, J., delivered the opinion of the court, in which BOGGS, J., joined. CLAY, J. (pp. 634-641), delivered a separate dissenting opinion.
OPINION
SUHRHEINRICH, Circuit Judge.
1
Defendant-Appellant Jeffrey Glenn Galloway appeals from the judgment entered on February 27, 2001, in the United States District Court for the Eastern District of Kentucky, of conviction by jury and sentence imposed on three counts arising out of his importation and possession of ecstacy in violation of 21 U.S.C. §§ 841 and 846, and 21 U.S.C. § 952.1
2
Galloway raises three issues on appeal. First, he claims the district court erred when it admitted into evidence statements made by Galloway to a United States Customs Inspector, in violation of Galloway's Fifth and Sixth Amendment rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Second, Galloway claims he is entitled to a new trial because the prosecutor made improper remarks during final argument. Third, Galloway claims his counsel was ineffective because his counsel elicited testimony from Galloway's co-conspirator which tended to inculpate Galloway, since it showed that he generally promotes drug use.2
3
We deny Galloway's claim and affirm on all issues. First and foremost, we hold that Miranda is inapplicable because a secondary customs inspection is a routine, non-custodial detention. Second, the prosecutor's statements, although improper, do not warrant a new trial in the face of the other overwhelming evidence. Finally, ineffective assistance of counsel claims are generally not heard on direct appeal, and the record here is insufficient to permit us to hear the claim.
I. Facts
4
On January 19, 2000, a narcotics canine alerted on a bag at the Greater Cincinnati-Northern Kentucky International Airport in Covington, belonging to Galloway's co-defendant, Kristie Kirsch, who had arrived with Galloway on a flight from Brussels, Belgium. Once Kirsch identified the bag, customs inspectors removed both her and Galloway.
5
Customs inspector Jeffrey Vaughn took Defendants to a secondary inspection area, pursuant to the U.S. Customs Service's authority to search travelers under 19 U.S.C. § 1582.3 Vaughn began his inspection by informing Defendants that a canine had alerted on Kirsch's bag. At this time, Vaughn neither placed Defendants under arrest, nor read them their Miranda rights.
6
Vaughn began his questioning by asking Kirsch why she thought the canine had hit on her bag. She responded that it was because of "those cafes," indicating "dope smoking cafes," more commonly referred to as hash bars. As he searched Defendants' bags, Vaughn turned his questioning to Galloway, and asked him a series of questions, each revolving around the places he had been in Europe. Specifically, Vaughn was trying to ascertain whether Galloway and Kirsch had been to Amsterdam, the Netherlands. In response to these questions, Galloway made several statements denying he had been to Amsterdam.
7
After concluding his questioning of Galloway, Vaughn asked Kirsch for her coat, which he testified felt rather heavy when he picked it up. He removed the lining and found a number of pills, later identified to be the drug ecstacy. Vaughn ceased his questioning and placed Defendants under arrest for importation and possession of an illegal substance.
8
On May 8, 2000, Galloway filed a motion to suppress the statements he had made to Vaughn at secondary inspection, because they were obtained without proper Miranda warnings. Basically, the statements amounted to Galloway denying he had ever been to the Netherlands, even when faced with evidence to the contrary found in his bag, such as Dutch money, merchandise bearing an Amsterdam logo, and train tickets from Brussels to Amsterdam.
9
The district court denied the motion on September 28, 2000, finding that Miranda warnings were not required. The judge reasoned that the secondary inspection was a routine customs inquiry, and as such, not entitled to Miranda protections under United States v. Ozuna, 170 F.3d 654 (6th Cir.1999).
10
Galloway proceeded to jury trial, where Galloway's false denial of traveling to Amsterdam was introduced as evidence of his guilt. Kirsch testified against him in exchange for concessions from the Government.4 Specifically, Kirsch testified that Galloway had hired her as a mule to carry the ecstacy from Amsterdam.5 Galloway's response was that Kirsch was his girlfriend and that he had no knowledge of the drugs she was carrying. The jury convicted Galloway on all three counts and he was sentenced to ninety-seven months.
11
Galloway filed a timely notice of appeal on February 27, 2001, the same day the judgment was imposed, and this matter is properly before this Court.
II. Galloway's Miranda Rights
12
We review a district court's ruling on a motion to suppress through a mixed standard of review. Findings of fact supporting the court's decision are reversed only if they are clearly erroneous. The court's final determination as to the reasonableness of the search is a question of law reviewed de novo. United States v. Harris, 255 F.3d 288, 291 (6th Cir.), cert. denied, 534 U.S. 966, 122 S.Ct. 378, 151 L.Ed.2d 288 (2001); Knox County Educ. Ass'n v. Knox County Bd. of Educ., 158 F.3d 361, 371 (6th Cir.1998). When the district court has denied the motion to suppress, we review all evidence in a light most favorable to the Government. United States v. Garza, 10 F.3d 1241, 1245 (6th Cir.1993).
13
Galloway claims that any statements made by him to Vaughn should be suppressed because they were obtained in violation of Miranda. Miranda warnings are necessary only if the defendant is subjected to a "custodial interrogation." Miranda, 384 U.S. at 477, 86 S.Ct. 1602. Accordingly, Galloway argues that he was "in custody" when Vaughn was performing the secondary inspection.
14
Whether a person is in custody for Miranda purposes is determined by neither the perception of the defendant nor of the police. It is determined by the objective perception of a reasonable man in the defendant's shoes. Stansbury v. California, 511 U.S. 318, 323, 114 S.Ct. 1526, 128 L.Ed.2d 293 (1994). The standard is perhaps best stated another way: "The test must be not what the defendant himself, as a possessor of drugs at the time of his detention, thought, but what a reasonable man, innocent of any crime, would have thought had he been in the defendant's shoes." United States v. McKethan, 247 F.Supp. 324, 328 (1965) (emphasis added); see also Coates v. United States, 413 F.2d 371, 373 (D.C.Cir.1969); United States v. Coleman, 450 F.Supp. 433, 439 (E.D.Mich.1978). We believe the standard is more accurately stated this way because a reasonable guilty person will always perceive his situation as coercive.
15
First, it is necessary to explain the customs procedures to which Galloway was subject. According to the U.S. Customs Service, every passenger who arrives in the United States on an international flight, whether he is a United States citizen, alien, or foreign national, is subject to cursory screening (primary inspection). The passenger is usually asked questions regarding his trip, including the countries he has visited, any merchandise he has brought back, and the value of such merchandise. His answers are checked against his customs declaration form, and usually he is sent on his way. However, a portion of travelers are held over for secondary inspection. An inspector will recommend a traveler for secondary inspection for several reasons — for instance, if the traveler is suspected of carrying narcotics. Moreover, a secondary inspection may be ordered if the inspector suspects a traveler owes customs duties, or has undeclared, commercial, or prohibited merchandise. Furthermore, the U.S. Customs Service has developed a program called Compliance Examination (COMPEX), in which it randomly selects additional travelers for secondary inspection based on no suspicion whatsoever. During secondary inspection, the passenger is asked more detailed questions about his trip and may have his bag and body searched. The procedure lasts a few minutes and if nothing is found, the traveler is free to go. See U.S. CUSTOMS SERVICE, WHY U.S. CUSTOMS CONDUCTS EXAMINATIONS, at http://www. customs.ustreas.gov/travel/examinations.htm [hereinafter Customs Website].
16
Under 19 U.S.C. § 1582, the U.S. Customs Service has the authority to subject every international traveler to a secondary inspection, but it does not do so because resources are limited. See Customs Website. As opposed to jailhouse interrogations and other situations we have held custodial, there is no probable cause required for the Customs Service to detain a traveler for a secondary inspection. See 19 U.S.C. § 1582; cf. Miranda, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (involving defendants already placed under arrest). Its power to search is vested in the voluntariness of the traveler's attempt to re-enter the country. United States v. Ramsey, 431 U.S. 606, 619, 97 S.Ct. 1972, 52 L.Ed.2d 617 (1977); see also United States v. Scheer, 600 F.2d 5, 6 (1979). "[E]vents which might be enough to signal `custody' away from the border will not be enough to establish `custody' in the context of entry into the country." United States v. Moya, 74 F.3d 1117, 1120 (11th Cir.1996).
17
We have held that routine customs inspections are non-custodial and do not require the reading of Miranda rights. In United States v. Ozuna, 170 F.3d 654 (6th Cir.1999), at a routine Canadian border stop, inspectors asked the defendant questions in an attempt to determine his identity. Ozuna lied and presented a false identity. A search of the defendant ultimately produced some drugs, and the statements Ozuna had made were introduced against him. We held the statements admissible because a primary customs inspection is not custodial since all travelers are subject to the same treatment and the reasonable man views it as a cursory requirement of re-entering the country. Id. at 659.
18
The district court found that Ozuna controls here. However, Galloway argues that Ozuna applies only to primary customs inspections, and does not speak to more particularized secondary inspections like the one to which Galloway was subjected. Galloway argues that the accusatorial and focused nature of a secondary inspection goes well beyond what the reasonable traveler would consider routine or non-custodial. However, the fact that an interrogation is not random, but focused on a particular defendant, does not automatically render it custodial. See Oregon v. Mathiason, 429 U.S. 492, 494, 97 S.Ct. 711, 50 L.Ed.2d 714 (1977) (per curiam) (stating "[n]or is the requirement of warnings to be imposed simply because ... the questioned person is one whom the police suspect"); Beckwith v. United States, 425 U.S. 341, 346-47, 96 S.Ct. 1612, 48 L.Ed.2d 1 (1976) (stating it "was the compulsive aspect of custodial interrogation, and not the strength or content of the government's suspicions at the time the questioning was conducted, which led the Court to impose the Miranda requirements with regard to custodial questioning"). The totality of the circumstances must be examined to determine whether there was a "formal arrest or restraint on freedom of movement of the degree associated with a formal arrest." Thompson v. Keohane, 516 U.S. 99, 112, 116 S.Ct. 457, 133 L.Ed.2d 383 (1995).
19
We find no distinction between primary and secondary inspections anywhere in the customs statutes or their regulations. This distinction is merely a functional aspect of the particular nomenclature used by the U.S. Customs Service. As evidenced by the Customs Service's own business practices, the secondary inspection is no less a matter of course and no less routine than the primary inspection. Accordingly, we see no reason not to extend the rule in Ozuna to apply to all customary border stops, primary or secondary.
20
Regardless, Galloway argues that secondary inspection, as it is applied, is coercive because the traveler is not free to leave. However, although we had once stated the Miranda standard as being whether a defendant feels he is free to go, see United States v. Salvo, 133 F.3d 943, 948 (6th Cir.1998), Ozuna demonstrates that this standard is not correct. There, we held that primary inspections are not custodial, although the traveler is not free to go. Ozuna, 170 F.3d at 659.
21
Even if a secondary inspection in general is not custodial, Galloway claims that his particular detention was, because the circumstances surrounding his inspection made it akin to an arrest. However, the questions Vaughn asked Galloway were indicative of a routine customs inquiry, no different than those that would have been asked at primary inspection. Vaughn asked, in order:
22
(1) To which countries did you travel?
23
(2) Did you go to Germany, Amsterdam, or Holland? (3) If you haven't been to Holland, why do you have guilders?6
24
(4) What did you purchase on your trip?
25
(5) Is this sweatshirt with "Amsterdam" written across the front the one you purchased?
26
(6) If you were not in Holland, then why are there train tickets from Brussels to Amsterdam in your bag?
27
We find nothing coercive about this line of questioning. Moreover, Galloway was standing the entire time and in plain view of other travelers, and not taken to a room or another part of the airport.
28
We further find no problem with the length of Galloway's detention. First, the detention was only seven to ten minutes in duration. This seven to ten minutes included not only Vaughn's questioning of Galloway, but of Kirsch as well. Regardless, even if the detention had been longer, we held in Ozuna that a defendant loses his expectation of brevity when he prolongs his non-custodial detention by lying. Ozuna, 170 F.3d at 659. Ozuna lied to customs inspectors about his identity, thereby extending the duration of his detention, while they ascertained his identity. Likewise, Galloway lied to Vaughn about the countries he had visited, thereby exposing himself to the possibility of a longer detention while inspectors searched for the truth.
29
Galloway lastly argues that his particular inspection was custodial because it was initiated by a canine alert. The Ninth Circuit has addressed this issue and found that the existence of probable cause is the determining factor as to when Miranda rights are needed at a secondary customs inspection:
30
We hold that the warning required in Miranda need not be given to one who is entering the United States unless and until the questioning agents have probable cause to believe that the person questioned has committed an offense, or the person questioned has been arrested, whether with or without probable cause. It is at that point, in border cases, that the investigation has "focused" in the Miranda sense.
31
Chavez-Martinez v. United States, 407 F.2d 535, 539 (9th Cir.1969). We also believe this to be the proper standard. A canine alert, however, does not constitute probable cause in a completely random setting, such as an airport, because of its questionable accuracy. United States v. Cook, 904 F.2d 37, 1990 WL 70703, at *5 (6th Cir.1990) (per curiam) (citing United States v. Fernandez, 772 F.2d 495, 498 n. 2 (9th Cir.1985)) (stating that "the mere fact that a dog has `hit' on a piece of baggage or cargo does not, in the absence of any factors supporting its reliability, establish probable cause"). Customs officials could not have arrested Galloway solely on the basis of the canine alert, absent a finding of drugs. Vaughn discontinued the questioning when he found ecstacy in Kirsch's coat. We believe that this is when probable cause existed for an arrest. The Defendants were then arrested and properly read their Miranda rights.
32
Accordingly, even though Galloway may have personally been anxious about his secondary inspection in light of the fact that he was smuggling some 10,000 pills of ecstacy, we find that a reasonable man would have considered it rather routine airport security procedures, not at all akin to an arrest. If we were to require Miranda warnings before the existence of probable cause, we would be requiring every customs inspector to read Miranda rights to each of the thousands of travelers subjected to primary or secondary inspection, even though the detention is often initiated by nothing more than the origin of the traveler's flight, if not totally at random.
33
In sum, we find that the nature of the secondary customs inspection is uncoercive and non-custodial, and remains such unless and until probable cause exists. The vast majority of inspections lead to nothing, even when initiated by a canine alert. The inspector asks routine questions, performs a routine bag and body search and usually sends the traveler on his way. Accordingly, we affirm the decision of the district court and find there was no Miranda violation.
III. Prosecutorial Misconduct
34
Next, Galloway claims he is entitled to a new trial because the prosecutor made improper statements during his closing argument. Galloway's principal defense throughout his trial was that Kirsch acted alone in carrying the ecstacy into the United States; and that she was not merely Galloway's mule as she had testified. Galloway attempted to refute Kirsch's assertion that she was a mule by intimating, through cross-examination of Government witnesses, that had Kirsch been a mule, he would not have accompanied her on the flight and through customs. Instead, he would have sent her alone or watched from a distance. In its closing argument, Government counsel attempted to refute this defense, stating:
35
I have tried several cases myself where we see the mule term, and we have a defendant who claims he or she is a mule, and I have had several cases where, kind of like the bodyguard scenario, where the individual who is responsible for the drugs travels with the individual carrying the drugs.
36
Trial, Nov. 28, 2000 at Tr. 65. Galloway claims this statement is improper because the prosecutor injected his own personal knowledge into the case, and he therefore is entitled to a new trial.
37
When reviewing a claim of prosecutorial misconduct based on improper statements, we employ a two-part test. United States v. Carroll, 26 F.3d 1380, 1387 (6th Cir.1994). The first part of the test is to determine whether the remarks were indeed improper. See United States v. Francis, 170 F.3d 546, 549 (6th Cir.1999); United States v. Krebs, 788 F.2d 1166, 1177 (6th Cir.1986). If they were improper, we must determine if the remarks were flagrant and warrant reversal. Francis, 170 F.3d at 549 (citing Carroll, 26 F.3d at 1388). There are four factors that we utilize to determine if an improper statement was flagrant: 1) whether the statements tended to mislead the jury and prejudice the defendant; 2) whether the statements were isolated or pervasive; 3) whether the statements were deliberately placed before the jury; and 4) whether the evidence against the accused is otherwise strong. See Francis, 170 F.3d at 549-50; Carroll, 26 F.3d at 1385 (citing United States v. Leon, 534 F.2d 667, 679 (6th Cir.1976)). None of these factors is dispositive, but even if we do find the improper statement was not flagrant, we will nonetheless reverse a conviction upon a determination that: 1) the proof of the defendant's guilt is not overwhelming; 2) the defense objected to the statements; and 3) the trial judge did not cure the impropriety through an admonishment to the jury. Francis, 170 F.3d at 550; Carroll, 26 F.3d at 1385-86 (citing United States v. Bess, 593 F.2d 749, 757 (6th Cir.1979)).
38
The only allegation of misconduct before us is the Government's statement during closing arguments. Since a prosecutor cannot express his personal opinions before the jury, his statement tending to give credence to Kirsch's recitation was necessarily improper. See, e.g., Gall v. Parker, 231 F.3d 265, 312 (6th Cir.2000), cert. denied, 533 U.S. 941, 121 S.Ct. 2577, 150 L.Ed.2d 739 (2001).
39
Upon finding that the statement was improper, we must determine whether the statement was flagrant. In utilizing the Leon balancing test, we find the prosecutor's statement was isolated in nature. Galloway raises only one issue of prosecutorial misconduct, and does not allege that the trial was riddled with improper statements. Cf. Gall, 231 F.3d at 312 (stating how prosecutorial misconduct was pervasive at all stages of trial). Moreover, we find no evidence that the statement was deliberate, and we find that it was not made with intent to prejudice the defendant. See Carroll, 26 F.3d at 1389-90 (stating that remark was not deliberate when no evidence existed to indicate otherwise). Accordingly, we find the improper remark was not flagrant.
40
Under Bess, we will reverse the conviction only if: 1) the other evidence is not overwhelming; 2) Galloway objected at trial; and 3) there was no curative admonishment by the judge. See Bess, 593 F.2d at 757. Galloway objected immediately after the prosecutor's statement and the judge sustained the objection, stating: "Sustained. No evidence. Move on." Galloway did not ask for further instruction. We have held that for a curative admonishment to be sufficient, it must be swift and in proportion to the potential harm. See United States v. Solivan, 937 F.2d 1146, 1157 (6th Cir.1991) (indicating that the timing of the admonition is more important than the firmness); see also Bess, 593 F.2d at 757. Here, the judge expressed disapproval of the prosecutor's statement immediately upon the objection. Cf. Solivan, 937 F.2d at 1157 (holding that an admonition that came after a twenty minute break was not swift enough for curative instruction to be sufficient because improper statement had been "etched in granite" in the jurors' minds). Moreover, we find his admonition was sufficiently firm to ameliorate the non-flagrant conduct. Cf. id. Accordingly, we hold this admonition, although brief, satisfies the curative instruction requirement under Bess.
41
Moreover, even without a curative instruction, we find the requirements of Bess are satisfied because the other evidence against Galloway was overwhelming. Galloway paid cash for everything — the airfare, the hotel, and the train — for both himself and Kirsch. Furthermore, he used two travel agents in planning the trip, paying for all arrangements in cash, yet asking each travel agent to indicate that he had paid by check. Also, he had possession of Kirsch's passport, baggage claim stub, and tickets upon their arrival in Cincinnati. Lastly, Galloway repeatedly lied about the fact that he had been to Amsterdam. In total, the evidence against Galloway, notwithstanding the prosecutor's improper statement, is vast.
42
Accordingly, we find that the prosecutor's statement, though improper, does not warrant a reversal of the conviction and a new trial.
IV. Ineffective Assistance of Counsel
43
Next, Galloway claims his counsel was ineffective. He asserts that his counsel caused him prejudice when he questioned Kirsch about Galloway's tattoo because it tended to indicate that Galloway advocates the use of drugs.7
44
We have held that ineffective assistance of counsel claims are generally not heard on direct review. See United States v. Shabazz, 263 F.3d 603, 612 (2001); United States v. Jackson, 181 F.3d 740, 747 (6th Cir.1999). Such issues are usually heard only on habeas petitions under 28 U.S.C. § 2255. United States v. Long, 190 F.3d 471, 478 (6th Cir.1999). We generally do not hear such claims on direct review because, for the most part, the record before us will be insufficient to enable us to entertain the claim, because a successful claim necessarily requires a showing of prejudice, as enunciated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). United States v. Aguwa, 123 F.3d 418, 423 (6th Cir.1997). We find the record in this case no different.
45
Accordingly, we decline to address the issue of ineffective assistance of counsel.
V. Conclusion
46
For the foregoing reasons, we uphold the decision of the United States District Court for the Eastern District of Kentucky, and AFFIRM Galloway's conviction and sentence.
Notes:
1
Ecstacy is the most common street name for the chemical composition 3-4 methylenedioxyamphetamine ("MDMA")
2
Galloway alternatively claims that his counsel was ineffective if he failed to preserve Galloway'sMiranda claim for appellate review. We find this claim moot in light of our analysis of Galloway's Miranda claim on the merits.
3
Section 1582 provides: "[A]ll persons coming into the United States from foreign countries shall be liable to detention and search by authorized officers or agents of the Government under [Treasury] regulations." 19 U.S.C. § 1582
4
Kirsch was allowed to plead guilty to fewer of the charges and received a reduced sentence
5
Kirsch testified that she met Galloway while she was working as a waitress at a topless bar called Treasures, in Houston. She further testified that after she lost her job, Galloway was aware that she needed money and approached her about serving as a mule. She agreed and Galloway paid for all her expenses, including paying for her passport, and buying her airfare, her hotel, and the coat in which she was carrying the ecstacy. Moreover, she countered Galloway's assertion that she was his girlfriend by insisting she was a lesbian
6
The guilder was the basic unit of currency of the Netherlands at the time Galloway was there. The euro has replaced the guilder as the basic unit of currency in the Netherlands as of January 1, 2002
7
Galloway's tattoo contains the concealed inscription "LSD" in an elaborate pattern on his back. Galloway's counsel asked about, and Kirsch testified to, its existenceSee also, supra, note 2.
47
CLAY, Circuit Judge, dissenting.
48
We explained in United States v. Francis that, "[t]o reverse a conviction because of an improper non-flagrant statement, a reviewing court must determine that: 1) the proof of the defendant's guilt is not overwhelming; 2) the defense counsel objected; and 3) the trial court failed to cure the impropriety by failing to admonish the jury." 170 F.3d 546, 550 (6th Cir.1999); see also United States v. Bess, 593 F.2d 749, 757 (6th Cir.1979) (articulating this test). Since the government lacked an "overwhelming" case and the trial court did not offer a curative instruction, I respectfully dissent.
49
The majority amply summarizes the case against Galloway, which, they claim, is "vast." As the majority explains,
50
Galloway paid cash for everything — the airfare, the hotel, and the train — for both he and Kirsch. Furthermore, he used two travel agents in planning the trip, paying for all arrangements in cash, yet asking each travel agent to indicate that he had paid by check. Also, he had possession of Kirsch's passport, baggage claim stub, and tickets upon their arrival in Cincinnati. Lastly, Galloway repeatedly lied about the fact that he had been to Amsterdam.
51
In addition to this evidence, the prosecution also offered the testimony of Kirsch, the woman caught with the drugs. Kirsch told the jury that she worked as Galloway's "mule," or his subordinate responsible for physically carrying narcotics that actually belonged to Galloway.
52
The case has some weaknesses. Kirsch, the government's only witness, had an obvious motive to lie — she exchanged her testimony for a substantially reduced sentence. Customs agents found the drugs on Kirsch, not Galloway. Furthermore, the prosecutors hypothesized that Kirsch worked as Galloway's "mule," meaning that Kirsch carried the drugs (and assumed the risk of arrest) for Galloway. A reasonable person might reach the intuitive conclusion that it would defeat the purpose of the mule-boss relationship if the boss (allegedly Galloway) traveled with the mule (allegedly Kirsch).
53
As quoted above, the majority lists four other pieces of evidence, none of which conclusively establishes Galloway's guilt. First, Galloway paid for Kirsch's tickets and transportation. Galloway, however, claimed that Kirsch was his girlfriend, which could explain his generosity. Second, Galloway had Kirsch's passport, baggage claim stub, and tickets, but it is similarly reasonable that someone might carry various papers for his girlfriend. Third, he paid cash for everything and told the travel agent to indicate that he paid by check. This is genuinely suspicious behavior. Finally, Galloway lied to the customs officials about his trip to Amsterdam. Perhaps he denied visiting Amsterdam because he had used drugs while there and became frightened when airport drug dogs alerted to his luggage. Regardless, his attempt to mislead the customs officials is also clearly suspicious behavior. Taken as a whole, therefore, the government's case consists of Kirsch's highly motivated testimony, corroborated by several instances of suspicious behavior. Under Francis, we must initially ask whether this is "overwhelming" evidence against Galloway. 170 F.3d at 550.
54
To do so, we must first decide what constitutes an "overwhelming" case. Neither the Supreme Court nor any lower court has explained precisely what quantum of evidence is "overwhelming" enough to make prosecutorial misconduct effectively harmless error, at least when combined with an objection and curative instruction.1 Only once, in Berger v. United States (Berger II), 295 U.S. 78, 55 S.Ct. 629, 79 L.Ed. 1314 (1935), overruled in part on other grounds, Stirone v. United States, 361 U.S. 212, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960), has the Supreme Court suggested that an "overwhelming" case might mitigate the problems caused by an improper prosecutorial comment. Id. at 89, 55 S.Ct. 629. Berger thus provides meaningful guidance in our attempt to determine whether the case against Galloway was "overwhelming."
55
In Berger, the indictment charged the defendant, Berger, with having conspired with seven others to utter counterfeit federal reserve notes. Id. at 79-80, 55 S.Ct. 629. The indictment also contained eight additional substantive counts and named other defendants, including Katz, Rice, and Jones. Id. at 80, 55 S.Ct. 629. Katz accepted a guilty plea on the conspiracy count and testified for the government at the trial in exchange for a nolle prosequi on the substantive counts. Id. Berger was convicted only of conspiracy, while his co-conspirators were convicted of the substantive offenses. Id. at 88, 55 S.Ct. 629.
56
According to the Court, the evidence "tended to establish not a single conspiracy as charged but two conspiracies — one between Rice and Katz and another between Berger, Jones and Katz." Id. The only link between the two groups was that each was connected with the same fraudulent notes. Id. There was no evidence that Berger conspired with Rice and Katz. Id. at 80, 55 S.Ct. 629.
57
Katz was the only witness who testified to Berger's alleged role in the Berger-Jones-Katz conspiracy. See United States v. Berger (Berger I), 73 F.2d 278, 279 (2d Cir.1934) (L.Hand, J.) (explaining the facts in greater detail), rev'd by Berger v. United States (Berger II), 295 U.S. 78, 55 S.Ct. 629, 79 L.Ed. 1314. The prosecution also introduced a woman, Goldie Goldstein, to identify Berger as a member of the Berger-Jones-Katz scheme, but when on the stand, she had difficulty doing so. Berger II, 295 U.S. at 86, 55 S.Ct. 629. Reflecting a pattern of "undignified and intemperate" behavior, the prosecutor argued:
58
Mrs. Goldie Goldstein takes the stand. She says she knows Jones, and you can bet your bottom dollar she knew Berger. She stood right where I am now and looked at him and was afraid to go over there, and when I waved my arm everybody started to holler, "Don't point at him." You know the rules of law. Well, it is the most complicated game in the world. I was examining a woman that I knew knew Berger and could identify him, she was standing right here looking at him, and I couldn't say, "Isn't that the man?" Now, imagine that! But that is the rules of the game, and I have to play within those rules.
59
Id. at 86-87, 55 S.Ct. 629 (emphasis in original). Thus, the prosecutor impermissibly claimed to know that Goldstein could identify Berger. Although the Court found that this remark, in light of the prosecutor's other inappropriate comments, warranted reversal, the Court noted that "[i]f the case against Berger had been strong, or, as some courts have said, the evidence of guilt `overwhelming,' a different conclusion might be reached." Id. at 89, 55 S.Ct. 629.
60
Berger does not expressly define "overwhelming," and the above-quoted sentence is really dicta. It is significant, however, that the government's case "depend[ed]... upon the testimony of Katz, an accomplice with a long criminal record." Id. at 89, 55 S.Ct. 629. The Court characterized the government's case as "weak." Id.
61
The presence of corroborating evidence makes the case against Galloway somewhat stronger than the case against Berger, but Berger nevertheless shows the strain the majority places on the word "overwhelming," because both the case against Galloway and the case against Berger depend heavily on questionable accomplice testimony.2 Literally, overwhelming means "overpowering." See WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 1611 (1993). The majority has to contend that the difference between Galloway's case and Berger is the difference between weak evidence and overpowering evidence, which is hard to accept.
62
A look at this Court's prior handling of a similar prosecutorial misconduct cases is also illuminating. Our opinion in United States v. Carroll, 26 F.3d 1380 (6th Cir.1994), involves very similar legal issues to the case now before the Court. In Carroll, the United States tried the defendant for various drug-related offenses. Id. at 1382. Robin Patrick and her husband, David Patrick, were the crucial witnesses. Id. The government's case consisted mostly of their eyewitness testimony, although other witnesses identified the cocaine that the defendant allegedly sold to the Patricks. Id. The prosecutor's closing statement included the following argument:
63
Robin Patrick has already pled guilty. She has not been sentenced. She's facing ten to fifteen years in the penitentiary. If she comes in here and she tells the truth, cooperates fully, the government may, meaning me, make a 5K1 motion, which allows the judge to sentence her ... below the ten to fifteen years....
64
. . . .
65
If she comes in here and lies, that agreement is void. If she comes in here and gets on this witness stand and the judge believes she lied, she's jeopardizing herself further....
66
. . . .
67
I submit to you that Robin and Ritchie Patrick are credible witnesses. I submit to you that no person would jeopardize themselves with this agreement to do anything but tell the truth ....
68
Id. at 1383 n. 2. Defense counsel did not object. In the government's closing, the prosecutor reiterated this argument with respect to both witnesses. Id. at 1383. This time, defense counsel objected, but was overruled. Id. Although the Carroll Court found that the improper statement was not "flagrant," it ordered a new trial anyway because the evidence of the defendant's guilt was not "overwhelming," defense counsel objected to the one of the prosecutor's statements, and the court did not cure the error. Id. at 1390.
69
The government offered only one accomplice against Galloway, whereas prosecutors offered two in Carroll. With an extra witness, one could argue that the Carroll prosecutors had their conviction reversed despite a stronger case than the one against Galloway, particularly since the Carroll prosecutors also had witnesses who identified the cocaine sold by the defendant to the Patricks.
70
Contrast Carroll with another case, United States v. Toney, 161 F.3d 404 (6th Cir.1998), in which we found that an improper prosecutorial remark was non-flagrant and declined to order a new trial because a proper curative instruction followed a defense objection and the evidence was "overwhelming." Id. at 411-12. Toney was prosecuted for participating in a scheme to defraud an insurance provider, Blue Cross, by cashing falsified benefit checks. Id. at 405. The government alleged Toney acted in cahoots with three of her neighbors, Kristen Armstrong, Yvette Petty, and Bridget Reardon. Id. at 405. All of the conspirators participated in receiving or cashing fraudulent benefit checks, along with another neighbor, Deborah Baker. Id. at 405-06. Blue Cross issued some of the benefit checks to Toney for full-time care she claimed to have provided her terminally ill father. Id. at 406. A jury convicted Toney of multiple counts of mail fraud. Id. at 405.
71
At trial, Armstrong testified on Toney's behalf. Id. at 407. Armstrong admitted her own culpability but denied any knowledge of Toney's involvement. Id. Prosecutors attacked Armstrong's credibility by questioning her about inconsistent oral statements she allegedly made to the FBI at the time of her arrest. Id. Specifically, Armstrong was asked whether she had previously told the government that Toney participated in the fraud. Id. Armstrong denied making such statements and the government never presented any evidence otherwise. Id. Nevertheless, in its closing argument, the government made three references to Armstrong's alleged prior statements. Id. at 410. The Toney opinion summarizes the evidence actually presented against the defendant:
72
31 of the 48 fraudulent Blue Cross checks were mailed to Toney and were payable to her
73
4 other checks payable to Baker were also mailed to Toney's home, with Armstrong ultimately receiving and cashing them
74
Toney endorsed and cashed 27 of the 31 checks
75
Toney cashed the checks at either the Viceroy Market, where she incurred a fee, or at various branches of Michigan National Bank, rather than depositing them in her own checking account
76
The 27 checks Toney cashed totaled $77,257.76, and the four she failed to negotiate totaled $37,493.00, the combination being a very large sum of money for undocumented care she provided her father over an eight month period of time (to say nothing of the improbability that her father's insurance would even cover such care)
77
Petty and Reardon knew the scheme was fraudulent and split the proceeds with Armstrong During the time frame of the scheme, a number of large cash deposits were made into Armstrong's account for which there was no apparent source other than the Blue Cross checks payable to Toney
78
Armstrong's excuses for the large cash deposits were not credible, e.g., that drug dealers paid her for letting them use her driveway to sell drugs
79
Blue Cross systematically and electronically included vouchers (describing the subscriber and the provider) with its checks, which contradicts Toney's testimony that no vouchers were attached to any of her checks
80
Toney admitted never having completed any paperwork for the alleged reimbursement and never having provided Armstrong with any details regarding the nature of the care she provided, e.g., the daily hours spent caring for her father or the travel distances to the hospital.
81
Id. at 411-12. We found this case "overwhelming," and thus a new trial unwarranted. Id. at 412. Toney is an "overwhelming" case, Carroll is not, and the case against Galloway is weaker than the case against Carroll, or at least equally thin. The case law suggests, therefore, that the case against Galloway is not "overwhelming."
82
Two other arguments deserve mention. First, logically, "overwhelming" must mean something more than certainty "beyond a reasonable doubt." Otherwise, the first portion of the test, whether "proof of the defendant's guilt is not overwhelming," Francis, 170 F.3d at 550, would be superfluous. One can conceive of a spectrum of sustainable guilty verdicts running from evidence proving guilt "beyond a reasonable doubt" on one end, to "overwhelming" evidence of guilt on the other. Appellate courts do not disturb a guilty verdict if any "rational trier of fact could have found proof of guilt beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 324, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). To keep "overwhelming" evidence analytically distinct from evidence of guilt "beyond a reasonable doubt" (at the other end of the spectrum), it makes sense that an "overwhelming" case is one in which no reasonable jury could acquit.
83
This is certainly not true in Galloway's case. Galloway argued that Kirsch could not possibly have worked as his mule because he traveled with her. Put rhetorically, why would Galloway pay a mule to import drugs from Europe and risk arrest upon reentry, and then accompany the mule, thereby exposing himself to the very risk he paid to avoid? In his closing argument, the prosecutor answered the question himself:
84
I have tried several cases myself where we see the mule term, and we have a defendant who claims he or she is a mule, and I have had several cases where, kind of like the bodyguard scenario, where the individual who is responsible for the drugs travels with the individual carrying the drugs.
85
(J.A. at 225.) The government introduced no evidence establishing the propensity of mules to travel with their bosses. Instead, the prosecutor used his personal experience to annihilate the crux of the defense. Without the prosecutor's testimony, a reasonable jury could have accepted Galloway's theory.
86
Second, due process concerns influence how we define "overwhelming." As the Supreme Court explained in a habeas context, "[t]he relevant question is whether the prosecutors' comments `so infected the trial with unfairness as to make the resulting conviction a denial of due process.'" Darden v. Wainwright, 477 U.S. 168, 181, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974)). To make our test consistent with Darden, the government's case can only be "overwhelming" (and thus precluding retrial) when the defendant's due process rights were not disturbed despite the improper statement. Thus, "[t]he question is whether there is a reasonable possibility that the [inadmissible] evidence complained of might have contributed to the conviction." Fahy v. Connecticut, 375 U.S. 85, 87, 84 S.Ct. 229, 11 L.Ed.2d 171 (1963). Applying this logic, this Court has reversed convictions when we were unable to "conclude that there is no reasonable possibility that the [improper prosecutorial] comments did not contribute to defendant's conviction." See, e.g., United States v. Solivan, 937 F.2d 1146, 1157 (6th Cir.1991).
87
Juries have great confidence in what prosecutors say. Since juries have confidence in the trustworthiness of prosecutors, see Berger II, 295 U.S. at 88, 55 S.Ct. 629, "improper [prosecutorial] suggestions, insinuations, and, especially, assertions of personal knowledge are apt to carry much weight against the accused when they should properly carry none." Id; see also Bess, 593 F.2d at 755 (6th Cir.1979) ("An Assistant United States Attorney purports to represent the People of the United States, and thus carries a special aura of legitimacy about him."). Relying on his own experience, the prosecutor explained that mules do, in fact, sometimes travel with their bosses. If the jury believed him — which is not an unreasonable assumption — then it cannot safely be said that the comment "did not contribute" to Galloway's conviction. Solivan, 937 F.2d at 1157. Whether looking at the dictionary definition of "overwhelming," the case law, or background legal principles, the case against Galloway is sufficient to support a conviction, but not overwhelming.
88
The majority could concede this point, however, yet still justify the decision to affirm because the Francis test only requires reversal (even without overwhelming evidence) if the court failed to cure the impropriety by failing to admonish the jury. 170 F.3d at 550. The majority argues that the trial court "satisfie[d] the curative instruction requirement." The following is the entire relevant exchange, including the court's response after the defense objected to the improper prosecutorial comment:
89
Prosecutor: I have tried several cases myself where we see the mule term, and we have a defendant who claims he or she is a mule, and I have had several cases where, kind of like the bodyguard scenario, where the individual who is responsible for the drugs travels with the individual carrying the drugs.
90
Defense Counsel: I would like to object.
91
Court: Sustained. No evidence. Move on.
92
(J.A. at 225.) The court had an obligation to properly "admonish the jury." Francis, 170 F.3d at 550. The court said only, "Sustained. No evidence. Move on." (Id.) Limiting instructions and sustained objections are different. The court's remark does not appear to be an admonishment or limiting instruction at all.
93
Returning to the dictionary once more, an admonition is "any authoritative oral communication or statement by way of advice or caution by the court to the jury respecting their duty or conduct as jurors, the admissibility or nonadmissibility of evidence, or the purpose for which any evidence admitted may be considered by them." Black's Law Dictionary 49 (6th ed.1990); see also Webster's Third New International Dictionary 28 (1993) (defining "to admonish" as "to indicate duties, obligations, or requisite action to (a person)"). Thus, an "admonition" must have content. It needs to explain to the jury how to handle the improper statement in a manner consistent with the law. In a slightly different context, the Supreme Court explained:
94
Obviously, a limiting instruction can be used to give content to a statutory factor that "is itself too vague to provide any guidance to the sentencer" only if the limiting instruction's own "definitions are constitutionally sufficient," that is, only if the limiting instruction itself "provide[s] some guidance to the sentencer."
95
Shell v. Mississippi, 498 U.S. 1, 3, 111 S.Ct. 313, 112 L.Ed.2d 1 (1990) (quoting Walton v. Arizona, 497 U.S. 639, 654, 110 S.Ct. 3047, 111 L.Ed.2d 511 (1990) (emphasis in original). This makes extremely clear that a limiting instruction must provide guidance, yet the trial court's laconic response provides no guidance whatsoever.3 Cf. Lakes v. Ford, 779 F.2d 1578, 1580-81 (11th Cir.1986) (finding curative instruction inadequate when it only contradicted a mandatory presumption, rather than explaining its importance and applicability).
96
What the majority terms an admonishment was not only unacceptably terse, it was hopelessly ambiguous. The prosecutor's objectionable statement was one sentence long (fifty-four words) and occurred in the midst of a lengthy closing argument. Without greater specificity from the court, the jury may not have understood precisely what warranted the objection. Even assuming the jury knew that the court's statement, "Sustained. No evidence. Move on," meant that they should ignore something the prosecutor said, the jury would not know what to ignore. In Singer v. United States, 380 U.S. 24, 85 S.Ct. 783, 13 L.Ed.2d 630 (1965), the Supreme Court found the trial court's limiting instruction sufficient because the "court's admonitions to the jury seem to have been well designed to cure whatever prejudicial impact some of the prosecutor's remarks may have had." Id. at 36, 85 S.Ct. 783. Since the putative "admonition" in Galloway's trial never identified what the court found objectionable, it could not possibly have been "well designed to cure [the] prejudicial impact" of the prosecutor's remarks. Id.
97
Finally, recall again the language in Francis, which requires that the court "admonish the jury." 170 F.3d at 550 (emphasis added). The court's rebuke was obviously aimed at the prosecutor, not the jury. The court ordered the prosecutor, not the jury, to "move on." The jury undoubtedly heard the court sustain the defense objection, but no one can plausibly claim that the court directed its remark to jurors, which is what Francis requires. See id.
98
I would reverse the conviction. Since there was no admonishment following the defense objection, and the government did not present an overwhelming case, I respectfully dissent. See id.
Notes:
1
Unsurprisingly, the majority neglects to define "overwhelming," which is the pivotal term. Leaving "overwhelming" ambiguous makes disparate application ofFrancis inevitable because courts can employ the language whenever necessary to reach the outcome they desire.
2
Berger is also distinguishable because the prosecutor made several improper statements, although the Court focused on the most important one. The instant case involves the analysis of a non-flagrant prosecutorial remark. To determine flagrancy, this Court considers (1) whether the statement misled the jury or prejudiced the defendant; (2) whether the remark was isolated or part of a series of improper statements, (3) whether the remark was deliberate; and (4) the total strength of the evidence against the accused. Francis, 170 F.3d at 549-50. We only reach the second series of questions (whether the evidence was overwhelming, whether there was an objection, and whether there was a limiting instruction) if the remark was not flagrant. Id. The comments in Berger may have qualified as flagrant, unlike the statement here, but this distinction does not address the strength of the evidence in the respective cases.
3
The majority claims that this Court's opinion inUnited States v. Solivan, 937 F.2d 1146, 1157 (6th Cir.1991), "indicat[es] that the timing of an admonition is more important than the firmness." Solivan does explain that "[b]oth the timing and the firmness of the trial court's admonition are relevant in evaluating whether an admonition has been sufficient to mitigate prejudicial error." Id. Solivan, however, never suggests (as the majority does) that timing is always more important than firmness, or that timing and firmness are the only relevant considerations. See id.
In fact, the "firmness" of an admonishment is difficult to evaluate on appeal because the forcefulness of oral language depends heavily on volume, tone, cadence, facial expression, and so forth. Timing is "relevant," as Solivan says, see id., but not dispositive. In fact, timing matters greatly, but no admonishment, no matter how rapidly delivered, suffices if the instruction lacks the content necessary to appropriately guide the jury's deliberation.
The majority also cites Solivan for the notion that a curative instruction is only adequate if it is swift and proportional to the potential harm. See id. As the majority rightly concedes, the prosecutor's statement was clearly improper and prejudicial, which makes it hard to accept that a five-word snippet devoid of content was proportional to the potential harm.
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89 F.Supp.2d 97 (2000)
Jennifer CIULLA and Lawrence Ciulla, Plaintiffs,
v.
Miles RIGNY, Gen Linsky, and the City of Gloucester, Defendants.
No. Civ.A. 98-10141-WGY.
United States District Court, D. Massachusetts.
March 8, 2000.
*98 James D. Gotz, Robert D. Cohan, Cohan, Rasnick, Myerson & Marcus, LLP, Boston, MA, for Jennifer Ciulla, Plaintiff.
Leonard H. Kesten, Brody, Hardoon, Perkins & Kesten, Boston, MA, for Miles Rigny, Defendant.
MEMORANDUM AND ORDER
YOUNG, Chief Judge.
I. INTRODUCTION
This rather anomalous case would have little significance beyond the litigants and the people of Gloucester, Massachusetts, were it not for the fact that the Court is here compelled to analyze the profound contribution made by the American jury to the very structure and fabric of American law. In this case, the plaintiff, exaggerating the indignity of a search of her person incident to her arrest, sued, claiming that both the scope and location of the search violated her civil rights. Her compelling tale of having been "strip-searched" following a traffic stop earned her a trial by jury. The jury saw through her fabrications with relative ease,[1] but while they were at it, condemned the "location" of the search pursuant to a proper legal charge and awarded the plaintiff $1.00 in nominal damages. The Court then promptly took the dollar away from the plaintiff on the ground that her constitutional right to be free of a search in that location had not been "clearly established" prior to the jury's verdict.
Despite her deceit, the plaintiff now argues that the "provocative role of the lawsuit" in enhancing and establishing the civil rights of the people of Gloucester entitles her to attorneys' fees and costs as the "prevailing" party.
II. BACKGROUND AND PROCEDURAL POSTURE
In August 1996, Jennifer Ciulla ("Ciulla") was pulled over while driving in Gloucester, Massachusetts, by an off-duty police officer, Lieutenant Miles Rigny ("Rigny"). Rigny arrested Ciulla for reckless driving and operating a vehicle after her license had been revoked. Ciulla was transported to the Gloucester Police Department, placed in a holding cell, and searched by a female employee of the Gloucester Police, Gen Linsky ("Linsky"), who was the matron-on-call. In her complaint, during pre-trial proceedings, and at trial, Ciulla took the position that she was ordered by Linsky to "submit to a strip search, against her will." Am. Compl. ¶ 12. Specifically, Ciulla claimed that Linsky required her "to lift and/or remove her clothing, thereby exposing her breasts and genital area to Linsky." Id. ¶ 13. In contrast, Linsky rather diffidently *99 testified that she only asked Ciulla to pull her top away from her body and roll down the top of her shorts a few inches, both with minimum exposure, so that she could be sure Ciulla was not concealing anything in her bra or the waistband of her undergarment[2] (for the purposes of this opinion, a "minimum exposure search"). Linsky then at once backed off.
During a view[3] of the Gloucester police station, the jury observed that there was a glass window that looked in on the holding cell where Ciulla had been searched. On the other side of the window lies a small observation room which, as revealed during trial, is accessible by police officers and never locked.[4] At trial, Ciulla testified that Rigny surreptitiously watched Linsky conduct the purported strip-search through the window. Arguing that the strip-search was unreasonable and Rigny's alleged peeping-Tom act was a further invasion of her liberty, Ciulla asserted claims against Rigny, Linsky, and the City of Gloucester for (i) violations of 42 U.S.C. § 1983, 42 U.S.C. § 1986, and Mass. Gen. Laws ch. 12, § 11I (collectively, the "civil rights claim"); (ii) intentional infliction of emotional distress, and (iii) negligent infliction of emotional distress. See Am. Compl. ¶ 1. Ciulla's husband, Lawrence Ciulla, asserted a claim for loss of consortium. See id.
At the conclusion of a five-day trial, a jury found for Ciulla against Linsky on the civil rights claim. As a basis for their verdict, in response to a special interrogatory, the jury stated that "while we do not credit the testimony of Jennifer Ciulla, the search that was conducted was unreasonable as respects its necessity, manner, or location." Jury Verdict ¶ 1. The jury underlined the word "location." See id. The jury assessed no compensatory damages and only one dollar in punitive damages. See id. The jury rejected all of the other claims. See id. ¶¶ 2-4.
After trial, Linsky filed a motion for judgment notwithstanding the verdict. Determining that prior to the trial it was not clearly established that conducting a minimum exposure search in a location resembling the holding cell in question was constitutionally unreasonable, this Court granted Linsky's motion on the basis of qualified immunity. Despite this Court's ruling, Ciulla here presses her motion for attorneys' fees and costs seeking a total of $87,650.77.
III. WHO PREVAILED?
Both 42 U.S.C. § 1988(b) and Mass. Gen. Laws ch. 12, § 11I authorize the Court to award attorneys' fees and costs to a prevailing party in a civil rights action. A determination of qualified immunity does not prevent a party who otherwise prevailed from obtaining a fee award. See Pulliam v. Allen, 466 U.S. 522, 543-44, 104 S.Ct. 1970, 80 L.Ed.2d 565 (1984); Handy v. Penal Insts. Comm'r of Boston, 412 Mass. 759, 763 n. 4, 592 N.E.2d 1303 (1992). Decisions in the First Circuit have recognized that a plaintiff may through litigation win significant practical relief favorable to her position, and thus "deserve attorneys' fees, even without a formal victory; for example, the so-called `catalyst' theory might justify an award where the defendant abandoned an unlawful practice after the case was brought, as a direct result of the lawsuit. ..." Stanton v. Southern Berkshire Reg'l Sch. Dist., 197 F.3d 574, 577 (1st *100 Cir.1999) (Boudin, J.) (citing Pearson v. Fair, 980 F.2d 37, 43-45 [1st Cir.1992]).[5] Moreover, at least in Massachusetts, courts have determined that a prevailing party may be one who simply prevailed on a "question of law ... of `substantial public interest'" although obtaining no monetary relief. Batchelder v. Allied Stores Corp., 393 Mass. 819, 822, 473 N.E.2d 1128 (1985) (quoting Batchelder v. Allied Stores Int'l, Inc., 388 Mass. 83, 86, 445 N.E.2d 590 [1983]); see also Zurakowski v. D'Oyley, 46 F.Supp.2d 87, 88 (D.Mass.1999) (applying Batchelder as the controlling decision as to Massachusetts law but denying attorneys' fees since the plaintiff prevailed only on a matter of law of no substantial public interest). "Again, the inquiry is a practical one." Stanton, 197 F.3d at 577.
Based on the verdict slip, the Court concludes that the jury here did not believe Ciulla's claim that she was "strip-searched" and found the minimum exposure search unreasonable only because of its location. At its broadest reach, the jury verdict may be read as finding that it is constitutionally unreasonable for police to conduct a minimum exposure search in a "room with a view." At the very least, Ciulla established to the jury's satisfaction that it is constitutionally unreasonable for the Gloucester Police Department to continue conducting such searches in that particular location without at least hanging a shade on the window to the holding cell. Either way, the verdict's significance lies in the fact that the jury deemed an obtrusive search that falls short of a strip search constitutionally unreasonable because of location, a verdict which extends Fourth Amendment protections further than prior federal decisions. See Logan v. Shealy, 660 F.2d 1007, 1014 (4th Cir.1981) (holding unreasonable "a strip search [conducted] in an area exposed to the general view of persons known to be in the vicinity") (emphasis added).
`So what?' argues defense counsel. A jury's decision does not establish "the law" and a jury verdict in itself has no precedential authority. See Howard v. Wal-Mart Stores, Inc., 160 F.3d 358, 359 (7th Cir.1998); Summers v. Watkins Motor Lines, 323 F.2d 120, 123 (4th Cir.1963). It is only the judgment that enters after the jury verdict that carries claim preclusive effect. See Restatement (Second) of Judgments § 13 (1982) ("The rules of res judicata are applicable only when a final judgment is rendered."). And here, as defense counsel points out, the ultimate judgment awards nothing to Ciulla.
In the interesting circumstances of this case, however, defense counsel is quite wrong. "Every legal decision depends upon a melding of the generalized standard with the particular facts at hand. [If i]t is the judge who teaches how the melding is to take place in each individualized instance," 1 William G. Young, John R. Pollets & Christopher Poreda, Massachusetts Evidence § 102.1, at 15 (2d ed. 1998) ("Massachusetts Evidence"), then it is emphatically the jury that gives practical meaning and substance to the generalized standard by "inject[ing] community values into judicial decisions," Note, The Right to a Jury Trial in Complex Civil Litigation, 92 Harv. L.Rev. 898, 898 (1979) and by "`constantly bringing the rules of law to the touchstone of contemporary common sense.'" Commonwealth v. Canon, 373 Mass. 494, 516, 368 N.E.2d 1181 (1977) (Abrams, J., dissenting) (quoting 1 W. Holdsworth, A History of English Law 348-49 [3d ed. 1922]).
"`The American jury must rank as a daring effort in human arrangement to work out a solution to the tensions between law and equity and anarchy.'" H. Ziesel, The American Jury, in Final Report: The American Jury System 72 (Roscoe Pound & American Trial Lawyers Foundation eds. 1977) (quoting the last *101 paragraph in H. Kalvens & H. Zeisel, The American Jury [1966]).
No other legal institution sheds greater insight into the character of American justice.
....
[Indeed a]s an instrument of justice, the civil jury is quite simply the best we have. `[T]he greatest value of the jury is its ability to decide cases correctly.' Joiner, From the Bench, in The Jury System in America 146 (R. Simon ed.1975). We place upon juries no less a task than discovering and declaring the truth in each case. In virtually every instance these twelve men and women, good and true, rise to the task, finding the facts and applying the law as they in their collective vision see fit. In a very real sense, therefore, a jury verdict actually embodies our concept of `justice.'
....
Jurors bring their good sense and practical knowledge into our courts. Reciprocally, judicial standards and a respect for justice flow out to the community. See Patrick Higginbotham, Continuing the Dialogue: Civil Juries and the Allocation of Judicial Power, 56 Tex.L.Rev. 47, 59 (1977). The acceptability and moral authority of the justice provided in these courts rests in large part on the presence of the jury.... It is through this process, where rules formulated in light of common experience are applied by the jury itself to the facts of each case, that we deliver the very best justice we as a society know how to provide.
The jury system proves the wisdom of the Founders in their utilization of direct democracy to temper the potential excesses of the only unelected branch of government. `[T]he jury achieves symbolically what cannot be achieved practically the presence of the entire populace at every trial.' P. D'Perna, Juries on Trial 21 (1984). Through the jury we place the decisions of justice where they rightly belong in a democratic society: in the hands of the governed. One could scarcely imagine that the Founders would have created a system of courts with appointed judges were it not for the assurance that the jury system would remain. In a government `of the people' the justice of the many cannot be left to the judgment of the few. Nothing is more inimical to the essence of democracy than the notion that government can be left to elected politicians and appointed judges. As Tocqueville so elegantly put it, `[t]he jury system ... [is] as direct and as extreme a consequence of the sovereignty of the people as universal suffrage.' 1 A. de Tocqueville, Democracy in America 29 (H. Reeve text 1945). Like all government institutions, our courts draw their authority from the will of the people to be governed. The law that emerges from these courts provides the threads from which all our freedoms are woven. It is through the rule of law that liberty flourishes. Yet, `there can be no universal respect for law unless all Americans feel that it is their law.' Kaufman, A Fair JuryThe Essence of Justice, 51 Judicature 88, 91 (1967) (emphasis in original). Through the jury, the citizenry takes part in the execution of the nation's laws, and in that way each can rightly claim that the law belongs partly to her.
Only because juries may decide most cases is it tolerable that judges decide some. However highly we view the integrity and quality of our judges, it is the judges' colleague in the administration of justicethe jurywhich is the true source of the courts' glory and influence. The involvement of ordinary citizens in a majority of a court's tasks provides legitimacy to all that is decreed. When judges decide cases alone they `are still surrounded by the recollection of the jury.' Tocqueville, supra at 297. Their voices, although not directly those of the community itself, echo the values and the judgments *102 learned from observing juries at work. In reality, ours is not a system where the judges cede some of their sovereignty to juries, but rather where the judges borrow their fact-finding authority from the jury of the people.
In re Acushnet River & New Bedford Harbor: Proceedings re Alleged PCB Pollution, 712 F.Supp. 994, 1004-06 (D.Mass. 1989).
In short, once properly charged, the American jury may boldly go where no judge would dare to tread. In this case, therefore, how better to "clearly establish" the unconstitutionality of the location of this minimum exposure search than by the unanimous verdict of a twelve person[6] American jury, that "most vital day-to-day expression of direct democracy [, that unique but] routine aspect of our civic existence today where citizens are themselves the government"? Massachusetts Evidence, supra at 11. Now that this jury has spoken, the qualified immunity that properly shields Linsky evaporates and the Gloucester Police Department dare not in the future continue minimum exposure searches in this location without some additional privacy safeguards for the prisoner. Thus, in the most intensely practical fashion, Ciulla has secured for the people of Gloucester and others who come in contact with the Gloucester Police Department a greater degree of protection under the Fourth Amendment than has heretofore existed. An American jury has said so.[7]*103
*104 IV. ASSESSMENT OF ATTORNEYS' FEES AND COSTS
Since the jury verdict advances a matter of "substantial public interest" in the manner sought by Ciulla, she may theoretically be entitled to attorneys' fees and costs. By her motion, Ciulla seeks $71,215.00 in attorneys' fees and $16,435.77 in costs. This Court is, however, "obligated to make an independent assessment of what constitutes a `reasonable' award...." Connolly v. Harrelson, 33 F.Supp.2d 92, 95 (D.Mass.1999). Although the Court does not doubt the total number of hours billed in this matter, the hourly rates claimed by Ciulla, $250.00 per hour for lead counsel and $100.00 per hour for associates, cannot be maintained for two reasons. First, this Court's recent analysis of attorneys' fee petitions illustrates that lead counsel's $250 per hour rate, claimed for both in and out-of-court time, is too steep and should be reduced to $200 per hour. See Zurakowski, 46 F.Supp.2d at 89 n. 2 (approving in-court hourly rate of $240.00 for one of the "foremost [civil rights] practitioners" in Massachusetts and noting that rate "ought not be taken as some emerging Massachusetts standard"); Connolly, 33 F.Supp.2d at 96 (approving $200.00 per hour rate in civil rights case); United Cos. Lending Corp. v. Sargeant, 32 F.Supp.2d 21, 23-24 (D.Mass.1999) (approving hourly rates up to $300 per hour only in context of class action).[8] Second, Ciulla's petition *105 does not distinguish between "core" and "noncore" work.[9]See Connolly, 33 F.Supp.2d at 96 ("Typically, noncore work is compensated at two-thirds of the hourly rate for core work."). With these adjustments in mind, the Court determines a reasonable fee award would be, at the most, $56,272.88. The Court does not dispute the calculations that place Ciulla's maximum costs at $16,435.77.
V. BUT SHE LIED ...
This is a case abounding in ironies. Ciulla's trial testimony about the strip search was a deliberate, straight-out, bald-faced lie.[10] Yet, had she told the truth, this Court would have granted Linsky qualified immunity pre-trial, and entered judgment for the defendants. Thus, it is only because of Ciulla's lying that her case ever reached the jury where the verdict developed an important aspect of Fourth Amendment law for the people of Gloucester, certainly a matter of substantial public interest. Absent her lies, this Court would award her attorneys' fees of $56,272.88 and costs of $16,435.77.
Because Ciulla lied, the Court denies her petition and awards her nothing. There are two reasons.
No judicial system can reward legal advances even "good" law of substantial public interestfounded on lies. Since this is an equitable matter Ciulla, in seeking equity, must herself do equity. See Texaco Puerto Rico, Inc. v. Department of Consumer Affairs, 60 F.3d 867, 880 (1st Cir.1995) ("It is old hat that a court called upon to do equity should always consider whether the petitioning party has acted in bad faith or with unclean hands."); K-Mart Corp. v. Oriental Plaza, Inc., 875 F.2d 907, 910-12 (1st Cir.1989) (discussing "venerable maxim" that "he who seeks equity must do equity"). She has not done so. She must lose.
Moreover, the Court denies her petition as an appropriate sanction for her lies. Jury trials are this society's most magnificent expression of direct democracy. Any litigant who can state a claim may have one for a modest filing fee of $150, and even this will be waived for those who cannot afford to pay. See Denton v. Hernandez, 504 U.S. 25, 27, 112 S.Ct. 1728, 118 L.Ed.2d 340 (1992) ("The federal in forma pauperis statute, codified at 28 U.S.C. § 1915, allows an indigent litigant to commence a civil or criminal action in federal court without paying the administrative costs of proceeding with the lawsuit."); see also 28 U.S.C. § 1914 (establishing $150 fee). Trials are not, however, otherwise free. Ciulla's five-day trial cost the American taxpayer $87,500,[11] exclusive *106 of the legal costs of the City of Gloucester which must be borne by its taxpayers. Mendacity in the course of legal proceedings is therefore an appropriate matter for monetary sanctions. See Jones v. Clinton, 36 F.Supp.2d 1118, 1125, 1127 (E.D.Ark. 1999). In this case, denial of this otherwise interesting petition is fully justified on this ground alone.
NOTES
[1] The British author Jerome K. Jerome, who once wrote, "It is always the best policy to speak the truth, unless, of course, you are an exceptionally good liar," must not have contemplated the American jury's knack for detecting even the most talented of liars. Jerome K. Jerome, The Idler's Club, in The Idler, Feb., 1892.
[2] At the time of the search, Ciulla was wearing a bikini bathing suit under a sports outfit consisting of a top and shorts.
[3] The evidentiary status of a jury view is thoroughly discussed in United States v. Gray, 199 F.3d 547, 548-50 (1st Cir.1999) (Coffin, J.).
[4] Ironically, when the jury arrived at the Gloucester Police Department for its view, the door to the holding cell was, for the first time in anyone's memory, actually locked. From the apparent befuddlement of the Police Chief who had to search out a key, however, and the candid admission of counsel, the jury gleaned that the door is normally unlocked.
[5] Some other federal courts have made similar statements. See, e.g., Cartwright v. Stamper, 7 F.3d 106, 109-10 (7th Cir.1993).
[6] Despite the rule permitting six person juries, it would appear that federal civil juries today average from seven to nine persons. See The Judiciary: Budget Estimates for Fiscal Year 2001 (Penultimate Draft) 7.6 (2000). At the recommendation of my colleague, Douglas Woodlock, this Court seats twelve person juries in every case to assure greater diversity and to improve small group decision making. See Richard A. Posner, An Economic Approach to the Law of Evidence, 51 Stan. L.Rev. 1477, 1498 (1999).
[Unfortunately], on this issue the federal judiciary itself appears to have faded from dynamism into stasis in its willingness to accept a diminished, less representative, and thus sharply less effective civil jury, see Judith Resnik, Changing Practices, Changing Rules: Judicial and Congressional Rulemaking on Civil Juries, Civil Justice and Civil Judging, 49 Ala. L.Rev. 133, 137-52 (1997) (decrying the failure of the Judicial Conference to restore twelve-person juries in civil cases); Development in the Law The Civil Jury, 110 Harv. L.Rev. 1408, 1466-89 (1997) (same); see also Michael J. Saks, Small-Group Decision Making and Complex Information Tasks, 26, 30 (Federal Judicial Center 1981), along with curbs on the number of judges devoted to jury trials. Leonidas Ralph Mecham, Optimal Utilization of Judicial Resources (1996) 14 (For the first time in the entire history of the Republic, Congress was notified in 1996 that "[t]he Judicial Conference is considering whether it should ... recommend that [district court judgeships] be eliminated or left vacant.").
Lirette v. Shiva Corp., 27 F.Supp.2d 268, 271-72 n. 3 (D.Mass.1998).
Sadly, the fear expressed above regarding judicial curbs on the number of judges available for jury trials is coming to passand with a vengeance.
[In 1999], the Judiciary recommended to the President and congressional leaders not filling a single existing or future district judgeship vacancy in each of the following courts: District of Columbia, Southern District of West Virginia, District of Delaware, and District of Wyoming.
Leonidas Ralph Mecham, Optimal Utilization of Judicial Resources 22 (2000). This year it appears that judgeships in the Western District of Pennsylvania and the Eastern District of Washington are targeted as well. Letter from Chief Judge Marilyn L. Huff to William G. Young, enclosure 1 (Feb. 25, 2000) (on file with this Court).
[7] It is altogether fitting and proper for this Court to extol the role of the American jury. Indeed, it is vitally necessary to do so because today the American juryguaranteed to our citizens in the Sixth and Seventh Amendments to the Bill of Rights of the United States Constitutionis on the wane, perhaps irretrievably so.
The Twilight of the American Jury?
For some time now circumstantial and anecdotal evidence has been mounting that jury trials are, with surprising rapidity, becoming a thing of the past. Judge Patricia Wald started her recent tribute to Professor Charles Alan Wright with this striking sentence: "Federal jurisprudence is largely the product of summary judgment...." Patricia M. Wald, Summary Judgment at Sixty, 76 Tex. L.Rev. 1897, 1899 (1998). Judge Wald is rightand note the compelling inference that we are today more intellectually concerned with the procedural mechanism that blocks jury trials than we are with the trials themselves. Anecdotally, I recently received a letter from one of Boston's foremost trial attorneys which contained this passage:
When I came to the Bar, there were half as many judges on the [Massachusetts] Superior Court as there are now and [today] there aren't a fraction of the cases being tried as then.
At one time we had over 50 lawyers in this office trying cases practically all the time. Now a jury trial is an event, and that isn't just in this office.... The life I lived is a thing of the past and it is very sad.
Letter from Thomas D. Burns, Esq. to William G. Young (Dec. 16, 1999) (on file with this Court).
This lawyer's lament would be slightly ludicrous if it reflected a society that was turning away from litigation or which, once embroiled in a lawsuit, increasingly utilized alternative dispute resolution to reach settlement short of trial. Yet neither is true. Levels of civil and criminal litigation in the federal courts continue to rise, see William H. Rehnquist, The 1999 Year-End Report on the Federal Judiciary, The Third Branch (Admin. Office of U.S. Courts, Washington, D.C.), Jan. 2000, at 4, and on the civil side the ratio of trials to settlements and pre-trial adjudications remains roughly constant. See Judith Resnik, Trial as Error, Jurisdiction as Injury: Transforming the Meaning of Article III, 113 Harv. L.Rev. 924, 928 (2000) ("Trial as Error").
The simple fact is that, with ever more work to do in the federal courts, jury trials today are marginalized in both significance and frequency.
Hard evidence confirms this observation. Over the ten years concluding in 1999, the number of civil jury trials has declined 26% and the number of criminal trials is down 21%. During the five most recent years in this same period, overall jury trial days went down 12%. See David Williams, Decline In Petit Juror Days, tbl.2. (Sept. 2, 1999) (unpublished Dist. Ct. Admin. Div. document, Admin. Office of the U.S. Courts, Washington, D.C.) ("Decline in Petit Juror Days"). Furthermore, funds budgeted for jurors in the federal system in FY 2000 are expected to decline by nearly 6% for FY 2001 in order to adjust to the declining number of jury trial days. See The Judiciary: Congressional Budget Summary Fiscal Year 2000 at 50 (Feb. 2000).
If this is the national picture, overall jury usage in the District of Massachusetts is in virtual free fall, dropping a stunning 30.6% from FY 1996 to FY 1998 (the eighth steepest drop in the nation out of 94 districts considered). Decline in Petit Juror Days, tbl.1.
I know this much is true.
In Berthoff v. United States, No. 97-10883 (D. Mass. filed Apr. 23, 1997), opinion pending, this Court will necessarily address some of the reasons for this precipitous decline. Nevertheless, it bears repeating here that:
Our willingness as a society to drift away from the use of civil juries reflects a failure in understanding of the jury's essential function in our American democracy. The jury system is direct democracy at work. It is, in fact, the most vital expression of direct democracy in America. Today, it is the New England town meeting writ large, the people themselves governing. In fact, the very processes of our judicial system themselves vindicate and strengthen democracy by involving litigants with standing in the application of our laws. See Christopher J. Peters, Adjudication as Representation, 97 Colum. L.Rev. 312 (1997). Our juries are the ultimate realization of our people working together, under law, to do justice. De Tocqueville recognized with masterful clarity that, in our jury system, Americans had embarked on a stunning experiment in direct popular rule. See Alexis de Tocqueville, Democracy in America, 337-39 (Schocken 1st ed.1961). Studies show that where people have recourse to a jury trial, inequalities in economic resources are minimized, most potential litigants avoid staking out patently unreasonable positions, and the great bulk of cases ultimately settle. Marc Galanter, ViewpointHow To Improve Civil Justice Policy, 77 Judicature 185 (1994).
`Whenever Congress extinguishes a right which heretofore has been vindicated in the courts through citizen juries, there is a cost. It is not a monetary cost. It is a cost paid in rarer cointhe treasure of democracy itself.' Andrews-Clarke v. Travelers Ins. Co., 984 F.Supp. 49, 63 n. 74 (D.Mass.1997).
When people recognize that they have been cut off from their opportunity to govern directly through citizen juries, the sense of government as community, as a shared commonwealth, is severely diminished. Jury service is the citizen's only direct experience of government at the federal level. Severing that shared bond, of course, leaves citizens with their right to vote but, inevitably, as the government draws away from its citizenry, that right seems less valuable. It is not too much to say that, as our government is the ultimate teacher, Louis Brandeis, True Americanism, Brandeis on Democracy, 25, 27 (Philippa Strum ed., 1995), its devaluation of direct citizen participation carries the implicit message that communitarian efforts are simply not worth very much in an age of individual self seeking. See Sam Roberts, Alone in the Vast Wasteland, N.Y. Times, Dec. 24, 1995, at D3.
Nor is this all. As those institutions that empower and reinforce community efforts fray at the edges and fall into desuetude, economic powers to which the law grants an advantage, naturally tend to use that advantage unchecked by the jury's common sense. See Parklane Hosiery Co. v. Shore, 439 U.S. 322, 355, 99 S.Ct. 645, 58 L.Ed.2d 552 (1979) (Rehnquist, J., dissenting).
Lirette, 27 F.Supp.2d at 271-72 n. 3; see Stephen N. Subrin, On Thinking About a Description of a Country's Civil Procedure, 7 Tul. J. Int'l & Comp. L. 139, 150-52 (1999). See generally Andrews-Clarke v. Travelers Ins. Co., 984 F.Supp. 49, 63 n. 74 (D.Mass.1997).
Without juries, the pursuit of justice becomes increasingly archaic, with elite professionals talking to others, equally elite, in jargon the elegance of which is in direct proportion to its unreality. Juries are the great leveling and democratizing element in the law. They give it its authority and generalized acceptance in ways that imposing buildings and sonorous openings cannot hope to match. Every step away from juries is a step which ultimately weakens the judiciary as the third branch of government. See Edward F. Hennessey, Henry Clay & T. Marvell, Complex and Protracted Cases in State Courts (National Center for State Courts 1981). Indeed it may be argued that the moral force of judicial decisions and the inherent strength of the third branch of government itselfdepends in no small measure on the shared perception that democratically selected juries have the final say over actual fact finding.
In re Acushnet River, 712 F.Supp. at 1006 & n. 23.
It is not too much to say that the greatest threat to America's vaunted judicial independence comesnot from any external force but internally, from the judiciary's willingness to allow our jury system to melt away. See Trial as Error supra at 1003.
[8] It is fairly clear that there is a disturbing lack of uniformity in this district in the awarding of attorneys' fees in civil rights cases. One judge simply accepts the hourly rates claimed by counsel, while others consider a melange of factors and ascribe varying weights to each of them. See Remarks of the district judges at the Federal Judicial Forum (Nov. 9, 1999).
Published opinions over the past several years reveal the following data:
Hourly
Case Name Judge Rate
Alfonso v. Aufiero, 66 Saris $250
F.Supp.2d 183, 197
(D.Mass.1999)
Stanton v. Southern Berkshire Ponsor $250
Reg'l Sch. Dist., 28
F.Supp.2d 37, 42
(D.Mass.1998)
Guckenberger v. Boston Saris $325
Univ., 8 F.Supp.2d 91,
105 (D.Mass.1998)
McLaughlin v. Boston Garrity $200
Sch. Comm., 976 F.Supp.
53, 62 (D.Mass.1997)
Morgan v. Gittens, 915 Garrity $300
F.Supp. 457, 461, 470
(D.Mass.1996)
Visiting Nurse Ass'n v. Gertner $345
Bullen, No. 94-10123-NG,
slip op. at 10
(D.Mass. Oct. 2, 1995)
Since attorney fee awards are rarely published, however, this is but a limited review. As predictability and reasonable uniformity are hallmarks of any justice system, a reliable reporter of Massachusetts attorneys' fee awards is a compelling necessity. This is an important challenge to legal publications in this District.
[9] "[C]ore work includes legal research, writing of legal documents, court appearances, negotiations with opposing counsel, monitoring, and implementation of court orders. Non-core work consists of less demanding tasks, including letter writing and telephone conversations." Brewster v. Dukakis, 3 F.3d 488, 492 n. 4 (1st Cir.1993).
[10] This is not an inference drawn from the jury verdict. It is the Court's own finding drawn from presiding over the trial. Attorneys' fee petitions are equitable matters, tried to the court in civil rights cases, see King v. Greenblatt, 560 F.2d 1024, 1027 (1st Cir.), cert, denied 438 U.S. 916, 98 S.Ct. 3146, 57 L.Ed.2d 1161 (1978), so it is both necessary and appropriate to make an explicit finding, see id. ("[I]t would be helpful for the court to set out in the record the basis for the award and any pertinent findings of fact.").
This finding in no way impugns the properly zealous advocacy of Ciulla's attorney, who throughout has acted with commendable professionalism and high ethics. He is, it ought be remembered, her advocate, not her judge. I amat least with respect to this petition.
[11] The average fully-distributed cost of a trial day in a United States District Court today exceeds $17,500. Five trial days at $17,500 per day equals $87,500. The budgetary support for this estimate is set out and fully discussed in In re Prevett, 975 F.Supp. 397, 398-401 (D.Mass.1997).
| {
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} |
322 Md. 719 (1991)
589 A.2d 958
MICHAEL EDWARD CONNELLY
v.
STATE OF MARYLAND.
No. 69, September Term, 1990.
Court of Appeals of Maryland.
May 13, 1991.
Thomas Bernier (Russell J. White, White & Karceski, all on brief), Towson, for petitioner/cross respondent.
Gary E. Bair, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., Jillyn K. Schulze, Asst. Atty. Gen., all on brief), Baltimore, for respondent/cross petitioner.
Argued before MURPHY, C.J., ELDRIDGE, RODOWSKY, McAULIFFE and CHASANOW, JJ., CHARLES E. ORTH, Jr., Judge of the Court of Appeals (retired), Specially Assigned and LLOYD L. SIMPKINS, Judge of the First Judicial Circuit of Md. (retired), Specially Assigned.
MURPHY, Chief Judge.
This case focuses upon the good faith exception to the exclusionary rule first articulated in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984); that case holds that the Fourth Amendment exclusionary rule does not preclude the use of evidence obtained by officers acting in objectively reasonable, good faith reliance on a facially valid search warrant issued by a detached and neutral magistrate but later determined to be unsupported by probable cause. The question before us is whether, under Leon, evidence of illegal lottery and gambling activities seized pursuant to a search warrant, which the State now concedes was not issued upon probable cause, was nevertheless admissible at trial under the good faith exception.
I.
The application for the warrant (with the accompanying affidavit) was submitted by Detectives James Duffey and Gary Pfaff of the Baltimore County Police Department on November 17, 1988. The affiant officers represented that probable cause existed to believe that the laws relating to illegal lottery and gambling, Maryland Code (1957, 1987 Repl.Vol.), Art. 27, §§ 356 through 363, were being violated by Michael Connelly and James Edenton at Connelly's residence and place of business, a video rental store, both of which were located at specified addresses in Essex, Maryland.
After stating the law enforcement experience of each affiant, the application described, in considerable detail, the methodology by which an illegal lottery operation is conducted; that it is "managed in echelons of authority increasing up the ladder with an increasing responsibility of money and work or action held"; that most of the persons involved in these activities were "writers or runners" who make the "street contacts" and accept bets for cash on any three-digit number; that the writer passes "the action collected for the day on to someone up the ladder before a predetermined time or his action will not be accepted"; that the writer may not pass the money collected "up the line" on a daily basis as winning numbers "may be paid by a runner to his customers from a bankroll which is tallied up weekly"; and that, with respect to the three-digit number selection, a wager can be placed "on the outcome of the Maryland State Lottery number or the street number which is derived by the pari-mutuels at a specified horse track."
The affiants next set forth further intricate details of these illegal activities, which involved other persons known as clerks; that clerks tally the amount of money played on the various numbers, and have authority to "lay off" wagers to other organizations; that clerks pass their "work" to the "bank," which keeps a tally sheet on all street runners; and that the bank is in contact with the "backer," who has no contact with the runners, but provides "money for bail or legal counsel to the lower echelon people." The application states that the affiant Duffey knows that the illegal lottery number is based on the State lottery number, which is drawn at 7:30 p.m.
The affiants stated in the application that "[i]n February, 1988," a confidential informant advised that Connelly and Edenton "were conducting illegal gambling activities and were meeting in Connelly's video store ... in the evenings." As a result of this information, the affiants said that "surveillance was conducted on numerous occasions at Connelly's store"; that at approximately 7:25 p.m. on the days "surveilled," Edenton would enter Connelly's store and talk with him; that the two men looked at "sheets of paper"; that on one such occasion, Connelly produced the papers from his coat pocket while, on other occasions, Edenton produced the papers from his pocket and showed them to Connelly; that at 7:35 p.m., Edenton would leave the store but "at no time" did he ever rent or purchase a video tape.
According to further sworn averments in the application, surveillance was conducted on Edenton "Monday through Friday, from 4 p.m. to 7:30 p.m., over several months"; that it disclosed that at 4:30 p.m., Edenton would leave his residence and drive, in a designated order, to a number of different taverns, bars, and garages, stopping only briefly at each; that at one bar, Detective Duffey observed a man ask Edenton for his "winnings," after which Edenton paid the man "from a roll of money in his pocket."
Next, the application outlined that at approximately 6:30 p.m., one Gerald Taylor, a bookmaker with an arrest record, would enter Edenton's residence carrying small pieces of paper; that at 6:40 p.m., one Betty Farmer would enter Edenton's residence, remaining for 20-30 minutes, after which Edenton would drive to the residence of one Larry Short, who also was previously arrested for bookmaking; and that upon leaving this location, Edenton would go to Connelly's video store, arriving before 7:30 p.m. The affiants recited that
"Edenton's daily activities are characteristic of a bookmaker collecting bets and making payoffs during those times consistent with illegal gambling activities. Betty Farmer and Gerald Taylor's daily arrivals at Edenton's house are characteristic of runners in a bookmaking operation. On every occasion Edenton was surveilled driving to Essex, he always arrived at Connelly's residence or video store prior to the Maryland State Lottery number being drawn. Your affiant, Detective Duffey, feels Edenton reports to and works for Michael Connelly, furthering an illegal gambling scheme." (Emphasis in original.)
Finally, the affiants set forth Edenton and Connelly's prior conviction records for bookmaking and gambling, which were known to affiants at the time of their surveillance.
The warrant was executed by the affiants on November 28, 1988, eleven days after its issuance. Incriminating evidence of illegal lottery and gambling was found in Connelly's residence and video store, and he was subsequently charged with multiple violations of the State's lottery and gambling laws.
Prior to trial in the Circuit Court for Baltimore County, Connelly moved to suppress the evidence; he claimed that there was no probable cause to support the issuance of the warrant. He argued that although the affidavit and application for the search warrant was made in November, 1988, it was based on surveillance conducted in February, 1988. He further argued that the "times" and "numerous occasions" described in the affidavit were not specific as to dates and thus could have been in March, April or May, months before the application for the warrant was made. Connelly argued that in these circumstances, the State's reliance on Leon's good faith exception to the exclusionary rule was inappropriate. Not to include the dates when the observations were made, according to Connelly's argument, misled the court and prevented him from "disputing anything that is in the warrant." Connelly made clear that he was not accusing the affiants of perjury, but remarked that the warrant application was "skillfully drawn ... to evade any specificity whatsoever."
In denying the motion to suppress, the court (Buchanan, J.) said:
"It's not a question ... whether or not I would have signed [the warrant]. The question is that under Leon, they go to the magistrate, they get a warrant based on information that really was stale or lacked probable cause, and the magistrate signed it. The magistrate is the one that made the mistake. The exclusionary rule is designed to deter the misconduct of the police rather than punish the errors of the judicial magistrate. I think the good faith exception applies."
Following convictions for possessing lottery tickets, keeping a place for the sale of lottery tickets, and two counts of gambling on a sporting event, Connelly appealed. He again contended that the warrant was invalid and that nothing in Leon permitted the incriminating evidence to be introduced at his trial.
The Court of Special Appeals, in an opinion by Judge Rosalyn Bell, determined that the affidavit was not sufficiently specific to support a finding of probable cause and that it was stale. Connelly v. State, 82 Md. App. 358, 571 A.2d 881 (1990). It said that nothing in the affidavit indicated that the individuals under surveillance were engaged in a continuing enterprise, and that there was a considerable probability that their activities, "given the time lag, were no longer being continued." 82 Md. App. at 364. Moreover, the court agreed with Connelly that because of the vagueness of the warrant application, as to the specific dates of surveillance, he could not attack the warrant's validity in the trial court under Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), to establish that a material omission was made in the affidavit, either intentionally or with reckless disregard for the truth, or show that Connelly was incorrectly identified as the person under surveillance.
As to staleness, the intermediate appellate court, relying upon Peterson v. State, 281 Md. 309, 314, 379 A.2d 164 (1977), cert. denied. 435 U.S. 945, 98 S.Ct. 1528, 55 L.Ed.2d 542 (1978), concluded that because the affidavit supporting the warrant was executed so many months after the time of the affiants' investigatory observations, probable cause was lacking for that reason.
As to Leon, the court held that the trial judge was patently wrong in his determination that that case required, once a magistrate signed the warrant, that there could be no further review of the conduct of the police officers in executing the warrant. The court said that it could not reach a conclusion on the good faith issue because it involved a question of fact which the trial court did not resolve namely, whether the police officers could have harbored a reasonably objective belief in the existence of probable cause, as set forth in the application for the warrant. If they could, the court said, and the good faith exception was therefore applicable, then the search, "despite the lack of specificity and staleness in the warrant, would be valid and the items obtained from the search were properly admitted into court." 82 Md. App. at 366, 571 A.2d 881. Accordingly, the intermediate appellate court, by its mandate, remanded the case to the trial court "for the purpose of conducting a suppression hearing on the availability of the good faith exception." Id. at 369, 571 A.2d 881. If, on remand, the State is found to be entitled to the exception under Leon, the court said that the convictions would stand; if not, the motion to suppress should be granted and Connelly afforded a new trial.
We granted certiorari to consider the significant issue of public importance involved in the case.
II.
As stated by the Supreme Court in Franks v. Delaware, supra, 438 U.S. at 164, 98 S.Ct. at 2680, the bulwark of the Fourth Amendment protection is the Warrant Clause, which requires, absent certain exceptions, that the police obtain a search warrant, based upon a showing of probable cause, before embarking upon a search. In that case, the question before the Court was whether, after a search warrant had been issued, the defendant had a right "to challenge the truthfulness of factual statements made in an affidavit supporting the warrant." Id. at 155, 98 S.Ct. at 2676. In concluding that there was such a right, the Court held that "where the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant's request." Id. at 155-56, 98 S.Ct. at 2676. The Court indicated that if the defendant proves at that hearing, by a preponderance of the evidence, "with the affidavit's false material set to one side, [that] the affidavit's remaining content is insufficient to establish probable cause, the search warrant must be voided." Id.
Because the Fourth Amendment demands a factual showing sufficient to comprise probable cause, the Court said that the showing must be truthful "in the sense that the information put forth is believed or appropriately accepted by the affiant as true." Id. at 164-65, 98 S.Ct. at 2681. As to this, the Court stated "that a warrant affidavit must set forth particular facts and circumstances underlying the existence of probable cause, so as to allow the magistrate to make an independent evaluation of the matter." Id. at 165, 98 S.Ct. at 2681. It would be an unthinkable imposition upon the authority of the magistrate, the Court said, "if a warrant affidavit, revealed after the fact to contain a deliberately or recklessly false statement, were to stand beyond impeachment." Id. The Court declined to extend the rule, however, "beyond instances of deliberate misstatements, and those of reckless disregard," noting that the magistrate is otherwise the sole protection of a citizen's Fourth Amendment rights "where police have been merely negligent in checking or recording the facts relevant to a probable-cause determination." Id. at 170, 98 S.Ct. at 2683.
The Court concluded in Franks that there is "a presumption of validity with respect to the affidavit supporting the search warrant." Id. at 171, 98 S.Ct. at 2684. To mandate an evidentiary hearing, the Court required that the attack on the warrant "must be more than conclusory and must be supported by more than a mere desire to cross-examine." Id. Rather, the Court required "allegations of deliberate falsehood or of reckless disregard for the truth [which] must be accompanied by an offer of proof." Id. The Court said that the allegations "should point out specifically the portion of the warrant affidavit that is claimed to be false; and they should be accompanied by a statement of supporting reasons." Id. "Affidavits or sworn or otherwise reliable statements of witnesses should be furnished, or their absence satisfactorily explained." Id. Continuing, the Court said that "[a]llegations of negligence or innocent mistake are insufficient." Id.
In United States v. Leon, supra, 468 U.S. at 914, 104 S.Ct. at 3416, the Court explained that because reasonable minds may differ as to whether a particular affidavit establishes probable cause, the preference for warrants is most appropriately effectuated by according great deference to a magistrate's determination. Citing the Franks case, the Court stated that the deference accorded to a magistrate's determination of probable cause "is not boundless ... [and] does not preclude inquiry into the knowing or reckless falsity of the affidavit on which that determination was based." Id. It observed that reviewing courts will not defer to a warrant based on an affidavit that does not provide the magistrate with a substantial basis for determining the existence of probable cause; that sufficient information must be presented to the magistrate to allow that official to determine probable cause; and the magistrate's action cannot be a mere ratification of the bare conclusions of others. Id. at 915, 104 S.Ct. at 3416.
The Court emphasized that "the exclusionary rule was designed to deter police misconduct rather than to punish the errors of judges and magistrates." Id. at 916, 104 S.Ct. at 3417. It said that "suppression of evidence obtained pursuant to a warrant should be ordered only on a case-by-case basis and only in those unusual cases in which exclusion will further the purposes of the exclusionary rule." Id. at 918, 104 S.Ct. at 3418. In this regard, the Court questioned whether the exclusionary rule has a deterrent effect when the offending officers "acted in the objectively reasonable belief that their conduct did not violate the Fourth Amendment." Id.
As to the standard of reasonableness, the Court determined that it was an objective, rather than a subjective one, and required that "officers have a reasonable knowledge of what the law prohibits." Id. at 919 n. 20, 104 S.Ct. at 3419 n. 20. Thus, where the officers' conduct is objectively reasonable, the Court said that excluding the evidence would not further the ends of the exclusionary rule in any appreciable way. This is particularly true, the Court said, when an officer acting with objective good faith has obtained a search warrant and acted within its scope. Id. at 920, 104 S.Ct. at 3419. The Court explained that it is the magistrate's responsibility to establish whether the officer's allegations established probable cause, and accordingly an officer cannot be expected to question the magistrate's probable cause determination, or his judgment that the warrant is otherwise technically sufficient. Id. at 921, 104 S.Ct. at 3419. Nevertheless, the Court said that because the officer's reliance must be objectively reasonable, there may be cases where the officer "will have no reasonable grounds for believing that the warrant was properly issued." Id. at 922-23, 104 S.Ct. at 3420.
The Court concluded that suppression was an appropriate remedy (1) if the magistrate, in issuing a warrant, "was misled by information in an affidavit that the affiant knew was false or would have known was false except for a reckless disregard of the truth," or (2) "in cases where the issuing magistrate wholly abandoned his judicial role ... [so that] no reasonably well trained officer should rely on the warrant," or (3) in cases in which an officer would not "manifest objective good faith in relying on a warrant based on an affidavit so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable," or (4) in cases where "a warrant may be so facially deficient i.e., in failing to particularize the place to be searched or the things to be seized that the executing officers cannot reasonably presume [the warrant] to be valid." Id. at 923, 104 S.Ct. at 3421. Thus, as summarized by the Court, 468 U.S. at 926, 104 S.Ct. at 3422, "[i]n the absence of an allegation that the magistrate abandoned his detached and neutral role, suppression is appropriate only if the officers were dishonest or reckless in preparing their affidavit or could not have harbored an objectively reasonable belief in the existence of probable cause." Id. at 926, 104 S.Ct. at 3422.
In Massachusetts v. Sheppard, 468 U.S. 981, 104 S.Ct. 3424, 82 L.Ed.2d 737 (1984), the Court, in commenting upon its holding in Leon, said that the issue was whether the officers reasonably believed that the search they conducted was authorized by a valid warrant, namely, "whether there was an objectively reasonable basis for the officers' mistaken belief." 468 U.S. at 988, 104 S.Ct. at 3428. The Court declined to establish a rule that an officer must disbelieve a magistrate who has just advised him, "by word and by action, that the warrant he possesses authorizes him to conduct the search he had requested." Id. at 989-90, 104 S.Ct. at 3428. See also Malley v. Briggs, 475 U.S. 335, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986).
For purposes of this case, we accept the determination that the warrant was not issued upon probable cause. Accordingly, in the words of Leon, "our good-faith inquiry is confined to the objectively ascertainable question whether a reasonably well trained officer would have known that the search was illegal despite the magistrate's authorization." 468 U.S. at 922 n. 23, 104 S.Ct. at 3420 n. 23.
Peterson v. State, 281 Md. 309, 379 A.2d 164 (1977), cert. denied, 435 U.S. 945, 98 S.Ct. 1528, 55 L.Ed.2d 542 (1978), sets forth the Maryland law regarding stale probable cause. That case involved an application for a search warrant, which alleged facts to establish that the defendant's apartment was used in connection with illicit trafficking in narcotic drugs. The question before the Court was whether probable cause supporting the warrant was stale. In addressing this question, we first referred to State v. Edwards, 266 Md. 515, 295 A.2d 465 (1972). That case recognized that there is probable cause justifying the issuance of a warrant if the affiant "`had reasonable grounds at the time of his affidavit and the issuance of the warrant for the belief that the law was being violated on the premises to be searched, and if the apparent facts set out in the affidavit are such that a reasonably discreet and prudent man would be led to believe that there was a commission of the offense charged.'" 266 Md. at 519, 295 A.2d 465, quoting from Dumbra v. United States, 268 U.S. 435, 441, 45 S.Ct. 546, 548, 69 L.Ed. 1032 (1925). It follows from Edwards, we said in Peterson, that "if the facts set out in the affidavit are `stale,' the affiant would not have reasonable grounds at the time of his affidavit and the issuance of the warrant for the belief that the law was being violated on the premises to be searched." 281 Md. at 314, 379 A.2d 164. In determining whether probable cause may be stale, we adopted the following from Garza v. State, 120 Tex.Crim. 147, 149, 48 S.W.2d 625 (1932):
"The affidavit for a search warrant on probable cause, based on information and belief, should in some manner, by averment of date or otherwise, show that the event or circumstance constituting probable cause, occurred at the time not so remote from the date of the affidavit as to render it improbable that the alleged violation of law authorizing the search was extant at the time the application for the search warrant was made."
Peterson, supra, 281 Md. at 314, 379 A.2d 164.
We observed that there was nothing in the search warrant statute, Maryland Code (1987 Repl.Vol.), Art. 27, § 551, nor in our cases, which required that the facts alleged in the application to establish probable cause must result from observations made within any particular time before the issuance of the warrant. 281 Md. at 315, 379 A.2d 164. We accepted the view that the remoteness of the facts observed from the date of issuance of the warrant is an element to be considered in the probable cause determination. Id. Citing State v. Edwards, supra, we said that failure of the affidavit to state the time of the events relied upon to show probable cause is not conclusive as to whether the premises to be searched probably contained contraband on the date the warrant was issued. Id. at 316, 379 A.2d 164. We concluded, again with reliance upon Edwards, "that the very language of an affidavit, even though not specifying an exact date or time, when taken as a whole, may be indicative of a present violation." Id.
We set forth a number of cases in Peterson to the effect "that where the affidavit properly recites facts indicating activity of a protracted and continuous nature, or a course of conduct, the passage of time becomes less significant, so as not to vitiate the warrant." Id. at 317-18, 379 A.2d 164. Specifically, we noted cases which held that "whether a past probable cause is still continuing at the time of the application for a search warrant is not determined merely by the passage of time; it may also depend on the particular kind of criminal activity involved, the length of the activity, and the nature of the property to be seized." Id. at 318, 379 A.2d 164. Contrariwise, we also delineated the holdings in a number of cases in which the search warrant was found to be invalid because the underlying facts were too remote in time from the date of the affidavit and were not sufficient to show that the criminal activity continued up to or about the time of the issuance of the warrant. Id.
In considering whether probable cause is stale at the time of the application for the search warrant, we enumerated several factors that bear on this issue, i.e., whether the criminal activity was regenerating, the criminal entrenched, and the thing to be seized, while easily transferable, was just as easily replaced. Id. at 321, 379 A.2d 164. Applying these criteria to the drug trafficking involved in Peterson, and taking into account that there was a clear indication "that the activity was continual, a course of conduct regularly followed over a protracted time," we concluded that it was probable that Peterson kept the contraband in the privacy of his apartment, even absent observed activity as to that location during the later stages of police surveillance. We said that when the affidavit is tested in a common sense and realistic fashion, the probable cause, in the circumstances of that case, was not "stale," but existed at a time not so remote from the date of the affidavit as to render it improbable that the alleged violation of the law was extant at the time the application for the search warrant was made. Id. at 322, 379 A.2d 164.
The earlier case of State v. Edwards, supra, involved a search warrant which did not specify any date of the claimed criminal activity for which the search warrant was issued. Even though the affidavit for the warrant did not state the time of the events relied upon to show probable cause, we recognized the existence of the "present tense rule" of interpretation of affidavits for search warrants. 266 Md. at 518, 295 A.2d 465. In this connection, we took cognizance of Supreme Court cases recognizing that search warrants are normally drafted by nonlawyers in the midst of a criminal investigation and, for that reason, elaborate specificity once exacted under common law pleadings is not required. Id. at 520, 295 A.2d 465. It was in this context that we said that an affidavit for a search warrant, "while not specifying in so many words an exact date or time, when taken as a whole may be indicative of a present violation." Id. 281 Md. at 321, 379 A.2d 164.
As earlier indicated, the application for the warrant in this case was detailed and specific as to some averments, but lacked specificity as to the precise dates upon which the affiants conducted their surveillance and made their observations. The affidavit initially focused on information received by the affiants in February of 1988 that Connelly and Edenton were meeting in the evenings in Connelly's video store in furtherance of described illegal lottery and gambling activities. The affidavit thereafter stated that surveillance was conducted "on numerous occasions" at the store and it chronicled a continuous relationship between Connelly and Edenton involving illegal gambling, with Edenton regularly coming to the store immediately prior to the 7:30 p.m. time that the state lottery number was drawn.
The affidavit then focused upon Edenton's activities, stating that over a period of "several months," he was observed from 4 p.m. to 7:30 p.m. These activities described an ongoing pattern of contacts between Edenton and other named individuals which was highly suggestive of an illegal gambling and lottery enterprise based at Connelly's store; that the timing of these daily contacts was related to Edenton's later "same-day" visits to Connelly's store; and that the persons involved in these activities had criminal records for illegal gambling (this being an element to be considered in the probable cause determination, see Gatewood v. State, 244 Md. 609, 616, 224 A.2d 677 (1966)).
There is no "bright-line" rule for determining the "staleness" of probable cause; rather, it depends upon the circumstances of each case, as related in the affidavit for the warrant. See, e.g., United States v. Hernandez-Escarsega, 886 F.2d 1560 (9th Cir.1989), cert. denied, ___ U.S. ___, 110 S.Ct. 3237, 111 L.Ed.2d 748 (1990) (probable cause not stale where last event occurred almost one year before the warrant issued, but where there was evidence of protracted criminal activity); United States v. Craig, 861 F.2d 818 (5th Cir.1988) (where affidavit described criminal activity of long standing, information need not be regarded as stale even if fairly long periods of time have elapsed between information and the issuance of the warrant). See also Andresen v. Maryland, 427 U.S. 463, 96 S.Ct. 2737, 49 L.Ed.2d 627 (1976), aff'g 24 Md. App. 128, 331 A.2d 78 (1975) (rejecting the argument that the information on which the affidavits was based was stale because of a three-month delay in the application for the search warrant).
These cases recognize, as we held in Peterson and Edwards, that the language of the affidavit, even though failing to specify exact times or dates, may be indicative of a present violation when the affidavit is considered in its entirety. It is possible to read the affidavit in this case as presenting stale probable cause, as the Court of Special Appeals concluded. It is also possible to determine that the affiants, in preparing the affidavit, and relating their investigatory observations, were describing a continuing criminal enterprise, ongoing at the time of their application, and thus the probable cause relied upon was not stale. That their affidavit was not prepared with lawyer-like precision does not, of course, disentitle the affiants to the benefit of Leon's good faith exception. On the other hand, in applying Leon's objectively reasonable good faith test, the affiants are deemed to be reasonably well-trained police officers with some knowledge "of what the law prohibits." Leon, supra, 468 U.S. at 919, n. 20, 104 S.Ct. at 3419, n. 20. Thus, as Leon holds, because the officer's reliance on the warrant must be objectively reasonable, there will be cases where the officer "will have no reasonable grounds for believing that the warrant was properly issued." 468 U.S. at 922-23, 104 S.Ct. at 3420.
In his motion to suppress, Connelly did not claim that the affiants made false statements, either intentionally or with a reckless disregard for the truth. Rather, he suggests that it was the affiants' purpose, by not including the specific dates of their surveillance, to affirmatively mislead the magistrate into believing that at the time they sought the warrant, in November of 1988, probable cause existed to believe that criminal activity was then ongoing and that evidence of the crime would be found in Connelly's residence and video store. Given these circumstances, Connelly argues that the affiants could not have harbored an objectively reasonable belief in the existence of probable cause, as required by Leon, because the affidavit was so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.
As Connelly did not request a hearing pursuant to the procedure authorized by Franks v. Delaware, supra, and thereby create an evidentiary record with respect to the claimed misrepresentation of the affiants, we are limited to the affidavit itself in determining the applicability of the Leon good faith exception. Even though the warrant was found to be invalid by the intermediate appellate court on staleness grounds a conclusion with which we do not take issue nevertheless, as the cases reflect, considerations of staleness of probable cause turn on the circumstances of each particular case, and reasonable minds may differ as to the correct determination. Accordingly, applying Leon's objective test in this case, we think that the officers, exercising professional judgment, could have reasonably believed that the averments of their affidavit related a present and continuing violation of law, not remote from the date of their affidavit, and that the evidence sought would likely be found at Connelly's store and at his residence.
As application of the good faith exception to the allegations of the affidavit presents an objectively ascertainable question, it is for the appellate court to decide whether the affidavit was sufficient to support the requisite belief that the warrant was valid. See Leon, supra, 468 U.S. at 926, 104 S.Ct. at 3422; United States v. Craig, supra, 861 F.2d at 821. Thus, the remand to the trial court ordered by the Court of Special Appeals in this case to decide, as a question of fact, whether the affiants acted in good faith in believing that probable cause existed, was not appropriate. Consequently, we hold that the evidence seized by the officers from Connelly's video store and residence was properly admitted at his trial and that his convictions must be affirmed.
JUDGMENT OF THE COURT OF SPECIAL APPEALS VACATED; CASE REMANDED TO THAT COURT WITH DIRECTIONS TO AFFIRM THE JUDGMENTS OF THE CIRCUIT COURT FOR BALTIMORE COUNTY. COSTS IN THE COURT OF SPECIAL APPEALS AND IN THIS COURT TO BE PAID BY THE PETITIONER, MICHAEL EDWARD CONNELLY.
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317 B.R. 796 (2004)
In re COAST GRAIN COMPANY, Debtor.
Greg Braun, Chapter 11 Plan Agent, Plaintiff,
v.
Bouma Dairy, B & G Hay Co., Fisher Ranch, Charlie Tadema and Bootsma Calf Ranch, Defendants.
Bankruptcy No. 01-19647-B-ll, Adversary No. 03-1466-B.
United States Bankruptcy Court, E.D. California, Fresno Division.
December 9, 2004.
*798 John P. Eleazarian, Fresno, CA, for Debtor.
FINDINGS OF FACT AND CONCLSIONS OF LAW RE MOTIONS FOR SUMMARY JUDGMENT
W. RICHARD LEE, Bankruptcy Judge.
Coast Grain Company ("Coast Grain") was a merchant that sold livestock feed products on open account to customers in the agricultural livestock and dairy industries. Coast Grain's customers frequently carried large "prepaid" credit balances in their accounts. As the customers purchased feed products, the resulting charges were debited against the prepaid accounts. This adversary proceeding tests (1) whether a trustee can collect those accounts receivable, for sales made within 90 days before commencement of the bankruptcy, by avoiding the sales as preferential transfers; and (2) whether the customers with prepaid accounts are protected by the doctrines of setoff and recoupment. It is the court's conclusion that Coast Grain's accounts receivable cannot be collected through preference avoidance actions, and setoff and recoupment are not applicable to the facts of this case. *799 Plaintiff, Greg Braun, was formerly the chapter 11 trustee and now serves as the "Plan Agent" under Coast Grain's confirmed chapter 11 plan. The Plan Agent has all of the rights and powers of a trustee under the Bankruptcy Code, including the power to collect and liquidate Coast Grain's assets and to prosecute preference avoidance actions. Defendant Bouma Dairy ("Bouma") was a customer of Coast Grain and a participant in Coast Grain's "prepayment" program.[1] This adversary proceeding is one of dozens of "preference" actions filed by the Plan Agent that share one common element: the defendants made substantial "prepayments" to Coast Grain in anticipation of purchasing future goods and services.[2]
Bouma's motion for summary judgment, and the Plan Agent's counter-motion, are both focused on Bouma's preference defenses. They were argued on August 26, 2004. On October 20, 2004, the court heard further argument on the issue of whether goods and services purchased by Bouma, and charged against Bouma's prepaid account should actually be treated as avoidable setoffs under 11 U.S.C. § 553(b).[3] Riley C. Walter, Esq, and Justin D. Harris, Esq, of Walter Law Group and Christina R. Pfirrman, Esq, of Drummond & Associates appeared on behalf of the Plan Agent. Michael D. May, Esq, in association with Burd and Naylor, appeared on behalf of Bouma Dairy, et al.
The court has jurisdiction over these matters pursuant to 28 U.S.C. § 1334 and 11 U.S.C. §§ 547 and 553. This is a core proceeding pursuant to 28 U.S.C. §§ 157(b)(2). For the reasons set forth below, Bouma's motion for summary judgment on the "ordinary course of business" and recoupment defenses will be denied. The Plan Agent's counter-motion for summary judgment will be granted in part.
Findings of Fact
The following facts appear to be without material dispute. For more than 60 years, Coast Grain was in the business of buying, processing and selling grain and other livestock feed products to the agricultural industry. Most of Coast Grain's business involved the sale of processed feed to dairies located in Arizona, Southern and Central California.
Bouma Dairy purchased its livestock feed products from various venders, including *800 Coast Grain, on open account. Bouma had been doing business with Coast Grain for more than 50 years and had participated in Coast Grain's prepayment program for at least 15 years prior to the bankruptcy. On or about December 29, 2000, Bouma delivered a "prepayment" check to Coast Grain in the amount of $1,630,000. Coast Grain deposited the check in its general operating account and debited its cash account. Coast Grain applied $65,872.71 of the money to pay off the outstanding debit balance in Bouma's account. The remainder of Bouma's payment, $1,564,127.29 was credited to a "deferred feed sales" account. That entry resulted in a simultaneous credit to a "prepaid" account which reflected Coast Grain's liability to Bouma.
There was a general "understanding" between Coast Grain and Bouma, based on their prior business relationship, that any products or services subsequently sold to Bouma would be debited against the prepaid account. However, the terms of that understanding were nonspecific and were never reduced to writing. At the time the check was delivered, Bouma had one outstanding contract with Coast Grain, dated August 1, 2000, for the purchase of feed; $392,000 of rolled corn to be delivered between October 1, 2000 and September 30, 2001. There is no evidence in the record to show how much, if any, of this contract remained to be performed within the last 90 days before commencement of the bankruptcy. Bouma did not contract for the purchase of additional feed products in conjunction with the prepayment. Most of the dairy feed Bouma purchased from Coast Grain during 2001 was by "spot market" sale, i.e., each purchase contract was entered into at the time of the sale and delivery.
For several years prior to commencement of the bankruptcy, as an incentive to encourage participation in the prepayment program, Coast Grain also accommodated requests from its "prepay" customers to send money to the customer's third-party vendors. These third-party payments were debited against the customers' prepaid accounts as were the sales of product. Co-defendants B & G Hay Co., Fisher Ranch, Charlie Tadema and Bootsma Cattle Ranch, were third-party creditors of Bouma who received these third-party payments from Coast Grain within 90 days before commencement of the bankruptcy case.
From January to November 2001, Coast Grain sold $727,226 of products to Bouma. Within 90 days before the bankruptcy filing, Coast Grain debited $101,844.98 from Bouma's prepaid account for products sold to Bouma during the same period. From April through August 2001, Coast Grain also issued 17 third-party payments, totaling more than $900,000 to Bouma's creditors. These third-party payments were debited against Bouma's prepaid account, which reduced Coast Grain's liability to Bouma.
On or about August 25, 2001, Coast Grain gave notice to Bouma that it was terminating the prepayment program, that it would no longer debit purchases of dairy feed against Bouma's prepaid account, and that it would no longer distribute thirdparty payments (the "Prepay Termination"). At that time, Bouma's prepaid account had an unused credit balance of $68,693.99. Notwithstanding the Prepay Termination, Bouma continued to purchase dairy feed from Coast Grain both before and after commencement of the bankruptcy. In a declaration submitted in support of Bouma's motion, Bouma's managing partner John Schoneveld, acknowledged that these purchases were made with the intent of exercising Bouma's right of offset *801 against the unused prepaid account.[4] By December 1, 2001, by Mr. Schoneveld's calculation, the prepaid account had been fully offset and Bouma owed a "difference" of $3,711.28 to Coast Grain, which Mr. Schoneveld tendered with a check. Bouma did not file a proof of claim for any portion of its prepaid account.
On October 17, 2001, an involuntary chapter 11 petition was filed against Coast Grain. An order for relief was entered on November 28, 2001. Greg Braun was appointed as the chapter 11 trustee in March 2002. The Trustee's Third Amended Chapter 11 Plan was confirmed on October 28, 2003, and Greg Braun was appointed to serve as the Plan Agent.
Issues Presented
The Plan Agent seeks to avoid and recover the sales of dairy feed and thirdparty payments made within 90 days before the bankruptcy, and debited against Bouma's prepaid account, as preferential transfers pursuant to §§ 547 and 550. Bouma has asserted the traditional "preference" defenses and now moves for summary adjudication of the "ordinary course of business" defense under § 547(c)(2). A significant amount of the briefing and oral argument in this adversary proceeding has been focused on the preference defenses. The threshold issue which the court must address is whether the Plan Agent can collect Coast Grain's accounts receivable as preferential transfers.
Bouma also asserts the defense of setoff and the equitable doctrine of recoupment. Bouma moves for summary adjudication of its recoupment defense. In his countermotion, the Plan Agent asks for a ruling against Bouma on both the setoff and the recoupment defenses.
Summary Judgment Standard
Summary judgment is appropriate, "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. A summary judgment, interlocutory in character, may be rendered on the issue of liability alone, although there is a genuine issue as to the amount of damages." Fed. R.Civ.P. 56(c) (made applicable in this adversary proceeding by Fed. R. Bankr.P. 7056).
A material fact is one that might affect the outcome of the suit under the governing law and irrelevant or unnecessary factual disputes will not be considered in a motion for summary judgment. Anderson, et al. v. Liberty Lobby, Inc., et al, 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
The moving party bears the burden of showing that there is no genuine dispute as to each issue of material fact. Celotex Corporation v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2554, 91 L.Ed.2d 265 *802 (1986). However, the party adverse to a motion for summary judgment cannot simply deny the pleadings of the movant; the adverse party must designate "specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). More precisely, "[i]t is not enough that the nonmoving party point to disputed facts; rather, they must make a sufficient showing to establish the existence of a triable issue of material fact as to an element essential to the moving party's case." In re Powerburst Corporation, 154 B.R. 307, 309-310 (Bankr.E.D.Cal.1993), citing Lake Nacimiento Ranch v. San Luis Obispo County, 830 F.2d 977, 979-980 (9th Cir.1987), cert, denied 488 U.S. 827, 109 S.Ct. 79, 102 L.Ed.2d 55 (1988).
The parties may use summary judgment to dispose of all or any part thereof the opponents claim or cross claim. Fed. R.Civ.P. 56(a) & (b). The court may sua sponte grant summary judgment in favor of a nonmoving party as long as the moving party was provided a "full and fair opportunity to ventilate the issues in the motion." United States v. Real Property Located at via Dona Christa, Valencia California, 138 F.3d 403, 407, n. 4 (9th Cir.1998) citing Cool Fuel, Inc. v. Connett, 685 F.2d 309, 311 (9th Cir.1982). The filing of a formal cross-motion is not necessary. Local 453, International Union of Electrical, Radio & Machine Workers, AFL-CIO v. Otis Elevator Company, 314 F.2d 25, 27 (2d Cir.1963).
Analysis and Conclusions of Law
Coast Grain's Accounts Receivable Were Not Preferential Transfers Because They Are Independently Enforceable Obligations
The one factor which distinguishes this case from a typical preference dispute is that the traditional debtor/creditor sequence has been reversed. Bouma was a customer of Coast Grain, not a vendor. Bouma became a creditor of Coast Grain when it prepaid a significant amount of money to its open account, far in advance of the contractual commitments for the goods and services that were subsequently debited against Bouma's account. Coast Grain deposited the prepayments into its general operating account and carried a credit account balance for Bouma on its books and records. It is undisputed that Bouma's prepaid account represented a liability for Coast Grain and a claim for Bouma. It is also undisputed that each subsequent shipment of products to Bouma generated an "account receivable" for Coast Grain and a claim against Bouma. Similarly, each third-party payment which Coast Grain issued at Bouma's request resulted in a claim for contractual or equitable reimbursement, another form of account receivable that could be enforced against Bouma.
The rights which Coast Grain acquired in each of these transactions are markedly different from the rights which the Plan Agent may exercise pursuant to his bankruptcy avoiding powers. For example, each of the accounts receivable is independently enforceable under California law, without regard to any statutory provisions of the Bankruptcy Code. Each of Coast Grain's accounts receivable came into existence prior to commencement of the bankruptcy case, and they became assets of the bankruptcy estate upon commencement of the case. § 541(a)(1). By contrast, a trustee's statutory avoiding powers do not come into existence until commencement of the case, and they do not generate any property for the bankruptcy estate until the trustee successfully recovers something. § 541(a)(3). A preferential transfer results in diminution of the estate to the detriment of creditors. Hansen v. MacDonald Meat Company (In re Kemp Pacific Fisheries, Inc.), 16 F.3d 313, *803 316 (9th Cir.1994); citing Barnhill v. Johnson, 503 U.S. 393, 398, 112 S.Ct. 1386, 118 L.Ed.2d 39 (1992). A transfer which creates an equivalent account receivable, or other form of contract right, does not diminish the estate. DuVoisin v. Foster (In re Southern Industrial Banking Corporation), 48 B.R. 306, 309 (Bankr. E.D.Tenn.1985). An action founded on the trustee's avoiding powers is a core proceeding over which this court has jurisdiction to enter a final judgment. 28 U.S.C. § 157(b)(2)(F). Conversely, "actions to collect prepetition accounts receivable are straightforward Marathon [Pipeline] type contract actions and are, thus, not core proceedings." 1 Collier on Bankruptcy, (15th ed. rev.) ¶ 3.02[4], pg. 3-44. The bankruptcy court's jurisdiction to enter a final judgment in a non-core proceeding is subject to the defendant's consent. 28 U.S.C. § 157(c). An action to enforce a bankruptcy avoiding power must be filed within the time proscribed in § 546(a) of the Bankruptcy Code. An action to enforce a contract right under State law must be filed within the time proscribed by State law, which could exceed the limitation in § 546. 11 U.S.C. § 108(a).
To prevail on a preference claim under § 547, the Plan Agent must establish five elements. The disputed transaction must involve a transfer of property of the debtor (1) to or for the benefit of a creditor; (2) for or on account of an antecedent debt owed by the debtor before the transfer was made; (3) made while the debtor was insolvent; (4) made within 90 days before the commencement of the bankruptcy; and (5) that enabled the creditor to received more than the creditor would have received in a chapter 7 if the transfer had not been made. § 547(b). There is a rebuttable presumption that the debtor was insolvent during the "preference period," specifically the last 90 days before commencement of the bankruptcy. § 547(f). The Plan Agent cannot satisfy the second element of a preference claim when the transfer of property was made in exchange for an obligation that is independently enforceable under nonbankruptcy law, such as an account receivable, or a promissory note. The transfer was not "for or on account of" an antecedent debt. Southern Industrial Banking, 48 B.R. at 308.
In Southern Industrial Banking, the defendant, Foster, purchased four "investment certificates" from the debtor for $400,000. The investment certificates matured in 12 weeks and accrued interest of $66,000. About six weeks before the certificates matured, the debtor made a loan to Foster in the amount of $480,956.02, evidenced by a promissory note. The promissory note matured on the same day as the investment certificates. It was collateralized by an assignment of the investment certificates and by "the right of offset against [Foster's] deposit accounts...." SIBC filed for chapter 11 bankruptcy protection before either obligation came due. When the loan did mature, Foster tendered to SIBC the investment certificates plus a check for $14,956.02 which was the difference between the obligations due on the promissory note and the investment certificates. A chapter 11 trustee was subsequently appointed in the case. The trustee returned Foster's check, rejected the setoff demand, and filed an adversary proceeding to avoid the "loan" to Foster as a preferential transfer. Foster argued that the transaction involved a collateralized loan and asserted his right of setoff under § 553.
Addressing first the "collateralized loan" issue, the bankruptcy court observed,
"The transfer was not in payment of SIBC's existing, antecedent debt under the investment certificates. Rather, the transfer was made in exchange for present *804 consideration in the form of defendant's promissory note.... '[T]he mere exchange of property of equal value within the 90 days preceding bankruptcy does not constitute a preference.' [citation omitted.] ... Here the loan transaction was an exchange of property which in no way diminished the debtor's estate. As such, it does not amount to an avoidable preferential transfer under § 547(b)."
Southern Industrial Banking, 48 B.R. at 308-09.
The bankruptcy court in Southern Industrial Banking concluded that the loan obligation was not avoidable under § 547. Neither was the loan eligible for setoff against the investment certificates pursuant to § 553(a)(3) because the loan was made within 90 days before commencement of the bankruptcy for the purpose of obtaining a right of setoff against the debtor.[5] In support of this result, the court looked to the express terms of the promissory note and security documents which matured on the same date as the investment certificates, and which expressly contemplated repayment of the note through assignment of the certificates. Further, Foster admitted in his responsive pleadings that be intended to repay the promissory note with the proceeds of the investment certificates.
In the end, the trustee prevailed against Foster, but not on a preference theory the trustee prevailed because Foster owed an obligation to SIBC, evidenced by a matured promissory note, which Foster could not offset against SIBC's obligation under the investment certificates.
The Fifth Circuit Court of Appeals looked at the preference versus setoff issue and reached essentially the same result in Braniff Airways, Inc. v. Exxon Company, U.S.A. (In re Braniff Airways), 814 F.2d 1030 (5th Cir.1987). The doctrine of setoff allows mutual debts to cancel each other. "These debts may arise either from separate transactions or a single transaction but must be incurred prior to the filing of a bankruptcy petition." Sims v. United States Department of Health and Human Services (In re TLC Hospitals, Inc.), 224 F.3d 1008, 1011 (9th Cir.2000), citing 5 Collier on Bankruptcy, (15th ed. rev.) ¶ 553.10, pg. 553-100.
Braniff Airways prepaid Exxon for the purchase of jet fuel. Braniff also purchased other products from Exxon on open account. Braniff made substantial payments on the open account during the preference period. When Braniff filed for bankruptcy protection, its prepaid fuel account had a credit balance in excess of $433,000. Braniff sued Exxon to recover some of the open account payments as preferential transfers. Exxon argued that it had a right to setoff the open account against the prepaid fuel account when the preferential payments were made. The right of setoff made Exxon a secured creditor pursuant to § 506(a). Braniff Airways, 814 F.2d at 1040. If Exxon was secured by a right of setoff, then Braniff could not establish the fifth element of its *805 preference claim; that Exxon received more than it would have received in a chapter 7 proceeding if the payments had not been made. The court summarized the relationship between § 547 and § 553 as follows:
"When § 553 is determined to be applicable, § 547 cannot thereafter be utilized to undo its effect. The enactment of § 553 was an expression of the Congressional intent sanctioning the exercise of setoff as a permissible preference under certain circumstances."
Braniff Airways, 814 F.2d at 1034, citing In re Brooks Farms, 70 B.R. 368 (Bankr. E.D.Wis.1987).
The court remanded the case for further proceedings to determine whether Exxon had improved its position by exercising a setoff that was avoidable under of § 553(b).[6] If Braniff ultimately prevailed against Exxon, it was not under § 547. Braniff s prepaid fuel account and its open book account with Exxon were mutual prepetition obligations, giving rise to a potential setoff situation. Therefore, Braniffs right to recover against Exxon, if any, was under § 553.
Based on Braniff Airways and Southern Industrial Banking, it is the court's conclusion that the Plan Agent cannot collect Coast Grain's accounts receivable from Bouma as preferential transfers. A prepetition transfer of property of the debtor may not be avoided under § 547 if the transfer was made in exchange for an asset or property right of equal value, or if the transfer was made in satisfaction of an obligation secured by the right of setoff. Both of those situations existed here. Coast Grain's sales of dairy feed to Bouma, and the third-party payments made for Bouma's benefit, generated contract rights against Bouma of equal value. Bouma's liability for those contracts and Coast Grain's liability on the prepaid account were mutual obligations subject to potential setoff. The actual "transfer of property of the debtor" occurred each time Coast Grain gave up the right to collect its accounts receivable, when Coast Grain debited its claim against Bouma's prepaid account. At that time, Bouma was potentially secured by its right of setoff pursuant to § 506(a). If Bouma improved its position through these debits, then the Plan Agent's right to recover from Bouma is through avoidance of the setoff, the debit transaction, under § 553(b). The Plan Agent did not move for summary judgment under § 553(b) and resolution of that issue will require further proceedings.
Bouma is Barred From Offsetting the Purchases Made After the Prepay Termination
Bouma continued to purchase products from Coast Grain after August 25, 2001, when Coast Grain announced the Prepay Termination. Section 553(b) does not apply after the Prepay Termination because Coast Grain ceased debiting the prepaid accounts. The Plan Agent seeks to collect these accounts receivable and *806 Bouma asserts the right of setoff against its prepaid account pursuant to § 553(a).
Bankruptcy Code § 553(a)(3) prohibits the exercise of a setoff when the creditor's obligation to the debtor is incurred within 90 days before the bankruptcy for the purpose of creating a setoff right. Here, the declaration of Bouma's managing partner, John Schoneveld offered in support of Bouma's affirmative defenses, establishes that Bouma chose to disregard the Prepay Termination. Bouma continued to purchase dairy feed for months after the Prepay Termination and commencement of the bankruptcy, with the intent to offset those purchases against the prepaid account. It is clear from Mr. Schoneveld's testimony that Bouma exercised its right of setoff and considered the setoff complete as of December 6, 2001, when Bouma tendered a check to Coast Grain for "the difference." Any prepetition setoffs by Bouma after the Prepay Termination are subject to the prohibition of § 553(a)(3). Any postpetition setoffs by Bouma would have violated the automatic stay. § 362(a)(6) & (7); 3 Collier on Bankruptcy, (15th ed. rev.) ¶ 362.03[8][a] 362.03[9], pgs. XXX-XX-XX. Accordingly, the setoff defense is not available to Bouma for products purchased after the Prepay Termination.
The Recoupment Defense Is Unavailable to Bouma
In its seventh affirmative defense, Bouma seeks to recoup the pre and postpetition sales of product against the unused portion of its prepaid account. Bouma contends that recoupment is a complete defense to all of the Plan Agent's claims. The Plan Agent responds that recoupment is not available to Bouma as a matter of law. Both parties have moved for summary adjudication of the recoupment issue.
The Bankruptcy Code does not mention or define the term "recoupment." It has been defined as, "[t]he withholding, for equitable reasons, of all or part of something that is due." Black's Law Dictionary 1302 (8th ed.2004). The bankruptcy courts have recognized the doctrine of recoupment as "the setting up of a demand arising from the same transaction as the plaintiffs claim or cause of action, strictly for the purpose of abatement or reduction of such claim." Newbery Corporation v. Fireman's Fund Ins. Co. (In re Newbery Corp.), 95 F.3d 1392, 1399 (9th Cir.1996)n
Recoupment is an equitable doctrine. Id. at 1401. It has been explained and distinguished from the setoff defense as follows:
The main distinction between the doctrines of setoff and recoupment is that setoff is a form of cross action that depends in its application upon the existence of two separate, mutual obligations. Absent a right of setoff, each obligation would be independently enforceable. Moreover, rights of setoff most often arise between obligations stemming from separate transactions or events ....
In contrast, recoupment is in the nature of a right to reduce the amount of a claim, and does not involve establishing the existence of independent obligations. By definition, recoupment may arise only out of the "same transaction" or occurrence that gives rise to the liability sought to be reduced.
Recoupment often arises in contract cases, but it is not limited to contractual obligations, nor must the amount to be recouped be liquidated in order for the right to apply. Mutuality is also not required, and the relevant obligations need not both be prepetition in nature. Moreover, although the courts are split *807 on the issue, the better view is that the automatic stay does not apply to bar or restrain a legitimate right of recoupment because, properly construed, recoupment applies to define the obligation in question, rather than establish or enforce a separate debt.
5 Collier on Bankruptcy, (15th ed. rev.) ¶ 553.10, pg. XXX-XX-XXX.
The Supreme Court has observed that "a bankruptcy defendant can seek recoupment by meeting a plaintiff-debtor's claim with a counter claim arising out of the same transaction." Reiter v. Cooper, 507 U.S. 258, 265 n. 2, 113 S.Ct. 1213, 122 L.Ed.2d 604 (1993). In Reiter, the Court also observed that "[recoupment permits a determination of the `just and proper liability on the main issue' and involves `no element of preference.'" Id. at n. 2, citing 4 Collier on Bankruptcy, ¶ 553.03, pg. 553-17 (15th ed.1991).
The Ninth Circuit Court of Appeals has also observed that recoupment does not run afoul of the Bankruptcy Code's ratable distribution policy. Neivbery Corp., 95 F.3d at 1398. The recoupment doctrine draws its authority from principles of equity and is thereby subject to the facts in each individual case. Recoupment "is allowed `because it would be inequitable not to allow the defendant to recoup those payments against the debtor's subsequent claim.'" Aetna U.S. Healthcare, Inc. v. Madigan (In re Madigan), 270 B.R. 749, 754 (9th Cir. BAP 2001) citing Newbery Corp., 95 F.3d at 1401.
For recoupment to apply, the competing claims must arise out of the "same transaction" or occurrence. Newbery Corp., 95 F.3d at 1399. See also TLC Hospitals, Inc., 224 F.3d at 1011. To determine whether the claims arise from the same transaction, the Ninth Circuit has adopted a "logical relationship" test. Madigan, 270 B.R. at 755. See also Newbery Corp., 95 F.3d at 1402; TLC Hospitals, 224 F.3d at 1012. The term "transaction" is flexible under the logical relationship test. Newbery Corp., 95 F.3d at 1402. Courts applying this standard "have permitted a variety of obligations to be recouped against each other, requiring only that the obligations be sufficiently interconnected so that it would be unjust to insist that one party fulfill its obligation without requiring the same of the other party." Madigan, 270 B.R. at 755, citing 5 Collier on Bankruptcy, ¶ 553.10[1].
The concept of a "logical relationship" is not unrestrained. The Ninth Circuit has expressly cautioned that, generally, in the commercial setting, the "logical relationship" concept should not be applied "so loosely that multiple occurrences in any continuous commercial relationship would constitute one transaction." Madigan, 270 B.R. at 757, citing TLC Hospitals, 224 F.3d at 1012.
In Newbery Corp., the chapter 11 debtor had defaulted on a bonded construction project. Newbery Corp. then entered into an agreement with its lender and its surety, Fireman's Fund, whereby Fireman's Fund would complete Newbery's unfinished projects using the lender's collateral, Newbery's equipment. Fireman's Fund agreed to pay rent to the lender for use of the equipment. The projects were completed but Fireman's Fund failed to pay the rent. In the course of the chapter 11 proceeding, the lender assigned its rental claim back to Newbery. Newbery sued for the rent and Fireman's Fund moved for summary judgment on the defense of recoupmentFireman's Fund sought to recoup its losses on the defaulted bonds against the rental obligation. Ruling in favor of Fireman's Fund, the court reasoned that the rent obligation stemmed *808 directly from Newbery's default of the bonded contract. Applying the logical relationship test, the court held that Newbery's claim for equipment rental and Fireman's Fund's claim for indemnification arose from the same transaction. Id. at 1403.
In TLC Hospitals, the debtor was a Medicare provider under contract with the U.S. Dept. of Health and Human Services ("HHS"). The court allowed HHS to recoup pre-petition Medicare overpayments from postpetition Medicare estimated payments. The court examined the terms of the Medicare provider agreement and its statutory and regulatory underpinnings. It concluded that the Medicare system, which contemplated the making of estimated payments by HHS, and post-audit adjustments to reimburse HHS for overpayments, did constitute a single transaction for purposes of recoupment even though the separate components of the transaction occurred at different times. TLC Hospitals, 224 F.3d at 1012.
In both Newbery Corp. and TLC Hospitals, the court looked, inter alia, to the legal obligations of the parties as the foundation for a "logical relationship" between the competing claims. Here, it is undisputed that the "understanding" between Bouma and Coast Grain regarding Bouma's prepayment in December 2000 was never reduced to writing. At the time of the prepayment, Bouma and Coast Grain were mutually committed to one contract for the purchase of dairy feed, a contract which the parties entered into in early August 2000, for the delivery of product beginning in October 2000. Arguably, some of Bouma's prepayment could be construed as a "tender of performance" for the uncompleted portion of that obligation, but the Plan Agent is not seeking to recover all of the prepayment. Bouma offered no evidence to show that any performance was still due under the August 2000 contract within the relevant period; 90 days prior to the bankruptcy. Indeed, the evidence suggests that all of Bouma's feed purchases during that time were contracted on a "spot market" basis.
This court cannot connect Bouma's prepayment to the subsequent purchases and third-party payments to find a "logical relationship" sufficient to support the doctrine of recoupment. The opposing obligations between Bouma and Coast Grain were effectuated as separate and distinct contracts in the continuous commercial relationship between the parties. At the time of the prepayment, Bouma was not legally obligated to purchase $1.5 million of product from Coast Grain. Neither was Coast Grain legally obligated to sell $1.5 million of product to Bouma. Those contracts came into existence months later, when Bouma purchased dairy feed on the "spot market." Coast Grain clearly was under no legal obligation to make thirdparty payments to Bouma's vendorsthe court can describe that activity as nothing more than a gratuitous accommodation to Coast Grain's customers, a marketing ploy to promote participation in the prepayment program.
In Newbery Corp., the court, in essence, applied a "proximate cause" test to connect the competing claimsbut for Newbery's breach of the construction contract, Fireman's Fund would not have had to rent the equipment. The court also noted that Newbery was contractually obligated to indemnify Fireman's Fund for its losses. The opposing claims arose from and were "intertwined" by the same contracts and acts of the parties. Newbery Corp., 95 F.3d at 1403. Similarly, in TLC Hospitals, the court found evidence of Congressional intent to connect the estimated payment and post-audit reimbursement transactions based on the contracts and Medicare's *809 statutory scheme. In re TLC Hospitals, 224 F.3d at 1013 (citing United States v. Consumer Health Servs. of Am., Inc., 108 F.3d 390, 395 (D.C.Cir.1997)). The "logical relationship" was rooted in that foundation. Here, Bouma has not shown that the opposing claims in this case had any casual connection, or that they were intertwined by anything but an unwritten, noncommittal, amorphous "understanding" based on their prior course of business.
For Bouma to successfully recoup its obligations to Coast Grain against the prepaid account, the "logical relationship" between the competing claims must be substantially more than an ethereal "understanding." At a minimum, Bouma needed to establish that the prepayment to its account in December 2000 also had a legally cognizable relationship to the subsequent sales of goods and services which the Plan Agent seeks to enforce in this adversary proceeding.[7] No other application of the recoupment doctrine would be consistent with Newbery Corp. and TLC Hospitals. The loosely knit structure of Bouma's commercial relationship with Coast Grain, and the lack of a definitive agreement to memorialize the terms by which Bouma would voluntarily release $1.5 million to Coast Grain, simply fails Bouma in that effort.
Nor do the undisputed facts of this case suggest that it is inequitable to deny Bouma's bid for recoupment. Coast Grain's liability to Bouma on the prepaid account was no different than any other debtor's obligations to its creditors during the last 90 days before commencement of the case. Bouma had a right to file a claim and participate in the chapter 11 process based on that liability. The fact that Bouma should now have to pay for goods and services it purchased from Coast Grain, contractual commitments made long after the prepayment, is not inconsistent with the Plan Agent's duty to gather the assets of the estate and the Bankruptcy Code's policy favoring the ratable distribution of assets. Bouma had the burden to produce competent evidence to support its recoupment defense. The court is not persuaded that Bouma's prepayment in December 2000, and the subsequent purchases and third-party payments which benefitted Bouma months later had such a "logical relationship" that they should be deemed to constitute the "same transaction."
Conclusion
Based on the foregoing, the court finds and concludes that the prepetition feed sales to Bouma, and the third-party payments to Bouma's vendors were not preferential transfers avoidable under § 547. The Plan Agent's rights against Bouma are in the nature of contract enforcement claims, subject to whatever defensessetoff, recoupment, etc.that may be applicable. It follows, therefore, that Bouma's "ordinary course of business" defense has no application to this case. Accordingly, Bouma's motion for summary adjudication of its third affirmative defense will be DNIED.
Bouma purchased products from Coast Grain after the Prepay Termination for the purpose of exercising a right of setoff against Coast Grain. Therefore, § 553(a)(3) bars Bouma from exercising a setoff of those transactions against its prepaid account. The Plan Agent's motion for summary adjudication of Bouma's sixth affirmative defense will be GRANTED in favor of the Plan Agent.
*810 With regard to Bouma's recoupment defense, the Plan Agent has established that the competing claims were not a "single transaction." Accordingly, the Plan Agent's motion for summary adjudication of Bouma's seventh affirmative defense will be GRANTED in favor of the Plan Agent.
NOTES
[1] "Prepayment" programs are a common practice in the dairy industry. Coast Grain aggressively marketed its prepayment program and frequently offered financial incentives in the form of additional credits (officially labeled "quality adjustments") to customers who maintained large credit balances in their accounts. Most of the customers prepaid their accounts with Coast Grain at the end of the customer's fiscal year. The Internal Revenue Service allows a cash-basis tax payor to deduct the prepaid purchase of livestock feed from current income if the transaction is properly documented and certain other conditions are met. Internal Revenue Service Ruling 79-229. In 2000/2001, Coast Grain received over $92 million of prepayments from its customers. Coast Grain did not report the "quality adjustments" as interest income, and in many cases Coast Grain issued phony "letterhead contracts" to make the prepayments appear to comply with Revenue Ruling 79-229, 1979 WL 51094. There is no evidence before the court that Bouma received any of these letterhead contracts or that Bouma took a tax deduction for any of its prepayments to Coast Grain.
[2] There are approximately 94 "prepay" adversary proceedings currently pending before this court. This is one of two proceedings that are moving forward as test cases to address some of the common issues by way of summary judgment. All discovery in the remaining adversary proceedings has been stayed pending resolution of these motions.
[3] Unless otherwise indicated, all statutory citations refer to the United States Bankruptcy Code, 11 U.S.C. § 101 etseq.
[4] Mr. Schoneveld's declaration states,
"I continued to accept feed shipments from Coast Grain after August 25, 2001 with the intent of exercising Bouma Dairy's right to offset the amount of such shipments against the unused prepayment balance. As of November 1, 2001, Bouma Diary [sic] owed Coast Grain $3,711.28 more than Coast Grain owed it and on December 6, 2001, I wrote a check to Coast Grain for that amount of money in satisfaction of the difference."
Mr. Schoneveld's declaration was not offered in relation to Bouma's setoff defense. It was offered to illustrate the history of dealing between Bouma and Coast Grain in support of the "ordinary course of business" defense. The testimony was also offered to support Bouma's contention that the prepayment, the subsequent purchases of dairy feed, and the third-party payments were intended to be a "single transaction," a necessary element of Bouma's recoupment defense. See recoupment discussion infra.
[5] Bankruptcy Code § 553(a) preserves a creditor's right to offset mutual pre-petition debts owing between the creditor and the debtor, except to the extent that
...
(3) the debt owed to the debtor by such creditor was incurred by such creditor
(A) after 90 days before the date of the filing of the petition;
(B) while the debtor was insolvent; and
(C) for the purpose of obtaining a right of setoff against the debtor, (emphasis added.)
For the purposes of § 553, the debtor is presumed to have been insolvent during the last 90 days before commencement of the bankruptcy. § 553(c).
[6] Bankruptcy Code § 553(b) provides in pertinent part:
(b)(1) ... if a creditor offsets a mutual debt owing to the debtor against a claim against the debtor on or within 90 days before the date of the filing of the petition, then the trustee may recover from such creditor the amount so offset to the extent that any insufficiency on the date of such setoff is less than the insufficiency on the later of
(A) 90 days before the date of the filing of the petition; and
(B) the first date during the 90 days immediately preceding the date of the filing of the petition on which there is an insufficiency.
(2) In this subsection, "insufficiency" means amount, if any, by which a claim against the debtor exceeds a mutual debt owing to the debtor by the holder of such claim.
[7] As a caveat, the court is not suggesting here that recoupment would automatically apply if the competing claims were contractually linked. Recoupment is an equitable doctrine which may be denied based on the parties' conduct or other "equitable" factors which the court does not need to address here.
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228 F.2d 953
S. R. HAZELRIGG, Appellant,v.AMERICAN FIDELITY & CASUALTY CO., a corporation, Appellee.
No. 5123.
United States Court of Appeals Tenth Circuit.
Nov. 26, 1955.
1
Gus Rinehart, Oklahoma City, Okl. (Butler, Rinehart & Morrison, Oklahoma City, Okl., were with him on the brief), for appellant.
2
Welcome D. Pierson, Oklahoma City, Okl., for appellee.
3
Before PHILLIPS, Chief Judge, HUXMAN, Circuit Judge, and SAVAGE District Judge.
4
PHILLIPS, Ahief Judge.
5
On September 4, 1948, a collision occurred between a 1937 Plymouth Sedan driven by Virgil Lafever and an International Truck, owned by Hazelrigg and used in his business and being driven at the time of the collision by his employee, Marvin Archie Bryant. Lafever was instantly killed as a result of the collision.
6
On May 20, 1949, Mrs. Opal Lafever, widow of Lafever, brought an action against Hazelrigg in the Superior Court of Seminole County, Oklahoma. The American Fidelity & Casualty Co.1 was Hazelrigg's insurer under a public liability insurance policy. The Casualty Company, pursuant to the provisions of the policy, assumed the defense of the personal injury action. On May 10, 1950, an order was entered substituting C. S. Duvall as administrator of the estate of Lafever and as guardian of the estate of Reba Pauline Lafever, Wanda Jean Lafever and Gary Lee Lafever as party plaintiff. The state court action came on for trial on December 6, 1950. A verdict was entered in favor of the administrator and guardian for $79,375. The state court required a remittitur of $19,375. The plaintiffs filed such remittitur and judgment was entered in the amount of $60,000. The total liability under the insurance policy was $50,000. Counsel for the Casualty Company gave notice of intention to appeal to the Supreme Court of Oklahoma. Supersedeas bond was fixed at $67,000 and 30 days from March 16, 1951, was allowed in which to file such bond.
7
On March 17, 1951, the attorney for the administrator and guardian advised both the Casualty Company and Hazelrigg in writing that he would accept $50,000 in complete settlement of the judgment. On April 20, 1951, Gus Rinehart, attorney for Hazelrigg, wrote the following letter to Welcome D. Pierson, one of the attorneys for the Casualty Company and Hazelrigg in the state court action:
8
'Dear Mr. Pierson: Following our conversation concerning the supersedeas bond on the above captioned case, we have made every effort to work out some arrangement whereby Mr. Sid Hazelrigg could satisfy the plaintiff on a supersedeas bond. We have not been able to work out any arrangement short of making a valid supersedeas bond. As Mr. Hazelrigg advised you, he is unable to put up collateral sufficient to make this bond and therefore he will be in the position of being exposed to the levy of execution on his property and franchises.
9
'As you advised me, a proposition has been made for settlement of this judgment in the amount of $50,000.00 which is within the limits of Mr. Hazelrigg's insurance contract. You state your company is unwilling to pay this sum of money in compromise, since you feel that various points should be presented to the Supreme Court. This offer, however, is within the limits of Mr. Hazelrigg's insurance policy and in order to save his business and to keep executions from being issued against his properties, we request your company do one of two things. Either execute the full supersedeas bond, in which event your company can continue its appeal and continue its control over this litigation, or to settle the case within the limits of your company's insurance policy and thereby save Mr. Hazelrigg from any further exposure.'
10
On April 20, 1951, Welcome D. Pierson, who represented Hazelrigg and the Casualty Company as counsel in the state court action, wrote a letter to Rinehart in which he stated that under the terms of the policy the Casualty Company was not obligated to make or furnish a supersedeas bond; that he had discussed a proposed settlement with Hazelrigg on March 30, 1951; that he told Hazelrigg the offer of settlement was unreasonable; that Hazelrigg agreed that the offer should be declined; that on April 10, 1951, Hazelrigg told him he did not blame the Casualty Company for declining to pay the $50,000 in settlement of the judgment. Pierson further stated that the judgment was excessive under the decisions of the Supreme Court of Oklahoma and the facts in the case; that there were numerous errors in the record, and that the Casualty Company would prosecute an appeal from the judgment. Such appeal was prosecuted and resulted in affirmance of the judgment in the state court action.2
11
Thereupon, the Casualty Company paid $50,000, with interest at the rate of six per cent per annum from March 16, 1951, unpaid. Thereafter, on April 29, 1954, Hazelrigg brought this action against the Casualty Company for a declaratory judgment, seeking an adjudication that the Casualty Company acted carelessly and negligently and in bad faith in not settling the state court judgment, and as a result had subjected Hazelrigg to a liability of $10,000, with interest.
12
From a summary judgment in favor of the Casualty Company, Hazelrigg has appealed.
13
Pertinent facts with respect to the state court action are set out in the dissenting opinion of the Supreme Court of Oklahoma,3 which, in part, reads as follows:
14
'Virgil Lafever was killed in a collision between an automobile driven by himself and a truck belonging to the defendant. There was one witness who testified for the plaintiff who claimed he saw the accident. He was riding in the back seat of the automobile and was the father-in-law of the deceased Lafever. A man by the name of Harmon was riding in the front seat with Lafever, but he did not testify. The father-in-law testified that the collision occurred on the south side of the road, the automobile side. The driver of the truck testified the collision occurred on the north side. All physical evidence in the way of debris and the location of the truck and automobile after they came to rest indicated it was on the north side. There was testimony by substantial witnesses that the deceased Lafever was under the influence of intoxicating liquor a short time before the accident. There was also evidence to the contrary. There was sufficient evidence to necessitate the submission of the case to the jury, but I think the trial court erred in not granting a new trial for three reasons. The first reason is that it was error to permit the so-called expert, W. L. James, to testify as to how the debris got on the north side of the road. I think that the reasoning on this point in Hamre v. Conger, 357 Mo. 497, 209 S.W.2d 242, is so sound that it should be followed in this case. The crude wheel that was used by the witness and his testimony based on conjecture were bound to mislead the jury.
15
'The second reason that this case should be reversed is that plaintiff's counsel made improper statements in closing argument which from the size of the verdict unquestionably influenced the jury. I submit that the following statements made by counsel for plaintiff constitute reversible error:
16
"You know, it is unpleasant, it's awfully hard to talk about hunger and poverty. It's a difficult thing to think about; little barefoot children when there is frost on the ground. It's hard to think about little blue bodies caused by lack of clothing when the north wind blows. It's unpleasant to think about widows and orphans wearing cast off rags from the neighbors. It's hard to think about a fevered brow that has to be treated as a charity patient. Gentlemen, about two weeks from now in a little cross-roads country town, if Mr. Pierson and Mr. Edwards have their way, there will be a small boy pressing a little face against the showcase of a show window on the street * * *.
17
"By Mr. Seay: I would like to know if counsel is going to continue interrupting me. He has had his say, he's had forty minutes. I hope he doesn't interrupt again.--
18
"Then, there might be in that window that Mr. Pierson objects to, a little pair of cowboy boots, and when he turns his face away he looks back over his shoulder again and wonders. The world passes him by. He's just an orphan. He will wonder why he can't have things like kids that have a daddy.
19
"By Mr. Seay: Thank you sir.-- And when those two little orphan girls and their mother bow their heads in prayer on the day when the Christian world celebrates the birth of the Christ child, they will not thank God for a bountiful supply of food on the table; they will ask God that they be permitted to live, because the table may be bare.'
20
'That argument unduly appeals to the sympathetic nature of the average juror and should not be made.
21
'We held that it was improper to argue that a corporation could have no sympathy as it stressed things that were not a proper element of damage. Green Construction Co. v. Lampe, 174 Okl. 351, 50 P.2d 286.
22
'In my opinion this argument was responsible both for the verdict for plaintiff and the amount of the verdict.
23
'The third reason this case should be reversed is that the size of the verdict shows that it was not rendered by a fair and impartial jury. The jury's verdict was for $79,375. There was no evidence to justify such a verdict. The most the deceased ever made was $3,000 a year. He was a tenant farmer and laborer. There was some evidence that he traded in stock but this was very sketchy. He could not read and write. He was thirty-seven years old and at the peak of his earnings in the type of work he was equipped to do.'
24
We do not think that the majority opinion of the Supreme Court of Oklahoma finally determines the question that the Casualty Company acted in bad faith and neither do we think that the fact that there was a strong dissenting opinion finally determines the question that the Casualty Company acted in good faith.
25
The applicable rule with respect to the duty of an insurer, under the facts and circumstances here presented, was stated by this court in St. Paul-Mercury Indemnity Co. v. Martin, 10 Cir., 190 F.2d 455, 457, as follows:
26
'As the primary insurer, St. Paul was required under its relationship to its insured and the excess insurer, to exercise good faith in determining whether an offer of compromise of settlement should be accepted or rejected. It owed them the duty to exercise an honest discretion at the risk of liability beyond its policy limits. American Fidelity & Casualty Co. v. All American Bus Lines, Inc., 10 Cir., 190 F.2d 234; Boling v. New Amsterdam Casualty Co., 173 Okl. 160, 46 P.2d 916; National Mutual Casualty Co. v. Britt, 203 Okl. 175, 200 P.2d 407, (218 P.2d 1039); American Fidelity & Casualty Co. v. All American Bus Lines, Inc., 10 Cir., 179 F.2d 7; American Fidelity & Casualty Co. v. G. A. Nichols Co., 10 Cir., 173 F.2d 830. But, it is not required to prophesy or foretell the results of litigation at its peril. If it acts in good faith and without negligence in refusing the proffered settlement, it has fulfilled its duty to its insured, and those in privity with it. American Casualty Co. of Reading, Pa. v. Howard, 4 Cir., 187 F.2d 322.'
27
Of course, where the judgment is greater than the maximum liability under the policy, the duty of the insurer, who had charge of the action against the insured, to exercise an honest judgment is undoubtedly greater, but that does not mean that the insurer cannot take an appeal where that is the situation, so long as it acts in good faith and without negligence in refusing a proffered settlement.
28
In National Mutual Casualty Co. v. Britt, Okl., 200 P.2d 407, at page 412, the court said:
29
'We do not go so far as to say that in every instance where there exists a possibility of a verdict against the insured and the nature of the injuries are such that in the event of such verdict in all probability it will exceed the policy limits, a refusal by the insurer of an offer of settlement within the policy limits constitutes bad faith. But under such circumstances a decision to contest the claim should be subjected to close scrutiny for if based on a mere chance that the claim might be defeated and not on a bona fide belief that the action will be defeated a refusal of such an offer of settlement would not be good faith.'
30
We are of the opinion that under the facts and circumstances presented in the instant case, the minds of reasonable men might differ as to whether the Casualty Company acted in good faith. We do not intend to imply that a trier of the facts might not reach the conclusion that the Casualty Company did act in good faith, but we think there was an issue of fact which should have been submitted, either to the court or to a jury, and that that issue should not have been disposed of on summary judgment.
31
Reversed and remanded for further proceedings in accordance with this opinion.
1
Hereinafter called the Casualty Company
2
Hazelrigg Trucking Co. v. Duvall, Okl., 261 P.2d 204, 210
3
Hazelrigg Trucking Co. v. Duvall, Okl., 261 P.2d 204, 210
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607 S.W.2d 936 (1980)
Rupert BELL, Appellant
v.
Herbert Harold HINKLE, Appellee.
No. A2396.
Court of Civil Appeals of Texas, Houston (14th Dist.).
October 8, 1980.
Dale Harvill, Harvill & Hardy, Houston, Samuel J. Lee, Angleton, for appellant.
R. L. McElya, Angleton, Joyce Cox, G. Michael Wentworth, Cox, Roady & Dawson, Houston, for appellee.
Before J. CURTISS BROWN, C. J., and PAUL PRESSLER and JUNELL, JJ.
J. CURTISS BROWN, Chief Justice.
Rupert Bell, appellant, appeals from a take nothing judgment entered against him and in favor of Herbert Harold Hinkle, appellee.
Bell brought a trespass to try title action against Hinkle for recovery of title to and possession of an undivided one-half interest *937 in certain real property located in Brazoria County belonging to the estate of James Thomas Hinkle. In addition, he sought a partition of the real and personal property, an accounting and a right to the one-half of the property of the estate as an heir at law of James Thomas Hinkle. Appellant alleged that all of the assets of the estate were in the possession of appellee. Appellant further alleged that James Thomas Hinkle died intestate with no administration having been opened on the estate and the time for opening having passed.
Rupert Bell was born in Brazoria County in 1921. He alleged that he is the illegitimate son of the decedent, James Thomas Hinkle. Appellee, born in 1930, is the legitimate son of the decedent. James Thomas Hinkle died in 1969 intestate, and in 1976, appellant brought this suit. At trial, the jury found, in response to the sole special issue, that J. T. Hinkle was not the biological father of Rupert Bell.
Appellant mainly contends that defense counsel's remarks during the entire trial, including voir dire and final argument, were improper and constituted reversible error because such remarks were intended to appeal to racial prejudice. Although we do not approve of counsel's remarks, we do not reach this point because we must affirm on another ground. Appellee, in his cross-point, claims that appellant cannot recover anyway because he has not proved his cause of action as a matter of law. We agree.
Prior to 1979, an illegitimate child could not inherit from his father by the laws of descent and distribution. See Guidry v. Denkins, 460 S.W.2d 943 (Tex.Civ.App.-Houston [1st Dist.] 1970 no writ); 1955 Tex. Gen.Laws, ch. 55, at 88; 1977 Tex.Gen.Laws ch. 290, § 1, at 762. In 1979, the Legislature amended the Probate Code to allow illegitimate children to inherit from their fathers if certain conditions are fulfilled. Tex.Prob. Code Ann. § 42 (Vernon Supp. 1980). An illegitimate child can inherit from his father "if the child is born or conceived before or during the marriage of his father and mother or is legitimated by a court decree as provided by Chapter 13 of the Family Code, or if the father executed a statement of paternity as provided by Section 13.22 of the Family Code...." Id. (footnote omitted). Since appellant has not brought a paternity suit under the Family Code, or met any of the other conditions, he can not recover under the statute.
Since appellant has not proved his cause of action, we do not reach appellant's points of error, and affirm on appellee's crosspoint.
Affirmed.
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UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________
No. 99-31058
Summary Calendar
__________________
DEBORAH MCMILLON, individually
and on behalf of her minor child,
Dana Daigrepont,
Plaintiff-Appellant,
versus
TOM CORRIDAN, ET AL.,
Defendants,
DAKIN KINSER, DONALD WEEKS, incorrectly
named as Don Weeks, STATE FARM FIRE
AND CASUALTY COMPANY, STATE FARM MUTUAL
AUTOMOBILE INSURANCE COMPANY, KERRY BABIN,
Defendants-Appellees.
_________________________________________________________________
Appeals from the United States District Court
for the Eastern District of Louisiana
(97-CV-3981-N)
_________________________________________________________________
March 14, 2000
Before SMITH, BARKSDALE, and PARKER, Circuit Judges.
PER CURIAM:*
For Deborah McMillon’s challenge to an adverse summary
judgment, at issue is whether her employer retaliated, in violation
of the Louisiana Commission on Human Rights Act, LA. REV. STAT.
51:2231 et. seq. (West 2000), for her filing a sexual harassment
*
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.
complaint with the EEOC, by denying her (1) lateral transfers she
claims were career-enhancing and (2) employment in the position she
desired during corporate restructuring, resulting in a lateral
transfer.
McMillon was employed by State Farm from 1977 to 1996,
initially as a claims adjuster and then as a claims superintendent.
In the late 1980's, she complained to the Divisional Manager that
her immediate supervisor was sexually harassing her. In 1990, she
filed a sexual harassment claim with the EEOC concerning her
supervisor’s actions. Later in 1990, State Farm investigated the
complaint.
In 1991, as part of a settlement, McMillon voluntarily
transferred to a new office to get a “fresh start”. She received
appropriate pay raises and evaluations for the next several years.
In 1996, State Farm’s fire division, which employed McMillon,
underwent restructuring; McMillon was denied the position she
sought. As part of the restructuring, she was offered a lateral
transfer to another division. Ultimately, she refused the transfer
and resigned. McMillon contends her resignation was a constructive
discharge. She filed this action, claiming retaliation. State
Farm was granted summary judgment, the district court holding that
McMillon had failed to establish any adverse employment action.
A summary judgment is reviewed de novo. In so doing, we apply
the same standard as the district court. Such judgment is proper
when the summary judgment record, viewed in the light most
favorable to the non-movant, establishes there is no material fact
- 2 -
issue, and the movant is entitled to judgment as a matter of law.
FED. R. CIV. P. 56; e.g., Drake v. Advance Const. Serv., Inc., 117
F.3d 203, 204 (5th Cir. 1997).
As noted, McMillon brings this action under Louisiana law.
Although the claim is pursuant to Louisiana law, it is appropriate
to look to Title VII for guidance. E.g., Devillier v. Fidelity &
Deposit Co. of Md., 709 So. 2d 277, 280 (La. App. 3 Cir. 1998)
(statutory scheme is “mirror image” of Title VII).
The three elements for retaliation are: (1) employee engaged
in activity protected by Title VII; (2) employer took an adverse
employment action against employee; and (3) causal connection
between the protected activity and the adverse employment activity.
Mattern v. Eastman Kodak Co., 104 F.3d 702, 705 (5th Cir.), cert.
denied, 522 U.S. 932 (1997).
Based upon our review of the briefs and the record, and
essentially for the reasons stated by the district court, the
summary judgment was proper. McMillon v. Corridan, No. 97-3981
(E.D. La. 16 Sept. 1999); see Burger v. Central Apartment
Management, Inc., 168 F.3d 875, 879 (5th Cir. 1999); Dollis v.
Rubin, 77 F.3d 777, 781 (5th Cir. 1995).
AFFIRMED
- 3 -
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142 B.R. 1017 (1992)
In re 6177 REALTY ASSOCIATES, INC., Debtor.
Bankruptcy No. 92-30830-BKC-RAM.
United States Bankruptcy Court, S.D. Florida.
July 20, 1992.
Kevin C. Gleason, Kinsey & Gleason, Boca Raton, Fla., for debtor.
*1018 L. Louis Mrachek, Gunster, Yoakley, Criser & Stewart, West Palm Beach, Fla., for Continental Realty Corp.
Jeffrey L. Zivyak, Zivyak, Adler, Klein & Liss, New York City, for Finch Apartment Corp.
Daniel L. Bakst, Ackerman, Bakst, Cloyd & Scherer, P.A., West Palm Beach, Fla., for trustee for Michael and July Papo.
ORDER DENYING APPLICATION FOR APPROVAL OF PROPOSED LEASES AND REQUIRING SURRENDER OF PREMISES
ROBERT A. MARK, Bankruptcy Judge.
This Chapter 11 case was filed on March 12, 1992. The debtor seeks approval of two proposed subleases of commercial space on the first floor of a co-op building located at 61 East 77th Street, New York, New York. The space is owned by Finch Apartment Corp. ("Finch") which objects to the subleases. Continental Realty Credit Corporation ("Continental"), the debtor's largest creditor, also objects.
The court heard argument on April 7, 1992. After considering the record, including the pleadings filed and arguments presented by the parties, and after review of the applicable law, the Court concludes that the Debtor's application must be denied.
BACKGROUND
Michael Papo, currently a Chapter 7 debtor in this Court, Case No. 91-33221, is the lessee of the space under a Master Lease from Finch. Papo has subleased the space to Judy Papo, his wife, who is also a Chapter 7 debtor, in a case consolidated with Mr. Papo's case. Daniel Bakst is the trustee ("Trustee") in the Papos' case.
Under a second sublease, the space is subleased back to Michael Papo. The interest of the debtor here arises under a third sublease in which Michael Papo is the sublessor landlord and the debtor, 6177 Realty Associates, Inc. ("Debtor" or "6177 Realty"), is the tenant.
Continental is this Debtor's largest creditor with a claim alleged to be in excess of $2.7 million. Continental also claims to hold a leasehold mortgage encumbering all interests in the property held by this Debtor and by the Papos individually.
As part of a stipulation entered on the record in the Papo case on February 11, 1992, the Trustee was granted an extension through February 21, 1992 to assume the Papos' lease and sublease interests in the commercial space at issue here. The Trustee did not move to assume and therefore, under § 365(d)(4), all leasehold and subleasehold interests of the Papos were deemed rejected and the Trustee and Papos were obligated to surrender possession.
The Issue: Did Rejection of the Papos' Interests Terminate the Leases and Subleases and Thereby Extinguish Any Rights of This Debtor in the Property?
DISCUSSION
Finch and Continental argue that the Trustee's rejection of Papo's interest in the Master Lease from Finch terminates the Master Lease and all subleases including the third sublease from Papo to the Debtor. The Debtor acknowledges that by operation of § 365(d)(4), the interest of the Papos and the Papos' estate was extinguished when the leases were not timely assumed. The Debtor argues that rejection under § 365(d)(4) only determines the landlord's rights with respect to the Papos and their estate but does not resolve state law questions which may remain regarding the rights of this Debtor as a sublessee.
I have reviewed the cases cited by the parties. I have also read portions of an article written by Michael Andrew, Andrew, Executory Contracts in Bankruptcy: Understanding "Rejection", 59 U.Colo.L.Rev. 845 (1988). Professor Andrew's arguments are persuasive regarding the effect of rejection of certain executory contracts. His "no thank you" concept of rejection as opposed to the more traditional "zap" theory of rejection provides a logical framework for analyzing certain disputes including, for example, the enforceability of arbitration clauses or covenants not to compete after rejection of an executory contract.
*1019 This Court agrees that rejection does not always equal termination of executory contracts. I nevertheless agree with the majority of cases which hold that rejection does equal termination of non-residential real property leases in which the debtor or Trustee is the lessee. See Sea Harvest Corp. v. Riviera Land Co., 868 F.2d 1077 (9th Cir.1989); In re Giles Associates, Ltd., 92 B.R. 695 (Bankr.W.D.Tex. 1988); In re Bernard, 69 B.R. 13 (Bankr. D.Haw.1986); In re Southwest Aircraft Services, Inc., 53 B.R. 805 (Bankr.C.D.Cal. 1985).
The primary reason for reaching this result is the specific statutory language in § 365(d)(4). That section provides that if the Trustee does not assume an unexpired lease within 60 days of the filing date or within such time as the Court may have fixed, "then such lease is deemed rejected, and the Trustee shall immediately surrender such non-residential real property to the lessor." § 365(d)(4).
It is this surrender language in § 365(d)(4) which renders rejection of a non-residential real property lease different from other executory contracts in which rejection may not equal termination. As explained by Judge Russell in the Southwest Aircraft case, "by requiring that upon rejection under § 365(d)(4), `the Trustee shall immediately surrender such non-residential real property to the lessor,' it is clear Congress intended that rejecting a lease terminates the lease." 53 B.R. at 810.
The Giles and Bernard decisions also focus on § 365(d)(4) and the federal policy embodied in that section. As explained in Giles, the import of § 365(d)(4) is to treat rejection as a breach that is so serious that immediate surrender is mandatory. "The breach plus the surrender obligation can only be seen as termination of any of the Trustee's or Debtor's rights in the leasehold. Otherwise the face of the statute and its history are meaningless." 92 B.R. at 698. In Bernard, Judge Chinen discussed the legislative history and purpose of § 365(d)(4) and noted that "this immediate surrender of the premises upon rejection of the lease was to enable the lessors to once again rent the premises and to earn income from the demised premises." 69 B.R. at 14.
The Bernard and Giles cases addressed the claims of creditors holding mortgages on the leases at issue. In this case, the interest is that of a sublessee, but the question is the same can a mortgagee or sublessee retain any interest upon rejection of the underlying lease? The logic and rationale in Bernard and Giles is compelling and convince this Court that the answer is no. Rejection of a non-residential lease results in termination of the lease. Once the underlying lease is terminated, leasehold mortgagees or sublessees retain no interest that can be pursued in bankruptcy court or state court.
The surrender remedy specially provided in § 365(d)(4) by Congress embodies a federal policy to ensure that unless extended by the Court, landlords obtain possession of their property within sixty (60) days of the filing if the lease is not assumed. It would be contrary to this policy to allow mortgagees or sublessees whose rights are derived solely from a debtor's interest as direct lessee to continue to tie up the property with litigation in bankruptcy court or in state court.
By contrast, deeming rejection to be termination is consistent with the public policy embodied in § 365(d)(4) and does not prejudice the rights of leasehold mortgagees or sublessees. Depending upon the terms of their mortgage or sublease, these parties may have standing to seek assumption of the underlying lease to protect their rights. But, they must act within the statutorily prescribed sixty (60) days.
The Debtor relies primarily on In re Storage Technology Corp., 53 B.R. 471 (Bankr.D.Co.1985). In that case, the court held that rejection does not have the conclusive effect of terminating even a non-residential real property lease. The Storage Technology decision was discussed and rejected by the Giles and Bernard courts in opinions which I find persuasive. Moreover, the court in Storage Technology was faced with relationships and potential equities that are different from those that exist here. Here the underlying Papo leases were seriously in default. Moreover, both *1020 the Debtor and the Papos are substantially in debt to Continental, which holds a mortgage on all of these leasehold interests. The Papos' Trustee made no effort and had no ability to cure the underlying lease. This Debtor did not offer nor was it in a position to cure the defaults in the underlying lease even if it had attempted to require assumption by the Trustee.
Thus, unlike Storage Technology, there is no equitable argument here that would support preserving any rights for this Debtor. Finch and Continental are both entitled to enforce their rights in the property free of any former interest of the Papos based upon the underlying rejection and required surrender by the Papos. It would be harsh and inequitable to require these parties to separately litigate here or in state court against this Debtor, a corporation controlled by the Papos which holds rights only through the Papos' senior leases.
The Court finds it unnecessary and inappropriate to consider what rights, if any, the Debtor/sublessee could claim under New York law following a breach by the lessee. Instead, I agree with the comment by Judge Russell in Southwest that under the Supremacy Clause, § 365(d)(4) preempts or supersedes any state law rights that the sublessee or mortgagee could assert following a breach by the lessee. 53 B.R. at 810. The Giles court also noted that § 365(d)(4) is not affected by separate state law doctrines concerning the termination of leases: "It is very clear that the federal policy concerning leases and inaction on the part [of] the debtor-lessor clearly supersedes any state law considerations." 92 B.R. at 696. Thus, there is no reason to analyze the rights, if any, which 6177 Realty could assert under state law following the breach by the Papos and resulting termination of their leases.
Having determined that the rejection of the underlying interest of the Papos constitutes termination of all of the leases lower in the chain, including the sublease to 6177 Realty, two conclusions are inescapable. First, the Debtor held no interest in the property as of the filing date. The Papos' interest was extinguished and the leases and subleases terminated as of February 21, 1992 prior to the filing of this Chapter 11 petition. Second, there is no need to require further litigation in this Court or in the state court to determine the rights of 6177 Realty in the property. Rather, having concluded that the underlying lease is terminated, the landlord is entitled to immediate surrender of the premises not only by the Papos but also by 6177 Realty and any other parties who claim an interest in the premises. See In re Elm Inn, Inc., 942 F.2d 630 (9th Cir.1991) (holding that it is appropriate for the bankruptcy court to enter an order compelling surrender of the premises once a lease has been rejected under § 365(d)(4)).
For the foregoing reasons, it is
ORDERED as follows:
1. The Debtors' application for approval of proposed leases is denied.
2. Finch Apartment Corporation is entitled to immediate possession of the leasehold property free and clear of any claim or interest of this Debtor. The sublease interest of this Debtor is deemed terminated.
DONE AND ORDERED.
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540 U.S. 911
SIMMONSv.TEXAS.
No. 03-5479.
Supreme Court of United States.
October 6, 2003.
1
Appeal from the Ct. Crim. App. Tex.
2
Certiorari denied.
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******************************************************
The ‘‘officially released’’ date that appears near the
beginning of each opinion is the date the opinion will
be published in the Connecticut Law Journal or the
date it was released as a slip opinion. The operative
date for the beginning of all time periods for filing
postopinion motions and petitions for certification is
the ‘‘officially released’’ date appearing in the opinion.
In no event will any such motions be accepted before
the ‘‘officially released’’ date.
All opinions are subject to modification and technical
correction prior to official publication in the Connecti-
cut Reports and Connecticut Appellate Reports. In the
event of discrepancies between the electronic version
of an opinion and the print version appearing in the
Connecticut Law Journal and subsequently in the Con-
necticut Reports or Connecticut Appellate Reports, the
latest print version is to be considered authoritative.
The syllabus and procedural history accompanying
the opinion as it appears on the Commission on Official
Legal Publications Electronic Bulletin Board Service
and in the Connecticut Law Journal and bound volumes
of official reports are copyrighted by the Secretary of
the State, State of Connecticut, and may not be repro-
duced and distributed without the express written per-
mission of the Commission on Official Legal
Publications, Judicial Branch, State of Connecticut.
******************************************************
STATE v. ROMANKO—CONCURRENCE
PALMER, J., concurring in the judgment. I agree with
the majority that the Appellate Court properly affirmed
the conviction of the defendant, Todd R. Romanko. I
disagree, however, with the majority’s conclusion that
the Appellate Court properly determined that the trial
court did not abuse its discretion when it precluded
the defendant from performing the walk and turn and
the one leg stand field sobriety tests in the presence of
the jury.
The majority reaches this conclusion on the basis of
its determination that the defendant’s claim on appeal
was never raised in the trial court. Specifically, the
majority asserts that, although the defendant now con-
tends that he sought to perform the field sobriety tests
at issue to demonstrate for the jury that he is unable
to perform them due to a preexisting knee injury, ‘‘[t]he
colloquy between the court and the parties reveals that
both the court and the parties understood that the pur-
pose of the proposed evidence was to reenact [those]
tests.’’ Text accompanying footnote 9 of the majority
opinion. The majority then explains that, because the
purpose of the demonstration was to reenact the defen-
dant’s performance of the tests, and not, as the defen-
dant claims, to demonstrate that he is unable to perform
them even in a sober state, under any conditions; see
footnote 9 of the majority opinion; the trial court did
not abuse its discretion in precluding the demonstration
because it was not possible to replicate in court the
conditions that existed when the defendant performed
the tests at the time of his arrest.1
I disagree with the majority because the trial tran-
script reveals that the purpose of the proposed demon-
stration was to establish that the defendant is unable
to perform the tests even under the best of conditions
and, therefore, to bolster his claim that it was his injury,
and not his allegedly intoxicated condition, that caused
him to fail the sobriety tests on the night of his arrest.
Because the conditions in the courtroom were perfectly
adequate to permit such a demonstration, I agree with
the defendant that the trial court abused its discretion
in precluding it. I nevertheless concur in the judgment
because there is no reasonable possibility that the jury
would have found the defendant not guilty even if he
had been allowed to perform the tests at trial.
As the majority explains, the defendant was con-
victed of operating a motor vehicle while under the
influence of intoxicating liquor or drugs. At trial, the
defendant testified that he was unable to perform the
mobility based field sobriety tests that were adminis-
tered to him at the time of his arrest due to a preexisting
knee injury. Specifically, when defense counsel asked
him whether the arresting officer ‘‘wanted [him] to per-
form a test’’ and whether he was ‘‘comfortable doing
that test,’’ the defendant responded: ‘‘No. . . . I’m not
comfortable with that. I told him that I wouldn’t be able
to do it. I . . . five years before . . . hurt my leg really
bad; my knee went out of socket when I flipped over
a dirt bike on a road.’’ Defense counsel then turned to
the court and stated: ‘‘Your Honor, at this time, [the]
defense would request [that] demonstrative evidence
be introduced.’’ The court responded that it would pre-
fer to view the proffered demonstration outside the
presence of the jury and excused the jury from the
courtroom. After the jury was excused, defense counsel
told the court that the defendant ‘‘would like to show
the jury how [he] performed the [heel to toe and one
leg stand field sobriety] test[s] physically.’’ The assistant
state’s attorney objected to this demonstration, arguing
that it was ‘‘extremely inappropriate. He’s asking to try
to perform a test today that he was asked to perform
a year ago. . . . It’s not proper. He can do anything he
wants now. He can do cartwheels now if he wishes,
and I don’t see how that’s going to explain how he
performed the test on [the night of his arrest].’’ The
court then asked defense counsel how he could guaran-
tee that it would be a fair and accurate representation
of the defendant’s performance of the tests. Defense
counsel responded: ‘‘Well, the jury can see that this is
not occurring on that date, Your Honor. The jury can
take into account that [this] is a present physical [dem-
onstration and that the defendant’s] performance of it
is similar if not identical to that day since, in a sober
condition, [the] defendant performs the test the same
way.’’ The court then asked defense counsel how the
jury would be able to compare the two performances.
Defense counsel responded that the jurors already had
heard the testimony of the arresting officer, who had
described ‘‘what the [defendant] looked like when he
performed the test . . . .’’ The court then asked
defense counsel whether he was ‘‘claiming that [the
defendant] is somehow an expert on these tests and
can enlighten the jury somehow . . . . [A]m I missing
something?’’ Defense counsel responded that the defen-
dant was not claiming to be an expert but was simply
a person with ‘‘a disability,’’ which the jurors should
be allowed to see ‘‘for themselves’’ so that they could
properly decide ‘‘whether he’s credible or not . . . .’’
When defense counsel finished speaking, the court
stated that it was ‘‘not going to allow that kind of demon-
strative evidence, basically, because we cannot recreate
the scene. It would be inappropriate to have the defen-
dant demonstrate what he thinks occurred on that
night.’’
Contrary to the majority, I do not believe that the
defense was merely asking the court to allow the defen-
dant to ‘‘reenact’’ his performance of the tests on the
night of the arrest. To the contrary, it is apparent that
the defense was requesting to have the defendant per-
form the tests in the courtroom so that the jury could
judge for itself whether, as the defendant claimed, his
knee injury prevented him from performing such tests
even in a sober condition. I therefore believe it is inaccu-
rate for the majority to assert that even defense counsel
‘‘understood that the purpose of the proposed evidence
was to reenact the walk and turn and the one leg stand
tests’’; text accompanying footnote 9 of the majority
opinion; and that ‘‘defense counsel repeatedly indicated
that the purpose of the offer was to reenact the defen-
dant’s performance of the tests.’’ Not only did defense
counsel never use the words ‘‘reenact’’ or ‘‘reen-
actment,’’ he plainly stated that the jury would under-
stand that what they were seeing was a ‘‘present
physical [demonstration],’’ the point of which was to
show how the defendant’s disability affects his ability
to perform a field sobriety test, intoxicated or sober.
Moreover, to the extent that defense counsel consid-
ered the demonstration to be something akin to a reen-
actment, it was due to the fact that, according to defense
counsel, the defendant’s performance would be ‘‘similar
if not identical’’ to the performance he gave on the night
of his arrest because he undoubtedly would be unable
to perform the tests due to his disability.
Even if, as the majority contends, the court and the
parties were in agreement that the demonstration was
intended to be a simple reenactment of the tests, the
majority fails to explain why the trial court properly
concluded that the dissimilarity between the conditions
in court and the conditions that existed on the night of
the arrest constituted cause to disallow the demonstra-
tion. Nor did the trial court offer any explanation for
its decision. In fact, the conditions in the courtroom
were perfectly adequate to permit the proffered demon-
stration. Indeed, this is not a case in which the defen-
dant contended that external conditions, such as an
uneven road surface or inclement weather, impeded his
ability to perform a field sobriety test. If it was, then I
believe it would have been perfectly proper for the trial
court to preclude the demonstration on the ground that
the conditions required to ensure the reliability and
accuracy of the demonstration could not be replicated
in court. The defendant, however, claimed that a knee
injury prevented him from performing the tests at issue
and that that was the reason he failed the tests. In view
of the nature of this claim, all that was needed to ensure
a reasonably fair and accurate demonstration was the
defendant and a flat surface for him to walk on.2
I concur in the judgment, however, because the trial
court’s error in precluding the proffered demonstration
was harmless by any measure. As the majority notes,
shortly before his arrest, the defendant entered the
home of a complete stranger, Cheryl Byrne, in a dishev-
eled state, appearing glossy eyed and looking for some-
one by the name of ‘‘Gerry.’’ He left only when con-
fronted by Byrne’s German shepherd dog. Byrne wrote
down the defendant’s license plate number and immedi-
ately contacted the police. Shortly thereafter, a Farm-
ington police officer spotted the defendant’s car swerv-
ing and crossing the yellow median. After the officer
pulled the defendant over and approached his vehicle,
the officer observed that the defendant’s breath smelled
of alcohol, and that he exhibited slurred speech and
had an open twenty-four ounce beer can on the floor
of the vehicle. The defendant also admitted to having
been at a bar earlier that evening. In light of this over-
whelming evidence of guilt, it is clear that, even if the
defendant had been permitted to demonstrate for the
jury how he performs the field sobriety tests, and even
if the jury had believed that he was unable to perform
them due to a preexisting knee injury, it nevertheless
would have found him guilty of the charged offense.
Accordingly, I concur in the judgment.
1
As the majority explains, when a physical demonstration is offered for
the purpose of recreating the events at issue at trial, ‘‘the demonstration must
be performed under substantially similar conditions so that the rendition is
reasonably fair and accurate.’’ C. Tait & E. Prescott, Tait’s Handbook of
Connecticut Evidence (5th Ed. 2014) § 11.18, pp. 744–45.
2
Indeed, as the defendant argues, ‘‘performing the field sobriety tests in
a lit, flat, debris-free courtroom in the middle of the day actually constitute[d]
better conditions than those under which [he] performed [the tests]’’ on the
night of his arrest.
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547 F.2d 1174
Barge YB-II
No. 75-2251, 75-2582
United States Court of Appeals, Ninth Circuit
12/30/76
D.Alaska
1
AFFIRMED IN PART, REVERSED IN PART AND REMANDED
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399 F.2d 769
ALL STATES INVESTORS, INC., Plaintiff-Appellee,v.Elinore SEDLEY, Defendant-Appellant.
No. 17958.
United States Court of Appeals Sixth Circuit.
July 24, 1968.
Wilbur Fields, Louisville, Ky., for appellant.
Henry R. Heyburn, Louisville, Ky., and Royal H. Brin, Jr., Dallas, Tex. (Henry W. Strasburger, Strasburger, Price, Kelton, Miller & Martin, Dallas, Tex., Clay L. Morton, Marshall, Cochran, Heyburn & Wells, Louisville, Ky., on the brief), for appellee.
Before CELEBREZZE and PECK, Circuit Judges, and CECIL, Senior Circuit Judge.
CECIL, Senior Circuit Judge.
1
This appeal arises out of an action in the United States District Court for the Western District of Kentucky wherein the Court dismissed the substituted amended counterclaim and supplemented counterclaim of Elinore Sedley, defendant-appellant, in an action brought by All States Investors, Inc., plaintiff-appellee. The parties will be referred to as plaintiff and defendant, respectively, or as All States and Sedley.
2
All States brought the action in the District Court against Elinore Sedley and the Sedley Foundation to set aside alleged fraudulent conveyances of real estate and to subject the real estate to the payment of a judgment in the sum of $257,500 plus interest which All States held against Sedley and Bankers Bond Company, Inc. (Bankers Bond). The judgment in question had been entered on May 21, 1964, in the United States District Court for the Western District of Kentucky, in action No. 3646, styled "All States Investors, Inc. v. The Bankers Bond Company, Inc., and Elinore Sedley." This action will be referred to as No. 3646. At the time the action now before us was brought in the District Court, Bankers Bond was insolvent or at least it was without funds to satisfy the judgment. It was alleged in the complaint that Elinore Sedley had transferred for an inadequate consideration certain real estate to the Sedley Foundation. Plaintiff sought to have the transfers set aside.
3
The cause of action in No. 3646 grew out of the issue and sale of bonds by the City of West Buechel, a Sixth Class City of the State of Kentucky.1 All States had purchased bonds of this issue in the amount of $250,000 which subsequently defaulted. It then brought an action (No. 3646) for recovery against Bankers Bond, Sedley and others based on common law fraud and violation of the Securities Act. During the progress of the trial on these issues, the parties announced to the trial judge that they had reached an agreement for settlement.
4
Pertinent provisions of the agreement were that Sedley and Bankers Bond were to purchase at the time of closing $250,000 face value of the bonds for $90,000 cash and a note for $15,000 with Sedley and Bankers Bond as makers. Closing was to be within thirty days and the bonds were to be delivered simultaneously with the payment of the money and the delivery of the note. As a part of the agreement the parties entered into a stipulation that if Sedley or Bankers Bond failed to carry out their obligation within the specified time the court was to have authority and jurisdiction, without notice or the hearing of any further evidence, to enter judgment against them for the full amount of All States' claim. It was further stipulated that the bonds which were the subject of the action were in the possession of Honorable Martin R. Glenn, Clerk of the United States District Court at Louisville.
5
Within the specified time, Sedley and Bankers Bond tendered performance of their obligations under the agreement. All States was not able to deliver the bonds and the agreement was not consummated. It developed that the Clerk did not have the bonds and the parties were unable to account for them. Later the trial judge made a finding that without the fault of anyone the bonds were lost, stolen or misplaced.
6
Finally, upon delivery of an agreement indemnifying Sedley and Bankers Bond against any loss by reason of failure to deliver the bonds, a release and an assignment of the bonds, the trial judge held that this was substantial performance and entered a judgment for $257,500 on March 19, 1964. On appeal we affirmed. All States Investors, Inc. v. Bankers Bond Company, 6 Cir., 343 F.2d 618. It is a matter of interest that on a preliminary motion in this case (No. 3646) the district judge held by order dated January 22, 1959 that these bonds were invalid. There was no appeal from this order and this was a final adjudication of that issue. It also appears from exhibit 4 attached to the counterclaim that they were adjudicated to be invalid by Judge Winifred of Texas, (apparently a state judge).
7
It is this judgment that is in issue on the appeal now before us. To the plaintiff's complaint in that action, the defendant Sedley filed an answer and counterclaim. During the pendency of these proceedings, Sedley paid plaintiff's judgment in full and its cause of action was dismissed with prejudice. We are here concerned only with Sedley's substitute amended counterclaim and the supplement thereto, referred to hereinafter as the counterclaim.
8
In a long and somewhat involved counterclaim, which fails to comply with Rule 8, F.R.Civ.P., requiring "a short and plain statement of the claim," counsel for the defendant seeks to have the settlement agreement in No. 3646 and the judgment entered in accordance therewith declared null and void for the reason that the defendant was induced to enter into the agreement by fraud. The defendant further seeks $1,000,000 damages by reason of the fraud thus alleged to have been practiced upon her. Counsel for the plaintiff moved to dismiss the counterclaim for the reasons that it failed to state a cause of action (Rule 12(b) (6) F.R.Civ.P.) and that the questions raised thereby were res judicata. The trial judge sustained this motion and the defendant appealed.
9
From the maze of language in the counterclaim, the trial judge distills two occasions of alleged fraud perpetrated through the concerted actions of plaintiff's attorney and her own attorney. The first was the false representation of the plaintiff that at the time the settlement agreement was entered into the bonds were available for delivery. The second was that the judge was deceived into accepting the premise that the plaintiff entered into the settlement agreement in good faith, believing that the bonds were available for delivery, and thus induced the judge to approve the substituted performance.
10
On the first charge of fraud the district judge said:
11
"On the basis of the uncontradicted facts of this record, it must be ruled as a matter of law that the first misrepresentation was not the proximate cause of any damage that may have been suffered by the defendant. Having never asked for a rescission, the defendant is conclusively presumed to have elected to stand by the terms of the settlement agreement and to sue for the damages caused by the plaintiff's failure to deliver the bonds. Hampton v. Suter, 330 S.W.2d 402 (Ky.) citing Dunn v. Tate, 268 S.W.2d 925 (Ky.) But there could not have been any such damages because it has been adjudged that in lieu of delivery of the bonds the defendant was offered a substituted performance of equal value. It was her refusal to accept the substituted performance that caused her damage, and when she made the refusal she was not in any way relying upon the truth of the representation. Since no damage was caused by this misrepresentation, there can be no recovery on the basis of it. Long v. Howard, 260 Ky. 323, 75 S.W.2d 742; Curd v. Bethell, 248 Ky. 127. 58 S.W.2d 261; Lashley v. Lashley, 205 Ky. 601, 266 S.W. 247."
12
As to the second allegation of fraud, the judge said:
13
"In regard to the plaintiff's second alleged misrepresentation, the essential elements of fraud have been alleged, however, although proof of the plaintiff's bad faith in offering the substituted performance would have been a valid defense, Weil v. B. E. Buffaloe & Co., 251 Ky. 673, 65 S.W. 2d 704; Cassinelli v. Stacy, 238 Ky. 827, 38 S.W.2d 980; 17A C.J.S. [Contracts] Section 508, p. 815, the plaintiff's statements to the court indicating its good faith do not, taken by themselves, constitute the type of fraud necessary to relieve the defendant of the adverse judgment. Chatterton v. Janousek, [108 U.S.App.D.C. 171] 280 F.2d 719 (D.C.Cir. 1960); Johnson v. First National Bank in Wichita, Kansas, 223 F.2d 31 (10th Cir. 1955); Durham v. New Amsterdam Cas. Co., 208 F.2d 342 (4th Cir. 1953); Rubens v. Ellis, 202 F.2d 415 (5th Cir. 1953); Dowdy v. Hawfield, [88 U.S.App.D.C. 241] 189 F.2d 637 (D.C.Cir. 1951). The defendant must show some legally recognized excuse for failing to refute the plaintiff's contention of good faith while the original adjudication was in progress."
14
We agree with these conclusions.
15
It is alleged in a supplemental counterclaim that on Saturday, April 9, 1966, at about 10:15 a. m. counsel for defendant was notified by Mr. Hubert T. Willis, original counsel for the plaintiff, that he had found the bonds under the sofa in his office. Further allegations of fraud were made by reason of finding these bonds. However, the finding of these bonds is not inconsistent with the finding of the trial judge in No. 3646 that the bonds were lost, misplaced or stolen. It is alleged in this supplemental counterclaim that the defendant and Bankers Bond
16
"purchased over 65% of the total issue of $2,000,000 of said West Buechel bonds on the belief and qualified legal advice that Lloyds of London had an underwriter's obligation to pay the debts of the surety on the note of Mr. Ben Jack Cage, given in partial payment of the purchase of said West Buechel bonds; that said belief that there was a chance of recovery of the amount due on said note was a motivating factor of this Defendant and Bankers Bond Co. into entering said settlement agreement, which fact was known by the Plaintiff and its counsel on January 23, 1963 and for months prior thereto."
17
This is the first that we have heard this argument advanced in this case as a ground for refusing to consummate the settlement agreement and it would not be pertinent to the charge of fraud in inducing the defendant to enter into the agreement.
18
Reference is made in the substitute amended counterclaim to Civil Action No. 8576, styled W. R. Williford, et al., plaintiffs v. Professional and Business Men's Insurance Company, a corporation formerly known as All States Life Insurance Company, et al., pending in the United States District Court for the Northern District of Texas at the time the judgment in question was entered. We do not find that this is pertinent to the issue before us.
19
We conclude that the charges of fraud inducing the defendant to enter into the settlement agreement are not supported by the allegations of the counterclaim and it does not, therefore, state a cause of action. The counterclaim is generally vague, with conclusory statements rather than specific allegations of fact, and we find it is without merit as to any claimed causes of action.
20
Counsel for the defendant attached as exhibit 4 to his counterclaim a transcript of a hearing on a motion conducted by Judge Wilson on April 27, 1963. Judge Wilson is the judge before whom No. 3646 was tried at the time the settlement agreement was entered into and who granted the judgment on March 19, 1964. The motion was by All States for judgment for the full amount of its claim in accordance with the settlement agreement upon the failure of performance by Sedley and Bankers Bond. According to this transcript there was an extended discussion between counsel and the court relative to the motion and the settlement agreement. We do not find any reference to or any claim that the defendant was induced to enter into the agreement by fraud. All of the facts now relied upon to establish fraud were known to counsel at the time of the hearing on this motion. As we said above, the subsequent finding of the bonds, as alleged in the supplemental counterclaim, was not inconsistent with the finding that they were lost, misplaced or stolen. Judge Wilson decided this motion on October 4, 1963. He gave the parties a new closing date, October 21st, and held that upon further failure of Sedley and Bankers Bond summary judgment would be entered.
21
Thereafter Sedley and Bankers Bond filed a series of motions through a new attorney whom the judge permitted to be substituted for former counsel. They sought to file a third party complaint against Mr. Berkowitz, their former counsel. Judge Wilson denied leave to file a third party complaint. All of this procedure is detailed in our opinion in All States Investors, Inc. v. Bankers Bond Company, supra, 343 F.2d at pages 622-623.
22
We conclude that all of the issues attempted to be raised by this counterclaim were or could have been adjudicated in No. 3646 and its appeal to this Court. As a general rule "res judicata may be pleaded as a bar, not only as respects matters actually presented to sustain or defeat the right asserted in the earlier proceeding, `but also as respects any other available matter which might have been presented to that end.'" Chicot County Drainage Dist. v. Baxter State Bank, 308 U.S. 371, 378, 60 S.Ct. 317, 320, 84 L.Ed. 329. See also, Acree v. Air Line Pilots Association, 390 F.2d 199, C.A.5; Hudson v. American Surety Company of New York, 377 F.2d 698, C. A.8.
23
The judgment of the District Court is affirmed.
24
Motion of the plaintiff-appellee, All States Investors, Inc., to strike from the record of this case portions of the record of Case No. 3646 in the United States District Court for the Western District of Kentucky, styled: All States Investors, Inc., Plaintiff v. Bankers Bond Company, Elinore Sedley, Charles D. Dunne, and James E. Dunne, II, Defendants, claimed to have been filed pursuant to Rule 16(6) of the rules of this Court on May 31, 1968, is sustained.
Notes:
1
The details of the issue and sale of these bonds are described in an opinion of this Court reported at Texas Continental Life Insurance Company v. Dunne, 6 Cir., 307 F.2d 242, and in the opinion of District Judge Swinford, reported at Texas Continental Life Ins. Co. v. Bankers Bond Co., D.C., 187 F.Supp. 14
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18 F.Supp.2d 1071 (1998)
Arthur H. NORTHRUP, Jr., Plaintiff,
v.
Charlotte WHETSTONE; Katherine Privette; Squires Homes, Inc.; Jennifer Jones; Beazer Homes, USA Inc.; J. Alexander Lawrence; and Blake W. Ferguson, Defendants.
No. 3:97-CV-590-MU.
United States District Court, W.D. North Carolina, Charlotte Division.
May 1, 1998.
Bradley R. Kutrow, Smith, Helms, Mulliss & Moore, LLP, Charlotte, NC, Thomas Holderness, U.S. Dept. of Justice, Washington, DC, Weyman T. Johnson, Jr., Paul, Hastings, Janofsky & Walker, Atlanta, GA, for Defendants.
ORDER
MULLEN, Chief Judge.
THIS MATTER is before the Court upon Defendants' Motion to Dismiss and Plaintiff's Motion for Remand. Defendants also seek sanctions against Plaintiff pursuant to Rule 11 of the Federal Rules of Civil Procedure.
This dispute grows out of a contract for services between Squires Homes and Plaintiff. After Plaintiff entered into the subcontract agreement, Squires Homes requested that Plaintiff provide a Taxpayer Identification Number (T.I.N.). Plaintiff provided none, and Squires Homes withheld as backup withholding 31% of all amounts payable to Plaintiff, as required by law. On October 28, 1997, Plaintiff filed his complaint in the Superior Court of Mecklenberg County, alleging claims under 42 U.S.C. §§ 1983, 1985, 1986, 241, and 242, and under North Carolina state law. On November 25, 1997, Defendants removed this action to this Court.
*1072 Defendants properly removed this action because a party may remove "any civil action brought in a State court of which the district courts of the United States have original jurisdiction." 28 U.S.C. § 1441(a). This Court has original jurisdiction over claims challenging the validity of the Internal Revenue Code. 28 U.S.C. § 1340. Additionally, this Court has original jurisdiction over civil actions to secure relief under any Act of Congress providing for the protection of civil rights. 28 U.S.C. § 1343. Northrup's challenge to the Internal Revenue Code ("I.R.C.") and his claims under 42 U.S.C. §§ 1983, 1985 and 1986 are essential elements of his cause of action.
Defendants are correct that Plaintiff's federal claims must be dismissed pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Plaintiff fails to state a claim against Defendants under the I.R.C. The crux of this case is that taxes were withheld as required by the I.R.C. Even if those amounts were improperly withheld, Plaintiff's sole remedy is a civil suit against the United States for a tax refund. None of the Defendants is the proper party for such a suit. Similarly, because all Defendants are private actors, Plaintiff states no claim under Sections 1983, 1985 or 1986.
Plaintiff also brings claims under state law for conversion of property, fraud, constructive fraud, breach of contract and extortion. The facts that Plaintiff alleges simply indicate his dissatisfaction with the Internal Revenue laws. They do not form the basis for any tort or contract action against any Defendant in this case.
Defendants included their Rule 11 motion with their motion to dismiss. Rule 11 requires that a motion for sanctions "be made separately from other motions or requests." Fed.R.Civ.P. 11. In addition, the motion shall not be filed with a court "within 21 days after service of the motion" on the party against whom the movant seeks sanctions. Id. The Court will therefore defer consideration of sanctions until Defendants file a separate motion.
IT IS THEREFORE ORDERED THAT
(1) Plaintiff's motion for remand is DENIED; and
(2) Defendants' motion to dismiss is GRANTED.
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274 S.C. 66 (1979)
261 S.E.2d 157
Joe N. McWHIRTER, Appellant,
v.
CHEROKEE COUNTY SCHOOL DISTRICT NO. 1, Respondent.
21098
Supreme Court of South Carolina.
December 17, 1979.
*67 George H. Thomason of Thomason & French, Spartanburg, for appellant.
James R. Thompson of Saint-Amand, Thompson & Brown, Gaffney, for respondent.
December 17, 1979.
NESS, Justice:
This appeal is from an order affirming appellant McWhirter's dismissal from employment by respondent Cherokee County School District No. 1. We affirm.
Appellant was hired to teach mathematics at Cherokee High School during the 1977-1978 school term. On November 11, 1977, the school's principal, Thomas O. Huffman, delivered a letter to appellant citing some eleven "critical deficiencies" in his performance and calling for his resignation. One week later respondent's superintendent, John W. Baucum, suspended appellant from his teaching duties. Respondent's board of trustees affirmed appellant's suspension and subsequently held a hearing resulting in his dismissal
Appellant first argues he was not allowed a reasonable time to correct his alleged deficiencies prior to his dismissal as required by § 59-25-440, Code of Laws of South Carolina (1976).[1] This argument overlooks the express language of that section, which allows a reasonable *68 time for improvement "except as provided in § 59-25-450." (Emphasis supplied).
Section 59-25-450 (1978 Cum. Supp.) provides in relevant part:
"Whenever a superintendent has reason to believe that cause exists for the dismissal of a teacher and when he is of the opinion that the immediate suspension of the teacher is necessary to protect the well-being of the children of the district or is necessary to remove substantial and material disruptive influences in the educational process, in the best interest of the children in the district, the superintendent may suspend the teacher without notice or without a hearing." Since Baucum proceeded under this provision, appellant's first argument is without merit.
Appellant next argues he lacked sufficient notice of the charges against him as required by § 59-25-460 and the Due Process Clause. We disagree.
Baucum wrote appellant two letters setting forth five fairly specific and unambiguous reasons for his suspennion and eventual dismissal. We hold these letters met the requirements of § 59-25-440 and the Due Process Clause. See Intercontinental Industries, Inc. v. American Stock Exchange, 452 F. (2d) 935 (5th Cir.1971), cert. denied, 409 U.S. 842, 93 S.Ct. 41, 34 L.Ed. (2d) 81 (1972); Bass v. Bass, 272 S.C. 177, 249 S.E. (2d) 905 (1978).
Appellant's principal argument is that the record lacks evidence sufficient to support the boards decision. We disagree.
In Law v. Richland County School District No. 1, 270 S.C. 493, 243 S.E. (2d) 192 (1978), we held that if any of the charges against a teacher are supported by substantial evidence, the school board's decision to dismiss must be sustained. We defined "substantial evidence" as "evidence which, considering the record as a whole, would allow reasonable minds to reach the conclusion that the administrative agency *69 reached or must have reached in order to justify its action." 270 S.C. at 495 496, 243 S.E. (2d) at 193.
Here, there was substantial evidence appellant had been unable to maintain order in his classroom. Both Huffman and the school's guidance counselor testified appellant's disciplinary referrals increased rather than decreased after he was made aware of the problem and he appeared unable to control his pupils. Appellant failed to effectively rebut this evidence. We believe this constituted a "good and sufficient reason" for the board's action. See Adams v. Clarendon County School District No. 2, 270 S.C. 266, 241 S.E. (2d) 897 (1978); § 59-19-90 (2), Code of Laws of South Carolina (1976).[2]
Appellant further asserts the board's refusal to adjourn the proceedings at his request denied him the right to a fair and impartial hearing. Conceding that the hearing extended into the wee hours of the morning, we fail to see how the board's action substantially prejudiced appellant when only counsel's closing arguments remained to be heard after the request to adjourn was made.
Appellant's final argument is that the board failed to give him notice of the suspension hearing as required by §§ 59-25-440 and 59-25-470. We agree, but find this error irrelevant where the dismissal hearing, not the suspension hearing, is the subject of the appeal and appellant has shown no prejudice flowing from the procedural irregularity.
Affirmed.
LEWIS, C.J. and LITTLEJOHN, RHODES and GREGORY, JJ., concur.
NOTES
[1] The Teacher Employment and Dismissal Act, Code § 59-25-410 through § 59-25-530, was substantially revised in 1976. See 1976 Act No. 634. Since this action arose after the effective date of the revision, all citations are to the revised statutes appearing in the 1978 Cumulative Supplement to the Code of Laws of South Carolina (1976).
[2] This section was amended in 1978. See 1978 Act No. 504. The amendment is neither applicable nor material to the issues raised here.
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665 F.Supp. 428 (1987)
STATE OF NORTH CAROLINA, et al., Plaintiffs,
v.
Colonel Ronald E. HUDSON, et al., Defendants.
No. 84-36-CIV-5.
United States District Court, E.D. North Carolina, Raleigh Division.
July 7, 1987.
*429 *430 Lacy H. Thornburg, Atty. Gen., Daniel C. Oakley, Spec. Deputy Atty. Gen., Asst. Atty. Gen., N.C. Dept. of Justice, Raleigh, *431 N.C., Andrew P. Miller, Dickstein, Shapiro & Morin, Washington, D.C., for plaintiff.
Rudolf A. Renfer, Jr., Asst. U.S. Atty., Raleigh, N.C., for Federal defendants.
Glen R. Goodsell Lands Division, U.S. Dept. of Justice, Washington, D.C.
Lloyd C. Smith, Jr., Smith & Daly, Windsor, N.C., for Bertie C., N.C.
Larry M. Jones, Lawrenceville, Va., for Board of Supervisors of Brunswick Co., Va.
Edwin B. Baker, Baker & Williams, Keysville, Va., for Board of Supervisors of Charlotte Co., Va.
William T. Watkins, Watkins, Fincy & Hopper, Oxford, N.C., for Granville Co., N.C.
William W. Bennett, Jr., Slayton, Bennett & Rand, South Boston, Va., for Board of Supervisors of Halifax Co., Va.
John A. James, Weldon, N.C., for Halifax Co., N.C.
William R. Peel, Williamston, N.C., for Martin Co., N.C.
Frank D. Harris, Harris & Matthews, South Hill, Va., for Board of Supervisors of Mecklenburg Co., Va.
Charles J. Vaughan, Woodland, N.C., for Northampton Co., N.C.
Henry W. Hight, Jr., Henderson, N.C., for Vance Co., N.C.
Charles T. Johnson, Jr., Warrenton, N.C., for Warren Co., N.C.
Huey Marshal, Plymouth, N.C., for Washington Co., N.C.
Lewis A. Thompson, III, Banzet, Banzet & Thompson, Warrenton, N.C. and Patrick M. McSweeney, James F. Stutts, Brian L. Buniva, Richmond, Va., for Roanoke River Basin Assoc.
MEMORANDUM OPINION
BRITT, Chief Judge.
This action seeks judicial review of two decisions of the United States Army Corps of Engineers: (1) to issue a permit to the City of Virginia Beach, Virginia, under section 10 of the Rivers and Harbors Appropriation Act of 1899, 33 U.S.C.A. § 403 (West 1986), and section 404 of the Clean Water Act of 1977, 33 U.S.C.A. § 1344 (West 1986), to construct a water intake structure and pipeline in Lake Gaston to extend to Suffolk, Virginia; and (2) to enter into a water storage reallocation contract for Kerr Reservoir on behalf of the United States with the City of Virginia Beach pursuant to the Water Supply Act of 1958, 43 U.S.C.A. § 390b (West 1986). Plaintiffs, the State of North Carolina, the Roanoke River Basin Association (RRBA), four counties located in Virginia and eight counties located in North Carolina, challenge the issuance of the permit, contending that it violates the National Environmental Policy Act (NEPA) of 1969, 42 U.S. C.A. §§ 4321-4347 (1977), the Clean Water Act of 1977, the Rivers and Harbors Appropriation Act of 1899, the Coastal Zone Management Act, 16 U.S.C.A. §§ 1451-1464 (West 1985), the Water Supply Act and the various federal regulations implementing those statutes. Plaintiffs allege that the contract was executed in violation of NEPA, the Water Supply Act, the Clean Water Act and their implementing regulations. Plaintiffs ask the court to declare the pipeline construction permit and water supply contract void and remand the case to the Corps, with directions that before issuing any new permit or entering into any new water supply contract the Corps must (1) prepare an environmental impact statement (EIS) pursuant to section 102(2)(C) of NEPA and (2) conduct a meaningful public interest review pursuant to 33 C.F.R. § 320.4 (1986).
A hearing was held on 7 November 1986 on the parties' motions for summary judgment, and the case is now ripe for final disposition on the merits.
I. FACTS AND PRIOR PROCEEDINGS
The City of Virginia Beach, Virginia (Virginia Beach), now the largest in the state, is located on the Atlantic Ocean and in close proximity to other large bodies of water, such as Chesapeake Bay and the James River. Yet it suffers from a lack of an adequate supply of potable water to meet the needs of its citizens. Until recently *432 when five wells were constructed for contingency use in the event of an emergency,[1] it depended entirely on the City of Norfolk for its water. The need for water has been especially acute in times of drought, and on at least three occasions in the last decade droughts have brought hardship on the citizens and the implementation of conservation measures, including rationing. Seeking a permanent solution to its problem, Virginia Beach engaged in studies of its own and participated in joint studies with others. Every conceivable source, including desalting, wastewater reuse, groundwater, lakes and rivers, was explored before the City decided that its best alternative for a reliable source was Lake Gaston in the Roanoke River Basin.
The Roanoke River has its headwaters in the mountains of Virginia, near the City of Roanoke. It flows southeasterly, crossing the North Carolina border between Bracey, Virginia, and Gaston, North Carolina, and empties into the Albemarle Sound near Plymouth. Over the years several dams have been constructed on the river for flood control and hydroelectric purposes. This has resulted in several lakes, including Smith Mountain, John H. Kerr,[2] Gaston and Roanoke Rapids.
On 15 July 1983 Virginia Beach applied to the Norfolk District of the Army Corps of Engineers for a permit to construct a water intake structure, pier, boathouse and ramp in the Pea Hill Creek tributary of Lake Gaston located in Brunswick County, Virginia, and a sixty-inch inside diameter concrete pipe to extend to the City of Norfolk's water transport and treatment facilities located in Suffolk, Virginia, a distance of approximately 84.5 miles.[3] The pipeline was proposed to withdraw and transport up to a total of sixty million gallons per day (mgd) of water by the year 2030. Under the proposal forty-eight mgd would ultimately be treated for the use of Virginia Beach, ten mgd for Chesapeake, one mgd for the Isle of Wight County, and one mgd for Franklin. As part of its application Virginia Beach submitted an environmental study prepared by its consultants intended to assess the probable environmental impacts of the proposed project and evaluate alternatives to the proposal.
Over the next several months approximately 6,000 people attended three public hearings in North Carolina and Virginia where substantial oral and written comments were presented expressing both support for and opposition to the proposed project.[4] On 11 October 1983 the Norfolk District Corps issued a draft environmental assessment (EA) and a preliminary finding of no significant impact (FONSI) for public review and comment. On 7 December 1983 the Corps issued its final EA and FONSI which concluded that the project would have no significant environmental impacts and therefore preparation of an EIS was not required by NEPA. Consistent with Corps regulations a thirty-day public comment period, which expired on 6 January 1984, was announced. Comments were received by the Corps in response to the final EA and FONSI, including comments submitted by North Carolina and RRBA. On 9 January 1984 the Norfolk District Engineer signed and issued a permit to Virginia Beach. At the same time he issued a Statement of Findings (SOF) addressing comments on the EA and FONSI.
Meanwhile, the Wilmington District Corps was considering a request by Virginia Beach to enter into a water supply contract pursuant to the Water Supply Act of 1958 to reallocate storage in Kerr Reservoir *433 from power supply to water supply. The contract was proposed to reallocate to Virginia Beach 10,200-acre feet of water storage space in Kerr Lake which Virginia Beach could require the Corps to release into Lake Gaston to offset the withdrawal from Lake Gaston. On 13 January 1984 the Wilmington District Engineer adopted the EA prepared by the Norfolk District Engineer and issued a FONSI which concluded that no significant environmental impacts would result from the proposed reallocation and therefore an EIS was not required by NEPA. On 12 January 1984 the City signed the contract which was approved by the Assistant Secretary of the Army for Civil Works on 30 January 1984.
On 12 January 1984 the State of North Carolina filed this suit against Colonel Ronald E. Hudson, District Engineer for the Norfolk District of the Corps of Engineers; Colonel Wayne A. Hanson, District Engineer of the Wilmington District of the Corps of Engineers; Lieutenant General Joseph K. Bratton, the Chief of Engineers of the Corps of Engineers; William R. Gianelli, Assistant Secretary of the United States Department of the Army; and, John O. Morris, Jr., Secretary of the United States Department of the Army. All defendants are sued in their official capacities. The complaint alleges that issuance of the pipeline construction permit was arbitrary and capricious and in violation of NEPA, the Clean Water Act, the Rivers and Harbors Act, the Coastal Zone Management Act, the Water Supply Act, and the federal regulations implementing those acts. On 20 June 1984 the court allowed RRBA, eight counties in North Carolina and four counties in Virginia to intervene as plaintiffs. The counties filed a single complaint which mirrors that of the State of North Carolina.[5] RRBA's complaint in intervention challenges the issuance of the pipeline construction permit and also challenges execution of the water storage reallocation contract between the United States and Virginia Beach. On 3 December 1985 North Carolina was allowed to amend its complaint to also challenge execution of the water storage contract. On 4 December 1985 Virginia Beach was allowed to intervene as a party defendant.
Meanwhile, on 9 January 1984, Virginia Beach initiated an action in the Eastern District of Virginia (the Virginia Beach action) against RRBA and the Governor of North Carolina seeking a declaratory judgment that the permit and contract were valid. The Governor of North Carolina moved to dismiss for lack of personal jurisdiction. The district court held that the Governor was amenable to service of process pursuant to the Virginia long-arm statute, Va.Code § 8.01-328.1 (Repl.Vol.1984). An interlocutory appeal was taken to the United States Court of Appeals for the Fourth Circuit which ruled that the Virginia long-arm statute conferred no jurisdiction for assertion of plaintiffs' claims over the Governor of North Carolina. City of Virginia Beach v. Roanoke River Basin Association, 776 F.2d 484 (4th Cir.1985). The court ruled that Virginia Beach should be given an opportunity to transfer that case to the Eastern District of North Carolina. On 14 November 1985 Virginia Beach's motion to transfer was allowed, and the case became civil action No. 85-1625-CIV-5 in this court. On 2 December 1985 Virginia Beach moved to consolidate the two actions and to realign the parties according to their interests. On 17 December 1985 the motion was denied inasmuch as Virginia Beach had already intervened in this action and the claims and parties in each case were identical. The Virginia Beach action was dismissed, but all discovery previously conducted was made a part of this action.
On 12 December 1985 the Corps of Engineers filed the administrative record with the court. On 17 December 1985 the court suspended all discovery and ruled that judicial review of the Corps' actions would be confined to the administrative record consistent with the Administrative Procedure *434 Act, 5 U.S.C.A. § 706(2)(A) (West 1977). Disputes concerning the contents of the record were resolved by the 28 March 1986 order of the court which allowed limited supplementation of the record.
Virginia Beach has subsequently submitted a "Supplement to Virginia Beach's Response to Plaintiffs' Motions for Summary Judgment" in which it asks the court to consider Midkiff Affidavit, Exhibit G, an exhibit which is not part of the administrative record, for the limited purpose of impeaching arguments made by North Carolina and RRBA. The motion is denied. RRBA's motion to supplement the record with the same exhibit is also denied.
II. APPLICABLE STATUTES AND REGULATIONS
Four statutes and their implementing regulations are pertinent in this judicial review proceeding: The Rivers and Harbors Appropriation Act of 1899, 33 U.S.C.A. § 403 (1986); the Clean Water Act, 33 U.S. C.A. §§ 1251-1376 (1986); the Water Supply Act of 1958, 43 U.S.C.A. §§ 390b-390f (1986); and the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C.A. §§ 4321-4347 (1977). Pursuant to section 10 of the Rivers and Harbors Act of 1899, 33 U.S.C.A. § 403 (1986), the Corps of Engineers is responsible for evaluating proposed construction projects in the navigable waters of the United States. Section 404 of the Clean Water Act, 33 U.S.C.A. § 1344 (1986), gives the Corps jurisdiction to issue permits for the discharge of dredged or fill materials into the navigable waters of the United States. The Water Supply Act authorizes the Corps to reallocate water storage in federal reservoirs such as Kerr Reservoir. 43 U.S.C.A. § 390b (1986). In exercising the authority granted by these three statutes, the Corps must also comply with the prerequisites of NEPA.
A. NEPA
Congress enacted NEPA to oblige federal agencies to consider the environmental consequences of proposed actions in the decision-making process, thereby insuring "fully informed and well-considered" decisions. Strycker's Bay Neighborhood Council, Inc. v. Karlen, 444 U.S. 223, 228, 100 S.Ct. 497, 500, 62 L.Ed.2d 433 (1980) (per curiam), quoting Vermont Yankee Nuclear Power Corp. v. National Resources Defense Council, Inc., 435 U.S. 519, 98 S.Ct. 1177, 55 L.Ed.2d 460 (1978). Pursuant to section 102(2)(C) of the Act, 42 U.S.C.A. § 4332(2)(C), a federal agency has the duty to prepare a detailed environmental statement, known as an environmental impact statement (EIS), on every major federal action significantly affecting the quality of the human environment. In order to determine which actions trigger this provision, the Corps has promulgated regulations to implement NEPA, 33 C.F.R. pt. 230 (1986). The Corps is simultaneously governed by the Council on Environmental Quality (CEQ) regulations construing and implementing NEPA, 40 C.F.R. pts. 1500-1508 (1986).
These implementing regulations outline Corps procedure for evaluating a proposal. Before issuing a permit the Corps must prepare an environmental assessment (EA) to determine whether the proposed action would significantly affect the quality of the human environment, thereby requiring preparation of a comprehensive EIS. 33 C.F.R. pt. 230, app. B(8)(a). Typically the EA is a brief evaluation, normally not exceeding fifteen pages, of the likely environmental effects of a proposal, the need for and the alternatives to the proposed action. 33 C.F.R. § 230.9(c) and 33 C.F.R. pt. 230, app. B(8)(a). When the district engineer concludes that a project will not significantly affect the quality of the human environment, he must prepare a FONSI presenting the reasons for this conclusion. 33 C.F.R. § 230.10 and 33 C.F.R. pt. 230, app. B(8)(c).
Section 102(2)(E) of NEPA, 42 U.S.C.A. § 4332(2)(E), requires the federal agency to "study, develop and describe appropriate alternatives" to recommended courses of action in any proposal involving unresolved conflicts concerning alternative uses of available resources. This provision is independent of the standard triggering preparation of an EIS and is not limited to proposed *435 major actions significantly affecting the quality of the human environment. River Road Alliance, Inc. v. Corps of Engineers of United States Army, 764 F.2d 445 (7th Cir.1985), cert. denied, ___ U.S. ___, 106 S.Ct. 1238, 89 L.Ed.2d 590 (1986); City of New York v. United States Department of Transportation, 715 F.2d 732 (2d Cir.1983), cert. denied, 465 U.S. 1055, 104 S.Ct. 1403, 79 L.Ed.2d 730 (1984). However, the smaller the impact of the proposed action, the less extensive the search for alternatives is to be expected of the agency. River Road Alliance, Inc., 764 F.2d at 452.
B. PUBLIC INTEREST REVIEW AND OTHER CORPS REGULATIONS
In addition to the regulations implementing NEPA, the Corps has adopted regulations which serve as guidelines for the evaluation of all regulatory permit applications. 33 C.F.R. pt. 320 (1986). Chief among these regulations is 33 C.F.R. § 320.4(a) which requires the Corps to undertake a general "public interest review" to decide whether a permit should issue. In this review the Corps must evaluate a proposal's overall impact on the public interest, balancing the "benefits which reasonably may be expected to accrue ... against its reasonably foreseeable detriments." 33 C.F.R. § 320.4(a).
In weighing the public interest, the Corps is to evaluate the following general criteria: (1) the relative extent of a public and private need for the proposed project; (2) where there are unresolved conflicts as to resource use, the practicability of using reasonable alternative locations and methods to accomplish the objective of the proposed project; and, (3) the extent and permanence of the beneficial and/or detrimental effects which the proposed project may have on the public and private uses to which the area is suited. 33 C.F.R. § 320.4(a)(2). Furthermore, all factors which may be relevant to the proposal must be considered, including but not limited to "conservation, economics, aesthetics, general environmental concerns, wetlands, cultural values, fish and wildlife values, flood hazards, floodplain values, land use, navigation, shore erosion and accretion, recreation, water supply and conservation, water quality, energy needs, safety, food and fiber production, mineral needs, considerations of property ownership, and, in general, the needs and welfare of the people." 33 C.F.R. § 320.4(a)(1).
The decision whether to issue the permit depends on the outcome of this balancing of factors. A permit is to be granted unless the district engineer determines that it will be contrary to the public interest.[6] 33 C.F.R. § 320.4(a)(1). When the decision on the permit application is made the district engineer must include the results of his public interest review in the Statement of Findings, a document which must be prepared in all permit decisions not requiring preparation of an EIS. 33 C.F.R. § 325.2(a)(6) (1986).
Corps regulations require that the district engineer consult with the directors of the United States Fish and Wildlife Service, the National Marine Fishery Service and the agency responsible for wildlife for the state in which the work is to be performed and accord "great weight" to their views on fish and wildlife conservation. 33 C.F.R. § 320.4(c); Hough v. Marsh, 557 F.Supp. 74, 81 (D.Mass.1982). Also the district engineer must consider all comments received in response to public notice regarding the permit application. 33 C.F.R. § 325.2(a)(3). Due consideration must also be given to the official views of the state, regional or local agencies having an interest over the particular activity as "a reflection of local factors of the public interest." 33 C.F.R. § 320.4(j)(1). The district engineer must conduct an independent evaluation of the permit application and be responsible for the accuracy of information *436 submitted by the applicant. 33 C.F.R. pt. 230, apps. B(3) and (8)(b).
III. CONTENTIONS
North Carolina and RRBA do not challenge the Corps' jurisdiction to issue the permit and enter into the water supply reallocation contract pursuant to the above cited statutes. Instead, they argue that both of the Corps' decisions were arbitrary and capricious and should be set aside on several independent grounds. Generally North Carolina and RRBA contend that the Corps' consideration of the permit application and water supply contract were conducted in a biased manner and were result oriented. Furthermore, they contend that both conclusions ran counter to the evidence in the record because the Corps ignored relevant factors, misconstrued the law and misapplied the regulations regarding NEPA and the public interest review.[7]
Specifically, North Carolina and RRBA contend that the Corps' public interest review in evaluating the permit application was arbitrary and capricious because the Corps: (1) failed to assess the public need for the pipeline project; (2) failed to determine the practicability of reasonable alternatives and methods to supply the water needs of Virginia Beach and South Hampton Roads; (3) failed to consider the extent or permanence of the project's effects on other uses; (4) failed to weigh the public interest as it relates to effects on fish and wildlife, water quality, riparian rights of adjacent landowners, and effects on the coastal zone; and, (5) failed to assess the long-term water supply needs of the Roanoke River Basin and Southside Hampton Roads[8] and the effects of conservation on the public interest. North Carolina and RRBA also contend that the Corps' consideration of NEPA issues was arbitrary and capricious. They contend that the FONSI was arbitrary and capricious because: (1) the project would seriously harm water quality in the Roanoke River Basin; (2) the Corps failed to study the pipeline's effect on striped bass; and, (3) the Corps failed to employ the required "worst case analysis." North Carolina and RRBA also contend that the Corps' issuance of the permit was arbitrary and capricious because the Corps failed to analyze alternatives to the project as required by 42 U.S.C.A. § 4332(2)(E) and Corps regulations. North Carolina and RRBA also challenge the Corps' decision to enter into the water supply reallocation contract on the following grounds: (1) the Corps' finding of no significant impact was arbitrary and capricious; (2) the Corps failed to consider alternatives to the water supply contract; and, (3) the Corps acted in violation of law by becoming a partisan in a water dispute between Virginia and North Carolina.
IV. STANDARD OF REVIEW
The applicable review standard is found in the Administrative Procedure Act which provides in pertinent part:
The reviewing court shall
(2) hold unlawful and set aside agency action, findings, and conclusions found to be
(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;
....
(D) without observance of procedure required by law.
5 U.S.C.A. § 706(2)(A) & (D) (West 1977). Any interpretation of this standard must begin with the Supreme Court's decision in Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971). In Overton Park the Supreme Court made clear that the court's obligation pursuant to this statute is two-fold. The court must consider, first, whether the agency acted within the scope of its authority and, second, whether the actual choice made by the agency was arbitrary, capricious an abuse of discretion, or *437 otherwise not in accordance with law. To make this finding the court must consider whether the decision was based on a consideration of the relevant factors and whether there was a clear error of judgment. This standard of review is highly deferential and the agency decision is "entitled to a presumption of regularity." Overton Park, 401 U.S. at 415, 91 S.Ct. at 823.
The agency must examine the relevant data and articulate a satisfactory explanation for its action, including a "rational connection between the facts found and the choice made." Bowman Transportation, Inc. v. Arkansas-Best Freight System, Inc., 419 U.S. 281, 285, 95 S.Ct. 438, 442, 42 L.Ed.2d 447 (1974), reh'g denied, 420 U.S. 956, 95 S.Ct. 1340, 43 L.Ed.2d 433 (1975), quoting Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168, 83 S.Ct. 239, 246, 9 L.Ed.2d 207 (1962). Furthermore, the court may not supply a reasoned basis for the decision that the agency has not given. Bowman Transportation, 419 U.S. at 285-286, 95 S.Ct. at 441-442. In Motor Vehicles Manufacturers Ass'n of the United States, Inc. v. State Farm Mutual Auto Insurance Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 2868, 77 L.Ed.2d 443 (1983), (State Farm) the court said:
[A]n agency rule would be arbitrary and capricious if the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.
In reviewing whether the agency has complied with the requirements of NEPA, the only role for the court is to insure that the agency has taken a "hard look" at the environmental consequences; it cannot "interject itself within the area of discretion of the executive as to the choice of the action to be taken." Kleppe v. Sierra Club, 427 U.S. 390, 410 n. 21, 96 S.Ct. 2718, 2730 n. 21, 49 L.Ed.2d 576 (1976). In enacting NEPA, Congress did not require agencies to elevate environmental concerns over other appropriate considerations. Baltimore Gas & Electric Co. v. Natural Resources Defense Council, Inc., 462 U.S. 87, 103 S.Ct. 2246, 76 L.Ed.2d 437 (1983). In applying the arbitrary and capricious standard to NEPA determinations the court must engage in a substantial inquiry to determine whether the agency, in its conclusions, made a good faith judgment, after considering all relevant factors, including possible alternative or mitigative measures. Coalition for Responsible Regional Development v. Coleman, 555 F.2d 398 (4th Cir.1977). In passing on the good faith issue, the court may not substitute its judgment for that of the agency but must only look to see that the official or agency took a hard look at all relevant factors. In considering alternatives, the agency need only set forth those alternatives sufficiently to permit a reasoned choice.[9]Coleman, 555 F.2d at 400.
V. ANALYSIS
A. FINDING OF NO SIGNIFICANT IMPACT
The Corps of Engineers is required by NEPA to prepare a detailed EIS in all "major Federal actions significantly affecting the quality of the human environment." 42 U.S.C.A. § 4332(2)(C). The Norfolk District Engineer found that the pipeline project would have no significant effects on the environment and determined that an *438 EIS was not required. North Carolina and RRBA contend that the Corps' FONSI was arbitrary and capricious because the record demonstrates that a 60 mgd withdrawal would seriously harm water quality in the Roanoke River and the Corps failed to adequately assess the project's impact on striped bass spawning in the river.
The court need not dwell on whether the Corps' decision to issue the pipeline construction permit was a "major federal action" within the bounds of the EIS requirement of NEPA. In all its decision documents, the Corps assumed the project was major and devoted its energies to evaluating the significance of any impacts on the environment. The federal defendants do not contest the assertion that the project constitutes major federal action.[10] Therefore, the court moves directly to the issue of significant impact.
To provide agencies with some guidance for determining which impacts are "significant," the Council on Environmental Quality (CEQ) adopted regulations defining the term. 40 C.F.R. § 1508.27. The statutory concept of significant impact requires consideration of both the context and intensity of impacts. In evaluating intensity of impact agencies are directed to weigh ten specific factors. 40 C.F.R. § 1508.27(b)(1)-(10). The ultimate determination of significance requires comparison of "whether the time and expense of preparing an environmental impact statement are commensurate with the likely benefits from a more searching evaluation than an environmental assessment provides." River Road Alliance, Inc. v. Corps of Engineers of United States Army, 764 F.2d 445, 449 (7th Cir.1985), cert. denied, ___ U.S. ___, 106 S.Ct. 1283, 89 L.Ed.2d 590 (1986).
The court will now evaluate plaintiffs' specific contentions on why an EIS is required.
1. Water Quality
North Carolina and RRBA argue that the finding of no significant impact was arbitrary and capricious because a withdrawal of 60 mgd would adversely affect water quality in the Roanoke River. The Corps found that the 60 mgd withdrawal would have no noticeable impact on downstream water quality. North Carolina and RRBA contend that this conclusion was based on two propositions which warrant a remand of the determination: First, the Corps relied on average flows rather than analyzing low flow conditions in the Roanoke River; and second, the Corps relied on the existence of Federal Energy Regulatory Commission (FERC) minimum flow requirements to guarantee water quality in the river.
North Carolina argues that reliance on average flows to determine water quality impacts is "misplaced" because water quality analysis must be based on low flow (drought) conditions. When the amount of water in the river is at its lowest point pollutants are at their greatest concentration because the amount of water available to dilute them is limited. At a time of drought when Virginia Beach would make its greatest demands on the river, these circumstances would be at their most extreme. Corps' reliance on annual average flows is allegedly faulty because average flows are largely influenced by flood conditions. Thus, it is argued, average flows are irrelevant to the determination whether water quality would be affected by a 60 *439 mgd withdrawal during critical periods of drought.
Had the Corps relied solely on average flows in reaching its water quality determination, this argument might be more persuasive. However, the Corps not only considered impacts of the withdrawal on average flows of the river but also impacts based on FERC mandated minimum flows. Furthermore, average flows are not irrelevant as urged by North Carolina because in regulated streams, like those in the Roanoke River system, flood waters can be and are stored for release later during low flow periods.
Virginia Electric and Power Company (VEPCO) operates hydropower facilities at the end of Gaston and Roanoke Rapids Lakes. VEPCO's procedure is to allow water to accumulate in the lakes during times of off-peak power demand and then release water through its generators during peak periods of demand. VEPCO's FERC license for Roanoke Rapids Dam requires that it release certain minimum instantaneous flows and quantities of dissolved oxygen downstream to maintain adequate water quality standards below the dam despite its power generation needs. The standards require that VEPCO release at least 1,000 cubic feet per second (cfs) from November through March, 1,500 cfs in April and October and 2,000 cfs from May to September. To insure that there is sufficient water in Roanoke Rapids Lake for VEPCO's releases, the Corps has established operating rules to release water from its impoundment in Kerr Lake into Lake Gaston and, in turn, into Roanoke Rapids Lake.
In analyzing the water quality impacts of a 60 mgd withdrawal, the Corps recognized that the City's proposed project would not affect FERC mandated minimum releases downstream. The Corps also analyzed actual flows for the 1983 year and superimposed the hypothetical 60 mgd withdrawal on the figures. It determined that there were only fourteen times when flows were within 60 mgd of FERC mandated minimums which would have caused fourteen days of minimum regulated flows. The Corps found that the greatest effect the City's proposal would have on water quality would be to increase the number of days which low flows would occur. The conclusion was that such an impact would be insignificant.
North Carolina gives four reasons why the Corps' reliance on FERC mandated minimum flows to protect downstream water quality was arbitrary and capricious. First, North Carolina argues that the standard is outdated because minimum levels were determined more than twenty-six years ago. However, no evidence was presented to the Corps by comment or otherwise to indicate that FERC minimum standards no longer insure acceptable conditions in the river other than North Carolina's assertion that a 26-year-old standard must be outdated. Moreover, in regulating water quality through the National Pollution Discharge Elimination System, North Carolina determines the maximum pollutant discharges allowable by industries and municipalities in the river based on FERC regulated minimum flows for the month of October. Second, North Carolina argues that the Corps assumed that reducing flows to a minimum level for extended periods would pose no environmental effects. "If increased frequency and prolonged duration of low flows may have an effect on the environment, then an EIS is required...." Memorandum of North Carolina in support of its motion for summary judgment at 37. However, North Carolina misconstrues the law. The Corps examined the impacts of increased periods of low flow and deemed them to be insignificant. Only a finding of significant impact warrants preparation of an EIS. Providence Road Community Association v. Environmental Protection Agency, 683 F.2d 80 (4th Cir.1982); see § IV, supra.
Third, North Carolina argues that the Corps failed to consider additional withdrawals in the Roanoke River Basin for irrigation and industrial purposes. However, the Corps considered these potential withdrawals. The Corps considered North Carolina irrigation projections and found the anticipated impact of the withdrawals *440 to be insignificant. Furthermore, the Corps was made aware that Champion International Corporation was contemplating building a pulp mill on the Roanoke River and VEPCO was considering building a power plant which would use water in the Roanoke River Basin. Both companies were uncommitted to these projects, and the Corps found the impacts of these potential projects to be unforeseeable. North Carolina argues that failure to consider these potential withdrawals was arbitrary and capricious while RRBA argues that it is evidence of the Corps' biased and unevenhanded approach in considering the water needs of the competing users. Neither argument is persuasive. The Corps is not required to speculate concerning impacts which are not foreseeable, and the agency's determination that these future withdrawals were not foreseeable was not arbitrary and capricious or an abuse of discretion. See cf. Coalition for Responsible Regional Development v. Coleman, 555 F.2d 398, 400 (4th Cir.1977) (court is not to fault an agency for failure to consider an alternative whose effect cannot be reasonably ascertained). Furthermore, the allegations of bad faith are not supported by the Corps' intensive review as evidenced by the record. See V(D), infra.
Fourth, North Carolina argues that the Corps' reliance on FERC minimums to protect water quality was unreasonable because the lower Roanoke River and Albemarle Sound were already faced with serious water quality problems. The Corps considered downstream water quality effects and found that approximately 1% less water would be available for dilution of downstream pollutants. This was considered to be insignificant. Furthermore, the Corps analyzed the impact of the City's project on Albemarle Sound and concluded that it should not be significantly affected.
The above analysis makes clear that the Corps took a "hard look" at the environmental consequences of the Virginia Beach project as they relate to water quality and concluded that no significant impacts were expected. Nothing more is required. Kleppe v. Sierra Club, 427 U.S. at 410 n. 21, 96 S.Ct. at 2730 n. 21. The relevant factors were considered, and there was no clear error of judgment. See, Citizens to Preserve Overton Park v. Volpe, 401 U.S. at 417, 91 S.Ct. at 824; Coalition for Responsible Regional Development v. Coleman, 555 F.2d at 422.
2. Striped Bass Spawning
North Carolina and RRBA also challenge the FONSI as arbitrary and capricious because the Corps allegedly failed to adequately assess the effects of a 60 mgd withdrawal on striped bass spawning in the Roanoke River Basin. Striped bass migrate up the Roanoke River every spring to spawn in the vicinity of Weldon, North Carolina. Successful spawning requires higher than normal river flows to keep the eggs buoyant until they are hatched. "Striped bass spawn more successfully when there is a lot of flow in the river than when there is very little flow...." Norfolk Record 70, EA at 3.
Anadromous striped bass populations have declined in the last several years throughout the East Coast and in the Roanoke River Basin. In order to protect the species in the Roanoke River, VEPCO, the Corps of Engineers and the North Carolina Wildlife Resources Commission in 1971 executed a Memorandum of Understanding for the regulation of augmentation flows from Kerr Reservoir.[11] The Memorandum of Understanding provides that pursuant to VEPCO's FERC license the minimum flows released by VEPCO from Roanoke River Reservoir will be augmented by water from Kerr Reservoir in an amount determined by the Corps of Engineers to be sufficient to maintain a minimum stage of thirteen feet on the river gauge at Weldon (approximately 6,000 cfs). The augmentation flows are required to begin on or about 26 April *441 and continue through the spawning season, but not later than 15 June, provided that storage is available for the releases in Kerr Reservoir. "Exact dates are determined by North Carolina fishery biologists." Norfolk Record 70, EA at 7. This spawning period is roughly fifty days.
In addressing this matter in the EA, the Norfolk District Engineer said:
Striped bass migrate up the Roanoke River every spring to spawn. Successful spawning requires higher-than-normal river flows to keep the eggs buoyant until they hatch. For this purpose, the Corps stores extra water in the early spring, when it is available, to release beginning around April 26 and ending around June 15. This period of roughly 50 days is a "window" which should cover most annual spawning and hatching periods. Exact dates are determined by North Carolina fishery biologists. The water released by the Corps during this period results in a flow at Weldon, North Carolina of 6000 cfs, or a river stage elevation of 13. The City's intake would, under worst-case conditions, eliminate two days from the end of the 50-day augmented flows. This condition would be expected to occur four times in 100 years. In one year out of four, one day would be lost at the end of the 50-day augmented flow period. This worst-case condition assumes the maximum, 60 MGD withdrawal, which is not projected to be reached until the year 2030. A two percent loss in potential spawning time once every four years is not considered significant, nor is a four percent loss once every 25 years, in part because a number of variables other than river flow are thought to influence striped bass spawning and survival. (emphasis added)[12]
Plaintiffs contend that the above finding is arbitrary and capricious because it is based on the false assumption that the augmentation flow releases were being met, as shown by the emphasized portion of the quote. Plaintiffs further argue that in fact the spawning flows were released by the Corps for the entire 50-day spawning season in only 21% of the years from 1955 to 1982 or 6 out of 28 years. During the other 22 years spawning flows were released for shorter periods during the spawning season.[13] Therefore, the "worst-case" analysis was incorrect because the flows were not actually being augmented for the entire 50-day period. The FONSI was, therefore, based on a materially incorrect premise.
In its comments to the Corps the North Carolina Wildlife Resources Commission expressed concern over the Corps' failure to release these flows from Kerr Reservoir:
The striped bass is an important sport and commercial fish and is very important to the economy of the entire Roanoke Basin within North Carolina. A recent analysis of release flows from Kerr Reservoir indicates that sufficient water to supplement striped bass spawning in the Roanoke River below Roanoke Rapids Dam for the full 50 days of the spawning period has been available only for six of the last 28 years. This means that, under current conditions, water is available for the full 50-day spawning period only 21% of the time. It should be emphasized that the water stored in Kerr Reservoir between elevations 300 and 302 feet is used to supplement river flows when they are less than the 6,000 cfs minimum required for striped bass spawning. This minimum flow occurs each weekend and at other times when power demand is low. The supplemental water is not used to provide desired or *442 optimum spawning flows. These occur only under flood conditions when the reservoirs are full and overflowing. Any additional withdrawals or reallocations of water that reduce either the quantity or duration of flows available to striped bass for spawning will have further serious impacts upon the striped bass resource.
Norfolk Record 178 at 2. The Corps responded to these comments by saying: "North Carolina has correctly pointed out that the Corps is often not able to maintain the 6,000 cfs released for the entire 50-day period. This is an existing condition, and would presumably persist even without this project." Norfolk Record 74, SOF at 3.
The federal defendants and Virginia Beach respond to these arguments by asserting that the exact length of releases of augmentation flows are determined by North Carolina fishery biologists. Therefore, whenever the Corps failed to release the augmented flows for the entire 50-day period, the striped bass were presumably no longer spawning and the augmented flows curtailed. However, no data appears in the record to support such a rationalization. The Corps never offered this explanation in the face of North Carolina's comments but merely admitted that it was often unable to maintain the 6,000 cfs release for the entire 50-day period. The agency must examine the relevant data and articulate a satisfactory explanation for its action, including a "rational connection between the facts found and the choice made." Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168, 83 S.Ct. 239, 246, 9 L.Ed.2d 207 (1962). The reviewing court may not supply a reasoned basis for the decision which the agency itself has not given. State Farm, 463 U.S. at 43, 103 S.Ct. at 2867 (1983). Defendants' arguments are further discredited by the fact that the "fishery biologists" charged with responsibility for determining the exact periods of augmentation releases are members of the North Carolina Wildlife Resources Commission, the very agency who complained to the Corps that it was not releasing adequate augmentation flows.
The Corps is only required to release augmentation flows when water storage is available in Kerr Reservior. While the Corps may not have failed to meet its obligation pursuant to its contract with VEPCO and the North Carolina Wildlife Resources Commission, it based its FONSI on the premise that such releases were being made for a 50-day spawning period each year. When presented with evidence to the contrary, the Corps offered an inadequate response. It is no explanation that the condition would exist with or without the project.
The Corps conducted no independent analysis of the pipeline's effects on striped bass but relied on Virginia Beach's worst-case conclusions. While the Corps may utilize reports and facts derived from reports supplied by the applicant, it is responsible for the independent verification of specifically challenged information supplied by the applicant or outside consultants. 33 C.F.R. § 230, apps. B(3) and B(8)(6); Van Abbema v. Fornell, 807 F.2d 633, 639 (7th Cir.1986). If the Corps bases its conclusions on false premises or information even when its attention is directed to possible defects in the analysis, its conclusion cannot be described as reasoned. Sierra Club v. United States Army Corps of Engineers, 701 F.2d 1011, 1035 (2d Cir. 1983). There is no indication in the record that the Corps verified the information as submitted by Virginia Beach. Furthermore, there is no evidence in the record that the Corps conducted any independent investigation regarding the pipeline's effect on the striped bass.
The Corps can find no comfort in the fact that neither the United States Fish and Wildlife Service nor the National Marine Fishery Service expressed the opinion that the pipeline permit should be denied or that an EIS should be prepared. Both agencies based their determinations upon a review of the final environmental assessment and FONSI which were based on the worst-case analysis. See Norfolk Record 249 & 250. Despite the fact that both agencies concurred in the FONSI, they expressed extreme reservations considering the Corps' *443 analysis. For example, the National Marine Fishery Service stated as follows:
The National Marine Fishery Service (NMFS) has reviewed the subject document and concurs with your Finding of No Significant Impact. However, as stated in our October 14, 1983, letter, the NMFS remains concerned about the impact of the City's water withdrawal on striped bass spawning which occurs downstream of the Roanoke Rapids Dam. While we realize that the analysis presented in the assessment indicates that the project will have minimal impacts to spawning striped bass, we are of the opinion that even this small loss could be eliminated. Perhaps it would be possible to enhance the releases for this species. Therefore, we reiterate our earlier request that a group of state and federal resources agencies, including the North Carolina Division of Marine Resources, be formed to review this situation and recommend an appropriate release schedule to protect, and perhaps enhance, this resource.
Norfolk Record 250; see also Norfolk Record 229. Similarly, the United States Fish and Wildlife Service commented on three occasions that the issue of minimum instream flow needs for fish and wildlife in the Roanoke River Basin had been inadequately addressed in the draft and final environmental assessments. Norfolk Record 114, 226 & 249. The Corps is required to consult with these agencies with the view to the conservation of wildlife resources to prevent their direct and indirect loss and damage due to the proposed activity in the permit application. "The Army will give full consideration to the views of those agencies on fish and wildlife considerations in deciding on the issuance, denial, or conditioning of individual or general permits." 33 C.F.R. § 320.4(c). However, the Corps did not adequately respond to the comments made by the Fish and Wildlife Service or the National Marine Fishery Service.
The court also notes that North Carolina called to the Corps' attention that even the FERC-mandated river flows were not always met. The Corps' response was "[t]his is a matter which the State should refer to VEPCO and FERC, for it has nothing to do with the Corps or this proposed project." SOF at 4. No attempt was made by the Corps to relate any such failure, together with the proposed withdrawal, on striped bass during their critical spawning season.
NEPA places upon an agency the obligation to consider every significant aspect of the environmental impact of a proposed action. Baltimore Gas & Electric Co. v. National Resources Defense Council, Inc., 462 U.S. 87, 103 S.Ct. 2246, 76 L.Ed.2d 437 (1983). The role of the court in reviewing agency decisions is to ensure that the agency has adequately considered the environmental impact of the proposed action and that the decision is not arbitrary and capricious. The court cannot accept as reasoned a decision that was based on incorrect or misleading information, especially when it implicates impacts on a declining species such as the striped bass. This is particularly true when it is derived from the applicants unverified analysis in the face of specific objections regarding the facts upon which the analysis was derived. Specific challenges require specific responses or a determination that the information was not relied upon. See, e.g., Van Abbema v. Fornell, 807 F.2d at 639.
Based on the foregoing, the court holds that the FONSI as it relates to striped bass was arbitrary and capricious. This determination is not to suggest that the court is of the opinion that the project's impact on striped bass would be significant or that an EIS is required. That decision is uniquely within the province of the Corps once it takes a "hard look" at the environmental consequences of the Virginia Beach project on striped bass.[14]
*444 3. Other NEPA Considerations
North Carolina and RRBA attack the FONSI as arbitrary and capricious on several other less significant grounds. First, North Carolina argues that the Corps failed to perform a "worst-case" analysis with respect to the potential water quality impacts that may result from potential VEPCO and Champion plants in the Roanoke River Basin and other future water usages downstream. Corps regulations provide that "where relevant information is missing or incomplete and the costs of obtaining it are exorbitant or the means to obtain it are not known, the district engineer should include a `worst-case' analysis. ..." 33 C.F.R. pts. 230, app. B(3).[15] As discussed earlier, the Corps determined that such withdrawals were not reasonably foreseeable. That decision was reasonable and is supported by the record. Information that is unforeseeable is not "relevant" or "missing" as contemplated by the worst-case regulations. Therefore, a worst-case analysis was not required.
In addition to the foregoing arguments, RRBA argues that the Corps inadequately considered the factors that it is required to weigh in determining the significance of impacts. 40 C.F.R. § 1508.27. In particular, RRBA argues that the Corps failed to consider "[t]he degree to which the effects on the quality of the human environment are likely to be highly controversial." 40 C.F.R. § 1508.27(b)(4). There can be no doubt that this project is highly controversial. The tenor of comments expressed in writing and at the three public hearings attests to the fact that this project is hotly debated. However, the core of the controversy relates to the advisability and legality of the interbasin transfer of water and the socioeconomic impacts of such a decision. See § V(B)(2), infra. The high degree of controversy generated by the application does not concern the project's effects on the human environment although some environmental objections were raised. See River Road Alliance, Inc., 764 F.2d at 451 (public opposition cannot tip the balance if the environmental impacts are deemed insignificant). Therefore, the Corps' treatment of this factor was reasonable and supported by the record.
RRBA further argues that the Corps failed to consider the degree to which the decision sets a precedent for future interbasin transfers of water. 40 C.F.R. § 1508.27(b)(6). However, the Corps considered this factor and weighed its significance. The Corps' consideration of this factor was not arbitrary and capricious or an abuse of discretion.
To the extent that North Carolina or RRBA has raised other arguments that the FONSI was arbitrary and capricious and that an EIS should be required, the court has considered those arguments and finds them to be unpersuasive. In all other respects the Corps' decision was reasonable and supported by the record.
B. PUBLIC INTEREST REVIEW
A FONSI does not end the Corps' responsibilities in considering permit applications. Corps regulations require that a permit shall issue only after a general public interest review wherein the benefits of the project are weighed against its foreseeable detriments. 33 C.F.R. § 320.4(a)(1). North Carolina and RRBA contend that the Corps did not adequately weigh various factors in striking the public interest balance.
1. Need and Alternatives
Chiefly, North Carolina and RRBA allege that the Corps never evaluated "the relative extent of the public and private need for the proposed structure or work." 33 C.F.R. § 320.4(a)(2)(i). Instead, the Corps determined that Virginia Beach will demand 48 mgd of water by the year 2030 with 12 mgd for the use of other localities in the region. The Corps then determined that the applicant's entire demand should *445 be supplied from Lake Gaston because Virginia Beach desired a new and autonomous source. As a result the Corps never considered supplies currently available to Virginia Beach to meet its water needs. Stated differently, the City's "need" was considered to be all the water it would use in the next fifty years and not merely the additional water it will need beyond supplies which are currently available.
Virginia Beach presently buys its water from the Norfolk system. The Virginia Beach contract with Norfolk provides that Norfolk will supply Virginia Beach with its "surplus." It is clear from the record that no analysis of Norfolk's available surplus was conducted or projected by the applicant or by the Corps of Engineers. See Norfolk Record 258, Virginia Beach Study at 18. While there is relative agreement over projected water demand between the parties North Carolina and RRBA have vigorously and continuously disputed Virginia Beach's assertion that supply in Southeastern Virginia is inadequate to meet its demand. Both plaintiffs have submitted supply figures which they contend prove that an actual surplus of water exists to more than adequately meet Southeastern Virginia's demand. The Corps rejected these arguments as does the court. The 1980-81 drought clearly demonstrated that Southeastern Virginia has an inadequate water supply, and it needs additional water from another source. The question remains, however, "how much water does Virginia Beach need?" In the administrative review context this issue becomes whether the Corps adequately considered the extent of the need for the project in its public interest review.
The federal defendants and Virginia Beach respond to plaintiffs' arguments with several of their own. They argue that need is to be expressed in broad, generic terms citing a regulation addressing the organization and content of a draft EIS:
[E]very application has both an applicant's purpose and need and a public purpose and need. These may be the same when the applicant is a governmental body or agency. In most instances when an EIS is required and the applicant is not a governmental body or agency, the applicant is a member of the private sector engaged in providing a good or service for profit. At the same time, the applicant is requesting a permit to perform work which, if approved, is considered in the public interest (i.e., provides a public benefit). This public benefit shall be stated in as broad, generic terms as possible....
33 C.F.R. pt. 230 app. B § 11b(4). Thus, Virginia Beach's need is described as the need for water, and where the water is to come from is a question of alternatives as distinguished from need. Defendants' reliance on this section of the regulations is misplaced, as it deals with the organization and content of an EIS, not the public interest review.
Defendants contend that alternatives need not be addressed at all pursuant to Corps regulations. The court disagrees. Two separate provisions require consideration of alternatives in the analysis of Corps permit applications. First, Corps regulations provide "[w]here there are unresolved conflicts as to resource use, the practicability of reasonable alternative locations and methods to accomplish the objective of the proposed structure or work" must be considered. 33 C.F.R. 320.4(a)(2)(ii). Section 102(2)(E) of NEPA similarly requires all federal agencies to "study, develop, and describe appropriate alternatives to recommended courses of action in any proposal which involves unresolved conflicts concerning alternative uses of available resources." 42 U.S.C.A. § 4332(2)(E). Such an analysis is independent of NEPA's EIS requirement and must be conducted whether or not a project's impacts are deemed significant. See § II(B), supra. The federal defendants and Virginia Beach contend that no consideration of alternatives is required because there are no "unresolved conflicts as to resource use" but this argument is untenable as such conflicts form the very basis of this controversy.[16] For at the bottom of this controversy *446 the real dispute is over who is entitled to the use of the water, Virginia Beach or the Basin. In addition, section 320.4(a) specifically requires the Corps, in its public interest review, to engage in a balancing process reflecting the national concern for both protection and utilization of important resources, including "water supply and conservation."
Whether the issue is expressed as one of "need" or "alternatives" the public interest regulations require a more searching analysis of this important water supply issue. The Corps cannot accede to Virginia Beach's desire to have an autonomous water supply at the expense of the basin without at least examining the water supply available from its current source. No meaningful analysis of the extent of the public need for the project could otherwise be conducted. The need for the project depends on how much water Virginia Beach needs which in turn requires an analysis of its current supply.
The federal defendants and Virginia Beach repeatedly argue that as the diversion is only a "miniscule" portion of the abundant flow of the Roanoke River (about 1.2% of average flow) and the environmental impacts of such a proposal nearly "nonexistent," Virginia Beach's request for an autonomous water supply must be given priority in any public interest analysis. Such an argument, however, ignores the purpose of the public interest review and the correlative search for alternative courses of action. Nonsignificant impact does not equal no impact, and the purpose of the public interest review is to consider and balance competing interests, NEPA and non-NEPA factors, to determine whether the project is in the interest of the public. It requires the Corps to search for the least harmful alternative that is feasible. See River Road Alliance, Inc. v. Corps of Engineers, 764 F.2d at 452 (7th Cir.1985).
Water is one of the most valuable and indispensable of our resources. When it is diverted from one location to another nearly 100 miles away, the source in the original area is depleted. Although the Corps asserted that the reallocation would not be an "irreversible" commitment of water because "roughly the same quantity of rain will continue to fall on the Roanoke River Basin," Norfolk Record 74, SOF at 4, this argument ignores reality and defies logic. Any diversion of water from the basin is contrary to its interest and must be balanced against the actual need for the diversion of the water. Whether the diversion is 1% or 99% of the river's average flow, a searching analysis of the actual need for water including an assessment of the supply currently available is a necessary component of any attempt to assess the extent of the public need for the project.
This is not to suggest that the Corps may not examine Virginia Beach's goals in its public interest review. Those goals, however, must be considered in conjunction with the needs of the basin.
In a related argument the plaintiffs contend that the Corps failed to adequately analyze alternatives to the pipeline project, including the interconnection of regional water supplies, conjunctive use of ground water and the indirect reuse of treated waste water. The Corps did assess these alternatives individually, and its analysis was not arbitrary and capricious. Furthermore, North Carolina argues that the Corps arbitrarily failed to consider alternative rivers for the pipeline project because the Corps determined that they would not support a 60 mgd withdrawal. It argues that such analysis is arbitrary and capricious since the Corps never assessed whether 60 mgd was actually needed. Although the Corps did state that none of these alternatives would support a 60 mgd withdrawal, the Corps rejected alternative sites for the pipeline for additional environmental reasons. For example, the *447 Corps stated that the streams were brackish and would require desalting, a longer pipeline would be required, and each alternative would implicate more environmentally and socially sensitive areas than the Lake Gaston alternative. Therefore, the Corps' rejection of alternative sites for the project was reasonable and supported by the record.
North Carolina argues that the consideration of alternative sources was arbitrary and capricious because the Corps failed to consider any alternative sources that could be implemented serially or in tandem to meet the entire 60 mgd request. The Corps, in effect, failed to consider a conjunctive series of alternatives to supply Virginia Beach with its needed water. Although the Corps did not consider any combination of alternatives, the court cannot say that such a failure was arbitrary and capricious. The requirement that the Corps consider alternatives in its analysis is to permit a reasoned choice. It is not required "to consider in detail each and every conceivable variation of the alternative stated." Coalition for Responsible Regional Development v. Coleman, 555 F.2d at 400. The Corps took a hard look at alternative sites for the pipeline project and solutions which would avoid the pipeline project altogether. Such analysis was a reasoned consideration of alternatives and no more is required.
In sum, the court holds that the decision of the Corps that there is a need for the pipeline project was reasonable. However, the court further holds that the Corps erred in not making a determination, as a part of its public interest review, of the extent of the applicant's need.
2. Legality of the Pipeline Project
North Carolina and RRBA argue that the Corps' public interest analysis was flawed because the Corps refused to consider legal obstacles to the pipeline project. Plaintiffs argue that landowner riparian rights prohibit the transfer of 60 mgd out of the Roanoke River Basin to Virginia Beach. Plaintiffs also argue that North Carolina and Virginia both have laws which prohibit the transfer of water from one river basin to another. See, e.g., Norfolk Record 188 at 15; N.C.Gen.Stat. §§ 143-215.47 (1983) and 153A-285 to 287 (1983). Failure to consider these laws in the public interest analysis was allegedly arbitrary and capricious.
The public interest review regulations require that the Corps consider and weigh factors which become relevant in each particular permit review, including consideration of property ownership when applicable. 33 C.F.R. § 320.4(a)(1). The Corps did not examine the issue of riparian rights in its public interest analysis, although it did examine riparian rights with reference to 40 C.F.R. § 1508.27(b)(10) in its NEPA review and concluded that the purpose of riparian doctrine was not the protection of the environment. However, the failure of the Corps to consider riparian landowner rights in its public interest analysis was not arbitrary and capricious.
A riparian owner is entitled to make a "reasonable" use of water adjacent to his property provided the user does not injure the rights of downstream riparian owners. Bruton v. Carolina Power & Light Co., 217 N.C. 1, 6 S.E.2d 822 (1940). Interference with riparian rights is an actionable tort. Springer v. Joseph Schlitz Brewing Co., 510 F.2d 468, 470 (4th Cir. 1975). A municipal diversion of water for public water supply is not a riparian use, and if the diversion causes injury to downstream riparian owners the injury may be redressed in a court of law. Pernell v. City of Henderson, 220 N.C. 79, 16 S.E.2d 449 (1941). Should a riparian owner suffer ascertainable injury by the diversion, those rights would be properly addressed in a court of law in a civil action for injunctive relief, City of Durham v. Eno Cotton Mills, 141 N.C. 615, 54 S.E. 453 (1906), or damages. Spaugh v. City of Winston-Salem, 249 N.C. 194, 105 S.E.2d 610 (1958).
Although riparian interests may be implicated by the pipeline project, any injuries from the diversion should be properly brought in a civil action for damages or injunctive relief. Issuance of the permit confers no property rights and would not alter the rights of property owners or the *448 duties of Virginia Beach pursuant to riparian doctrine. Riparian doctrine is simply not relevant to the permit application consideration.
Similarly, the Corps did not err in determining that the legality of the interbasin transfer of water was not a matter appropriate for the Corps' consideration. Most of the comments received by the Corps at the public hearings by those opposed to the project were directed toward the interbasin transfer of water for such a long distance. Those living in the Roanoke River Basin are concerned that the withdrawal of any amount of water for interbasin transfer is unwise because it sets a precedent and because there is a possibility of future needs within the basin. The Corps has very properly stated that the wisdom of interbasin transfer, as such, is not for it to decide. That is a political question and must be decided by the states or by the Congress. Despite its protests, however, the Corps does have a role in the allocation of water resources within and without the basin. As mentioned earlier, under the public interest review it must consider "water supply and conservation."
C. WATER SUPPLY REALLOCATION CONTRACT
North Carolina and RRBA contend that the water supply reallocation contract entered into by the Wilmington District Corps on behalf of the United States with Virginia Beach was an arbitrary and capricious exercise of its authority. The contract reallocates 10,200-acre feet or storage space in Kerr Reservoir from power supply to water supply for the use of Virginia Beach sufficient "to meet a water supply withdrawal of 60 mgd." Wilmington Record at 17, FONSI at 1. The contract grants the right to the city to order the government to make releases through the dam to the extent of the storage. However, the government reserves the right to maintain downstream releases to meet its established water requirements and reserves the right not to make downstream releases during such time when it is deemed necessary to inspect, maintain or repair the project.
North Carolina and RRBA challenge the decision of the Corps to enter into the contract as arbitrary and capricious based on alleged violations of NEPA. Plaintiffs admit that the environmental effects of the water reallocation contract are in most respects the same as those which result from issuance of the permit. The Wilmington District Corps adopted the EA of the Norfolk Division and issued its own FONSI. The court has addressed each of the contentions based on the EA and FONSI and will not rehash them here. To the extent that the court remands the case to the Corps for consideration of the project's impacts on striped bass, the Wilmington District Corps must also consider the impacts, if any, on striped bass resulting from the water storage reallocation contract.
In addition, however, North Carolina and RRBA contend that the water storage reallocation contract results in a permanent, irreversible and irretrievable commitment of resources which requires preparation of an EIS based on 42 U.S.C.A. § 4332(c)(v). However, that section provides only that the agency must in all major federal actions significantly affecting the quality of the human environment prepare a detailed statement addressing "any irreversible and irretrievable commitments of resources which would be involved in the proposed action. ..." 42 U.S.C.A. § 4332(c)(v). When there are no significant environmental effects no such examination is required.
North Carolina argues that the Corps failed to consider alternatives to the water storage contract as required by 42 U.S.C.A. § 4332(E) of NEPA. The Wilmington District Corps adopted the EA of the Norfolk District Engineer, including his discussion of alternatives to the proposed project. North Carolina complains that the Norfolk Record EA discusses only alternatives to the pipeline but not to the water storage reallocation contract. Therefore, failure to consider alternatives to the contract was arbitrary and capricious. However, the court does not view the issue so narrowly. The Wilmington and Norfolk Division District *449 Corps coordinated efforts in considering Virginia Beach's application for the project and the water supply contract. The water contract serves as the backup to the pipeline project and also serves to mitigate the effects of the pipeline withdrawal. As such the consideration of alternatives was reasonable and supported by the record.
North Carolina and RRBA further allege that the Corps acted in violation of law in entering into the water supply contract by becoming a partisan in a water dispute between North Carolina and Virginia. The Corps' internal regulations provide:
The Corps should not become involved in resolving conflicts among water users over the right to use stored water for water supply purposes, but will look to responsible state agencies to resolve such conflicts. ... Possible encroachment of the operation of water supply storage on the lawful water uses in the downstream areas will be carefully considered and fully coordinated with the responsible local interests as well as with the state agency responsible for the administration of water rights and water laws.
Wilmington Record 20, ER XXXX-X-XX, § 7-2a(6). Furthermore, the Water Supply Act of 1958, 43 U.S.C.A. § 390b(a), provides:
It is hereby declared to be the policy of the Congress to recognize the primary responsibilities of the States and local interests in developing water supplies for domestic, municipal, industrial, and other purposes and that the Federal Government should participate and cooperate with States and local interests in developing such water supplies in connection with the construction, maintenance, and operation of Federal navigation, flood control, irrigation, or multiple purpose projects.
By allocating water supply to one side of a water dispute, it is argued, the Corps abrogated its responsibility pursuant to law and regulation. North Carolina specifically alleges that the Corps did not coordinate its efforts with North Carolina officials and agencies in entering into the contract. Again, the court does not view the contract and permit decisions narrowly and separately as is suggested by the plaintiffs. The Corps did coordinate with agencies in its review process and it did not abrogate its responsibilities pursuant to law or regulation. Plaintiffs' conclusory allegations are not supported by the record.
In addition, plaintiffs argue that the Corps violated laws prohibiting the interbasin transfer of water by entering into the water storage reallocation contract. That issue, however, has no more application in this context than it did in the permit consideration. See § V(B)(2).
D. BIAS
Plaintiffs argue that the Corps' decision-making process was tainted by bias. The Corps was accused of being result oriented, having made an a priori decision to grant the permit and then building a record to sustain the decision. As an example, RRBA accused the Corps of maneuvering the Environmental Protection Agency Region IV out of the comment process because it would comment that the project would adversely affect water quality in the Roanoke River in North Carolina. However, the allegations of bias and unevenhanded treatment are not supported by the record. The permit consideration process spanned a period of six months and included three extensive public hearings. The Norfolk Administrative Record consists of thirteen volumes, including 254 exhibits, many of which span hundreds of pages. Hundreds more pages of documents were admitted by the court to supplement the record. The Wilmington Record also spans many volumes and documents. Although it has been a very time-consuming process, the court has read all documents in the record, none of which evidence any bias on the part of the Corps of Engineers. Although the Corps failed to consider some relevant factors which require a remand for the reconsideration of its determination, on the whole the Corps' decision reflects a careful analysis of the environmental and nonenvironmental factors implicated by the permit and water storage reallocation contracts. *450 Allegations of bias are simply not borne out by the record.
VI. CONCLUSION
Plaintiffs ask the court to declare the permit and the water supply storage agreement null and void.[17] They also seek an order from this court requiring the Corps to conduct an EIS before any further permit is issued or contract entered into. However, the administrative record does not disclose anything mandating the preparation of such a statement. Rather, the deficiencies disclosed by the court's review of the record require a remand of the proceeding to the Corps for further consideration. On remand, the Corps shall:
1. As a part of its NEPA review make an independent assessment of the effects of the proposed project on striped bass to determine whether the preparation of an EIS is required or whether any mitigative measures are necessary; and,
2. As a part of its public interest review make a determination of the extent of Virginia Beach's water needs.
The court will retain jurisdiction of this matter for further review.
The Corps will file with the court the results of its reconsideration and the record supporting its decision.
NOTES
[1] The wells were constructed following the drought of 1980-81 and are located within other municipal jurisdictions, Suffolk, Isle of Wight County and Southampton County. They are intended for use only in the event of an emergency, and their use reverts to the municipalities in which they lie after contract periods of ten to fifteen years.
[2] Also known as Buggs Island.
[3] The City of Norfolk would continue to treat the water derived from the new source.
[4] The first hearing was held in Lawrenceville, Virginia, on 25 August 1983 before the issuance of the draft EIS and draft FONSI. The other two, at Roanoke Rapids, North Carolina, on 14 November 1983 and Virginia Beach, Virginia, on 17 November 1983, were held before the issuance of the final EIS and final FONSI.
[5] Hereinafter, references to North Carolina refer to the joint positions of North Carolina and the twelve counties.
[6] This is the current language of the public interest regulation as amended on October 5, 1984. 49 Fed.Reg. 39478. At the time of the Corps' decision the regulation provided that a permit would issue if the Corps found the project to be in the public interest. 47 Fed.Reg. 31794 at 31804 (July 22, 1982). However, the original and revised regulations "describe the same public interest balancing process." 49 Fed.Reg. 39478.
[7] Contentions raised by RRBA and North Carolina in their complaints not specifically addressed in their briefs are deemed abandoned.
[8] "Southside Hampton Roads" refers to Southeastern Virginia, including Norfolk, Portsmouth, Chesapeake, Virginia Beach, Suffolk, Franklin, Isle of Wight County and Southampton Counties.
[9] Both North Carolina and RRBA have cited cases from other circuits which apply a "reasonableness" standard of review to agency decisions not to prepare an EIS. The Fourth Circuit has not departed from the arbitrary and capricious standard in reviewing such determinations. Providence Road Community Ass'n v. Environmental Protection Agency, 683 F.2d 80, 82 n. 3 (4th Cir.1982). However, the court sees little difference between the undertaking required pursuant to the "arbitrary and capricious" standard and the "reasonableness" standard. See City of Alexandria, Virginia v. Federal Highway Administration, 756 F.2d 1014, 1017 (4th Cir.1985). Contra River Road Alliance, Inc. v. Corps of Engineers of United States Army, ___ U.S. ___, 106 S.Ct. 1283, 89 L.Ed.2d 590 (1986) (White, J., dissenting from denial of writ of certiorari).
[10] Virginia Beach argues in a footnote in their original memorandum that as a matter of law the Corps' permit and contract decisions were not major federal actions because although Virginia Beach's project is major, the federal actions are only incidental. Whether an agency decision constitutes major federal action depends on the facts of each case. Rucker v. Willis, 484 F.2d 158, 162-63 (4th Cir.1973). CEQ regulations provide that "major" has no meaning independent of "significantly" as defined in 40 C.F.R. § 1508.27. 40 C.F.R. § 1508.18. Issuing a permit for construction of the pipeline is undoubtedly federal action. See Rucker v. Willis, 484 F.2d at 163. The court assumes, as the Corps did, that its action in granting the permit was "major." Since lake levels and flows in the Roanoke River system are federally regulated and must be operated under the jurisdiction of the Corps of Engineers, any other conclusion would be illogical. For a discussion of "major" federal action see River Road Alliance, Inc. v. Corps of Engineers of United States Army, 764 F.2d 445, 450 (7th Cir. 1985), cert. denied, ___ U.S. ___, 106 S.Ct. 1283, 89 L.Ed.2d 590 (1986).
[11] For nine years prior to the 1971 agreement, the North Carolina Wildlife Resources Commission, VEPCO, the Corps and the Southeastern Power Administration negotiated a contract for regulation of augmentation flows each year. The Memorandum of Understanding was executed to avoid the cumbersome paperwork involved in negotiating an agreement each year which generally resulted in the same fish flow augmentation.
[12] The Corps footnoted the Virginia Beach Study as the source of its information.
[13] Since 1971 when the Memorandum of Understanding was executed spawning discharges from Kerr Reservoir necessary to maintain a river stage of 13 feet in the spawning area were made as follows:
No. of Days No. of Days
Year of Releases Year of Releases
1971 50 1977 31
1972 47 1978 50
1973 50 1979 49
1974 47 1980 46
1975 49 1981 9
1976 31 1982 50
Exhibit K to the Administrative Record, Hume Affidavit at 16.
[14] The Corps should at a minimum, however, consider the FERC-mandated flows and the augmentation flows in making a determination of the probable effect of the proposed withdrawal on striped bass during the spawning season.
[15] This regulation is based upon CEQ regulations found in 40 C.F.R. § 1502.22. The CEQ regulations have now been amended to eliminate the worst-case analysis. The new regulation still requires an analysis of "reasonably foreseeable" significant adverse impacts on the human environment, including "impacts which have catastrophic consequences, even if the probability of occurrence is low." 40 C.F.R. § 1502.22 (1986).
[16] Virginia Beach contends that Webb v. Gorsuch, 699 F.2d 157 (4th Cir.1983) stands for the proposition that a finding of no significant environmental impact obviates the necessity to consider alternatives to proposed action. However, there the court apparently was not called upon to examine 42 U.S.C.A. § 4332(E). Furthermore, it was dealing with the Environmental Protection Agency and not the Corps of Engineers. Corps regulations specifically require consideration of alternatives in the public interest review.
[17] No interim injunctive relief was sought and apparently none is needed as it appears that Virginia Beach is awaiting a resolution of this action before commencing its work.
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978 So.2d 89 (2006)
ROBERT GEORGE WILBERT
v.
STATE.
No. CR-05-1605.
Court of Criminal Appeals of Alabama.
June 1, 2006.
Decision of the Alabama Court of Criminal Appeal Without Opinion. Dismissed.
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} |
Case: 11-15262 Date Filed: 02/11/2013 Page: 1 of 15
[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 11-15262
________________________
D.C. Docket No. 4:10-cr-00024-HLM-WEJ-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CHESTER RAY SLAUGHTER,
a.k.a. Raymond Johnson,
a.k.a. Poparay,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(February 11, 2013)
Before MARCUS and MARTIN, Circuit Judges, and GOLD, * District Judge.
MARTIN, Circuit Judge:
*
Honorable Alan S. Gold, United States District Judge for the Southern District of Florida,
sitting by designation.
Case: 11-15262 Date Filed: 02/11/2013 Page: 2 of 15
Chester Ray Slaughter appeals his convictions for use of the internet to
entice a minor to engage in sexual activity, in violation of 18 U.S.C. § 2422(b), and
commission of a felony involving a minor while being required to register as a sex
offender, in violation of 18 U.S.C. § 2260A. On appeal, Mr. Slaughter argues that
the District Court erred in failing to suppress his statement to law enforcement
officers, and in denying his request for separate trials on each count. He also
argues that his § 2260A conviction must be reversed because a violation under that
provision requires offense conduct involving an “actual minor.” 1 After careful
review, and with the benefit of oral argument, we affirm Mr. Slaughter’s
convictions.
I. BACKGROUND
On April 28, 2010, Mr. Slaughter, a registered sex offender, entered the
“Casual Encounters” section of the website Craigslist.com. There he found, and
1
Mr. Slaughter raises two additional issues “for purposes of further review”: (1) whether
Congress exceeded its authority under the Tenth Amendment and the Commerce Clause when it
enacted 18 U.S.C. §§ 2422(b) and 2260A; and (2) whether it is legally impossible to violate
§ 2422(b) without offense conduct involving an individual younger than eighteen years old.
Regarding § 2422(b), Mr. Slaughter concedes that these arguments are foreclosed by our
Circuit’s precedent. See United States v. Hornaday, 392 F.3d 1306, 1310–11 (11th Cir. 2004)
(rejecting appellant’s argument that § 2422(b) exceeds Congress’s power under the Commerce
Clause); United States v. Williams, 121 F.3d 615, 620 (11th Cir. 1997) (holding that, necessarily,
a federal statute that is lawful under the Commerce Clause does not violate the Tenth
Amendment); United States v. Root, 296 F.3d 1222, 1227 (11th Cir. 2002) (holding that a
defendant may be convicted of § 2422(b) without having engaged in conduct involving an actual
minor), superseded by statute on other grounds as recognized in United States v. Jerchower, 631
F.3d 1181, 1186–87 (11th Cir. 2011). Likewise, we reject Mr. Slaughter’s additional argument
that Congress exceeded its authority when it enacted § 2260A. Cf. Hornaday, 392 F.3d at 1310–
11.
2
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responded by email to, a post by “Hanna,” a fourteen-year-old girl seeking
someone to buy beer for her and her fifteen-year-old friend in exchange for some
“fun.” Hanna was actually FBI Special Agent Ken Hillman, pretending to be an
underage girl as part of an undercover task force to prevent and prosecute sex
crimes against children. Agent Hillman responded to Mr. Slaughter’s email and a
nine-day correspondence ensued. In a flurry of emails, Mr. Slaughter admitted to
having a “daddy-daughter” fantasy, shared his intent to engage in sex acts with
Hanna and her friend, and suggested renting a hotel room for that purpose. He
knew that Hanna and her friend were each underage, and acknowledged the
illegality of the acts he proposed, but stated that he was okay with the girls’ ages
“as long as we keep it a secret.” Agent Hillman sent Mr. Slaughter a picture of a
fourteen-year-old girl that he represented to be Hanna, and had a female agent
posing as Hanna speak with Slaughter on the phone.
Mr. Slaughter and Hanna made plans to meet at a Hardees parking lot and
then relocate to a hotel room. On May 7, the date of the planned meeting, Mr.
Slaughter instructed Hanna to meet him instead at the Super 8 Hotel, Room 210.
At 5:19 p.m., Agent Hillman and at least five local police officers knocked on the
door to Room 210. Mr. Slaughter answered and was immediately tackled to the
ground, handcuffed, and told that the officers intended to search his hotel room and
car. Neither Agent Hillman nor the local police officers had warrants for Mr.
3
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Slaughter’s arrest, or the search of his hotel room. Mr. Slaughter, however, signed
a form authorizing the searches at 5:27 p.m. 2
After the officers completed their searches, Agent Hillman took Mr.
Slaughter to the Catoosa County Sheriff’s office where he removed Slaughter’s
handcuffs and read him his rights under Miranda v. Arizona, 384 U.S. 436, 86
S. Ct. 1602 (1966). Then, at 6:00 p.m., Mr. Slaughter signed a Miranda waiver and
consented to a videotaped interview with Agent Hillman. Mr. Slaughter did not
ask questions about the waiver form, did not indicate that he failed to understand
the waiver, and did not attempt to invoke any of his Miranda rights. During the
interview, Mr. Slaughter admitted his daddy-daughter fantasy, and that he tried to
entice the girls to meet him at the hotel. Mr. Slaughter also identified both e-mail
addresses he used to contact Hanna, and provided the passwords to both accounts.
Before trial, Mr. Slaughter moved to suppress his statement to Agent
Hillman. The District Court denied the motion, holding that although the agents’
warrantless entry into Mr. Slaughter’s hotel room violated the Fourth Amendment,
his statement was admissible under New York v. Harris, 495 U.S. 14, 110 S. Ct.
1640 (1990). Looking to Harris, the District Court reasoned that the agents had
2
Upon Mr. Slaughter’s motion the physical evidence recovered from these searches was
suppressed at trial because the agents’ warrantless entry into Slaughter’s hotel room violated the
Fourth Amendment, and Slaughter’s consent to search was insufficient “to purge the primary
taint of the unlawful invasion.” See Wong Sun v. United States, 371 U.S. 471, 486, 83 S. Ct.
407, 417 (1963); see also United States v. Santa, 236 F.3d 662, 676–77 (11th Cir. 2000).
4
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probable cause to arrest Slaughter for enticement of a minor, and that Mr.
Slaughter voluntarily gave the statement.
At Mr. Slaughter’s trial, the government played a redacted version of his
interview. Mr. Slaughter’s statements from the interview also factored
significantly in the government’s opening and closing arguments. Indeed, with
regard to Count Two (commission of a felony involving a minor while being
required to register as a sex offender), the only other evidence presented to the jury
was a stipulation that Mr. Slaughter was registered as a sex offender at the time he
attempted to entice the girls to the hotel.
II. DISCUSSION
A. SUPRESSION OF MR. SLAUGHTER’S STATEMENT
Mr. Slaughter argues that the District Court erred in admitting his custodial
statement to Agent Hillman under Harris. “A district court’s ruling on a motion to
suppress presents a mixed question of law and fact. We review the district court’s
findings of fact for clear error and its application of the law to the facts de novo.”
United States v. Lopez-Garcia, 565 F.3d 1306, 1312–13 (11th Cir. 2009)
(quotation marks and citation omitted). Evidence, including statements, obtained
from a defendant as a result of an illegal search may be suppressed as “fruit” of the
illegal search. See United States v. Terzado-Madruga, 897 F.2d 1099, 1112–13
(11th Cir. 1990). However, the Supreme Court has also made clear that in certain
5
Case: 11-15262 Date Filed: 02/11/2013 Page: 6 of 15
circumstances, statements taken following a violation of the Fourth Amendment
are not subject to being suppressed. See, e.g., Harris, 495 U.S. at 21, 110 S. Ct. at
1644–45. We must decide whether this is one of those circumstances.
Harris involved the admissibility of a custodial statement in circumstances
substantially similar to these here. In Harris, the police illegally entered the
defendant’s home and arrested him based on probable cause to believe that he had
recently committed murder. Id. at 15–17, 110 S. Ct. at 1642. Later, at the police
station, the defendant waived his Miranda rights and provided a statement. Id. at
16, 110 S. Ct. at 1642. Over the defendant’s objection, the trial court allowed this
statement to come into evidence. See id. at 16, 110 S. Ct. at 1642. The Supreme
Court approved of the trial court’s evidentiary ruling, holding that “where the
police have probable cause to arrest a suspect, the exclusionary rule does not bar
the State’s use of a statement made by the defendant outside of his home, even
though the statement is taken after an arrest made in the home in violation of [the
Fourth Amendment].” Id. at 21, 110 S. Ct. at 1644–45. Significantly for Mr.
Slaughter, the Supreme Court also noted that “[f]or Fourth Amendment purposes,
the [outcome would be] the same . . . had the police arrested Harris on his
doorstep, illegally entered his home to search for evidence, and later interrogated
Harris at the station house.” Id. at 18, 110 S. Ct. at 1643.
6
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In this case, like Harris, agents had probable cause to arrest Mr. Slaughter.
After his arrest, they removed Mr. Slaughter to the station house where they gave
him his Miranda warnings. Mr. Slaughter then waived his Miranda rights and
voluntarily gave his statement to Agent Hillman. We see no basis for ignoring the
Supreme Court’s admonishment that a statement made under this circumstance is
not subject to the exclusionary rule. See id. at 21, 110 S. Ct. at 1644–45. Thus, we
hold that the District Court properly denied Mr. Slaughter’s motion to suppress his
custodial statement to Agent Hillman.
B. SEVERANCE OF COUNTS ONE AND TWO
Next, Mr. Slaughter argues that the District Court erred when it denied his
motion to order separate trials for each of the two counts with which he was
charged. “We undertake a two-step analysis to determine whether separate charges
were properly tried at the same time.” United States v. Hersh, 297 F.3d 1233,
1241 (11th Cir. 2002). First, we review de novo whether the counts were properly
joined under Federal Rule of Criminal Procedure 8(a). Id. Second, we must
determine whether the District Court abused its discretion under Federal Rule of
Criminal Procedure 14 by denying the motion to sever. Id. In order to justify
reversal of a District Court’s denial of a motion to sever, “the appellant must
demonstrate that he received an unfair trial and suffered compelling prejudice.
This is a heavy burden, and one which mere conclusory allegations cannot carry.”
7
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United States v. Walser, 3 F.3d 380, 386 (11th Cir. 1993) (quotation marks and
citation omitted). Severance is not required when “the possible prejudice may be
cured by a cautionary instruction.” Id. at 387.
Mr. Slaughter concedes that his counts were properly joined. He argues,
however, that the District Court abused its discretion in refusing to bifurcate his
trial “because Count Two required proof that Mr. Slaughter was required to
register as a sex offender, which was prejudicial to his presumption of innocence
on Count One.” However, our review of the record does not demonstrate an abuse
of discretion by the trial judge. The only additional evidence presented to the jury
as to Count Two was a stipulation that Mr. Slaughter was required to register as a
sex offender at the time he committed his enticement offense. The District Court
read a limiting instruction about the purpose of this stipulation; Mr. Slaughter was
allowed to draft the limiting instruction; and the court accepted Slaughter’s
instruction as drafted. Although it is undoubtedly true that the content of the
stipulation was prejudicial, the jury had already heard substantial, sexually explicit
evidence that Mr. Slaughter intended to engage in sexual activity with two
underage girls, and carried out plans to meet them at a hotel room. Based on this,
any additional prejudice Mr. Slaughter suffered by introduction of the stipulation
was not “compelling” to the extent that he “received an unfair trial.” See Walser, 3
F.3d at 386; cf. Hersh, 297 F.3d at 1243 (rejecting appellant’s argument that the
8
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District Court should have ordered severance where he was prejudiced as to one
count by spillover from “the emotionally charged and inflammatory evidence of
child pornography” in the other). We conclude therefore that “the district court did
not abuse its considerable discretion in denying [Mr. Slaughter’s] motion to sever.”
See Hersh, 297 F.3d at 1244.
C. CONVICTION FOR 18 U.S.C. § 2260A
Section 2260A makes it a felony offense punishable by an additional ten-
years imprisonment for an individual required to register as a sex offender to
commit certain enumerated felonies “involving a minor,” including enticement of a
minor under § 2422. 18 U.S.C. § 2260A. Mr. Slaughter’s § 2260A conviction was
predicated on his conviction for attempted enticement of a minor, in violation of 18
U.S.C. § 2422(b). Mr. Slaughter argues that his § 2260A conviction must be
vacated because a § 2260A violation requires an “actual minor” to be involved in
the offense, and here it is undisputed that his only contact was with government
agents. Alternatively, he argues that because § 2260A’s language is ambiguous as
to whether an actual minor must be involved in the offense, he “should still prevail
under the rule of lenity.”
We decline Mr. Slaughter’s invitation to reach the question of whether,
without limitation, a § 2260A conviction always requires offense conduct
involving an “actual minor,” because determination of that issue is not necessary
9
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for resolution of this appeal. See Nat’l Adver. Co. v. City of Miami, 402 F.3d
1335, 1339 (11th Cir. 2005) (“Strict application of the ripeness doctrine prevents
federal courts from rendering impermissible advisory opinions and wasting
resources through review of potential or abstract disputes.”). Instead, because Mr.
Slaughter’s § 2260A conviction is predicated on his conviction for attempted
enticement of a minor under § 2422, and because § 2422 expressly contains an
attempt clause, see 18 U.S.C. § 2422(b), the issue before us is limited to whether
Mr. Slaughter’s conviction for attempted enticement of a minor under § 2422(b) is
sufficient to sustain his conviction under § 2260A.
Our review is de novo when addressing matters of statutory interpretation.
United States v. Rahim, 431 F.3d 753, 756 (11th Cir. 2005).
When interpreting a statute, the starting point is the language of the
statute itself. In conducting this interpretation, we analyze the
language of the provision at issue, the specific context in which that
language is used, and the broader context of the statute as a whole. If
this analysis reveals that the provision has a plain and unambiguous
meaning with regard to the particular dispute in the case and the
statutory scheme is coherent and consistent, then our inquiry is
complete.
United States v. Zuniga-Arteaga, 681 F.3d 1220, 1223 (11th Cir. 2012) (quotation
marks, citations and alterations omitted). But if having conducted this examination
“an ambiguity in the language of the statute [remains] . . . , then we look to the
legislative history for additional guidance as to Congress’s intent.” Id. (quotation
marks and citation omitted). “If two reasonable readings of the provision remain
10
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after this analysis, then the rule of lenity counsels us to choose the less harsh
reading.” Id.
Thus, to determine whether a violation of § 2260A predicated on a violation
of § 2422 requires offense conduct involving an “actual minor,” we begin by
looking to the plain language of the statutory provisions at issue. Zuniga-Arteaga,
681 F.3d at 1223. And, because we are interpreting the interplay of two sections
within the same title, we will “consider the provision as whole to determine
whether the context gives the term a further meaning that would resolve the issue
in dispute.” See id. at 1224 (quotation marks omitted).
In pertinent part, § 2260A provides:
Whoever, being required by Federal or other law to register as a sex
offender, commits a felony offense involving a minor under section . .
. 2422 . . . shall be sentenced to a term of imprisonment of 10 years in
addition to the imprisonment imposed for the offense under that
provision.
18 U.S.C. § 2260A. In turn, the relevant part of § 2422 provides:
Whoever, using the mail or any facility or means of interstate or
foreign commerce . . . knowingly persuades, induces, entices, or
coerces any individual who has not attained the age of 18 years, to
engage in prostitution or any sexual activity for which any person can
be charged with a criminal offense, or attempts to do so, shall be fined
under this title and imprisoned not less than 10 years or for life.
Id. § 2422(b).
From the plain language of § 2422(b), an individual may be convicted of
that crime by attempting to entice a minor into sexual activity. Id. And, as Mr.
11
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Slaughter acknowledges, it is equally clear that a defendant’s mere “belief that a
minor was involved is sufficient to sustain an attempt conviction under 18 U.S.C.
§ 2422(b),” even if the defendant’s offense conduct did not involve an actual
minor. See Root, 296 F.3d at 1227–28. The question that follows, then, is whether
the plain language of § 2260A negates the plain language of § 2422(b), so that a
defendant cannot be convicted of § 2260A without having committed conduct
involving an actual minor, even if the same conduct would sustain a conviction for
attempted enticement under § 2422(b).
We read nothing in the plain language of § 2260A that negates the plain
language of § 2422(b). Rather, we read the language in each section to be
complementary. Section 2260A limits liability to “felony offense[s] involving a
minor.” See 18 U.S.C. § 2260A. For purposes of the chapter where § 2260A is
located, the term “‘minor’ means any person under the age of eighteen years.” Id.
§ 2256(1). Similarly, § 2422(b) limits liability for enticement to conduct involving
“an[] individual who has not attained the age of 18 years.” See id. § 2422(b).
Thus, considered together, these two sections operate to criminalize enticement
and attempted enticement of an individual under the age of eighteen years, and
when such an offense is committed by a registered sex offender, that defendant
faces an additional ten years in prison. And because a violation of § 2422(b) does
not require an actual minor due to its attempt clause, Root, 296 F.3d at 1227,
12
Case: 11-15262 Date Filed: 02/11/2013 Page: 13 of 15
neither does a violation of § 2260A require the involvement of an actual minor
when that violation is predicated on a violation of § 2422.
“With that indication of the term’s meaning, we turn to the broader context
provided by other sections of the statute for further guidance.” Zuniga-Arteaga,
681 F.3d at 1224 (quotation marks and alterations omitted). Congress has
demonstrated its ability to limit liability to those offenses involving an “actual
minor.” In the same chapter as § 2260A, where it criminalized trafficking in child
pornography, Congress included the phrase “actual minor” three times. See 18
U.S.C. §§ 2252A(a)(3)(B)(ii), (c)(2) & (e). We accept this as further support for
our conclusion that a conviction for § 2260A predicated on § 2422 does not require
offense conduct involving an actual minor. See Russello v. United States, 464
U.S. 16, 23, 104 S. Ct. 296, 300 (1983) (“Where Congress includes particular
language in one section of a statute but omits it in another section of the same Act,
it is generally presumed that Congress acts intentionally and purposely in the
disparate inclusion or exclusion.” (quotation marks and alterations omitted)).
Finally, “the congressional goal of protecting minors victimized by sexual
crimes” supports this interpretation of § 2260A. See United States v. Daniels, 685
F.3d 1237, 1250 (11th Cir. 2012). We have consistently sought to honor this goal
“and reach . . . holding[s] that aim[] to protect minors—not make conviction more
difficult for crimes that affect them.” See id.; see, e.g., id. (rejecting appellant’s
13
Case: 11-15262 Date Filed: 02/11/2013 Page: 14 of 15
argument that he could not be convicted of enticement under § 2422(b) because he
did not know the age of his victim); United States v. Farley, 607 F.3d 1294, 1325
(11th Cir. 2010) (rejecting the argument that there cannot be a sexual crime
involving a minor where the defendant’s conduct did not involve a minor); Root,
296 F.3d at 1227 (same); cf. United States v. Lebovitz, 401 F.3d 1263, 1268–70
(11th Cir. 2005) (upholding application of sentencing guidelines enhancements
based on age of child victim even though no child existed). We cannot say that
this stated purpose would be furthered by treating a recidivist sex offender better
simply because he enticed somebody he believed to be a child, rather than an
actual child.
Viewed together, the text, structure and purpose of the statute make plain the
meaning of § 2260A’s text: the provision assigns additional punishment for
offenses committed against minors by registered sex offenders, and when a
§ 2260A conviction is predicated on a violation of § 2422, a defendant may be
convicted even where his conduct did not involve an actual minor. Thus, Mr.
Slaughter was properly convicted for § 2260A based on his conviction for
§ 2422(b), and his status as a registered sex offender when he committed that
offense. Because we find no ambiguity about the meaning of this provision, we
need not consider its legislative history, and we reject Mr. Slaughter’s alternative
14
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argument that he should still prevail under the rule of lenity. See Zuniga-Arteaga,
681 F.3d at 1223.
III. CONCLUSION
For these reasons, Mr. Slaughter’s convictions are
AFFIRMED.
15
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666 F.Supp. 1558 (1987)
The TIMKEN COMPANY, Plaintiff,
v.
UNITED STATES, Defendant.
Court No. 87-06-00738.
United States Court of International Trade.
July 14, 1987.
Stewart and Stewart, Eugene L. Stewart and Terence P. Stewart, Washington, D.C., for plaintiff.
Richard K. Willard, Asst. Atty. Gen., David M. Cohen, Director, Civil Div., Commercial Litigation Branch, U.S. Dept. of Justice, Platte B. Moring, III, Washington, D.C., for defendant.
Graham & James, Lawrence R. Walders and Brian E. McGill, Washington, D.C., for China Nat. Machinery & Equipment Import and Export Corp., amicus curiae.
MEMORANDUM OPINION
TSOUCALAS, Judge:
This opinion is issued in conformity with this Court's order of June 24, 1987, denying plaintiff's application for a preliminary injunction. Plaintiff commenced this action to challenge a final affirmative determination by the Department of Commerce, which excluded one foreign exporter from the scope of the dumping finding. Tapered Roller Bearings from the People's Republic of China; Final Determination of Sales at Less Than Fair Value, 52 Fed.Reg. 19748 (May 27, 1987). Plaintiff concurrently applied for a temporary restraining order and preliminary injunction, seeking to enjoin liquidation of the entries from China National Machinery & Equipment Import & Export Corporation (CMEC), the exporter excluded from the final determination. On June 17, 1987, this Court denied plaintiff's application for a temporary restraining order and on June 23, 1987, oral arguments and a full hearing were had before this Court on whether a preliminary injunction should issue. CMEC's application to appear amicus curiae at the hearing was granted.
BACKGROUND
Plaintiff is a domestic producer of tapered roller bearings (TRBs), and was petitioner below in the antidumping investigation of TRBs from the People's Republic of *1559 China (PRC). The investigation covered two exporters: (1) CMEC, the only known exporter of TRBs from the PRC to the United States; and (2) Premier Bearing & Equipment, Limited (Premier), a Hong Kong based trading company, exporting TRBs produced in the PRC, from Hong Kong to the United States. In the PRC, the same factories produce TRBs for both companies. Therefore, when Commerce issued its preliminary determination of sales at less than fair value, a single margin of 9.65 percent was estimated for both companies, to prevent those factories from selling through the exporter with the lower margin. 52 Fed.Reg. 3833 (February 6, 1987). As of the date of that preliminary determination, liquidation of Chinese TRB entries was suspended. On May 27, 1987, Commerce published the results of its final determination that TRBs from the PRC are being sold at less than fair value with a weighted average dumping margin of .97 percent; however, no dumping margins were found for CMEC. 52 Fed.Reg. 19748 (May 27, 1987). Subsequently, the ITC determined that a domestic industry is suffering material injury or threat thereof by reason of imports from the PRC. Tapered Roller Bearings and Parts Thereof and Certain Housings Incorporating Tapered Rollers from Hungary, The PRC, and Romania, 52 Fed.Reg. 22399 (June 11, 1987).
As a result of the negative finding that CMEC exports were not subject to dumping duties, Commerce directed suspension of liquidation terminated for these entries. 52 Fed.Reg. 19748. Plaintiff alleges several errors committed by Commerce in its finding of no dumping by CMEC, and argues that if its contentions are ultimately sustained after the goods have been liquidated, then its remedy has been forfeited. This loss of complete relief, in conjunction with the proprietary losses, which it is alleged that plaintiff will incur, are the gravamen of plaintiff's claim of irreparable injury.
DISCUSSION
In order for a preliminary injunction to issue, plaintiff must clearly demonstrate: (1) the threat of immediate irreparable harm; (2) the likelihood of success on the merits; (3) that the public interest is better served by issuing rather than by denying the injunction; and (4) that the balance of hardships to the parties favors the issuance of an injunction. Zenith Radio Corp. v. United States, 710 F.2d 806, 809 (Fed.Cir. 1983); S.J. Stile Assocs., Ltd. v. Snyder, 68 CCPA 27, 30, C.A.D. 1261, 646 F.2d 522, 525 (1981). In a flexible balancing approach, the showing of ultimate success is inversely proportional to the severity of the injury. American Air Parcel Forwarding Co., Ltd. v. United States, 1 CIT 293, 298, 515 F.Supp. 47, 52 (1981). "[T]he critical factors are the probability of irreparable injury to the movant should the equitable relief be withheld, and the likelihood of harm to the opposing party if the court were to grant the interlocutory injunction." 1 CIT at 299-300, 515 F.Supp. at 53; United States Steel Corp. v. United States, 9 CIT ___, ___, 614 F.Supp. 1241, 1243 (1985).
Since successful challenges to dumping determinations result in prospective relief only, the court, where appropriate, may enjoin liquidation pending the outcome of the litigation. See 19 U.S.C. § 1516a(c)(2) (1982); S.Rep. 96-249, 96th Cong., 1st Sess. 252-53 (1979), reprinted in 1979 U.S.Code Cong. & Admin.News 381, 638. In Zenith Radio Corp. v. United States, 710 F.2d 806 (Fed.Cir.1983), it was held that liquidation of entries, the subject of a challenged § 751 annual review determination, may constitute irreparable injury. In the context of an annual review, only one year's entries are subject to the determination. If the movant ultimately succeeds in challenging the results, the only remedy available is to liquidate the entries for that period at the corrected dumping rate. If the entries were liquidated prior to the court upholding the claim, there would be no entries upon which revised margins could be imposed. Absent an injunction, the domestic industry's only remedy would be eliminated. 710 F.2d at 810.
However, where the action contests either negative injury or negative dumping *1560 determinations in an investigation, not annual review results, recent cases have declined to hold that liquidation alone is sufficient to establish irreparable harm. American Spring Wire Corp. v. United States, 7 CIT 2, 578 F.Supp. 1405 (1984); accord Bomont Industries v. United States, 10 CIT ___, 638 F.Supp. 1334 (1986); U.S. Steel v. United States, 9 CIT ___, 614 F.Supp. 1241 (1985). If the agency's decision is overturned, then unliquidated and future entries may still be subject to corrected antidumping duties. Bomont, 10 CIT at ___, 638 F.Supp. at 1338; American Spring Wire, 7 CIT at 5, 578 F.Supp. at 1407.
In these situations as opposed to annual reviews, which focus on a discrete time period, the movant still has the opportunity to obtain meaningful judicial review. Even though some entries will be liquidated without additional duties, appropriate relief may be fashioned prospectively. American Spring Wire, 7 CIT at 5, 578 F.Supp. at 1407. The opportunity for adequate prospective relief weighs against granting the injunction. See National Juice Products Ass'n v. United States, 10 CIT ___, ___, 628 F.Supp. 978, 984 (1986) (and cases cited therein).
Congress statutorily recognized that the court must weigh the traditional four factors and issue injunctive relief as an "extraordinary measure" "not [to] be granted in the ordinary course of events." S.Rep. 96-249 at 253, 1979 U.S.Code Cong. & Admin.News at 639. This is not a situation where plaintiff's "statutory right to obtain judicial review of the determination would be without meaning for the only entries permanently affected by that determination." Zenith, 710 F.2d at 810. While plaintiff may not be satisfied that a successful challenge will result in only prospective relief, it retains both its statutory right and a remedy which may be pursued. Some further affirmative showing on plaintiff's part as to irreparable injury is required.
In Bomont Industries, the court similarly considered whether an injunction should issue pending the challenge to a final negative determination. In addressing the irreparable harm criteria the court considered whether admission of these goods "without the possibility of offsetting dumping duties will prevent Bomont from recovering profitability, prolong its period of losses, deprive it of working capital, and threaten its very existence." 10 CIT at ___, 638 F.Supp. at 1338. The court found that the requisite showing of irreparable harm was not met where the movant therein: (1) had difficulty competing in the marketplace; (2) experienced a drop in sales and net loss for the first third of that year; (3) achieved an operating profit for the previous year; and (4) for the year preceding that period, sustained a net loss.
Mr. John Hill, plaintiff's Director of Marketing, testified that U.S. import statistics reveal a fivefold increase in TRB consumption in the United States from 1986 to 1987 without a commensurate increase in domestic production but with a dramatic increase in shipments from China. While plaintiff experienced a slight increase in the volume of shipments of TRBs for the first quarter of 1987, this was offset by price depression (approximately 12% from the eight specific models under investigation for the period April 1986-1987). Mr. Hill testified this could have a significant effect on this price sensitive market. Based on field investigations by his sales representatives, Mr. Hill's opinion was that CMEC prices could be as low as 40% below U.S. prices for comparable products and sales; as a result of lost sales and depressed market from those eight parts, plaintiff has incurred several million dollars in lost revenue.
The evidence further indicated that plaintiff's identified losses in the first quarter of 1987 are clearly in excess of U.S. bearing operating profits in 1986. However, SEC reports submitted by plaintiff state that plaintiff's sales were up in the first quarter of 1987 and a similar upswing in the bearing business was further reported. Nevertheless, irreparable injury is not just the mere possibility of injury, S.J. Stile Assocs., 68 CCPA at 30, 646 F.2d at 525; but harm which is imminent regardless of its magnitude. National Juice *1561 Products Ass'n, 10 CIT at ___, 628 F.Supp. at 984.
Even assuming that these losses are documented and uncontroverted, the question remains whether they are by reason of, and will continue to be a result of, the exports by CMEC. It is in the attempt to causally link these losses from price suppressions, with CMEC exports, that plaintiff's proof fails. Plaintiff adduced evidence that sales by a competitor, who sells Chinese TRBs, were made at substantially lower prices than plaintiff offers, and plaintiff lost sales as a result of this significant underselling. Nonetheless, for purposes of resolving whether the instant application is warranted the issue is not whether Chinese imports undersold plaintiff (see Bomont Industries, supra), rather, it is whether the specific CMEC exports threaten immediate irreparable harm. The Court was not convinced on this issue for the following reasons.
The affidavits submitted contained field reports from plaintiff's sales representatives, who obtained competitors' price information from their customers. While these reports identify China as the country of origin of these lower priced TRBs, one report further names the supplier which is apparently a Japanese facility. Secondly, an affidavit submitted from the Vice Managing Director of the Bearing Department at CMEC reveals that although some TRBs were shipped to the United States in the first quarter of 1987, they were pursuant to sales contracts entered into more than one year ago and in one case, in April 1985. Compare Haarman & Reimer Corp. v. United States, 1 CIT 148, 509 F.Supp. 1276 (1981) (no irreparable injury where imports were presold six months to two years prior to actual delivery, thus, would not be imported within period under review). The last sales contract entered into was in May 1986. Counsel for CMEC represented that only a small amount of that outstanding contract order remains to be shipped.
Plaintiff further argues that a crucial fact herein, not present in Bomont, is that the ITC has found material injury to the domestic industry, which was central to the court's decision in Zenith. Although a finding of material injury may be probative in determining irreparable harm, in this instance the ITC's determination of material injury resulted from cumulatively assessing the volume and effect of imports from the PRC, Hungary, Romania, Yugoslavia, Japan and Italy. See USITC Publication No. 1983 at 12-13 (June 1987). Thus, there was not a finding that by reason of the PRC imports alone, material injury threatened the domestic industry.
Further, PRC exports amounted to one tenth of one percent of the market share of TRB consumption in terms of value and units, and accounted for .2 percent of the market share of imports subject to less than fair value determinations. Id. at A-51, A-53. Mr. Hill testified though, that even this fragment of imports could be a significant market share when it serves to depress prices; thus, termination of suspension could affect plaintiff's ability to generate profits. Yet the evidence does not demonstrate that the increase in imports from China in 1987 was (1) from CMEC directly or (2) that the significant increase occurred after February 1987 (when the liquidation was originally suspended).
Moreover, in balancing the hardships, the Court notes that even if suspension continued, there would be no estimated dumping duties imposed, since the margin by which CMEC was found to be dumping was zero. This amount would change only upon a successful challenge on the merits and a subsequent revised determination by Commerce. As mentioned by defendant and amicus curiae, suspension would not terminate sale of the goods, but would cause uncertainty to the importers and independent businesses as to the ultimate price of the goods.
Plaintiff's initial substantive allegation is that the ITA constructed foreign market value on the basis of factors of production when it was unable to verify the information relied upon and when verifiable price information was available. Secondly, figures used for factory overhead were contradictory to the evidence of other *1562 foreign and domestic producers' actual figures. However, it is noted that Commerce is permitted to consider comparability in economies when choosing constructed value over prices, Chemical Products Corp. v. United States, 10 CIT ___, 645 F.Supp. 289 (1986), and the same rationale would seem to apply when rejecting factors of production information from noncomparable surrogate countries.
It is further claimed that Commerce denied plaintiff due process by using data in the final calculations which (a) was supplied after the public hearing was held and briefs were submitted; (b) originated from a company who never submitted a surrogate producer questionnaire; and (c) has no support in the record that it was verified. Defendant responds that Commerce was placed in a "best information available" situation and thus, verification is not required. Where a non-market economy, such as the PRC, is under investigation, Commerce must determine foreign market value by reference to surrogate country data. When a comparable surrogate refuses to cooperate, Commerce is faced with competing obligations: on the one hand it must search for a source of reliable accurate data; on the other it must reach its determination within a restricted time frame. Thus, if placed in this best information available situation, the ability to obtain the desired precision in data is seriously constrained. See generally Atlantic Sugar, Ltd. v. United States, 744 F.2d 1556, 1560 (1984); Ansaldo Componenti v. United States, 10 CIT ___, 628 F.Supp. 198 (1986). Therefore, it is not entirely clear that the agency's use of this information was unreasonable.
Plaintiff also states that Commerce failed to consider full factory overhead expenses; misapplied the excise tax factor; and used inconsistent sources of data for new steel prices and scrap value comparisons. Although at this juncture the Court sees some merit to plaintiff's claims as relate to the latter two factors, this alone is not sufficient to meet plaintiff's burden. "Failure of an applicant to bear its burden of persuasion on irreparable harm is ground to deny a preliminary injunction, and the court need not conclusively determine the other criteria". Bomont Industries, 10 CIT at ___, 683 F.Supp. at 1340.
CONCLUSION
Plaintiff has failed to establish that it will suffer immediate irreparable harm by reason of the specific imports by CMEC without offsetting dumping duties. Therefore, plaintiff's application for a preliminary injunction must be denied. It has been so ordered.
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87 P.3d 757 (2004)
151 Wash.2d 203
Linda BLANEY, Respondent,
v.
INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS, DISTRICT NO. 160, Petitioner.
No. 73306-6.
Supreme Court of Washington, En Banc.
Argued September 18, 2003.
Decided April 1, 2004.
*758 John Peter Mele, Seattle, for Petitioner.
Philip Albert Talmadge, Talmadge & Stockmeyer, Tukwila, Stephen Patrick Connor, Stephen P. Connor PLLC, Seattle, for Respondent.
*759 Christopher S. Marks, Williams Kastner & Gibbs PLLC, Seattle, Stewart Andrew Estes, Keating Bucklin & McCormack, Seattle, for Amicus Curiae (Washington Defense Trial Lawyers).
Jeffrey Lowell Needle, Michael Craig Subit, Frank Freed Subit & Thomas LLP, Seattle, for Amicus Curiae (Washington Employment Lawyers Association).
Debra Leigh Williams Stephens, Bryan Patrick Harnetiaux, Spokane, for Amicus Curiae Washington State Trial Lawyers Assoc. Foundation.
FAIRHURST, J.
Three questions are presented in this gender discrimination case brought pursuant to Washington's Law Against Discrimination (WLAD), chapter 49.60 RCW. Did the Court of Appeals properly find that the trial court's jury instruction on front pay constituted harmless error? Did the Court of Appeals properly find that WLAD entitles Linda Blaney to an offset for the additional federal income tax consequences from her damage awards? And is Ms. Blaney entitled to attorney fees on appeal?
We affirm the Court of Appeals' holding that the front pay jury instruction, although erroneous, constituted harmless error. Blaney v. Int'l Ass'n of Machinists & Aerospace Workers, Dist. No. 160, 114 Wash.App. 80, 92, 55 P.3d 1208 (2002). We affirm the Court of Appeals' determination that WLAD entitles Ms. Blaney to an offset for the additional federal income tax consequences, id. at 100, 55 P.3d 1208, but we reject the Court of Appeals' characterization of the offset as actual damages, and instead characterize it as "any other appropriate remedy authorized by... the United States Civil Rights Act of 1964 as amended." RCW 49.60.030(2). Finally, we award Ms. Blaney attorney fees on appeal. RCW 49.60.030(2); RAP 18.1(a).
I. FACTS
Ms. Blaney has been an employee of Kenworth Trucking Company since 1978. Throughout her tenure, Ms. Blaney has been very active with her union.[1] She is also a member of the International Association of Machinists and Aerospace Workers, District No. 160 (hereinafter District), the official bargaining representative for 14 affiliated local unions that represent approximately 8,000 unionized machinists at 300 businesses in Washington and Alaska.
Ms. Blaney filed this lawsuit alleging violations of WLAD because the District selected less qualified male business representative candidates in 1997, 1998, 1999, and 2000, and because in 1999 the District removed her as senior shop steward.
At trial, Ms. Blaney testified that she intended to work until age 65. 3 Verbatim Report of Videotape Recorded Proceedings (VRP) at 398. Ms. Blaney's expert, Lowell Bassett, Ph.D., testified that the average retirement age is 62.8. 6 VRP at 965. The District provided no direct testimony. In its cross-examination of Dr. Bassett, the District suggested that Ms. Blaney could be discharged prior to retirement. At the close of trial, the judge instructed the jury, "[i]n calculating damages for future wage loss you should determine the present cash value of salary, pension, and other fringe benefits from today until the time Ms. Blaney may reasonably be expected to retire, decreased by any projected future earnings from another employer." Clerk's Papers (CP) at 240. The District objected to the jury instruction, alleging that the language "may reasonably be expected to retire" was not supported by case law. The court denied the District's objection.
The jury found that the District discriminated against Ms. Blaney when it selected less qualified male business representatives in 1998, 1999, and 2000, and removed her as senior shop steward. Ms. Blaney was awarded back pay, front pay, and compensation for emotional distress. The judgment totaled $638,764 ($112,903 for past lost wages and benefits, $450,861 for future lost wages and benefits (based on the average retirement age of 62.8), and $75,000 for pain, suffering, *760 and emotional distress). Ms. Blaney sought and received a supplemental judgment of $237,625.38, for prejudgment interest, attorney fees, litigation expenses, costs, and expert witness fees and costs. Ms. Blaney unsuccessfully sought a supplemental judgment to offset the additional federal income tax consequences she will incur because she was not given the business representative position. She is not seeking a judgment to offset all the taxes she will incur from the $638,764 damage award. 2 VRP at 291-92. She is only seeking a judgment for the $244,753 in additional taxes she must pay above and beyond those she would have had to pay if the District had properly hired her as a business representative.[2] She also is not asking for a jury instruction on the federal income tax consequences, but rather for the judge to award them after the jury determines damages.
The District appealed, arguing the jury instruction on front pay constituted prejudicial error. Although the Court of Appeals found the jury instruction erroneous because it denied the jury the discretion to determine the duration of Ms. Blaney's future employment, it found the error was harmless because the District only offered speculative evidence to show that Ms. Blaney would have been terminated prior to retirement. Blaney, 114 Wash.App. at 84-85, 55 P.3d 1208.
Ms. Blaney cross appealed the trial court's denial of her motion for a supplemental judgment to offset the additional federal income tax consequences, arguing that WLAD entitled her to the offset. The Court of Appeals characterized the offset as actual damages under WLAD, and remanded to the trial court for a calculation of the offset and determination of the amount of attorney fees and costs on appeal to be awarded to Ms. Blaney. Id. at 101, 55 P.3d 1208.
We granted the District's petition for review of whether the front pay jury instruction constituted harmless error and whether WLAD entitles Ms. Blaney to an offset for the additional federal income tax consequences. Blaney v. Int'l Ass'n of Machinists & Aerospace Workers, Dist. No. 160, 149 Wash.2d 1010, 69 P.3d 875 (2003). We also consider Ms. Blaney's request for attorney fees on appeal pursuant to RCW 49.60.030(2).
II. ANALYSIS
A. The Jury Instruction on Front Pay was Erroneous but Harmless.
The District maintains that the jury instruction on front pay constituted prejudicial error,[3] while Ms. Blaney asserts that there was no error or the error was harmless. Alleged errors of law in jury instructions are reviewed de novo. Keller v. City of Spokane, 104 Wash.App. 545, 551, 17 P.3d 661 (2001), aff'd, 146 Wash.2d 237, 44 P.3d 845 (2002). Jury instructions are proper when they permit the parties to argue their theories of the case, do not mislead the jury, and properly inform the jury of the applicable law. Hue v. Farmboy Spray Co., 127 Wash.2d 67, 92, 896 P.2d 682 (1995).
Lords v. Northern Automotive Corp. properly held that "[f]ront pay should be awarded `for a reasonably certain period of time that does not exceed the likely duration of the terminated employment.'" 75 Wash.App. 589, 605, 881 P.2d 256 (1994). The length of an employee's future employment is a question of fact for the jury, and the duration of future employment may not necessarily extend *761 until retirement. Id. at 607, 881 P.2d 256.
The trial court's instruction to the jury to calculate future earnings "from today until the time Ms. Blaney may reasonably be expected to retire," CP at 240, was improper because it denied the jury the discretion to determine the duration of Ms. Blaney's future employmenta duration that may not necessarily extend to retirement. Lords, 75 Wash.App. at 605, 881 P.2d 256.
Having determined that the front pay jury instruction was erroneous, we next address whether it was harmless. An erroneous jury instruction is harmless if it is "not prejudicial to the substantial rights of the part[ies] ..., and in no way affected the final outcome of the case." State v. Britton, 27 Wash.2d 336, 341, 178 P.2d 341 (1947). A prejudicial error, on the other hand, affects or presumptively affects the results of a case, and is prejudicial to a substantial right. Id. When considering erroneous instructions, this court presumes prejudice, subject to a comprehensive examination of the record:
When the record discloses an error in an instruction given on behalf of the party in whose favor the verdict was returned, the error is presumed to have been prejudicial, and to furnish ground for reversal, unless it affirmatively appears that it was harmless. However, it becomes our duty, whenever such a question is raised, to scrutinize the entire record in each particular case, and determine whether or not the error was harmless or prejudicial.
Id. at 341, 178 P.2d 341 (citation omitted; emphasis added).
Scrutiny of the Blaney record reveals that the erroneous front pay jury instruction was harmless because the District suffered no prejudice. See id. Ms. Blaney presented evidence to prove that she would work until retirement. She testified that she would work until age 65. 3 VRP at 398. Dr. Bassett testified that the average retirement age is 62.8. 6 VRP at 965. While Ms. Blaney provided nonspeculative evidence, the District provided none. Instead, during its cross-examination of Dr. Bassett, the District suggested that involuntary removal would preclude Ms. Blaney from working until retirement. For support, the District provided evidence surrounding the "at-will" nature of the business representative position.[4]
However, the District's arguments are unpersuasive for two reasons. First, the removal of a business representative is not entirely at the will of the directing business representative (hereinafter DBR); it requires the approval of the district lodge and the grand lodge. Second, the District has never removed a business representative.[5] 9 VRP at 1580. The District's cross-examination merely speculated that if Ms. Blaney were given the business representative position and if she performed in a way her DBR disapproved, then her DBR might suggest her termination, which the district lodge and grand lodge might approve, and if they did it would be the first termination of a business representative in the history of the District.
Accordingly, we agree with the Court of Appeals' holding that "[h]ad there been evidence to support a nonspeculative determination that [Ms. Blaney] would have been terminated [prior to retirement], we might view the record differently. But on this record, we see no prejudice by the giving of the erroneous instruction. The error was harmless." Blaney, 114 Wash.App. at 92, 55 P.3d 1208.
B. WLAD Entitles Ms. Blaney to an Offset for the Additional Federal Income Tax Consequences.
This issue of whether WLAD entitles plaintiffs who prevail in discrimination lawsuits *762 to an offset for the additional federal income tax consequences is one of first impression in Washington. Blaney, 114 Wash. App. at 94, 55 P.3d 1208. As a question of statutory interpretation, it is reviewed de novo. State v. Keller, 143 Wash.2d 267, 276, 19 P.3d 1030 (2001).
WLAD provides for the following remedies:
Any person deeming himself or herself injured by any act in violation of this chapter shall have a civil action in a court of competent jurisdiction to enjoin further violations, or to recover the actual damages sustained by the person, or both, together with the cost of suit including reasonable attorneys' fees or any other appropriate remedy authorized by this chapter or the United States Civil Rights Act of 1964 as amended, or the Federal Fair Housing Amendments Act of 1988 (42 U.S.C. Sec. 3601 et seq.).
RCW 49.60.030(2).
This court generally reviews only those issues raised by the parties in their petition and answer. RAP 13.7(b). This rule is subject to numerous exceptions. Maynard Inv. Co. v. McCann, 77 Wash.2d 616, 621, 465 P.2d 657 (1970). One such exception provides that "[t]his court has the inherent discretionary authority to reach issues not briefed by the parties if those issues are necessary for decision." City of Seattle v. McCready, 123 Wash.2d 260, 269, 868 P.2d 134 (1994).
Although the parties' petition and answer did not explicitly brief characterization of Ms. Blaney's requested offset as "any other appropriate remedy,"[6] we may reach this remedial provision under RAP 13.7(b) because the parties expansively defined the WLAD issue as to whether WLAD entitles Ms. Blaney to the offset.[7] Moreover, we may reach the remedial provision under the common law exception because the provision is necessary to determine whether WLAD entitles prevailing plaintiffs to such an offset.
1. An offset for additional federal income tax consequences is properly characterized under WLAD's provision for "any other appropriate remedy."
The legislature added the "any other appropriate remedy" clause to the WLAD in 1993. Dailey v. N. Coast Life Ins. Co., 129 Wash.2d 572, 575, 919 P.2d 589 (1996). Three years later, this court acknowledged the ambiguity surrounding the new provision in dicta stating:
[T]he structure of the language in RCW 49.60.030(2) arguably evinces an intent to incorporate only federal remedies qualifying as "costs." While the trial court read the provision as: "to recover the actual damages ... together with ... any other remedy ...," we might reasonably read the term "including" as restrictive: "the cost of suit including ... any other remedy...."
Id. at 576, 919 P.2d 589.
We now resolve any ambiguity by holding that the "any other appropriate remedy" clause stands on its own as a third WLAD remedy. The structure of RCW 49.60.030(2) supports this reading of the statute; "any other' appropriate remedy" relates to "together with," logically providing a catchall remedy provision in addition to injunctive relief, actual damages, and cost of suit. Moreover, this reading coincides with the liberal construction WLAD requires,[8]*763 RCW 49.60.020, in order to effectuate its purposes of deterrence and eradication of discrimination. Marquis v. City of Spokane, 130 Wash.2d 97, 109, 922 P.2d 43 (1996).
Having determined that the "any other appropriate remedy" clause stands as a third WLAD remedy, we next assess whether this remedy entitles prevailing plaintiffs to an offset for the additional federal income tax consequences. Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, addresses employment discrimination. Title VII's enforcement provision provides:
If the court finds that the respondent has intentionally engaged in or is intentionally engaging in an unlawful employment practice charged in the complaint, the court may enjoin the respondent from engaging in such unlawful employment practice, and order such affirmative action as may be appropriate, which may include, but is not limited to, reinstatement or hiring of employees, with or without back pay (payable by the employer, employment agency, or labor organization, as the case may be, responsible for the unlawful employment practice), or any other equitable relief as the court deems appropriate.
42 U.S.C.2000e-5(g)(1) (emphasis added). The United States Supreme Court has held that the goals of Title VII are to eradicate discrimination and "make persons whole for injuries suffered on account of unlawful employment discrimination." Albemarle Paper Co. v. Moody, 422 U.S. 405, 418, 95 S.Ct. 2362, 45 L.Ed.2d 280 (1975). A number of federal courts have used the equitable powers bestowed on them by Title VII to allow offsets for the federal tax consequences of damage awards. See Sears v. Atchison, Topeka & Santa Fe Ry. Co., 749 F.2d 1451, 1456 (10th Cir.1984) (upholding a trial court's inclusion of tax consequences as part of a back pay award); EEOC v. Joe's Stone Crab, Inc., 15 F.Supp.2d 1364, 1380 (S.D.Fla.1998) (acknowledging the propriety of a district court ordered tax offset and noting that such offsets are "a prevailing practice in the settlement of Title VII suits," but refusing to grant an offset because the plaintiff failed to submit the evidence necessary to calculate the offset amount).
Because WLAD incorporates remedies authorized by the federal civil rights act and that statute has been interpreted to provide the equitable remedy of offsetting additional federal income tax consequences of damage awards, we hold that WLAD allows offsets for additional federal income tax consequences.
2. An offset for the increased federal income tax consequences is not properly characterized under WLAD's provision for actual damages.
Actual damages are "a remedy for full compensatory damages, excluding only nominal, exemplary or punitive damages," Martini v. Boeing Co., 137 Wash.2d 357, 368, 971 P.2d 45 (1999), that are "proximately caused by the wrongful action, resulting directly from the violation of RCW 49.60." 137 Wash.2d at 371, 971 P.2d 45. Proximate cause is a "cause which in a natural and continuous sequence, unbroken by a new, independent cause, produces the event, and without which that event would not have occurred." Bernethy v. Walt Failor's, Inc., 97 Wash.2d 929, 935, 653 P.2d 280 (1982). In applying these definitions, this court characterized back and front pay proximately caused by unlawful discrimination as actual damages, Martini, 137 Wash.2d at 364, 971 P.2d 45, but refused to characterize punitive damages as actual damages. Dailey, 129 Wash.2d at 575, 919 P.2d 589.
Consistent with Martini, we refuse to characterize Ms. Blaney's requested offset *764 for additional federal income tax consequences as actual damages because the proximate cause of the additional tax consequences is not the unlawful discrimination, but rather the additional tax liability is a direct result of the tax laws. Thus, the additional tax liability is too attenuated from the unlawful discrimination to be deemed actual damages.
3. An offset for the additional federal income tax consequences is not properly characterized under WLAD's provision for cost of suit.
This court defined cost of suit as incurred costs that are "reasonable and necessary in the preparation and trial of the case," including statutory costs and litigation expenses such as transportation costs, copying costs, supplies, equipment and lodging. Blair v. Wash. State Univ., 108 Wash.2d 558, 573-74, 740 P.2d 1379 (1987). Consistent with Blair, we refuse to characterize Ms. Blaney's requested offset as a cost of suit because tax liability is incurred after, not during, litigation.
C. Ms. Blaney is Entitled to Attorney Fees on Appeal.
A plaintiff who prevails on a gender discrimination suit is entitled to reasonable attorney fees at the trial court, RCW 49.60.030(2), and on appeal. RAP 18.1(a); Martini, 137 Wash.2d at 377, 971 P.2d 45. Ms. Blaney is entitled to attorney fees on appeal because she properly requested such fees in her supplemental brief, and she prevailed on the WLAD issue.
III. CONCLUSION
We affirm the Court of Appeals' determination that the jury instruction on front pay constituted harmless error. The jury instruction was erroneous because it denied the jury the discretion to determine the duration of Ms. Blaney's future employment, a duration that may be shorter than retirement. However, the front pay jury instruction was harmless because the District provided only speculative evidence showing that Ms. Blaney would have been terminated prior to retirement.
We affirm the Court of Appeals' decision that WLAD entitles Ms. Blaney to an offset for the additional federal income tax consequences, but do so on different grounds. Whereas the Court of Appeals characterized the offset as actual damages, we instead characterize it as "any other appropriate remedy authorized by ... the United States Civil Rights Act." RCW 49.60.030(2). This characterization is supported by the liberal construction to be given WLAD and federal precedent holding that Title VII's expansive equitable remedies include offsets for additional federal income tax consequences. Finally, we award Ms. Blaney attorney fees on appeal as mandated by RCW 49.60.030(2) and RAP 18.1(a).
ALEXANDER, C.J., JOHNSON, MADSEN, IRELAND, BRIDGE, and OWENS, JJ., concur.
SANDERS, J. (dissenting).
I agree with the majority insofar as it holds the trial court erred by instructing the jury "to calculate future earnings `from today until the time Ms. Blaney may reasonably be expected to retire.'" Majority at 761 (quoting Clerk's Papers at 240).[1] But this instruction was anything but harmless.
Under a label of de novo review the majority follows directly in the Court of Appeals' footsteps to hold the aforementioned instruction was harmless as a matter of law, basing its conclusion on the lack of any nonspeculative rebuttal evidence proffered by petitioner International Association of Machinist and Aerospace Workers, District No. 160 (District). Majority at 761-62.
In Mackay v. Acorn Custom Cabinetry, Inc., 127 Wash.2d 302, 898 P.2d 284 (1995), another Washington Law Against Discrimination case, this court found instructional error. Id. at 310-12, 898 P.2d 284. Applying the correct test for harmless error analysis, *765 we remanded the matter for a new trial and said:
"When the record discloses an error in an instruction given on behalf of the party in whose favor the verdict was returned, the error is presumed to have been prejudicial, and to furnish ground for reversal, unless it affirmatively appears that it was harmless....
"A harmless error is an error which is trivial, or formal, or merely academic, and was not prejudicial to the substantial rights of the party assigning it, and in no way affected the final outcome of the case."
Id. at 311, 898 P.2d 284 (quoting State v. Wanrow, 88 Wash.2d 221, 237, 559 P.2d 548 (1977)).
That the majority characterizes the evidence as "speculative" suggests no rational jury could have disagreed with Blaney's proffered evidence that she would have worked until 65 as Blaney testified or 63 as Dr. Lowell Bassett testified. But of course since she had the burden of proof the jury had no duty to credit any of her evidence, even if uncontradicted. Nearhoff v. Rucker, 156 Wash. 621, 626, 287 P. 658 (1930). A jury's "verdict will not be set aside unless the court can say, as a matter of law, that there is neither evidence nor reasonable inference from the evidence to support the verdict." Arnold v. Sanstol, 43 Wash.2d 94, 98, 260 P.2d 327 (1953). Had the jury been properly instructed, it very well could have reached the conclusion Blaney did not meet her burden to prove the duration of her employment by a preponderance of the evidence. It could have found instead she would not have worked until her 63rd or 65th birthday based on the District's evidence that Blaney might have been terminated before such time.
But the instruction above diverted the jury's attention away from any evidence which suggested Linda Blaney might have been terminated prior to her retirement. Based on that instruction the jury had no reason to examine or weigh the District's cross-examination of Dr. Bassett's testimony or the evidence which suggested Blaney's employment might not have run its full course. It was tantamount to a directed verdict on the issue of how long Blaney would work, which should beas the majority correctly notesan inherently factual question within the sole province of the jury. See majority at 760-61. Depriving the jury of its duty to resolve such a fact is by definition harmful.
Moreover, despite the majority's characterization, the evidence proffered by Blaney was speculative and had to be by its nature. Contra majority at 761. When asked how long she planned to work at Kenworth Trucking Company (her place of employment), she testified, "I plan on working till I'm 65 because I need the, uhm, health insurance. I have diabetes and, uh, not going to be able to buy health insurance, so I I would imagine that I'm going to be working until I'm 65." 3 Verbatim Report of Proceedings (VRP) at 398 (emphasis added). She further testified that there had been cyclical cutbacks at Kenworth, but that it was "not very likely" she would lose her job due to those cutbacks. Id.
This testimony suggests the possibility Blaney might have lost her job prior to her 65th birthday, or that her diabetes might have prevented her from continuing her employment as a trucker. While it may not have been likely Blaney would have been laid off, it was by no means certain.
Furthermore Dr. Bassett testified as an expert economist who opined Blaney would work an additional 12.81 years. 6 VRP at 965. He testified:
So, uhm, I next calculated a sort of average retirement age, and she was just, uhMs. Blaney was just age 50. So if you look statistically at how long people work, uh, 62.8 would be an average figure, taking account of the fact that there's always some probability that people will die. There's, uh, a probability that people will be injured. And people typically retire between ages 62 andand 67. So 62.8 is aa figure that would take account of all those statistics.
Id. (emphasis added). Expert witnesses are called to the stand for the express purpose of rendering opinions. See generally 5B KARL B. TEGLAND, WASHINGTON PRACTICE: EVIDENCE LAW AND PRACTICE § 702.1, at 30-31 *766 (4th ed.1999). Unlike the layperson, the expert witness may testify to matters to which he or she has no firsthand knowledge. Id. Although all expert opinions must be grounded in adequate foundation, Walker v. State, 121 Wash.2d 214, 218, 848 P.2d 721 (1993), such opinions are not binding on the jury. Moyer v. Clark, 75 Wash.2d 800, 806, 454 P.2d 374 (1969). Dr. Bassett's testimony was an educated guess at the amount of earnings Blaney would expect to receive. He assumed Blaney would work for an "average" number of years. 6 VRP at 965. By its very nature Dr. Bassett's testimony was, at least to a certain degree, speculative, but more fundamentally it was based on an erroneous instruction that the retirement date was necessarily determinative.
The jury might have reached the same conclusion had a proper instruction been given. But it is not the province of this court to assume it would have done so unless the instruction was "`trivial, or formal, or merely academic.'" Mackay, 127 Wash.2d at 311, 898 P.2d 284 (quoting State v. Wanrow, 88 Wash.2d at 237, 559 P.2d 548). I would reverse the Court of Appeals and remand for a new trial on damages. Because the majority holds otherwise, I dissent.
NOTES
[1] Ms. Blaney served as steward and chief steward of her union shop, as well as vice president and president of her local union. She was also a delegate to the Washington State Labor Council, the Washington State Machinists, and the King County Labor Council.
[2] D. Edson Clark, a certified public accountant, testified by declaration that Ms. Blaney will incur an additional $244,753 in federal income tax consequences than she would have incurred if she had properly been given the business representative position. CP at 2093-99. She will incur this greater liability because payment by lump sum places her in the highest tax bracket and triggers the "Alternative Minimum Tax (AMT), which disallows portions of her attorneys fees as a miscellaneous itemized deduction." CP at 2097.
[3] The District also asserts that Ms. Blaney may not argue that the jury instruction was proper because she "did not file a cross-petition for review or otherwise affirmatively seek review before this Court on that issue." Suppl. Br. of Pet'r at 1 n. 1. RAP 13.4(d) and 13.7(b) do not require Ms. Blaney to "file a cross-petition ... or... affirmatively seek review." The rules merely require that the issue be raised. The issue was raised in a lengthy footnote to Ms. Blaney's answer, as well as in repeated references to the erroneous nature of the jury instruction in the District's petition for review.
[4] Business representatives are appointed and removed by the directing business representative (hereinafter DBR) subject to the consent of the district council. Moreover, business representatives are expected to be loyal to the DBR's vision because the DBR is an elected official who serves a four-year term. To show that Ms. Blaney would not be loyal as a business representative, the then current DBR testified about a list of instances in which Ms. Blaney was disloyal during her tenure as senior shop steward. 8 VRP at 1361-77.
[5] The District provided testimony of an allegedly disloyal business representative who resigned after receiving a warning from his DBR. 5 VRP at 776-77.
[6] Ms. Blaney's final supplemental brief, however, argues for the "any other appropriate remedy" provision as posited by the Washington State Trial Lawyers Association Foundation (WSTLA Foundation) and Washington Employment Lawyers Association (WELA). Blaney's Suppl. Br. in Resp. to Brs. of Amici WSTLA Foundation, WELA, and WDTLA at 2-4.
[7] See Pet. for Review at 14 ("The Court of Appeals' determination that the WLAD allows recovery for tax consequences involves an issue of substantial public importance"; "[t]he Court of Appeals' determination that the Washington Law Against Discrimination (`WLAD') allows recovery for the tax consequences of a damages award was not only incorrect, it involves an issue of obvious and substantial public importance").
[8] See Fraternal Order of Eagles, Tenino Aerie No. 564 v. Grand Aerie of Fraternal Order of Eagles, 148 Wash.2d 224, 255, 59 P.3d 655 (2002) (acknowledging that WLAD is to be broadly construed and construing the definitions of public accommodation and the exceptions to public accommodation to mean fraternal organizations are not necessarily distinctly private); Mackay v. Acorn Custom Cabinetry, Inc., 127 Wash.2d 302, 309-10, 898 P.2d 284 (1995) (acknowledging that WLAD is to be broadly construed and construing WLAD to require a plaintiff to prove discrimination was a substantial factor rather than a determining factor in discharge); Burnside v. Simpson Paper Co., 123 Wash.2d 93, 99, 864 P.2d 937 (1994) (acknowledging that WLAD is to be liberally construed and construing WLADs use of inhabitant as a "general reference not intended to impose a residency requirement as a jurisdictional prerequisite to bringing suit"). But see Kilian v. Atkinson, 147 Wash.2d 16, 27, 50 P.3d 638 (2002) (acknowledging that WLAD is to be liberally construed, but refusing to extend WLAD to age discrimination).
[1] I do not take issue with the majority's resolution of the tax offset issue. See majority at 761-64.
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IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
October 25, 2012 Session
NORMA ELLINGTON AND CLIFTON ELLINGTON, INDIVIDUALLY AND AS
NEXT FRIENDS AND NATURAL PARENTS OF JEROME ELLINGTON, Deceased
v.
JACKSON BOWLING & FAMILY FUN CENTER, L.L.C.,
JACKSON BOWLING & RECREATION CENTER, INC.,
AND JOHN DOE
An Appeal from the Circuit Court for Madison County
No. C-09-310 Roy B. Morgan, Jr., Judge
No. W2012-00272-COA-R3-CV - Filed February 19, 2013
This is a wrongful death action predicated on premises liability. The lawsuit arose out of a
fight in the parking lot of a bowling alley owned by the defendants. After the plaintiffs’ 19-
year-old son punched a member of a rival gang, another member of the rival gang drove up
and shot the plaintiffs’ son in the chest, killing him. The plaintiffs filed this lawsuit against
the defendant bowling alley owners for the wrongful death of their son; they asserted that the
defendants acted negligently or recklessly in failing to provide adequate security on their
premises. The defendants filed a motion for summary judgment. The trial court granted the
motion on two bases: (1) the defendants did not owe a duty to the plaintiffs’ son to protect
him from the criminal acts of others, and (2) the undisputed evidence demonstrated that the
plaintiffs’ son was at least 50% at fault for his death. The plaintiffs now appeal. We reverse,
finding that the standard for summary judgment under Hannan v. Alltel Publishing
Company has not been met in this case.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court is
Reversed and Remanded
H OLLY M. K IRBY, J., delivered the opinion of the Court, in which A LAN E. H IGHERS, P.J.,
W.S., and J. S TEVEN S TAFFORD, J., joined.
Randall J. Fishman and Richard S. Townley, Memphis, Tennessee, for the
Plaintiffs/Appellants Norma Ellington and Clifton Ellington, individually and on behalf of
Jerome Ellington
Richard Glassman and James F. Horner, Jr., Memphis, Tennessee, for the
Defendants/Appellees Jackson Bowling & Family Fun Center, L.L.C., and Jackson Bowling
& Recreation Center, Inc.
OPINION
F ACTS AND P ROCEEDINGS B ELOW
On the evening of January 28, 2009, 19-year-old Jerome Ellington (“Decedent Ellington”)
went with a group of his friends to the Defendant/Appellee Jackson Bowling & Family Fun
Center, L.L.C. (“Jackson Bowling”). As fate would have it, that same night, Ledarren
Hawkins (“Hawkins”) and a group of his friends were also patrons at Jackson Bowling.
Evidence in the record indicates that Decedent Ellington’s group was associated with the
“Crips” gang. Hawkins’ group was associated with the rival “Bloods” gang.
On past occasions, Jackson Bowling had hired trained security personnel for their premises.
In 2007 and 2008, Jackson Bowling hired an outside security service, Hayes Security, to
provide security services for both the bowling alley and its adjoining parking lot. At other
times, Jackson Bowling had hired off-duty sheriff’s deputies for security as well as crowd
control. On the night in question, however, Jackson Bowling did not employ an outside
security service. Instead, it put two of its own regular employees — Ed Henry and Knox
Crider — in charge of “crowd control.” As designated “crowd control” employees, their
responsibilities included making sure that bowlers were wearing bowling shoes and throwing
only one ball at a time down the bowling lane, preventing loitering by asking persons not
participating in bowling activities to leave the premises, and overall trying to maintain a good
atmosphere for the bowling alley’s customers. That night, these two designated employees
did not wear uniforms or dress in conformity with Jackson Bowling’s dress code.
In the course of the evening of January 28, 2009, members of Decedent Ellington’s group
and Hawkins’ group exchanged words inside the bowling alley. The verbal encounters
between the two groups did not, however, turn into a physical altercation while they were
inside the bowling alley.
Finally, after the exchanges between Decedent Ellington’s group and Hawkins’ group, at
about 10:00 p.m., a Jackson Bowling employee announced over the intercom that persons
who were not bowling needed to leave the bowling alley. Some evidence indicates that
-2-
Jackson Bowling employees made no immediate effort beyond the announcement to clear
non-bowlers from the building. About 15 to 20 minutes later, “crowd control” employee Ed
Henry approached Hawkins specifically and told him to leave the bowling alley because he
was underage and had attempted to enter the karaoke bar attached to the bowling alley.1
Hawkins apparently did not resist Henry’s directive; he and his group left the bowling alley
and walked into the parking lot. As they left, some in Hawkins’ group flashed “gang signs”
with their hands, aimed in the direction of the Ellington group. Decedent Ellington and his
group then followed the Hawkins group out of the bowling alley and into the parking lot.
Chilling surveillance video from the bowling alley parking lot captured the ensuing fracas.
Perhaps inevitably, once both groups got outside, they began arguing. Some evidence
indicates that Decedent Ellington was the first to escalate the verbal conflict into a physical
one; he apparently threw the first punch at an unidentified individual from Hawkins’ group.
This incited a “brawl” between the groups. Within four seconds after the fray began, Jackson
Bowling’s designated “crowd controllers,” Ed Henry and Knox Crider, exited the building
to break up the fight. Jackson Bowling employees Kylan King and Darrell King
accompanied them into the parking lot to disperse the crowd. At about the same time,
Hawkins drove up to the scene in his Chevy Blazer, got out of the vehicle wielding a sawed-
off shotgun, and shot Decedent Ellington in the chest. Ellington’s gunshot wound proved
to be fatal. Hawkins was later tried and convicted of the murder of Decedent Ellington.
On October 22, 2009, Plaintiff/Appellants Norma Ellington and Clifton Ellington,
individually and on behalf of their son, Decedent Ellington (collectively, “the Ellingtons”),
filed this lawsuit in the Circuit Court for Madison County against Jackson Bowling for the
wrongful death of Decedent Ellington.2 The Ellingtons alleged that Jackson Bowling
negligently or recklessly failed to provide adequate security for Decedent Ellington (Count
I – nonfeasance), and/or negligently or recklessly undertook the duty to provide security for
Decedent Ellington (Count II – misfeasance). They asserted that “[t]he previous crime in the
area where Plaintiff was shot and in the immediate vicinity made the commission of the
crime against Plaintiff reasonably foreseeable.” The Ellingtons sought $2 million in
compensatory damages and $1 million in punitive damages.
Jackson Bowling filed an answer denying liability. As an affirmative defense, Jackson
Bowling’s answer asserted the comparative fault of Decedent Ellington. It also asserted as
1
The record is unclear, but indicates that a karaoke bar owned by an entity related to Jackson Bowling is
connected somehow to the bowling alley.
2
Jackson Bowling & Recreation Center, Inc., was added as a defendant in an amended complaint filed on
November 9, 2009. We refer to both Jackson Bowling entities collectively as “Jackson Bowling.”
-3-
an affirmative defense that the intentional actions of Hawkins contributed to and/or was the
superseding, intervening cause of Decedent Ellington’s death.
Discovery ensued. The parties took the depositions of several witnesses, including Jackson
Bowling manager Darren Goldie; a member of Hawkins’ group who was present at the
bowling alley; a member of Decedent Ellington’s group who was present at the bowling
alley; and Plaintiffs Norma and Clifton Ellington. Those depositions were filed with the trial
court.
On August 26, 2011, Jackson Bowling filed a motion for summary judgment. In support of
the motion, Jackson Bowling submitted a statement of undisputed facts and the affidavit of
Andy Kim, one of the owners of Jackson Bowling who was present at the bowling alley on
the night of the shooting. Kim claimed in his affidavit that, prior to the night of Ellington’s
shooting, there had never before been an altercation between gang members on the premises
of Jackson Bowling; never before had there been a shooting on the premises of Jackson
Bowling; and never before had any customer, employee, or other individual been the victim
of gang violence on the premises of Jackson Bowling. These assertions in Kim’s affidavit
were supported by the testimony of Jackson Bowling manager Goldie in his deposition.
Based on this and the other evidence in the record, Jackson Bowling argued that it was
entitled to a judgment as a matter of law on the following grounds:
1. Jackson Bowling owed no duty to protect Decedent Ellington from the
violent criminal acts of Hawkins due to lack of foreseeability of that danger,
pursuant to the foreseeability analysis outlined in McClung v. Delta Square
Ltd. Partnership, 937 S.W.2d 891, 894 (Tenn. 1996); and that,
2. Even if a legal duty were owed to Decedent Ellington, the comparative fault
of Decedent Ellington, in participating in and escalating the altercation with
Hawkins’ group from a verbal to a violent physical altercation culminating in
his fatal shooting, constituted at least 50% of the total fault proximately
causing the injuries asserted by the Ellingtons as a matter of law.
On September 2, 2011, the Ellingtons filed a response opposing Jackson Bowling’s summary
judgment motion, arguing that genuine issues of material fact remained for trial. In their
response, the Ellingtons did not dispute the facts as asserted by Jackson Bowling. They
disputed, however, that those facts led to a legal finding that the violent acts that resulted in
Decedent Ellington’s death were not foreseeable. In support, the Ellingtons submitted the
affidavit of Jackson Police Department employee Margaret Savage, along with an attached
crime report from the Jackson Police Department. Together these showed numerous crimes
in the vicinity of the Jackson Bowling within the year prior to Decedent Ellington’s shooting
-4-
— four assaults, one to two intimidations, three burglaries, six incidents of vandalism, one
motor vehicle theft, and ten other thefts. The Ellingtons’ response pointed out that, of those
crimes, two assaults and three incidents of vandalism had occurred on the bowling alley
premises itself. They further argued that the proportion of the culpability of Decedent
Ellington vis-á-vis Jackson Bowling’s culpability, and the reasonableness of Decedent
Ellington’s conduct, were questions of fact for the jury. Therefore, they argued, whether
Jackson Bowling owed a duty to Decedent Ellington and the extent of Decedent Ellington’s
fault were issues for a jury, and Jackson Bowling was not entitled to summary judgment.
Jackson Bowling’s reply to the Ellingtons’ response to the summary judgment motion
attached a statement of additional facts and a supplemental affidavit by Andy Kim. It also
attached an affidavit by Jackson Bowling attorney Tom Clary with his research on where the
criminal incidents noted by the Ellingtons occurred and the distance from Jackson Bowling.
The trial court conducted a hearing on Jackson Bowling’s motion for summary judgment.3
At the conclusion of the hearing, the trial court issued an oral ruling granting summary
judgment in favor of Jackson Bowling, based on the theories advanced in the summary
judgment motion.4
On January 5, 2012, the trial court entered a written order on the motion. It stated:
. . . [T]he Court finds that applying the summary judgment standard set forth
by the court in Hannan v. Alltel Pub. Co., 270 S.W.3d 1 (Tenn. 2008) said
Motion is well taken and should be granted as:
1. Under the analysis outlined by the Tennessee Supreme Court in
McClung v. Delta Square Ltd. Partnership, 937 S.W.2d 891 (Tenn. 1996),
Defendants owed no legal duty of care to Plaintiffs’ decedent, Jerome
Ellington, to protect him from the violent criminal acts of the individual
responsible for his murder as the evidence in the record before the court of
prior criminal activity on Defendants’ premises and the immediate vicinity
prior to the occurrence does not rise to the level necessary to establish that the
criminal act was foreseeable; and
3
At the hearing, the trial judge commented that he had presided over the murder trial of Hawkins, in which
Hawkins was found guilty of murdering Decedent Ellington, but emphasized that information from that trial
did not factor into his analysis of the instant civil lawsuit.
4
Although the appellate record does not include a transcript of the hearing, it includes a transcript of the trial
court’s oral ruling. That oral ruling was not incorporated by reference into the trial court’s written order.
-5-
2. Even if a legal duty were owed, taking the undisputed facts in the
light most favorable to the Plaintiffs, as a matter of law, reasonable minds
could not differ but to find that the acts of Plaintiffs’ decedent, Jerome
Ellington, in placing himself in an environment where gang related activity and
violence was occurring, in participating in said altercation and throwing the
first punch culminating in physical violence between the two groups accounted
for . . . 50% or more of the total fault proximately resulting in Plaintiffs’
claimed injuries and damages thus barring Plaintiffs from recovering herein
From this order, the Ellingtons now appeal.
ISSUES ON A PPEAL AND S TANDARD OF R EVIEW
On appeal, the Ellingtons challenge the trial court’s grant of summary judgment in favor of
Jackson Bowling. The trial court’s resolution of a motion for summary judgment is a
conclusion of law, which we review de novo on appeal, according no deference to the trial
court’s decision. Martin v. Norfolk S. Rwy. Co., 271 S.W.3d 76, 84 (Tenn. 2008). Summary
judgment is appropriate only when the moving party can demonstrate that there is no genuine
issue of material fact, and that it is entitled to judgment as a matter of law. Tenn. R. Civ. P.
56.04; see Hannan v. Alltel Publ’g Co., 270 S.W.3d 1, 5 (Tenn. 2008); Byrd v. Hall, 847
S.W.2d 208, 214 (Tenn. 1993).
Whether the trial court’s grant of summary judgment was appropriate must be considered in
light of the standard enunciated in Hannan v. Alltel Publishing Company.5 The Tennessee
Supreme Court recently expounded on the Hannan standard:
In Hannan, this Court reaffirmed the basic principles guiding Tennessee
courts in determining whether a motion for summary judgment should be
granted, stating:
The moving party has the ultimate burden of persuading the
court that “there are no disputed, material facts creating a
genuine issue for trial . . . and that he is entitled to judgment as
a matter of law.” Byrd, 847 S.W.2d at 215. If the moving party
makes a properly supported motion, the burden of production
5
The Tennessee General Assembly has enacted legislation changing the summary judgment standard from
that which is set forth in Hannan. The new statute, however, applies only to cases filed on or after July 1,
2011, and thus is not applicable to this appeal. See Tenn. Code Ann. § 20-16-101 (Supp. 2012).
-6-
then shifts to the nonmoving party to show that a genuine issue
of material fact exists. Id. . . .
....
. . . [I]n Tennessee, a moving party who seeks to shift the burden
of production to the nonmoving party who bears the burden of
proof at trial must either: (1) affirmatively negate an essential
element of the nonmoving party’s claim; or (2) show that the
nonmoving party cannot prove an essential element of the claim
at trial.
Hannan, 270 S.W.3d at 5, 8-9. It is insufficient for the moving party to
“merely point to omissions in the nonmoving party’s proof and allege that the
nonmoving party cannot prove the element at trial.” Id. at 10. “Similarly, the
presentation of evidence that raises doubts about the nonmoving party’s ability
to prove his or her claim is also insufficient.” Martin v. Norfolk S. Ry. Co.,
271 S.W.3d 76, 84 (Tenn. 2008). If the party moving for summary judgment
fails to satisfy its initial burden of production, the burden does not shift to the
nonmovant and the court must dismiss the motion for summary judgment.
Hannan, 270 S.W.3d at 5; Blanchard v. Kellum, 975 S.W.2d 522, 525 (Tenn.
1998).
Sykes v. Chattanooga Hous. Auth., 343 S.W.3d 18, 25-26 (Tenn. 2011) (footnote omitted).
Thus, under Hannan, Jackson Bowling is entitled to summary judgment on all of the
Ellingtons’ claims only if it either affirmatively negates an element of each claim or
establishes that the Ellingtons cannot prove an essential element of their claims at trial. If
it does either, the burden then shifts to the Ellingtons to establish that a genuine issue of
material fact exists for trial. If it does neither, then the motion for summary judgment must
be denied. Id.
A NALYSIS
McClung Duty
The Ellingtons argue that the trial court erred in concluding that, as a matter of law, Jackson
Bowling had no legal duty to protect Decedent Ellington from the criminal act that resulted
in his death. They argue that the evidence before the trial court was sufficient to create a
genuine issue of material fact as to whether a legal duty existed in this case under the analysis
in McClung. For that reason, they insist that Jackson Bowling was not entitled to summary
judgment on the issue of duty.
-7-
A brief review of the law in this area is helpful to our analysis on appeal. To establish a claim
for negligence, a plaintiff must prove: “(1) a duty of care owed by defendant to plaintiff; (2)
conduct below the applicable standard of care that amounts to a breach of that duty; (3) an
injury or loss; (4) cause in fact; and (5) proximate, or legal, cause.” Giggers v. Memphis
Hous. Auth., 277 S.W.3d 359, 364 (Tenn. 2009) (quoting McCall v. Wilder, 913 S.W.2d
150, 153 (Tenn. 1995)). At this juncture, we focus on the first element, whether Jackson
Bowling owed a duty to Decedent Ellington. In general, in cases involving premises liability,
the premises owner has a duty to exercise reasonable care under the circumstances to prevent
injury to persons lawfully on the premises.6 Eaton v. McLain, 891 S.W.2d 587, 593-94
(Tenn. 1994). The more specific question of whether a premises owner has a duty to protect
customers from the criminal acts of third parties is determined by application of the analysis
set forth in McClung v. Delta Square Ltd. Partnership, 937 S.W.2d 891 (Tenn. 1996).
As background, prior to McClung, premises owners in Tennessee had no duty to protect
customers from the criminal acts of third parties “unless they know or have reason to know
that acts are occurring or about to occur on the premises that pose imminent probability of
harm to an invitee.” Cornpropst v. Sloan, 528 S.W.2d 188, 198 (Tenn. 1975). Under the
Cornpropst standard, the “[c]onditions in the area [of the defendant business] are irrelevant.”
Id. at 197. As recognized by the dissenting justice in Cornpropst, the Court’s ruling
“afford[ed] virtually no protection to shopping center invitees . . . and virtually immuniz[ed]
the owner against liability.” Id. at 200 (Henry, J., dissenting); see Weaver v. Four Maples
Homeowners Ass’n, No. M2011-01101 -COA-R3-CV, 2011 WL 5054698, at *5-7 (Tenn.
Ct. App. Oct. 24, 2011) (discussing Cornpropst and its progeny).
In October 1996, the Supreme Court in McClung overruled Cornpropst. In McClung, a
woman in a shopping center parking lot was forced into her car at gunpoint. After the
victim’s abductors drove away, they raped her and put her into the trunk of her car, where
she suffocated. McClung, 937 S.W.2d at 893-94. The victim’s husband sued the owner of
the shopping center; he claimed that the shopping center owner was negligent for failing to
provide security for the parking lot, and that its negligence was the proximate cause of the
victim’s death.7 The trial court reluctantly granted the owner’s motion for summary
judgment, and the intermediate appellate court affirmed that decision, noting that it was
constrained to do so by the Supreme Court’s decision in Cornpropst. See id. at 894. The
6
This duty is based upon the assumption that the property owner has superior knowledge of any perilous
condition that may exist on the property. See, e.g., Dobson v. State, 23 S.W.3d 324, 330 (Tenn. Ct. App.
1999).
7
The victim’s husband sued both the property owner and the tenant business that was renting the part of the
property where the attack occurred.
-8-
Supreme Court granted certiorari in order “to review the standard for determining business
owner liability for injuries occurring on the business premises and caused by the criminal acts
of third parties.” Id. at 893.
After a thorough analysis of the issue, the Supreme Court followed the majority of
jurisdictions in holding that “businesses [must] take reasonable measures to protect their
customers from foreseeable criminal attacks.” Id. at 898-99. The McClung Court adhered
to the general rule that a business “ordinarily has no duty to protect customers from the
criminal acts of third parties which occur on its premises,” noting that a “business is not to
be regarded as the insurer of the safety of its customers, and it has no absolute duty to
implement security measures for the protection of its customers.” Id. at 902. Nevertheless,
it held that a business has “a duty to take reasonable steps to protect customers . . . if the
business knows, or has reason to know, either from what has been or should have been
observed or from past experience, that criminal acts against its customers on its premises are
reasonably foreseeable, either generally or at some particular time.” Id.
To assess whether a criminal act is “reasonably foreseeable,” the Court adopted a balancing
approach in which the degree of foreseeability of the harm is balanced against the burden of
the duty to be imposed on the premises owner. Id. at 901. The McClung Court explained:
In cases in which there is a high degree of foreseeability of harm and the
probable harm is great, the burden imposed upon the defendant may be
substantial. Alternatively, in cases in which a lesser degree of foreseeability
is present or the potential harm is slight, less onerous burdens may be imposed.
By way of illustration, using surveillance cameras, posting signs, installing
improved lighting or fencing, or removing or trimming shrubbery might, in
some instances, be cost effective and yet greatly reduce the risk to customers.
. . . The degree of foreseeability needed to establish a duty of reasonable care
is, therefore, determined by considering both the magnitude of the burden to
defendant in complying with the duty and magnitude of the foreseeable harm.
Id. at 902 (citation omitted). Based on this analysis, the McClung Court reversed the grant
of summary judgment in favor of the defendant shopping center owner and remanded the
case to the trial court for further proceedings. Id. at 904-05.
In the instant case, the trial court held that, under McClung, Jackson Bowling owed no legal
duty of care to Decedent Ellington because “the evidence in the record before the court of
prior criminal activity on [Jackson Bowling’s] premises and the immediate vicinity prior to
the occurrence does not rise to the level necessary to establish that the criminal act was
foreseeable.” On appeal, the Ellingtons argue that the crime reports on which Jackson
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Bowling relied did not negate the existence of a duty of care to Decedent Ellington, as is
required under Hannan. They contend that the crime records to which the trial court referred
actually create a fact question as to the degree of foreseeability of Hawkins’ crime. The
Ellingtons acknowledge that they have uncovered no recent gang-related crimes or violent
murders on the Jackson Bowling premises or in the surrounding area, but argue that “there
is no requirement that the defendant must anticipate the exact manner of the injury in order
to justify a finding of foreseeability.” Weaver, 2011 WL 5054698, at *7.
In response, Jackson Bowling argues that the trial court correctly granted summary judgment
on the issue of duty, because the testimony of Andy Kim and Darren Goldie, together with
the undisputed crime statistics in the record, establish that the area surrounding Jackson
Bowling and the Jackson Bowling premises itself were free of murders and gang-related
crimes in the year prior to the subject incident. Jackson Bowling claims that the crimes in
the record did not rise to a level that would allow the court to hold that a murder on the
Jackson Bowling premises was foreseeable to a reasonable premises owner. After reviewing
the evidence in detail, Jackson Bowling asserts: “Considering the details of the prior criminal
activity taking place at Jackson Bowling as relied upon by The Ellingtons, they are unable
to come forward with proof sufficient to create an issue of material fact relative to the
foreseeability of the subject gang related shooting.”
We agree with Jackson Bowling that the crime statistics are relevant to the issue of duty, as
acknowledged by the McClung Court:
As a practical matter, the requisite degree of foreseeability essential to
establish a duty to protect against criminal acts will almost always require that
prior instances of crime have occurred on or in the immediate vicinity of
defendant’s premises. Courts must consider the location, nature, and extent of
previous criminal activities and their similarity, proximity, or other relationship
to the crime giving rise to the cause of action. To hold otherwise would
impose an undue burden upon merchants.
McClung, 937 S.W.2d at 902 (footnote omitted). However, despite its recognition that
evidence of prior crimes on the property or in the area is relevant, the McClung Court
specifically rejected the “prior incidents rule” as overly restrictive. Under that rule, a
plaintiff is required to “introduce evidence of prior incidents of crime on or near defendant’s
premises in order to establish foreseeability.” Id. at 899-900. If the prior incidents rule is
applied, the Court noted, “the first victim always loses, while subsequent victims are
permitted recovery.” Id. (quoting Isaacs v. Huntington Mem. Hosp., 695 P.2d 653, 658
(Cal. 1985), which listed several “fatal flaws” of the prior incidents rule). Consequently,
instead of the prior incidents rule, the McClung Court adopted a “balancing approach” under
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which incidents of prior crimes, or the absence thereof, are not determinative on the issue of
foreseeability. See generally Weaver, 2011 WL 5054698, at *7-8 (discussing prior incidents
of crime in context of premises liability). Thus, while prior incidents are highly relevant, they
are not determinative on the issue of duty, for purposes of summary judgment.
Moreover, we note that Jackson Bowling’s argument is predicated on its assertion that the
Ellingtons “are unable to come forward with proof sufficient to create an issue of material
fact” as to foreseeability. We have previously discussed the high hurdle presented under
Hannan and its progeny for a defendant to obtain summary judgment. In White v. Target
Corp., the Court explained:
Under Hannan, to obtain summary judgment in its favor, [defendant] Target
must negate an element of [plaintiff] Mrs. White’s claim or show that Mrs.
White cannot establish the elements of her claim. It is not enough to say, as
Target does here, that Mrs. White has not yet proffered evidence to
substantiate her assertion that the offending ceiling globe contained a security
camera. Under that circumstance, Target has not “disprove[d] an essential
factual claim” made by Mrs. White, and therefore has not shifted the burden
to Mrs. White.
White v Target Corp., No. W2010-02372-COA-R3-CV, 2012 WL 6599814, at *7 (Tenn. Ct.
App. Dec. 18, 2012) (quoting Martin v. Norfolk So. Rwy, 271 S.W.3d 76, 84 (Tenn. 2008)
(footnote omitted; emphasis in original). In a footnote, the White Court elaborated:
Under Hannan, as we perceive the ruling in that case, it is not enough to rely
on the nonmoving party’s lack of proof even where, as here, the trial court
entered a scheduling order and ruled on the summary judgment motion after
the deadline for discovery had passed. Under Hannan, we are required to
assume that the nonmoving party may still, by the time of trial, somehow come
up with evidence to support her claim.
Id. at *7 n.3.
We are mindful that the trial court carefully considered the Hannan summary judgment
standard, and that the issue of whether a duty exists is generally a question of law for the
court. McClung, 937 S.W.2d at 894. However, the determination on the issue of duty hinges
on questions of fact, such as foreseeability. Id. at 904-05. In our view, under the Hannan
standard, Jackson Bowling has not negated the “duty” element of the Ellingtons’ claim, in
that it relies on the Ellingtons’ “lack of proof” at this point in time. As we have noted, “the
Hannan Court explicitly rejected the ‘put up or shut up’ standard for summary judgment.”
-11-
Moore v. Butler, No. W2010-02374-COA-R3-CV, 2011 WL 6004010, at *7 (Tenn. Ct. App.
Dec. 1, 2011) (citing Hannan, 270 S.W.3d at 8). In this case, Jackson Bowling has shown
only that the Ellingtons have “not yet” come up with proof that Hawkins’ actions were
foreseeable; it has not shown that the Ellingtons cannot prove that Hawkins’ actions were
foreseeable. White, 2012 WL 6599814, at *7 n.3. We agree with the Ellingtons that Jackson
Bowling did not satisfy its burden to negate the element of duty in their negligence claim.
Accordingly, we must respectfully conclude that Jackson Bowling is not entitled to summary
judgment on this basis.
Comparative Fault
The Ellingtons next argue that the trial court erred in holding that, as a matter of law,
Decedent Ellington was “50% or more” at fault for his injuries by “placing himself in an
environment where gang related activity and violence was occurring, in participating in said
altercation and throwing the first punch culminating in physical violence between the two
groups . . . .” They acknowledge that there is evidence to support a finding of some fault on
the part of Decedent Ellington, but they claim that the proper weight to be given the evidence
is a matter to be determined by a jury in light of all of the evidence at trial. In essence, the
Ellingtons argue that, based on all of the evidence, reasonable minds could differ on whether
Decedent Ellington was at least 50% at fault for his injuries.
In response, Jackson Bowling contends that the undisputed evidence in the record shows that
Decedent Ellington’s own fault was equal to or greater than the fault of Jackson Bowling.
Jackson Bowling notes that Decedent Ellington made the decision “to follow the Hawkins
Group outside after they had voluntarily left” the bowling alley, “to engage the ‘Hawkins
group’ in a physical altercation” in the parking lot, and to “escalate[] the altercation to one
of physical violence by striking the first blow that preceded the resulting brawl.” Under
those circumstances, Jackson Bowling argues, “reasonable minds could not differ but to find
that as a matter of law Jerome Ellington’s own negligence and fault were at least equal to
and/or greater than any negligence, if any, of Jackson Bowling.” Therefore, it argues, the
trial court did not err in granting summary judgment in its favor based on Decedent
Ellington’s degree of fault.
Under the system of comparative fault in Tennessee, comparative fault is an affirmative
defense in which an alleged tortfeasor asserts “that a portion of the fault for the plaintiff’s
damages should be allocated to another tortfeasor.” Banks v. Elks Club Pride of Tenn.
1102, 301 S.W.3d 214, 220 (Tenn. 2010); Tenn. R. Civ. P. 8.03; see also McNabb v.
Highways, Inc., 98 S.W.3d 649, 654 (Tenn. 2003). Under Hannan, “a defendant asserting
an affirmative defense . . . shifts the burden of production by alleging undisputed facts that
show the existence of the affirmative defense.” Hannan, 270 S.W.3d at 9 n.6. When a
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defendant files a motion for summary judgment based on an affirmative defense, the
defendant must “conclusively establish [the] affirmative defense” by pointing to undisputed
facts that prove the defense. McMahan v. Sevier County, No. E2005-02028-COA-R3-CV,
2007 WL 1946650, at *2 (Tenn. Ct. App. July 3, 2007) (quoting McCarley v. West Quality
Food Serv., 960 S.W.2d 585, 588 (Tenn. 1988)). As the moving party, Jackson Bowling
bears the burden “to prove the affirmative of its defense . . . .” Id. Although it can under
some circumstances be the basis for a grant of summary judgment, “comparative fault is
typically a question for the trier of fact . . . .” Norris v. Pruitte, No. 01A01-9709-CV-00506,
1998 WL 1988563, at *3 (Tenn. Ct. App. Aug. 24, 1998) (citing John A. Day & Donald
Capparella, Tennessee Law of Comparative Fault, p. 12-18 (1997)).
After carefully reviewing the record, we must conclude that Jackson Bowling has not
“conclusively established” that the comparative fault of Decedent Ellington was 50% or more
of the total fault for his injuries. We note that, in its answer, Jackson Bowling asserted that
the “negligence or actions” of Hawkins were the proximate cause of Decedent Ellington’s
death, and that Hawkins’ actions were the superseding or intervening cause of Decedent
Ellington’s death. The analysis on superseding and/or intervening cause involves the same
foreseeability considerations that are discussed above in the analysis of Jackson Bowling’s
duty to Decedent Ellington. See Potter v. Ford Motor Co., 213 S.W.3d 264, 273-75 (Tenn.
Ct. App. 2006). As we have indicated, the trial court held that Decedent Ellington was liable
for “50% or more of the total fault proximately resulting in [his] claimed injuries and
damages . . . .” From our review of the written order granting summary judgment and the
trial court’s oral ruling, it is unclear whether the trial court considered Hawkins’ proportion
of fault in assessing the fault of Decedent Ellington, and if so to what extent. The trial court
did not explicitly address how the criminal acts of Hawkins, a non-party tortfeasor, should
be considered in the analysis of the parties’ comparative fault, or whether including Hawkins
in the comparison of fault is even permissible. This can be a problematic determination. See
Haynes v. Hamilton County, 883 S.W.2d 606, 612 (Tenn. 1994) (discussing the comparison
of the criminal act of third party); see generally John A. Day, Donald Caparella, and John
Walker Wood, 17 Tenn. Practice, Tenn. Law of Comparative Fault §§ 6:6, 6:10 (2d ed.
2012). This information on the trial court’s analysis is necessary for us to review the grant
of summary judgment on the basis of comparative fault.
Moreover, our holding that Jackson Bowling failed to establish that the plaintiffs cannot
show that Hawkins’ criminal acts were foreseeable makes it premature at this point to
compare Decedent Ellington’s alleged negligence with other potential tortfeasors and find,
as a matter of law, that Decedent Ellington’s proportion of the “total fault” for his injuries
was at least 50%. Thus, we must respectfully hold that the grant of summary judgment on
this basis was improper.
-13-
Accordingly, we must reverse the trial court’s grant of summary judgment in favor of
Jackson Bowling on the basis that Decedent Ellington was “50% or more” at fault for the
events that resulted in his death.
Negligence in Duty Undertaken (Misfeasance)
In Count II, the Ellingtons claimed that Jackson Bowling undertook the duty to provide
security, and that it therefore assumed the duty to do so in a non-negligent/non-reckless
manner. This claim is based on the principle that, “‘[o]ne who assumes to act, even though
gratuitously, may thereby become subject to the duty of acting carefully.’” Biscan v. Brown,
160 S.W.3d 462, 482-83 (Tenn. 2005) (quoting Stewart v. State, 33 S.W.3d 785, 793 (Tenn.
2000)); see Restatement (2d) of Torts § 324A (1965).
The Ellingtons acknowledge that the trial court did not specifically address whether Jackson
Bowling had a duty of care based on its decision to voluntarily provide “crowd control”
personnel for the safety of its patrons. However, the trial court granted summary judgment
in favor of Jackson Bowling on all issues and dismissed the plaintiffs’ case with prejudice.
We decline to address an issue not specifically addressed by the trial court below, and we
remand any issues not addressed for the trial court to decide in the first instance. See, e.g.,
Plants, Inc. v. Fireman’s Fund Ins. Co., No. M2011-02063-COA-R3-CV, 2012 WL
3291805, at *12 (Tenn. Ct. App. Aug. 13, 2012) (declining to address an issue not first
addressed by the trial court). Nevertheless, we reverse the grant of summary judgment in its
entirety, and we remand the entire case for further proceedings.
C ONCLUSION
The decision of the trial court is reversed and the cause is remanded for further proceedings
consistent with this opinion. Costs on appeal are to be taxed to Defendants/Appellees
Jackson Bowling & Family Fun Center, L.L.C., and Jackson Bowling & Recreation Center,
Inc., for which execution may issue, if necessary.
_________________________________
HOLLY M. KIRBY, JUDGE
-14-
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TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
JUDGMENT RENDERED DECEMBER 12, 2018
NO. 03-17-00664-CV
Acme Iron & Metal Company, a d/b/a of Txalloy, Inc.; and
Mayfield Paper Company, Inc., Appellants
v.
Republic Waste Services of Texas, Ltd.,
sometimes d/b/a Trashaway Services and Duncan Disposal, Appellee
APPEAL FROM THE 119TH DISTRICT COURT OF TOM GREEN COUNTY
BEFORE JUSTICES PURYEAR, BOURLAND, AND TOTH
AFFIRMED -- OPINION BY JUSTICE PURYEAR
This is an appeal from the interlocutory order signed by the trial court on August 24, 2017.
Having reviewed the record and the parties’ arguments, the Court holds that there was no
reversible error in the order. Therefore, the Court affirms the trial court’s interlocutory order.
Appellants shall pay all costs relating to this appeal, both in this Court and the court below.
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-7252
STANLEY LORENZO WILLIAMS,
Petitioner - Appellant,
versus
DEAN WALKER,
Respondent - Appellee.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. Russell A. Eliason,
Magistrate Judge. (CA-00-326-1)
Submitted: December 22, 2005 Decided: January 3, 2006
Before WIDENER, NIEMEYER, and KING, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Stanley Lorenzo Williams, Appellant Pro Se. Clarence Joe DelForge,
III, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Stanley Lorenzo Williams seeks to appeal the magistrate
judge’s* order denying relief on his motion seeking to amend his
petition filed under 28 U.S.C. § 2254 (2000). The order is not
appealable unless a circuit justice or judge issues a certificate
of appealability. 28 U.S.C. § 2253(c)(1) (2000). A certificate of
appealability will not issue absent “a substantial showing of the
denial of a constitutional right.” 28 U.S.C. § 2253(c)(2) (2000).
A prisoner satisfies this standard by demonstrating that reasonable
jurists would find that the district court’s assessment of his
constitutional claims is debatable and that any dispositive
procedural rulings by the district court are also debatable or
wrong. See Miller-El v. Cockrell, 537 U.S. 322, 336 (2003);
Slack v. McDaniel, 529 U.S. 473, 484 (2000); Rose v. Lee, 252 F.3d
676, 683 (4th Cir. 2001). We have independently reviewed the
record and conclude that Williams has not made the requisite
showing. Accordingly, we deny Williams leave to proceed in forma
pauperis on appeal, deny his motion for 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
*
The parties consented to the jurisdiction of the magistrate
judge. See 28 U.S.C. § 636(c) (2000).
- 2 -
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Order Michigan Supreme Court
Lansing, Michigan
April 5, 2017 Stephen J. Markman,
Chief Justice
Robert P. Young, Jr.
Brian K. Zahra
154476 Bridget M. McCormack
David F. Viviano
Richard H. Bernstein
AUDREY TROWELL, Joan L. Larsen,
Plaintiff-Appellee, Justices
v SC: 154476
COA: 327525
Oakland CC: 2014-141798-NO
PROVIDENCE HOSPITAL AND
MEDICAL CENTERS, INC.,
Defendant-Appellant.
_________________________________________/
On order of the Court, the application for leave to appeal the August 16, 2016
judgment of the Court of Appeals is considered. We direct the Clerk to schedule oral
argument on whether to grant the application or take other action. MCR 7.305(H)(1).
The parties shall file supplemental briefs within 42 days of the date of this order
addressing whether the claims in the plaintiff’s complaint sound in ordinary negligence or
medical malpractice, Bryant v Oakpointe Villa Nursing Centre, Inc, 471 Mich 411
(2004). The parties should not submit mere restatements of their application papers.
I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
April 5, 2017
d0329
Clerk
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207 F.Supp. 700 (1962)
VILLAIN & FASSIO E COMPAGNIA INTERNAZIONALE DI GENOVA SOCIETA RIUNITE DI NAVIGAZIONE, S.P.A., as owner of the MOTOR VESSEL ANGELA FASSIO, Libelant,
v.
The TANK STEAMER E. W. SINCLAIR, her engines, boilers, etc., and Sinclair Refining Company, Respondent (and Cross-Suit).
United States District Court S. D. New York.
August 2, 1962.
*701 *702 Ehrich, Stock, Valicenti, Leighton & Holland, by Albert D. Jordan, Robert Nicol and Gordon W. Paulsen, New York City, for libelant.
Burlingham, Underwood, Barron, Wright & White, by Stanley R. Wright, and Edward L. Wyckoff, New York City, for respondent.
EDELSTEIN, District Judge.
This is a consolidated cause arising out of a collision between the motor vessel ANGELA FASSIO and the tanker E. W. SINCLAIR on the morning of December 3, 1959, in the Delaware River. The ANGELA FASSIO, owned by libelant, Villain & Fassio E. Compagnia Internazionale Di Genova Societa Riunite Di Navigazione, S.p.A. (Villain & Fassio), was built in 1956. She is 492 feet long, 62 feet abeam, of 7016 gross tons, and powered by 5500 h. p. diesel motors. At the time of the collision her drafts were about 12' 1" forward and 16' 9" aft. The E. W. SINCLAIR, owned by respondent Sinclair Refining Company (Sinclair), is a tanker built in 1942. She is 520 feet long, 72 feet abeam, of 10,907 gross tons and powered by a 6000 h. p. turbine. On the day of collision, her drafts were approximately 31 feet forward and 30' 6" aft.
On the trial, the only really substantial dispute as to the facts concerned the nature and timing of certain signals sounded by the FASSIO. The chronicle of this collision is fairly well established by the evidence.
On the fateful morning, the ANGELA FASSIO, inbound from New York to Philadelphia under the command of Captain Giovanni Zustovich, picked up a Delaware River pilot at 6:45 a. m. at the Pilot Station. She proceeded up the river until fog was encountered at about 9:00 a. m. near Buoy 42. Believing that it was dangerous to continue up the river, the master and pilot made preparations to turn to starboard out of the *703 channel in order to anchor. By 9:20 a. m. the FASSIO was properly and lawfully anchored in the fog off Arnold Point, approximately 250 meters east of the Liston Range of the Delaware River channel. She was anchored 0.4 of a mile northwest of Buoy 42 to three shots of chain (45 fathoms) on a heading of 150° true, directly into a flood current of about 1½ knots then running up channel in a northwest (330° true) direction. Visibility in the area at that time was limited to 100 yards due to the dense fog prevailing. The captain and watch officer remained on the bridge while the pilot went below to rest. A double anchor watch, consisting of the ship's carpenter and an able-bodied seaman, was posted on the bow. From the time of anchoring to the time of collision, the fog bell signal prescribed by the Inland Rules, 33 U.S.C. § 191, 33 U.S.C.A. § 191 (1958), was sounded continuously by the anchor watch.
Sometime before the collision, the chief officer of the FASSIO, then standing on the starboard wing of the bridge, reported to the captain that he thought he heard a distant whistle signal. Almost immediately thereafter, the watch officer reported a target on the radar screen. At what time this happened, as well as the timing of all the subsequent events, is vigorously disputed by the SINCLAIR. Resolution of these questions of fact is difficult in view of the conflicting testimony. But the course of events is clear even if the precise moment when each act took place is not. For the moment, the narrative will proceed using the timing urged by the FASSIO.
When these two reports were given to the captain, approximately twenty minutes before the collision, he remained on the wing of the bridge for a minute or two, listening for a further signal. Hearing nothing, he relieved the watch officer at the radar screen. The radar with which the FASSIO was equipped was a Decca model, in good working order, which had been set on a three mile range. Calibration of the radar had been checked by visual comparisons the prior evening and that same morning. Captain Zustovich observed the target to be 2.2 miles distant and approaching on the easterly edge of the channel. By observing the approaching target's movement over a three-minute period, he computed its speed to be twelve knots or better. Continuing his radar observations, the captain correctly determined that the approaching target was a ship moving at high speed on the extreme easterly edge of the channel.
As the captain continued to observe the oncoming vessel he became apprehensive. He knew that the fog was present around Buoy 42, having encountered it only a half hour earlier, and knew that visibility was limited to 100 yards. He was aware that the limit of range of a fog bell was about 0.3 of a mile. He had no way of knowing whether the other vessel had radar.[1] Thus, he was concerned lest his presence and position *704 were not known to the other vessel. He considered the possibility that the approaching vessel might intend to anchor due to the fog, as he himself had done earlier. In any event, he knew that the current was setting in somewhat of an easterly direction from the channel toward his vessel. He could not be certain that the moving vessel was not slightly to the east of the channel. Based upon all these factors and the high speed of the approaching vessel, Captain Zustovich was concerned that his bell would not be heard in time to prevent a collision. Fearful that a danger of collision existed, he decided to give a signal, supplementary to his bell, to warn the approaching vessel of his presence and position.
When the approaching vessel was a mile away, according to his radar observations, the captain personally sounded the international "R" signal (a short blast of one second, a long blast of five seconds, and a short blast of one second). He observed that the ship's clock mounted in the forward bulkhead of the bridge showed the time as 9:44 plus a few seconds. When the approaching vessel was 0.5 of a mile distant, near Buoy 42, and continuing to approach with apparently undiminished speed, the captain ordered the chief officer to sound the "R" signal again. The watch officer observed the ship's clock to show 9:47 at the time the second signal was sounded.
Here there is a slight discrepancy in the evidence. At the trial, the captain testified that shortly after the second whistle signal was sounded he saw the target of the approaching ship merge with the target of Buoy 42 on the radar screen and almost immediately lost the image of the ship in the "sea return." This is a bright disc or spot in the center of the radar screen caused by the reflection of the radar waves from the waters near the vessel. In his nautical journal, the captain recorded that the approaching vessel's pip merged with Buoy 42 a moment before he ordered the sounding of the second "R" signal. I do not believe that it makes any difference whether the pip merged with the image of the buoy a moment before or a moment after the signal sounded. Suffice it to say that the second signal was made at about the time the SINCLAIR was at Buoy 42.
After the second signal was sounded, Captain Zustovich went to the starboard wing of the bridge and ordered the anchor watch to "intensify to the maximum" the ringing of the fog bell. The captain and his officers remained on the starboard wing of the bridge until, some three minutes later, the E. W. SINCLAIR came out of the fog at observably high speed and struck the ANGELA FASSIO. The time of the collision, according to the clock aboard the FASSIO was 9:50 a. m.
On the SINCLAIR, meanwhile, events were proceeding apace. The E. W. SINCLAIR, inbound to Philadelphia on a coastwise voyage from Texas with a full cargo of 16,000 tons of Bunker "C" heating fuel, was under the command of Captain Richard E. Dutson. She arrived at the Pilot Station shortly after the FASSIO and picked up her pilot, Francis Reardon, shortly before 7:00 a. m. The vessel then proceeded up channel in clear weather with visibility extending up to twelve miles. She was proceeding at a sea speed of 13.3 knots. A freighter, which later proved to be the ANGELA FASSIO, was observed by the captain and pilot approximately four miles ahead of the SINCLAIR. She was proceeding rapidly up the channel and not much attention was paid to her. Nor was any effort made to keep track of her.
About half way between Ship John Light and Buoy 42 fog was observed approximately two miles ahead in the vicinity of Buoy 42. Discussing the situation, the captain and pilot decided that they would make Buoy 42, and that if the fog was dense after entering it, the SINCLAIR would anchor north of Buoy 42. Accordingly, the engines were put on standby, the chief mate was ordered to stand by the anchor, a lookout was *705 posted on the bow and fog signals were commenced. The order to the engine room was for the purpose of bringing the ship's speed from sea speed to maneuvering speed. The order is regularly given approximately ten minutes before intended maneuvers in order to enable the engine room personnel to adjust the engines and boilers so as to be able to undertake maneuvers involving changes of speed. The effect of the order, when accomplished, was to reduce the engine revolutions from 88, yielding a sea speed of about 13 knots to 66 revolutions, yielding about 10 knots.
It is at this point in the narrative that the timing of the various acts is disputed. The engine maneuvers of the SINCLAIR were recorded in the Engine Room Bell Book. The book is kept in the regular course of business by the engine room personnel, who immediately record all orders which are received. They are not influenced by what is transpiring above decks, nor are they concerned with the reasons for any particular order. The entries in the bell book conflict in some respects with the testimony of the captain and pilot and with some of the entries made in the deck logs. The entries in the latter documents, unlike those contained in the Engine Room Bell Book, were not made simultaneously with the event. I find that the Engine Room Bell Book constitutes the best evidence of the engine maneuvers and their timing, and it is so accepted.[2]
Counsel for the SINCLAIR, recognizing the inherent trustworthiness of the bell book entries, now also agrees that they provide the best evidence of what occurred on the day in question. It is not surprising, however, that he places a different interpretation on the entries contained therein. Before attempting to resolve the different theories as to the timing of the events, we shall continue the narrative according to the version urged by the SINCLAIR.
About the time the SINCLAIR entered the fog, Buoy 42 was sighted close *706 at hand on her starboard side. The testimony from the SINCLAIR was that just at that time a signal consisting of three short blasts was heard from ahead. The captain and the pilot knew that the direction and distance of whistle signals heard in fog can be misleading. They were unable to determine the distance of the signal. Nevertheless, the captain and the pilot positively placed the direction of the signal as coming from ahead. Believing that the signal they heard was a backing signal, they assumed that a southbound vessel was in the channel with her engines going astern. The testimony was that the pilot then ordered the engines stopped and ordered a turn of 20° right rudder. Those in charge of the SINCLAIR testified that shortly thereafter they heard a second group of three blast signals, similar to the first, and the pilot immediately ordered full speed astern. Moments later, the SINCLAIR sighted the FASSIO, but it was too late to avoid the collision.
The SINCLAIR collided heavily with the anchored ANGELA FASSIO. The fluke of the starboard anchor and flare of the starboard fo'c'sle of the SINCLAIR struck the starboard side of the FASSIO approximately at the forward end of her No. 1 hold, raking and tearing the steel plates and frames of the starboard side of the FASSIO to the after part of her No. 3 hold, a distance of approximately 180 feet. The SINCLAIR, with her engines full astern, came to rest immediately alongside of and parallel to the anchored FASSIO. The time of collision was recorded on the FASSIO at 9:50 a. m. and recorded on the SINCLAIR as 9:47 a. m.
The FASSIO's theory is that the SINCLAIR recklessly proceeded through the fog at high speed, and she ignored whatever signals she heard and that her 20° right turn out of the channel was for the purpose of anchoring due to the dense fog. SINCLAIR's theory is that she turned right onto a collision course in response to an erroneous and misleading signal from the ANGELA FASSIO. Although some of the facts are sharply disputed, the principles of law governing this case are clear.
A vessel properly at anchor, as was the FASSIO, is entitled to the highest degree of privilege. In a collision between a moving vessel and an anchored vessel, the anchored vessel is presumed to be innocent. "[T]here is not only a presumption in her favor, by the fact of her being at anchor, but a presumption of fault on the part of the other vessel, which shifts the burden of proof upon the latter." The Oregon, 158 U.S. 186, 197, 15 S.Ct. 804, 39 L.Ed. 943 (1894). "Such presumption can be wholly overcome only by proof that the moored vessel was solely at fault, that the moving vessel was without fault, or that the collision resulted from an inevitable accident. Carr v. Hermosa Amusement Corp., Ltd., 9 Cir. 1943, 137 F.2d 983; The Clarita and The Clara, 23 Wall. 1, 23 L.Ed. 146; The Oregon, 158 U.S. 186, 15 S.Ct. 804, 39 L.Ed. 943." United Fruit Co. v. Mobile Towing & Wrecking Co., 177 F.Supp. 297, 301 (S.D. Ala.1959); The Cananova, 297 F. 658 (E.D.Pa.1923); Griffin, Collision § 145 (1949). The SINCLAIR has not rebutted the presumption of fault on her part. On the contrary, the evidence conclusively shows that she was at fault for proceeding through the fog at an immoderate rate of speed.
Article 16 of the Inland Rules, 33 U.S.C. § 192 (1958), 33 U.S.C.A. § 192 provides:
"Every vessel shall, in a fog, mist, falling snow, or heavy rainstorms, go at a moderate speed, having careful regard to the existing circumstances and conditions."
Although each case must depend upon its own facts and circumstances, definitions of "moderate speed" in fog are not wanting. "What is moderate speed under such circumstances is a rate of speed not in excess of that which will permit a vessel to stop within the distance she can see another vessel with which she may be in danger of collision." The Tuxedo, 77 F.2d 354 (2d Cir., 1935); The *707 Nacoochee, 137 U.S. 330, 339, 11 S.Ct. 122, 34 L.Ed. 687 (1890); The Colorado, 91 U.S. 692, 702, 23 L.Ed. 379 (1876). The rule is stated not only in terms of the range of visibility but also in terms of requiring the vessel to be able to stop before a collision occurs. Furthermore, the moderate speed provision requires that the vessel slacken speed before entering a fog bank, "because otherwise she could not comply with the rule that requires her to be going at `moderate speed' the moment she is in it." The City of Alexandria, 31 F. 427, 431 (S.D.N.Y.1887); The Munalbro, 280 F. 224, 226 (D.Mass.1922); Donnell v. Boston TowBoat Co., 89 F. 757, 761 (1st Cir. 1898), cert. denied, 172 U.S. 648, 19 S.Ct. 884, 43 L.Ed. 1182 (1899).
No matter what faults she attempts to attribute to the FASSIO, the SINCLAIR cannot avoid the fact that her speed was excessive. This is indicated by the time it took her to traverse the distance of 4.3 miles between Ship John Light and the point of collision. This was accomplished in twenty minutes, making an average speed of 12.9 knots, as compared with her sea speed of 13.3 knots. And during this time, half this distance was covered after her engines had been ordered to maneuvering speed. Furthermore, the SINCLAIR's speed was computed by Captain Zustovich based upon his radar observations. As the SINCLAIR came out of the fog her bow wave was also observed by those on the FASSIO as indicating a speed of about 10 knots, and she closed the distance of visibility in seconds. Notwithstanding that her engines were going full astern at the moment of impact, the SINCLAIR raked down the side of the FASSIO for a distance of approximately 180 feet with such force that she tore through the steel plates and steel frames of the FASSIO. The evidence bears out the conclusion that the SINCLAIR was travelling at about 10 knots through the water. Although visibility was only about 100 yards, it would have taken the fully loaded SINCLAIR, while travelling at that speed, between 2000 and 3500 feet (0.4 to 0.7 of a mile) to come to a standstill after an emergency full astern order was given. Under the circumstances prevailing on the morning of the collision, the SINCLAIR's speed was clearly excessive and constituted a statutory fault in violation of Article 16 of the Inland Rules. 33 U.S.C. § 192 (1958), 33 U.S.C.A. § 192.
The ANGELA FASSIO charges the SINCLAIR with yet another fault with respect to her maneuvers on hearing a whistle signal from the fog. The second paragraph of Article 16 of the Inland Rules, 33 U.S.C. § 192 (1958) 33 U.S. C.A. § 192 provides as follows:
"A steam vessel hearing, apparently forward of her beam, the fog signal of a vessel the position of which is not ascertained shall, so far as the circumstances of the case admit, stop her engines, and then navigate with caution until danger of collision is over."
There is no dispute over the fact that the SINCLAIR turned to starboard at some point. The FASSIO contends, however, that this turn was not made in response to any signal, that the engines were not stopped, and that the purpose of the turn was to proceed to anchor. The SINCLAIR urges that her turning maneuver was made in response to a three blast signal from the FASSIO which was heard aboard the SINCLAIR just as she passed Buoy 42. It is here that a sharp conflict exists over the facts. Although I am not at all persuaded by the timing urged by the SINCLAIR, I shall assume her version for purposes of resolving the question of fault for the turning maneuver.
The SINCLAIR urges that the moment the signal was heard when the vessel was near Buoy 42, her captain and pilot assumed that it came from ahead. It indicated to them that a vessel was under way in the channel with her engines going astern. Since there is no cross traffic in the channel, they assumed that the signal they heard came from a southbound vessel. They further *708 assumed that such a vessel with her engines going astern would tend to pivot her stern to port bringing her over onto the SINCLAIR's side of the channel. Thus, the SINCLAIR's captain and pilot assumed that the safest maneuver was to get out of the channel. They preferred to risk a grounding rather than a collision. They testified that the engines were stopped and a 20° right rudder was ordered.
Although there is no absolute rule barring a change of course before the position of the other vessel is ascertained with certainty, this statement is subject to qualification. "A vessel in fog, hearing the signal of another vessel from such a direction as to involve risk of collision, should not alter helm blindly, nor, above all, should she try to make an alteration of helm take the place of proper speed control." Griffin, Collision, § 129 at 324 (1949). In The Vindomora, [1891] A.C. 1, 5, cited by SINCLAIR, Lord Herschell indicated that "in each particular case you must look to see what the circumstances were, and inquire in each particular case, were there circumstances existing which justified the manoeuvre executed, or which prevented that manoeuvre from being a wrong manoeuvre?"
Under the circumstances existing in this case, there is certainly substantial doubt as to the propriety of the SINCLAIR's maneuver. The assumptions upon which she seeks to justify it are questionable. Her captain and pilot assumed that the vessel which was apparently forward of her beam was southbound. They discounted the possibility that she might be northbound because they had not seen another vessel going north. But they had seen the FASSIO heading north earlier in the morning. Merely because the FASSIO had been proceeding up channel rapidly in clear weather did not justify the SINCLAIR in ignoring the possibility that the fog had slowed her down. Merely because the SINCLAIR chose to speed through the fog was no warrant for assuming other vessels would fail to heed the Rules and moderate their speeds. They also discounted the possibility that the signal might have come from a vessel that was maneuvering to anchor or from a vessel that was maneuvering to leave an anchorage. Furthermore, the assumption that a backing vessel's stern will swing to port was supported by a reference to Crenshaw, Naval Shiphandling, 445 (2d ed. 1960). This treatise indicates that the proposition is correct when a vessel is moving from a position dead in the water or moving with little way on. "[B]ut when proceeding Ahead, the conflicting forces may reduce the Side Force markedly or even reverse it. There may be cases where a single-screw ship has a tendency to veer to the Right when moving ahead." Ibid.
Before a helm action is taken in fog, there must be a determination of the other vessel's position which is more than a mere surmise or speculation. Given the prevailing conditions of fog and the known propensity of fog to distort sounds so that determination of position, distance and course is uncertain, The City of New York, 147 U.S. 72, 84, 13 S.Ct. 211, 37 L.Ed. 84 (1893), the SINCLAIR was not warranted in assuming that the vessel she heard was in any particular place or on any particular course. The Celtic Monarch, 175 F. 1006 (9 Cir. 1910). "Her blind alteration of course hard right to starboard, on a mere guess that she might thus avoid collision was clearly a fault * * *." Afran Transport Co. v. The Bergechief, 274 F.2d 469, 472 (2d Cir. 1960); see Griffin, Collision § 129 (1949). The cases cited by SINCLAIR to justify her maneuver do not excuse her. In The Vindomora, supra, the Court's refusal to lay down a hard and fast rule prohibiting course changes was premised upon "a sufficient indication of the position of the other" vessel. [1891] A.C. at 9. In The Umbria, 166 U.S. 404, 17 S.Ct. 610, 41 L.Ed. 1053 (1897), the Court recognized that a change of helm is not a fault in every case. Under the facts of that case, the Court found sufficient justification for the IBERIA's change of course. *709 And the gross fault of the UMBRIA was such that the Court was unwilling to attribute a fault to the IBERIA which would require her to share the damages. In The Lepanto, 21 F. 651, 658 (S.D.N.Y. 1884), the court indicated that the sound heard came from "a precise direction." Moreover, the exoneration from fault for a course alteration was conditioned on the change being "accompanied by the order to stop and reverse at full speed * * *." 21 F. at 659. Thus, although course changes in fog are not condemned universally, the situations where the master's judgment to alter course is approved comprehend circumstances where the position and course of the other vessel are ascertained and where proper speed is maintained. See Griffin, Collision 326-27 (1949) and cases cited.
Surely, the more prudent course for the SINCLAIR would have been to take off her way and come to a stop in the water before maneuvering. This would have required the engines to be put full astern. But because of the speed at which she was moving, it would have taken her a minimum of four ship lengths to stop, a distance concededly beyond the range of her visibility. Upon hearing a signal from out of the fog she was faced with a dilemma; to reverse engines and stay in the channel while trying to stop, or to take her chances to the right of the channel. Generally, a master will not be charged with a fault for a reasonable judgment which he makes in a moment of peril. See Green v. Crow, 243 F.2d 401, 403 (5th Cir. 1957); Petition of Socony Vacuum Transp. Co., 93 F.Supp. 718, 727 (S.D. N.Y.1950). But this is only the case where the master is put into a position of peril not of his own making. The SINCLAIR's dilemma here is clearly attributable to her excessive speed. For purposes of this analysis, we may even disregard the question of what signal the FASSIO sounded. It is apparent that the SINCLAIR was concerned less with its character than with its direction.[3] Had she heard the "R" signal or a danger signal instead of the three blast backing signal she claims to have heard, it is reasonably probable that her actions would have been the same. She heard a signal forward of her beam and apprehended a collision with a vessel presumed to be in front of her. Her maneuver to the right ensued. If in fact her turn was made in response to a signal, it was made because her excessive speed left her no alternative. Her helm order at the speed she was travelling in fog was clearly dangerous. Had the SINCLAIR been travelling at the moderate speed which the Rules require, she could easily have stopped and ascertained the presence of the signalling vessel. And if she made a judgment to turn, she could have stopped upon sighting the FASSIO, had her speed been moderate.
Counsel for the SINCLAIR argues that the court should be guided by the probabilities in determining the truth where the facts are in dispute. He contends that it is improbable that a fully loaded tanker would be guilty of maneuvering through the fog at a rate of speed in violation of the Inland Rules. The facts, however, conclusively prove that the SINCLAIR was proceeding at a speed in excess of that demanded by the Rules. "The fact that the rule is *710 more honored in the breach than in the observance, merely means that people are usually willing to take chances rather than submit to the galling necessity of poking about in a fog * * *." Anglo-Saxon Petroleum Co., Limited, of London, England v. United States, 222 F. 2d 75, 78 (2d Cir.), rehearing denied, 224 F.2d 86 (2d Cir. 1955). In addition to her statutory fault of excessive speed, the SINCLAIR is also chargeable with the fault of failing to navigate with caution.
Where the fault of the moving vessel is clear, as it is here, she is solely liable for colliding with an anchored vessel, unless she can show with equal clarity that the accident was caused by the fault of the anchored vessel. The Oregon, supra; The Newburgh, 130 F. 321 (2d Cir. 1904); see The Virginia Ehrman, 97 U.S. 309, 315, 24 L.Ed. 890 (1878). Since the faults of the SINCLAIR are "sufficient to account for the disaster, it is not enough for such vessel to raise a doubt with regard to the management of the other vessel." The City of New York, supra, 147 U.S. at 85, 13 S.Ct. at 216. She must prove a fault on the part of the FASSIO, and that the fault contributed to the collision. But even if this be proved, the best that SINCLAIR can hope for is a decree for divided damages, for her own navigation was hardly free from fault. Nevertheless, with what little grace can be mustered under the circumstances, the SINCLAIR attempts to persuade the court that the FASSIO should be held for the entire damage. The SINCLAIR charges that the FASSIO was at fault in sounding an improper whistle signal, in failing to ring the fog bell, in failing to maintain a proper lookout and in failing to slack the anchor chain.
Before deciding whether the signal made by the FASSIO was improper, it is necessary to resolve the conflict over what signal she did sound. The SINCLAIR urges that it was a three blast backing signal. In discussing the faults of the SINCLAIR, I accepted, for purposes of argument, that the FASSIO sounded three short blasts and that this was what the SINCLAIR heard. I find as a fact, however, that the signal sounded by the FASSIO was the "R" signal, one short, one long, and one short blast. Counsel for the SINCLAIR, in arguing that the signal was three short blasts, urges that it is improbable that Captain Zustovich counted off the seconds in sounding the signal. I find that he did. The court observed the captain when he gave his testimony at the trial and was impressed with his truthfulness. It is entirely credible that he counted off the seconds in sounding the signal and that he remembered the time when he sounded the first "R" signal. The details surrounding this collision have been seared indelibly in his recollection. His testimony was corroborated by that of Officer Branca, whom I found also to be a credible witness.
The question of whether the FASSIO was at fault in sounding the "R" signal can be broken down into two parts: (1) Was the master justified in sounding any supplementary signal and (2) was his choice of the "R" signal improper?
As a properly anchored and privileged vessel, the FASSIO was subject only to the specific requirement that the fog bell be rung. 33 U.S.C. § 191(d), (1958) 33 U.S.C.A. § 191(d); see The Oregon, supra. But had she done nothing more, her conduct certainly would have been questioned under the General Prudential Rule, 33 U.S.C. § 221 (1958), 33 U.S.C.A. § 221.[4] Where a vessel apprehends danger and does nothing within her power to avoid or mitigate *711 a collision, she is hardly discharging her duty to take the precautions required by the special circumstances of the case. See Griffin, Collision § 157 at 371 (1949); cf., Chesapeake & O. R. Co. v. Cleveland Tankers, Inc., 121 F.Supp. 830, 834 (E.D.Mich.1954). The master of the FASSIO, based upon his radar observations and the prevailing conditions of fog, apprehended danger. He considered the speed of the SINCLAIR, her position on the extreme easterly edge of the channel, the set of the current, the possibility that the SINCLAIR would anchor as he had done, and that the distance within which his fog bell could be heard would not provide adequate warning to the other vessel at the speed she was travelling. See Petition of Socony Vacuum Transp. Co., supra, 93 F. Supp. at 734, 736. The master's prudent decision to sound a supplementary signal was not a fault.
The only fog signal provided for by the Inland Rules for vessels at anchor is the fog bell. 33 U.S.C. § 191(d) (1958), 33 U.S.C.A. § 191(d). The International Rules do provide, however, for a supplementary signal of the character sounded by the FASSIO. 33 U.S.C. § 145m(c)(iv) (1958), 33 U.S.C.A. § 145 m(c)(iv). And The Great Lakes Rules, by amendment in 1948, now require the "R" signal for vessels at anchor in fog. 62 Stat. 82 (1948), 33 U.S.C. § 271(e) (1958), 33 U.S.C.A. § 271(e). Although no case has been cited, nor has one been found, which specifically approved the "R" signal in inland waters, the use of supplementary signals has been sanctioned when danger of collision is apprehended. See The City of Alexandria, supra, 31 F. at 430; The Merchant Prince, 10 Prob.Div. 139 (1892); United States v. Woodbury, 175 F.2d 854, 861-62 (1st Cir. 1949). Petition of Clyde-Mallory Line, A 110-104, S.D.N.Y., May 20, 1937 (summary reported at 1937 Am. Mar.Cas. 837); cf. Union Shipping & Trading Co. v. United States, 127 F.2d 771, 773 (2d Cir. 1942). Both expert witnesses testified that supplementary signals are commonly used when prudent seamanship requires. Under the circumstances prevailing on the day of collision it cannot be said that the master of the FASSIO was at fault for sounding the "R" signal. It is a signal known to mariners and was known to the captain and pilot of the SINCLAIR. The signal provided, to those who would hear and heed it, the information that there was a vessel at anchor in the fog.
Counsel for the SINCLAIR argues that the sounding of the "R" signal was an unauthorized departure from the Inland Rules. 33 U.S.C. § 212 (1958), 33 U.S.C.A. § 212.[5] The cases cited do not bear out this contention. The Pennsylvania, 86 U.S. 125, 22 L.Ed. 148 (1873) did involve a misleading signal. But the fault was found because the barque did not give the required statutory signal and substituted an equivalent which was in fact misleading. In The G. K. Mellon, 30 F.2d 238 (2d Cir. 1929), a tug was held at fault for failing to sound regulation fog signals and her last minute alarm was held not to excuse her. No mention of supplementary signals is made. Similarly, in The Southway, 2 F.2d 1009 (E.D.N.Y. 1924), the employment of a substitute instead of the required signal was condemned. And in The Minnesota, 189 F. 706 (S.D.N.Y.1911) use of the horn instead of the prescribed whistle was found to be a fault. Counsel's quotations from Farwell, The Rules of the Nautical Road 173 (1954) and Knight, Modern Seamanship 377-78 (1960) similarly offer him little support. They do nothing more than describe the differences between the Inland and International Rules. Although Knight recognizes the availability of a danger signal *712 as a supplementary signal, neither treatise indicates a specific prohibition of the "R" signal under the circumstances of this case.
Assuming that the sounding of the supplementary signal was a departure from the Rules, it was one that was justified by the special circumstances here prevailing. 33 U.S.C. § 212 (1958), 33 U. S.C.A. § 212. SINCLAIR argues that any departure from the Rules is likely to cause confusion and increase the likelihood of collision. The case cited in support, Afran Transport Co. v. The Bergechief, supra, held it a fault to give a port to port passing signal in fog when not in sight of the other vessel. "Such a breach of the rules is bound to cause confusion and increase the probability of a collision." 274 F.2d at 472 (emphasis added). Although departures from the Rules to give supplementary signals may not be approved as a general practice, there may be circumstances where it becomes necessary to do so under the General Prudential Rule. 33 U.S.C. § 221 (1958), 33 U.S.C.A. § 221; Union Shipping & Trading Co. v. United States, supra, 127 F.2d at 773; United States v. Woodbury, supra, 175 F.2d at 861-62. Moreover, Article 27 of the Inland Rules specifically recognizes departures for special circumstances. 33 U.S.C. § 212 (1958), 33 U.S.C.A. § 212.
SINCLAIR contends further that if any supplementary signal was to be sounded, the FASSIO should have sounded a danger signal instead of the "R" signal.[6] The expert witnesses concurred that supplementary signals are regularly sounded and that whether or not to do so is a question of judgment. SINCLAIR now seeks to impugn the judgment of Captain Zustovich. Even if the master of the FASSIO is chargeable with an error of judgment, which I find he is not, it cannot be raised to the level of a fault on the facts of this case. "Where the master of a vessel, placed in a situation of peril not of his making, has, acting within the bounds of reason, done that which at the time and under the stress and strain of the moment seemed to be the best thing to do, he will not be charged with fault by second guessing after the event." Green v. Crow, supra, 243 F.2d at 403; The Maggie J. Smith, 123 U.S. 349, 355-56, 8 S.Ct. 159, 31 L.Ed. 175 (1887); The Queen Elizabeth, 122 F. 406, 409 (2d Cir.), cert. denied, 190 U.S. 560, 23 S. Ct. 855, 47 L.Ed. 1184 (1903). His actions are "not to be too freely criticised by those who navigating from the witness chair after the event may think that another course might have been better." The Gulfstar, 136 F.2d 461, 465 (3d Cir. 1943).
Even giving the SINCLAIR the best of all the arguments concerning the propriety of the supplementary signal would not require the FASSIO to share the damages. Sounding this supplementary signal here would be, at best, a passive or minor fault, and would come within the major-minor fault principle. See The City of New York, supra, 147 U.S. 72, 13 S.Ct. at 216, 37 L.Ed. 84; The Great Republic, 23 Wall. 20, 35, 90 U.S. 20, 35, 23 L.Ed. 55 (1874); The Europe, 190 F. 475 (9th Cir. 1911); The Lord O'Neill, 66 F. 77 (4th Cir. 1895); Gilmore & Black Admiralty, 402-04 (1957). The gross faults of the SINCLAIR so flagrantly and heavily outweigh any passive fault on the part of the FASSIO that in this case it is particularly apt to say that "the interests of justice are best served by condemning the more culpable vessel completely." Compania De Maderas De Caibarien, S. A. v. The Queenston Heights, 220 F.2d 120, 123 (5th Cir.), cert. denied, 350 U.S. 824, 76 S.Ct. 52, 100 L.Ed. 736 (1955).
After the close of the evidence, SINCLAIR obtained leave to amend the pre-trial order to reinstate certain claims of fault against the FASSIO. The claimed fault of the FASSIO in failing to ring her fog bell is unsupported by the evidence. I find that she did *713 ring her bell as required by the Rules, 33 U.S.C. § 191(d) (1958), 33 U.S.C.A. § 191(d). I also find that the charge that the FASSIO failed to maintain a proper lookout is unsupported by the evidence. SINCLAIR further contends that the master was at fault for failure to recall the pilot to the bridge when he apprehended danger. No such duty or requirement has been shown by SINCLAIR. At the trial, counsel indicated that this was a question of law. He has failed to support this position. The case cited, Union Shipping & Trading Co. v. United States, 127 F.2d 771, 795 (2d Cir.1942), does not bear out his contention. I find no fault on the part of the master of the FASSIO in this respect.
SINCLAIR's final argument in attempting to shift the responsibility for this collision onto the FASSIO is that the latter was at fault in failing to slack her anchor chain. The record is almost entirely barren of any mention of slackening the anchor chain. And in any event the SINCLAIR has failed to show that there was any impropriety in failing to slack chain under the circumstances of this collision. The anchored vessel, though privileged, has the same duty as any other vessel to avoid collisions when it is within her power to do so. Any duty to pay out more anchor must depend upon the circumstances; i. e., whether the vessel has the time and opportunity to do so. See The Europe, supra, 190 F. at 479; Griffin, Collision § 157 (1949). The cases cited by SINCLAIR are not apposite. The Ciudad de Reus, 185 F. 391 (2d Cir.1911), involved vessels at anchor which were dragging on their chains. The statements there made do not bear on this case. In The Ailsa, 76 F. 868, 874 (S.D.N.Y.1896), aff'd 86 F. 475 (2d Cir.,), cert. denied, La Bourgagne, 172 U.S. 646, 19 S.Ct. 883, 43 L.Ed. 1180 (1898), the court found that the anchored vessel should have slacked chain when the oncoming vessel was sighted visually, and the court was persuaded that there was sufficient time for the collision to have been thereby averted. That is not the case at bar, for here there were but seconds from sighting to collision. The SINCLAIR has not demonstrated, and I am not persuaded, that the collision would have been avoided had the FASSIO slacked chain. The better view is that stated in P. Dougherty Co. v. United States, 168 F.2d 464, 466 (2d Cir.1948), where the court refused to hold that the anchored vessel "when in extremis was under any duty to try such a doubtful expedient." Thus, I find no fault with the FASSIO for failing to slack her chain.
Under the foregoing analysis of this case, it was not necessary to resolve all the disputed questions of timing raised by the parties. For even accepting the timing of the FASSIO's signals as urged by the SINCLAIR, I have found SINCLAIR at fault. However, in order that the record be complete, the court will indicate its findings on the question of timing. I find that the timing of the signals as urged by the FASSIO is correct. The witnesses for the FASSIO were wholly credible and their testimony is accepted. Moreover, it is corroborated by the Engine Bell Book of the SINCLAIR.
Counsel agree that the Bell Book constitutes the best evidence with respect to the SINCLAIR's engine maneuvers and the times at which they were made. That exhibit shows that the order to place the engines on maneuvering speed was received at 9:35; that the first stop order was given at 9:47; that full astern was ordered at 9:47½; and that two emergency full astern orders were given at 9:48. Although it is apparent that the clocks on the SINCLAIR and the clocks on the FASSIO were showing different times, counsel for the SINCLAIR now attempts to adopt the 9:50 collision time of the FASSIO in order to make the SINCLAIR's engine room record conform to SINCLAIR's theory of the accident. But on the SINCLAIR, the collision was recorded by her officers as occurring at 9:47.
The credible testimony is that when SINCLAIR was one mile from the FASSIO, *714 Captain Zustovich sounded the "R" signal. This occurred six minutes before the collision. Three minutes later, a second signal was sounded. This is corroborated by the Bell Book which shows no engine order until 9:47 SINCLAIR time, seconds before the collision. Moreover, if the SINCLAIR timing were analyzed in detail, it would be seen that it was physically impossible for the vessel to traverse the distance from Buoy 42, the point where SINCLAIR claims to have reacted to the FASSIO's signal, in the span of time claimed. What was in the minds of the captain and pilot of the SINCLAIR which motivated them to maneuver as they did will remain forever in the realm of conjecture. But what is clear is that the SINCLAIR was careless and reckless and is solely at fault for the collision with the ANGELA FASSIO.
The final issue for disposition concerns the grounding of the E. W. SINCLAIR. After the collision, the SINCLAIR disengaged by going astern. She dragged along the FASSIO's anchor chain and the FASSIO facilitated her movement by letting out some more anchor chain. When the SINCLAIR was clear she was facing west, toward the channel. She kept backing to the east and then passed up the port side of the FASSIO. After drifting and maneuvering for awhile, the SINCLAIR eventually anchored about 1,000 yards east of the channel and a mile north of where the FASSIO still lay at anchor. There was no obstruction which prevented the SINCLAIR from maneuvering closer to the deeper water near the easterly edge of the channel. The pilot and master were merely concerned with getting clear of the FASSIO. Rather than maneuver toward the channel they chose the shallower water, preferring to go aground rather than risk encountering any channel traffic. The SINCLAIR was subsequently found to have gone aground.
The SINCLAIR claims that the grounding resulted from the collision and that the FASSIO is liable for the damage sustained by the SINCLAIR. The FASSIO claims that the grounding resulted from intervening acts of negligent navigation on the part of the SINCLAIR. She claims that the SINCLAIR should have anchored in deeper water near the channel and that the errors of judgment made in choosing an anchorage in shoal water were unconnected with the slight damage to her fo'c'sle which she sustained in the collision. Since the SINCLAIR has been found solely at fault for the collision and the FASSIO has been found to be without fault, I do not see how the FASSIO can be charged with responsibility for the grounding unless she did something subsequent to the collision which caused the SINCLAIR to go aground. No such argument has been made. Thus, even if the grounding resulted from the collision, the FASSIO cannot be held at fault for the grounding since she was not responsible for the collision. Indeed, whatever damage was sustained by the SINCLAIR due to her grounding was proximately caused by her own fault.
One final matter requires comment. After the trial of this action had been concluded and post-trial briefs submitted, counsel for the SINCLAIR moved to reopen the case to take the testimony of the oiler of the SINCLAIR who was on duty on the day of the collision. Oral argument was heard on the motion and a transcript was prepared as part of the record in this case. The motion to reopen was denied after argument.
Generally, under the admiralty practice, after a hearing is concluded, the case may be reopened and further proof received upon a proper showing and in furtherance of justice. See De Souza v. Dollar S. S. Lines, 292 F. 490 (W.D.Wash.1923). A reopening, however, will not be granted to admit further evidence where there is no showing that competent evidence will be produced. See The Bainbridge, 199 F. 404 (9th Cir.1912). Nor will it be permitted where the moving party might have offered the evidence in his main case but failed to do so. See The Persiana, 158 F. 912 (S.D.N.Y.1907). Oversight is *715 not a ground for reopening a case. See The Francis Wright, 9 Fed.Cas. p. 692 (No. 5044) (S.D.N.Y.1874), aff'd., 105 U.S. 381, 26 L.Ed. 1100 (1881). In order for a case to be reopened for the introduction of new evidence, the evidence must in fact be newly discovered, and must be material to the issues in the case. See Taylor v. Crain, 125 F.Supp. 314 (W.D.Pa.1954), reversed on other grounds, 224 F.2d 237 (3d Cir.1955). "After a case has been closed, whether or not it should be reopened is within the sound discretion of the trial court. Philadelphia & Trenton R. R. Co. v. Stimpson, 14 Pet. 448, 39 U.S. 448, 10 L.Ed. 535. Though it may be permitted in a proper case, it has been called a `pernicious practice'. Missouri Pac. Ry. Co. v. Oleson, 8 Cir., 213 F. 329. Where a party has not shown diligence in procuring a witness, the reopening of the case may be denied. Cincinnati, N. O. & T. Ry. Co. v. Cox, 6 Cir., 143 F. 110." Reconstruction Finance Corp. v. Commercial Union, 123 F.Supp. 748, 750 (S.D.N.Y.1954). The standards for the exercise of the court's discretion are the same under the Admiralty Rules and the Civil Rules. See Neville v. American Barge Line Co., 218 F.2d 190 (3d Cir. 1954); see generally 6 Moore, Federal Practice, 3722-28 (2d ed.).
The motion could have been denied simply on the face of the moving papers. Neither counsel's argument nor his offer of proof presented anything to persuade the court to exercise its discretion. It was not claimed that the prospective witness would give newly discovered evidence. His testimony would have been cumulative at best. Counsel had ample opportunity to avail himself of this witness, either in person or by deposition. I found not even a scintilla of merit to this application and accordingly it was denied.
In conclusion, it is clear that the E. W. SINCLAIR was guilty of two statutory faults. Her speed of 10 knots through the water (11½ knots over the ground) was excessive and a violation of Article 16 of the Inland Rules. 33 U.S.C. § 192 (1958), 33 U.S.C.A. § 192. Her navigation after hearing whistle signals forward of her beam from a vessel whose position was not ascertained was not cautious and constitutes a further violation of Article 16. The SINCLAIR has failed to rebut the presumption of fault which arises out of a collision between a moving vessel and an anchored vessel. The Oregon, supra. Moreover, having twice violated a statutory rule, the E. W. SINCLAIR had the burden of proving not only that her faults did not cause the collision, but that they could not have contributed to causing the collision. The Pennsylvania, supra. She has not sustained this burden. Indeed, her excessive speed and improper maneuvers were the direct cause of the collision and the damage suffered by the ANGELA FASSIO. At best, the SINCLAIR has succeeded in doing no more than raise a slight doubt as to the management of the FASSIO. See The City of New York, supra. I conclude that the FASSIO was not at fault. While the sounding of a supplementary signal by the FASSIO in addition to the prescribed fog bell did not succeed in avoiding the collision, it did not contribute to the collision. Sounding the supplementary signal, although not provided for specifically in the Inland Rules, is not prohibited by the Rules and was not a violation of the Rules. It was a proper exercise of prudent seamanship under the special circumstances prevailing. 33 U.S.C. §§ 212, 221 (1958), 33 U.S.C.A. §§ 212, 221.
Respondent, Sinclair Refining Company is responsible for the damages sustained by the ANGELA FASSIO. Libelant, Villain & Fassio, is not responsible for the damages sustained by the SINCLAIR, either as a result of the collision or the grounding. Villain and Fassio is entitled to a decree dismissing the libel of Sinclair Refining Company with costs. Villain & Fassio is also entitled to a decree on its libel against Sinclair Refining Company for the amount of its damages with interest and costs.
*716 The subject matter of this action and the parties thereto are all within the admiralty jurisdiction of this court. The foregoing opinion shall constitute the Findings of Fact and Conclusions of Law in accordance with Admiralty Rule 46½, 28 U.S.C.A.
Let a decree be entered accordingly.
NOTES
[1] The SINCLAIR was also equipped with radar. Her radar, however had failed after leaving Houston on this trip and was inoperative at the time of the collision. Under the circumstances of this case, no fault is chargeable to the SINCLAIR because her radar was inoperative, nor has the FASSIO urged this as a fault.
With the ever increasing use of radar at sea, it is becoming more and more a factor in cases arising out of collisions. The courts have not yet formulated definite rules requiring the use of radar. But if a vessel is equipped with properly functioning radar, there is an affirmative duty to use it in or near a low visibility area. See Afran Transport Co. v. The Bergechief, 274 F.2d 469, 474 (2d Cir. 1960) and cases cited; White Stack Towing Corp. v. Bethlehem Steel Co., 279 F.2d 419, 423 (4th Cir. 1960); Annot., 82 A.L.R.2d 764 (1962). In Afran Transport, the Court stated its view that the case of The T. J. Hooper, 60 F.2d 737 (2d Cir.), cert. denied, 287 U.S. 662, 53 S.Ct. 220, 77 L.Ed. 571 (1932), "shows which way the wind blows" with respect to the eventual establishment of a rule requiring radar. 274 F.2d at 474. If such a rule were now in existence, the failure of the radar on the SINCLAIR would have been an issue bearing on fault.
[2] Counsel for the FASSIO prepared a chart which compares the entries made in the Engine Bell Book with the entries made in the Deck Bell Book and Deck Log. The chart was admitted into evidence without objection as Exhibit 26. It is herewith reproduced.
E. W. SINCLAIR RECORDS
Comparison of Times Noted
for Particular Entries
Engine Bell Deck Bell Deck
Entry Book Book Log
Arrival Overfalls 0630 0630 0630
Full AheadPilot Reardon aboard 0653 0653 0653
Standby 0935 0937 0937
Engines stop 0947 0944
Full Astern 0947½ 0946 0945
Full Astern 0948
Full Astern 0948
Collision with Angela Fassio 0947 0947
Engines Stop 0950 0950½ 0950½
Full Astern 0951 0954
Full Astern 0952
Stop Engines 0958 0958
Slow Ahead 0958½ 0958
Full Astern 0959 0958½
Stop Engines 1001 1001
Slow Ahead 1001½ 1001½
Full Astern 1002 1002½
Stop Engines 1005 1004½
Slow Ahead 1005½ 1005
Stop 1018 1017½
Let Go Anchor 1019 1019
[3] This is borne out by Captain Dutson's testimony. In response to questions as to whether the signal might have come from a vessel maneuvering to anchor, the captain replied that such a possibility did not occur to him. His interpretation of what he heard was based upon the direction from which the sound came (SM 155-56, 159). Furthermore, if in fact, it was a backing signal which motivated the SINCLAIR to maneuver, those aboard her should also have assumed that a third vessel was present since the Rule provides that the backing signal is to be given when vessels are in sight of each other. 33 U.S.C. § 213 (1958), 33 U.S.C.A. § 213. Although the captain's testimony is somewhat unclear as to whether he thought the signals were addressed to his vessel or not, it is clear that he was galvanized into action by the direction from which he thought the signals came (SM 155-59).
[4] Article 29 of the Inland Rules, 33 U.S.C. § 221, (1958) 33 U.S.C.A. § 221 provides:
"Nothing in these rules shall exonerate any vessel, or the owner or master or crew thereof, from the consequences of any neglect to carry lights or signals, or of any neglect to keep a proper lookout, or of the neglect of any precaution which may be required by the ordinary practice of seamen, or by the special circumstances of the case."
[5] Article 27 of the Inland Rules, 33 U.S.C. § 212, (1958) 33 U.S.C.A. § 212, provides:
"In obeying and construing these rules due regard shall be had to all dangers of navigation and collision, and to any special circumstances which may render a departure from the above rules necessary in order to avoid immediate danger."
[6] Yet the master of the SINCLAIR admitted that if he heard an "R" signal he would treat it the same way he would a danger signal.
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828 F.2d 1496
James C. AGAN, Petitioner-Appellant,v.Richard DUGGER, Secretary, Florida Department ofCorrections, Robert L. Butterworth, AttorneyGeneral, Respondents-Appellees.
No. 87-3448.
United States Court of Appeals,Eleventh Circuit.
June 25, 1987.
Mark E. Olive, Asst. Capital Collateral Representative, Tallahassee, Fla., for petitioner-appellant.
Mark C. Menser, Asst. Atty. Gen., Dept. of Legal Affairs, Tallahassee, Fla., for respondents-appellees.
Appeal from the United States District Court for the Middle District of Florida.
Before FAY, VANCE and ANDERSON, Circuit Judges.
PER CURIAM:
1
The facts of this death penalty case are amply set forth in the Florida Supreme Court's opinion on defendant Agan's direct appeal. Agan v. State, 445 So.2d 326 (Fla.1983). The procedural history has been adequately set out in the district court opinion denying Agan habeas relief, a stay of execution, and a certificate of probable cause. Agan v. Dugger, slip op. (M.D.Fla. June 24, 1987).
2
Of the numerous issues raised by Agan in his appeal to this court, we need only address Agan's claim that he is entitled to an evidentiary hearing with respect to ineffective assistance of counsel in reaching our conclusion that a certificate of probable cause must issue in this case. We note that no court, state or federal, has afforded Agan an evidentiary hearing on this matter.
3
Agan's proffer of evidence suggests that his trial attorney spent a total of only 15 hours working on the case. Those 15 hours include time the attorney spent for investigation, at the guilty plea hearing, and at the sentencing hearing. Agan claims that his attorney conducted little or no investigation either for the guilt or sentencing phase of his case. The proffer further suggests that any adequate investigation would have disclosed substantial exculpatory evidence, including the following: that Agan had a significant history of mental problems, had been diagnosed at one or more times as psychotic and as a paranoid schizophrenic, had been taking medicine for psychosis at times crucial to the facts of this case, and, in the recent opinion of one Dr. Fox, was incompetent to stand trial at the time of the plea and sentencing hearing; that one of the prison officials who investigated the murder had a question as to whether Agan was the killer; that one or more inmates had pointed to someone other than Agan as the killer; and that one or more inmates had seen this other person leaving the area of the murder at about the crucial time. Furthermore, the proffer offers some evidence to suggest the possibility that Agan, for some reason--perhaps attributable to his mental problems--confessed, although innocent, and possibly was induced in this regard and coached by other inmates, possibly with the cooperation of prison officials.
4
Both the state courts and the district court discounted the foregoing proffer, holding that Agan's plea of guilty and detailed confessions made any such evidence irrelevant. That perspective overlooks the fact that the proffered evidence of mental problems is highly relevant to Agan's competence to stand trial and to the validity of the guilty plea itself. Moreover, all of the foregoing evidence would have been highly relevant at sentencing, even if the guilty plea itself were valid.
5
We conclude that Agan has made a " 'substantial showing of the denial of [a] federal right' " and that the issue is ' "debatable among jurists of reason.' " Barefoot v. Estelle, 463 U.S. 880, 893 and n. 4, 103 S.Ct. 3383, 3394 and n. 4, 77 L.Ed.2d 1090 (1983) (citations omitted). Thus, we hold that a certificate of probable cause must issue. The execution is stayed until further order of this court. "[A] court of appeals, where necessary to prevent the case from becoming moot by the petitioner's execution, should grant a stay of execution pending disposition of an appeal when a condemned prisoner obtains a certificate of probable cause on his initial habeas appeal." Barefoot, 463 U.S. at 893-94, 103 S.Ct. at 3395. The Clerk is directed to issue immediately the briefing schedule.
6
Agan's motion for a certificate of probable cause is GRANTED.
7
Agan's motion for a stay of execution is GRANTED UNTIL FURTHER ORDER.
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